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Ke Ao Maoli

Mauna Kea fight in court
by Peter Sur
Tribune-Herald Staff Writer
Published: Thursday, December 10, 2009 9:46 AM HST
Judge grills UH attorneys, opponents
The battle over Mauna Kea's future landed in Circuit Court on Wednesday, where attorneys for the University of Hawaii argued with a coalition of Hawaiian and environmental groups before Judge Glenn S. Hara.

The point of contention was a relatively technical one that avoided the merits of a lawsuit seeking to reverse the Board of Land and Natural Resources' approval of the Mauna Kea Comprehensive Management Plan.

The coalition sought a contested case hearing on the plan but was denied. The coalition appealed that denial, and on Wednesday, the parties argued over the university's motion to dismiss the coalition's appeal.

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Hara did not rule on the dismissal. If he rules in favor of the coalition -- Mauna Kea Anaina Hou, KAHEA, the Royal Order of Kamehameha I, the Sierra Club and Clarence Ching -- then a future hearing will be scheduled to appeal the BLNR's approval of the management plan.

Whichever side loses has the right to appeal Hara's decision.

Both sides agree that the mountain needs protection, but have vastly different ideas for doing so. The Hawaiian and environmental groups are opposed to the placing of more structures like the Thirty Meter Telescope on Mauna Kea, and want to block new development on the mountain by stopping approval of the management plan.

Hara previously ruled that no development can take place until the university has an approved management plan to preserve its vast cultural and natural resources.

The issue at stake is the BLNR's approval on April 9 of a university-developed management plan for Mauna Kea. During the two-day public meeting, some individuals and organizations spoke against the plan and requested a contested case hearing.

The land board on Aug. 28 denied their requests, and on Oct. 1 those denials were appealed.

University attorneys responded Oct. 20, arguing that the appeal must be dismissed for lack of jurisdiction, because according to state law, agency rulings can be appealed only after a contested case hearing. Since the BLNR had no contested case hearing, the court must dismiss, they said.

The petitioners replied on Dec. 1 that the April 8-9 BLNR meeting was a contested case hearing for purposes of appeal, making the land board's actions ready for judicial review.

Wednesday, Hara sharply questioned the coalition's attorney, Colin Yost, and the university's attorney, Lisa Munger.

At the beginning of the half-hour hearing, Hara questioned whether Yost's appeal of the April decisions was timely. But he was also critical of Munger's argument that the court should dismiss for lack of jurisdiction.

Hara said he was ready to rule, but allowed both sides to address the court.

Yost told the judge that the appeal of the April meeting was timely because no final order or decision was sent to the petitioners until Sept. 1.

Munger said that the April meeting did not meet the definition of a contested case; hence the court could not review the lawsuit.

"When you don't have jurisdiction, you don't have the ability to determine whether you should go back and have a contested case," Munger said.

Straying briefly from the motion at hand, Hara speculated the university's position "might be vindicated in terms of the actual hearing of the appeal."

"It may be that the adoption of the comprehensive management plan may be more akin to the adoption of a rule, more legislative than adjudicative," Hara said. And therefore more likely that it should not be subject to judicial review.

"I think there are possibilities, good possibilities that you may prevail on the appeal," Hara said. "But I can't dispose of that on the motion to dismiss."

Outside the courtroom, attorneys for both sides agreed that Hara asked the right questions.

"I think the judge asked both sides good questions and I'm confident that he'll consider all of the arguments from counsel in making his decision," Munger said.

Fundamentally, Yost said, the university and the BLNR are "seeking to avoid rigorous public evaluation of the comprehensive management plan. And this motion to dismiss is a continuation of that strategy, where they seek to not have the merits of the matter reviewed and evaluated by the court, but rather try to move the public from the process through technical legal arguments. And I think that that will not succeed."

The judge did not indicate when he would issue a ruling.

E-mail Peter Sur at psur@hawaiitribune-herald.com.

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