The summit of Mauna Kea generally affords a clear-sky view, which is why it has served the astronomy campus there so well. But its future remains murky, with the latest legal challenge only the most recent cloud to descend over it.
The governance over the summit area, as lawmakers set up in 2022, is what’s at issue.
The Office of Hawaiian Affairs has gone to state Circuit Court asking to repeal the Mauna Kea Stewardship and Oversight Authority, established in Act 255, arguing that the state law is unconstitutional. OHA was designated in the state Constitution as the state agency managing the trust of resources for the benefit of Native Hawaiians.
This year’s newly convened Legislature should act to resolve at least part of the latest quandary, by amending the law to give OHA representation on the Mauna Kea authority board.
Act 255 sets out a transitional period extending to 2028, when the authority would replace the University of Hawaii in managing the summit area, including the site of the proposed Thirty Meter Telescope (TMT).
The lawsuit asserts that the law violates the Contract Clause of the U.S. Constitution. The establishment of the authority “exonerates the government agencies that have legal responsibilities in the management of Mauna Kea lands,” according to a “frequently asked questions” document (a link is at www.oha.org/aina/mauna-kea Opens in a new tab).
The complaint document lays out much of the history underlying the ongoing tensions over the management of ceded lands — the former Hawaiian monarchy lands that were ceded to the U.S. upon the overthrow of the kingdom. Ultimately, Native Hawaiians were identified among the beneficiaries of the ceded lands trust.
“Act 255 violates one of the most fundamental principles of trust law by creating a conflicted trustee beholden to both the ceded lands trust beneficiaries as well as to UH’s sublessees,” according to the complaint.
The suit cites the designation of a representative of the telescopes on the authority board as an example of a conflict of interest, because that representative can vote on actions that benefit them. This, though, is among the suit’s weaker assertions, because the authority should include a range of voices.
The better-founded criticism is that an OHA representative, specified in earlier versions of the 2022 bill, was eliminated from the board roster in the final version.
“OHA never received official word from the conference committee on why OHA was removed from the bill establishing the authority,” said Carmen “Hulu” Lindsey, chair of the agency’s board of trustees. “It’s thought that OHA was removed because we had opposed the bill.”
This leaves OHA “the only constitutionally mandated agency that represents the well-being of Native Hawaiians and recipient of ceded land revenues without a seat at the table to weigh in on the management and stewardship of the mauna,” according to a statement posted on the OHA website.
The Legislature can and should correct that flaw.
Still, the authority likely will find it difficult to navigate what is a turbulent political environment. This layer of added bureaucracy further complicates management of the mauna, a cultural and environmental treasure and a critically important scientific resource.
TMT, with great promise to fuel astronomers’ discoveries, offers an opportunity Hawaii should not abandon. And UH, which weathered a storm of criticism over its early mismanagement, had demonstrated its capacity to direct the land use in a more balanced way.
But if the new authority is to make any progress in now achieving that balance, this legal morass has to be cleared. Lawmakers can at least take that step.
