OHA intends to take state and UH to court

Accusing the state and University of Hawaii of having “grossly mismanaged” Mauna Kea, the state Office of Hawaiian Affairs has been working behind the scenes for months in a move to gain some control over the summit of Hawaii’s tallest mountain.

Now, having been rebuffed in its attempts, OHA is threatening to go to court over the issue.

OHA, whose trustees vowed to press for changes on the mountain when they voted to rescind their support for the Thirty Meter Telescope more than a year ago, entered formal mediation with the state and UH in November regarding a proposal to transfer management on the mountain.

But the state and UH attended only one session, and they have not provided a written response to a formal proposal as requested, according to a May 26 memo to the trustees by Dan Ahuna, chairman of the board’s Ad Hoc Committee on Mauna Kea.

“Thus it is very apparent that there is no real motivation or sense of urgency on the part of the (state) and UH to engage meaningfully with OHA,” Ahuna told his fellow trustees in the memo obtained by the Honolulu Star-Advertiser.

In a statement provided to the newspaper, Ahuna said, “OHA felt the only available recourse was to file notice, as required by law, of its intent to file suit over the mismanagement of Mauna Kea.”

The state and the university, which manages the summit under a lease from the state Department of Land and Natural Resources, were given formal notice May 31 that the suit would be filed in less than 60 days. That means a formal complaint could be filed as soon as the end of the month.

Joshua Wisch, special assistant to state Attorney General Doug Chin, said in a statement that the state has consistently negotiated in “good faith” and continues to be committed to “achieving progress through constructive dialogue.”

University officials acknowledged shortcomings on the mountain but said significant progress has been made over the past decade and a half.

“We take our stewardship very seriously,” UH spokesman Dan Meisenzahl said. “When you look at the last 16 years, we have a long record of accomplishment.”

The 13,796-foot mountain has been in the spotlight over the past couple of years as a group of Native Hawaiians, many of whom consider Mauna Kea sacred, blocked construction crews from starting the $1.4 billion TMT, billed as a “next generation” telescope capable of peering farther into space than ever before.

Construction was ultimately halted by the state Supreme Court in December, when it ruled that the state Board of Land and Natural Resources committed a due-process error in approving the project’s conservation district use permit in 2011 before holding a contested case hearing. The high court invalidated the permit and ordered a new hearing, which should be getting underway in the next few months.

In a May 31 letter notifying Chin of the agency’s intention to file suit, OHA attorney Robert Klein said the state for over five decades has “grossly mismanaged … a supremely spiritual” place and key resource within the Native Hawaiian public trust lands.

The state Constitution guarantees OHA a share of the income from these lands, comprised of Hawaiian kingdom lands, including Mauna Kea. State law gives OHA 20 percent of the income.

Klein’s letter says the state’s management failures on the mountain are documented in three “scathing” state audits, which he says describe the state’s management efforts as “inadequate, weak, neglectful and compounded by a lack of commitment.”

As a result, Mauna Kea has suffered excessive damage to its natural environment, historic properties and cultural resources, “and, in turn, its people, the beneficiaries of the public lands trust, have suffered as well,” according to the letter.

“Unless the state takes appropriate remedial action, OHA must hold the state accountable on behalf of its beneficiaries, who have bravely and respectfully taken a stand to protect this most sacred site,” Klein wrote.

OHA will pursue an award of land or monetary damages as compensation, the letter says.

In a white paper presented at the mediation and obtained by the Star-Advertiser, OHA suggests that oversight of the summit be taken away from the DLNR and the university and handed over to OHA.

“As a more experienced and proven land manager, OHA is best-suited to manage Mauna Kea in a manner consistent with the state Constitution and the applicable laws,” the document says.

Three state audits in 1998, 2005 and 2014 revealed serious problems in the management of the Mauna Kea lands, leaving fragile resources within the Mauna Kea Science Reserve in peril, the document says.

Problems detailed in the audits include significant damage to natural resources, failure to inventory cultural and natural resources, and issuing unauthorized commercial permits.

As the agency most invested in the balance between culture and science, OHA would be a more effective land manager of Mauna Kea, according to the document.

OHA already manages a range of properties, from conservation lands at Wao Kele o Puna to modern development in Kakaako as well as lands in Waimea Valley. OHA has a proven track record of productively managing land while complying with its fiduciary duties, the paper says.

OHA also submitted to the mediator a proposal that suggests joint management between DLNR and OHA, with a new board comprised of both DLNR and OHA members who would approve and enforce conservation district use permits, enforce comprehensive management plans and negotiate future leases.

Asked about the proposal to strip UH of its Mauna Kea authority, UH’s Meisenzahl said stewardship of the mountain has improved recently.

He said the original 1998 audit jolted the university into action and led to a dramatic turnaround. In fact, the last audit, he said, had a lot of positive things to say, including the following: “UH has developed several management plans that provide a comprehensive framework for managing and protecting Mauna Kea while balancing the competing interests of culture, conservation, scientific research, and recreation.”

Meisenzahl said the Mauna Kea rangers program was created to protect resources and provide public safety on the summit, and the university conducts regular monitoring of more than 250 cultural sites, including shrines; ahu, or altars; and burials identified in a survey completed for the entire Mauna Kea Science Reserve.

“The university takes its stewardship very seriously,” he said. “That said, we have more work to do. As long as we are responsible for the mountain, every day we will strive to do better.”

While OHA points to the UH management flaws noted by the state auditor, OHA has been the subject of similar criticism.

A September 2013 state auditor report notes, “As of February 2013, OHA owned or leased 28,206 acres, making it Hawaii’s 13th largest landowner. While these numbers may be impressive, we found that the OHA’s land management infrastructure is inadequate, unable to support the office’s growing portfolio nor any future land involvements.”

Kealoha Pisciotta, a leader of the Mauna Kea Hui petitioners, said OHA’s effort is news to her. and she’s surprised the agency didn’t reach out to those who have been trying to stop development on the summit for years.

While she agrees that the state and university have failed Mauna Kea, Pisciotta said she’s worried OHA’s motivations are political.

“I hope they aren’t just posturing for a land grab,” she said.

Another TMT foe, Campbell Estate heiress Abigail Kawananakoa, said she can support OHA’s move.

“It is evident that the Department of Land and Natural Resources and the University of Hawaii are incapable of handling their responsibilities,” she said in a statement. “Though OHA has been mismanaged since its inception, it is based in the Hawaii Constitution and is the only official organization we Hawaiian people have to protect our interests. I shall give my full support to this endeavor.”