In re Contested Case Hearing re Conservation District Use Application

Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
30-NOV-2018
SCOT-XX-XXXXXXX
03:39 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
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, KAʻOHE MAUKA, HĀMĀKUA, HAWAIʻI, TMK (3)404015:009
________________________________________________________________
APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
(BLNR-CC-16-002 (Agency Appeal))
ORDER OF CORRECTION
(By: McKenna, J.)
IT IS HEREBY ORDERED that, pursuant to the Order
Granting in Part and Denying in Part Motion for Reconsideration,
filed by this Court on November 29, 2018, the Opinion of the
Court, filed October 30, 2018, is corrected as follows, in an
Amended Opinion to be filed concurrently with this Order of
Correction:
1. On pages 34-35, footnote 15 is deleted in its
entirety.
2. On page 36, footnote 17 is renumbered as footnote
16, and the footnote is modified to read the following, in full:
The Kihoi Appellants allege in Point of Error B(2) that the
BLNR erred by stating that Article XII, Section 7 does not
protect contemporary Native Hawaiian cultural practices.
The record reflects, however, that the BLNR appropriately
took into account contemporary (as well as customary and
traditional) Native Hawaiian cultural practices, finding
and concluding that none were taking place within the TMT
Project site or its immediate vicinity, aside from the
recent construction of ahu to protest the TMT Project
itself, which was not found to be a reasonable exercise of
cultural rights. Further, although the BLNR defined the
“relevant area” in its Ka Paʻakai analysis as the TMT
Observatory site and Access Way, the Board’s findings also
identified and considered the effect of the project upon
cultural practices in the vicinity of the “relevant area”
and in other areas of Mauna Kea, including the summit
region, as Ka Paʻakai requires. See 94 Hawaiʻi at 49, 7
P.3d at 1086 (faulting the agency for failing to address
“possible native Hawaiian rights or cultural resources
outside [the area at issue]”).
3. On page 72, the name of one of the attorneys for
appellee the University of Hawaiʻi at Hilo is corrected to
“Lindsay N. McAneeley.”
4. Other technical, non-substantive changes have been
made to the Amended Opinion.
The Clerk of the Court is directed to take all
necessary steps to notify the publishing agencies of these
changes.
DATED: Honolulu, Hawaiʻi, November 30, 2018.
/s/ Sabrina S. McKenna
Associate Justice
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