Mauna Kea: Please Defer HB2024
Aloha HB2024 Conferees, April 28, 2022
My primary, overarching comment on HB2024 HB2 SD1 CD1 is that, unless the next draft is somehow perfect, this does not need to be passed now. There are still too many risks associated with this draft to continue shoving this bill through. It should be deferred until next session.
Here are some of the specific issues I see with the CD1 version:
Science IS Culture.
The introductory clauses exacerbate the dichotomy between "culture" and "science" which is the root cause of all of this. I highly encourage you to reword the introduction in more positive terms. Talk about perpetuating Hawaii's heritage of celestial navigation through contributions to humanity's understanding of the stars. Talk about preserving important recreational resources. People actually have FUN on Mauna Kea. Talk about how science IS culture. Do not talk about "culture and science" because that is a false separation. To the extent any dispute needs to be described in order to justify this bill's existence, it should be noted that the fight over Mauna Kea and TMT is not about "culture" vs. "science". It is about "religion" vs. "science". Science IS culture. Continuing to use the word "culture" as a way to sidestep the fact that objections to TMT are actually "religious" does a disservice to our society.
Intent to Avoid Merger.
Part II Section 6 attempts to make clear that the Master Lease remains in effect and that the subleases, which would include the one for TMT, remain in effect. It would be worthwhile to state that it is the intent of the legislature, for purposes of judicial review, that the telescope subleases remain in force, and to the extent to which those subleases are attached to the state lease, the state lease shall also remain in force. It could be further explained that it is the intent of the legislature that the MKSOA shall enter into leases directly with all current sublessees prior to the termination of the state lease.
Tolling of Decommissioning Requirements.
The legislation should specifically provide for the holding over of all subleases and the tolling of all decommissioning requirements or construction timeline requirements in the event of any litigation with respect to this legislation.
The legislation should include language explaining that while the MKSOA will issue new permitting rules, the MKSOA will also honor all permits that are currently issued to UH. The legislation should explain that the intent of this clauses is to protect the vested rights of third-party beneficiaries to UH's CDUPs, such as telescope sublessees.
The bill should not prevent the issuing of new leases. Instead, it should simply state that any and all new subleases or leases require the approval of the MKSOA. This moratorium on lease renegotiations is just causing unnecessary panic.
Section 11 does not need to exist. It tells the authority that it "may" limit commercial use and "may" require applications for recreational uses, and "may" require annual orientation but that regular users "shall" do things. The MKSOA will be the supreme administrative authority over Mauna Kea. It will be able to do all these things. They do not need to be spelled out. This section serves only to exacerbate the divide over Mauna Kea's use and elevate religious uses over all other uses, since religious uses are the only things not included in the "may be required to pay" section. Many people who grew up on the Big Island have positive childhood memories of having fun on Mauna Kea, sledding down the snow. I enjoyed going on a tour of Mauna Kea for my birthday and stargazing at the summit. Those memories are sacred. Having fun is important and is part of Mauna Kea's culture. We should not be rhetorically encouraging its condemnation.
The current name of the authority is overly wordy. Can we change the name to "Mauna Kea Oversight Authority", which is MKOA. That invokes images of Koa wood, a strong wood that is endemic to Hawaii, much as all the value Mauna Kea provides is endemic to our state. Alternatively, "Mauna Kea Authority" (MKA) would also be short and effective.
Section 9 states that UH can only exercise authority of Part IV subpart O of Chapter 304A to help the authority, but then section 10 repeals Chapter 304A, Part IV, subpart O entirely. That seems like an issue.
I am sure there are more issues, which is why this should just be deferred. Everyone is on notice now that the "powers that be" really want UH gone and a new authority in. I have no doubt those powers can get this bill through the legislature next year after we have all had some time to think about it. If we are going to waive the magic wand over the lease expirations anyway, then there is no rush.
Furthermore, in the meantime, we can actually engage in a healing process that is more inclusive than the Mauna Kea Working Group. In earlier testimony I recommended using a process known as "partnering". The fundamentals of the process involve bringing as many stakeholders as possible to a 1 to 2 day retreat and really hammering out some principles. MKWG simply did not bring all the major players from either the protester or supporter community and resulted in a process skewed against astronomy. TMT was not even included, and TMT is the whole reason for all of this. Continuing to pretend TMT is not the focal point is bordering on the absurd at this point. In contrast, if the state actually engaged in a full-on partnering session, it may create some actual trust in our community. We will most likely end up agreeing to disagree, but at least we will have met each other.
Sam Kalanikupua King