Legislative Update: OHA versus UH for control over Mauna Kea


Source: March 2009 Ka Wai Ola o OHA Column

`Ano`ai kakou…  I call out in a kahea for all Hawaiians and the people of Hawaii to oppose the University of Hawaii’s management of Mauna Kea and to support Senate Bill 995, SD2, which would give OHA ownership of our sacred mountain.

SB995 SD2 attempts to resolve claims and disputes relating to the portion of income and proceeds from the lands of the public land trust for use by OHA between 11/7/1978 and 7/1/2009.  This bill also conveys Mauna Kea to OHA, along with other parcels of land.  The House version of the above bill (HB901 HD2) does not include Mauna Kea.  It passed third reading on 3/10/2009 and has crossed over to the Senate.  At the time of the writing of this article, the board has not taken an “official” position on SB995 SD2. 

During the Cayetano administration, OHA was offered 20% of all ceded lands and $150 million in cash.  Five OHA board members refused the offer.  Two of those members are still on the OHA board.  In Governor Cayetano’s recent book, he speaks to the foolishness of those board members and refers to the events as a “missed opportunity” for OHA.  SB995 SD2 offers OHA another opportunity to redeem itself.

Efforts to Transfer Total Control of Mauna Kea to UH

HB1174 HD3 would allow the University of Hawaii’s Board of Regents (BOR) to adopt administrative rules to regulate public and commercial activities on Mauna Kea lands that UH leases from the Board of Land and Natural Resources (BLNR).  The bill, in its current form does the following: (1) It requires the BOR to establish procedures to enforce these rules; (2) allows UH to collect administrative fines for violations of these rules; and (3) Establishes the Mauna Kea Management Special Fund for the deposit and use of these revenues.

KAHEA, Mauna Kea Anaina Hou, Sierra Club Hawaii Island Chapter, Royal Order of Kamehameha I, and numerous concerned individuals opposed this measure.  OHA originally opposed the first version of the bill, but now supports the bill with amendments.

In her February 3, 2009 testimony to the House Committee on Higher Education, KAHEA Program Director Marti Townsend strongly opposed HB 1174 for the following reasons:

  • “Mauna Kea lands leased by the University are ‘ceded’ lands.  Granting this authority to the University will violate the Supreme Court’s ruling in OHA v. HCDCH.  With this bill, the Lingle Administration is seeking to transfer ceded land protected by the public lands trust from the state Department of Land and Natural Resources (DLNR) to the University of Hawaii.”
  • “Mauna Kea lands are public trust lands that must be managed by the landlord (BLNR), not the University, who is a mere lease-holder. State law requires that public trust lands be leased at fair market value for the benefit of the people of Hawaii, not the lease-holder.” 
  • “According to current state law, ceded lands are managed and administered by DLNR. See, HRS sec. 171-3. This bill seeks to transfer the ceded lands of Mauna Kea from DLNR to the University by granting the University ‘authority to manage and control public activities on the Mauna Kea lands.’ This is the exact same type of agency-to-agency transferred deemed illegal by the Supreme Court in OHA v. HCDCH and therefore should not be allowed by the state Legislature.” 
  • “The University’s activities on Mauna Kea have exploited, destroyed, and desecrated irreplaceable natural and cultural resources on the summit.  Mauna Kea’s Hawaiian alpine desert is unlike any other place in the world.  It is home to many Hawaiian endemic species some are found only on Mauna Kea!  Multiple reports, audits, and lawsuits have confirmed that the University’s telescope activities have violated the law and continue to destroy the natural and cultural resources of Mauna Kea.” 
  • “In multiple reviews of the University’s activities on the summit, the Hawaii State Auditor found that UH’s management of Mauna Kea is ‘inadequate to ensure the protection of natural resources’ and ‘neglected …the cultural value of Mauna Kea.’ Their report stated that UH’s Institute for Astronomy ‘focused primarily on the development of Mauna Kea and tied the benefits gained to its research program,’ and that its focus on telescope construction has been ‘at the expense of neglecting the site’s natural resources.’” 
  • “The University will use this authority to limit public access to the summit, regulate when and how Hawaiians worship on the summit, and expand telescope construction on the summit.” 
  • “For 30 years, the University has failed to pay the fair market rent to the State for its subleases to foreign countries and corporations that own telescopes atop Mauna Kea, as required by HRS sec. 171. This means the University owes the people of Hawaii back rent for the numerous telescope and support structures on the sacred summit.” 
  • “Unfortunately, the University has never accounted for the profits it has gained from its destructive use of Mauna Kea. According to a report to the UH Board of Regents in 1994, however, the University enjoyed at least $60 million annually in benefits from its use of Mauna Kea. In 2001, the University admitted to the Legislature that the work conducted on Mauna Kea earned $8 million a year just from the patent-lease contracts with defense contractors like Raytheon.” 
  • “Surprisingly, during this time of debilitating economic crisis, the University is not paying this back-rent to the State. Instead in this bill it is proposing to establish a special fund that would allow it to pocket all of the profits from the use of Mauna Kea lands, bypassing the general fund altogether. The University is literally seeking the Legislature’s approval to rob the people of Hawaii.”

On March 10, 2009, it passed third reading in the House with eleven (11) Representatives (Belatti, Berg, Brower, Carroll, Hanohano, C. Lee, Luke, McKelvey, Saiki, Shimabukuro, and Thielen) voting no and has crossed over to the Senate.

I will continue to keep you updated on these bills as they make their way through the second half of the legislative session.  In the meantime, I encourage each of you to call your elected officials and let them know how you feel about these important pieces of legislation.  Aloha Ke Akua.