In re Contested Case Hearing re Conservation District Use Application ( 2018 )

Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
30-NOV-2018
07:59 AM
SCOT-XX-XXXXXXX, SCOT-XX-XXXXXXX, & SCOT-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
IN THE MATTER OF CONTESTED CASE HEARING RE CONSERVATION
DISTRICT USE APPLICATION (CDUA) HA-3568 FOR THE THIRTY
METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE,
KA#OHE MAUKA, HÂMÂKUA, HAWAI#I, TMK (3) 404015:009
APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
(BLNR-CC-16-002 (Agency Appeal)
ORDER OF CORRECTION
(By: Wilson, J.)
It is hereby ordered that the Dissenting Opinion by
Wilson, J., filed on November 9, 2018, is corrected as follows:
1. On page 13, footnote 7, numbers (2), (3) and (4) of
the block quote are deleted and replaced with:
(2) mitigation measures of restoring the abandoned Poli#ahu
Road and decommissioning the five telescopes will be
adopted, and (3) other measures to lessen the impacts of the
TMT will be adopted, the BLNR did not clearly err in
concluding that the TMT will not have a substantial adverse
impact to existing natural resources within the surrounding
area, community, or region, as prohibited by HAR § 13-5-
30(c)(4).
2. On page 15, footnote 8, the sentence starting on
line 7 that reads, “However, HAR § 13-5-30(c)(4) prohibits land
use in the conservation district where the land use will cause a
substantial adverse impact.” is amended to read “However,
contrary to the assumption of the Majority that TMT can proceed
conditioned on significant, long-term mitigation measures, HAR §
13-5-30(c)(4) prohibits land use in the conservation district
where the land use will cause a substantial adverse impact.”
3. On page 17, line 8, the word “international” is
deleted and replaced with “widely accepted principles of”, and
the word “protects” is deleted and replaced with “protect”.
4. On page 30, line 6, the words “of Trinidad and
Tobago” are inserted between the words “Policy” and “which”.
5. On page 31, footnote 18, the citation to “Clean
Water Act, 33 U.S.C. § 1362 (2014)” is corrected to “Federal
Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2012).”
6. The first five sentences of the paragraph beginning
on page 34, line 4, are deleted and replaced with a separate
paragraph reading:
The degradation principle peels away this protection. It
allows further degradation based on damage cumulatively caused
by prior impacts. The BLNR’s analysis regresses to a former
stage of the law—prior to the passage of HAR § 13-5-30(c)(4) in
1994—when the conservation district was not protected by the
proscription codified in HAR § 13-5-30(c)(4) barring land use
that causes a “substantial, significant and adverse” impact on
cultural resources. Per the degradation principle, protection
of cultural resources at the summit of Mauna Kea regresses to a
time prior to 1994, when the purpose of regulating land use in
the conservation district had not yet been specifically defined
by regulation as “conserving, protecting, and preserving the
important natural and cultural resources of the State[.]” HAR
§ 13-5-1 (1994).
7. Other technical corrections have been made
throughout the dissenting opinion.
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An Amended Dissenting Opinion will be filed
concurrently with this order.
DATED: Honolulu, Hawai#i, November 30, 2018.
/s/ Michael D. Wilson
Associate Justice
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