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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

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

________________________________________________________________

SCOT-17-0000777, SCOT-17-0000811, & SCOT-17-0000812

APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES

(BLNR-CC-16-002 (Agency Appeal))

NOVEMBER 30, 2018

RECKTENWALD, C.J., MCKENNA, J., and 

CIRCUIT JUDGE CASTAGNETTI IN PLACE OF NAKAYAMA, J., RECUSED,

WITH POLLACK, J., CONCURRING IN PART, WITH WHOM WILSON, J., 

JOINS AS TO PARTS I-III, AND WILSON, J., DISSENTING

AMENDED OPINION OF THE COURT BY MCKENNA, J., IN WHICH

POLLACK, J., JOINS EXCEPT AS TO PART V.C.1

I. Introduction 

These appeals were filed from a September 27, 2017 decision 

of the Board of Land and Natural Resources (“BLNR”) authorizing

issuance of a Conservation District Use Permit for the Thirty 

Meter Telescope (“TMT”) near the summit of Mauna Kea. 

Electronically Filed

Supreme Court

SCOT-17-0000777

30-NOV-2018

03:48 PM
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Appellant Native Hawaiian1 cultural practitioners believe

that Mauna Kea, as a sacred manifestation of their ancestry, 

should be honored in its natural state and is desecrated by 

development of astronomy facilities near its summit. In 

contrast, Appellees submit that telescope use is an allowed and 

appropriate use of the summit area, that various measures are 

being taken to reduce the impact of the TMT, and that Mauna Kea 

can also be honored through the advancement of scientific 

knowledge that TMT would provide. 

In this opinion, we address whether the BLNR properly 

applied the law in analyzing whether a permit should be issued 

for the TMT. Upon careful consideration of the written 

submissions, the applicable law, and the oral arguments, and for 

the reasons explained below, we now affirm the BLNR’s decision 

authorizing issuance of a Conservation District Use Permit 

(“CDUP”) for the TMT.

 

1 The term “Native Hawaiian” refers to one “whose ancestors were natives 

of the Hawaiian Islands prior to 1778, without regard to blood quantum,” 

while the term “native Hawaiian” refers to one with at least fifty percent 

Hawaiian ancestry. Melody Kapilialoha MacKenzie & D. Kapuaʻala Sproat, A 

Collective Memory of Injustice: Reclaiming Hawaiʻi’s Crown Lands Trust in 

Response to Judge James S. Burns, 39 U. HAW. L. REV. 481, 528 (2017). See also

JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAIʻI? 1 n.1 (2008) (using the term 

“Native Hawaiian” to “refer to all persons descended from the Polynesians who 

lived in the Hawaiian Islands when Captain James Cook arrived in 1778,” and 

distinguishing it from the term “native Hawaiian,” which is defined as a

person with 50 percent or more Hawaiian blood in the Hawaiian Homes 

Commission Act, 1920, ch. 42, sec. 201(a)(7), 42 Stat. 108 (1921)).
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II. Factual and Procedural Background

A. The Mauna Kea Summit

Some Native Hawaiians, including some of the appellants, 

consider Mauna Kea, which rises to an elevation of 13,796 feet 

above sea level, to be an ancestor, a living family member and 

progenitor of Hawaiians, born of Wākea (Sky Father) and Papa 

(Earth Mother). They consider the Mauna Kea summit area, also 

known as Kūkahauʻula (cluster of puʻu or cinder cones), to be a 

wahi pana (storied place) and wao akua (the place where gods 

reside), the realm of ancestral akua (gods, goddesses, deities) 

believed to take earthly form as the puʻu, the waters of Lake 

Waiau, and other significant landscape features. The summit of 

Mauna Kea is thought to touch the sky in an unique and important 

way, as a piko (navel) by which connections to the ancestors are 

made known to them, or as the piko hoʻokahi (the single navel), 

which ensures spiritual and genealogical connections, and the 

rights to the regenerative powers of all that is Hawaiʻi. The 

large number of shrines on Mauna Kea indicate that there was a 

pattern of pilgrimage, “a walk upward and backward in time to 

cosmological origins,” to worship the snow goddess Poliʻahu and 

other akua such as Kūkahau, Līlīnoe, and Waiau. As discussed 

later, various Native Hawaiian traditional and customary 

practices are derived from these beliefs, which have also led to 

related contemporary cultural practices.
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Before Western contact, the summit area was considered kapu 

(taboo) to all but the highest chiefs and priests, and 

unavailable to the general public. Archaeological research also 

indicates that from as early as 1100 A.D., and continuing 

through the 1700s up until the time of Western contact, Native 

Hawaiians mined extremely high quality, dense, blue-black basalt 

in a 4,800 acre adze quarry on the southern slopes of Mauna Kea 

concentrated between 11,500 and 12,400 square feet above sea 

level to produce tools to cut trees, shape canoes, and carve 

other smaller items.

B. Development of Modern Astronomy on Mauna Kea Summit

After statehood, in 1968, the BLNR entered into a General 

Lease with the University of Hawaiʻi (“University”) for the Mauna 

Kea Science Reserve (“MKSR”); the General Lease is scheduled to 

terminate on December 31, 2033. The MKSR totals 11,288 acres, 

consisting of a 10,763-acre cultural and natural preserve and a 

525-acre Astronomy Precinct, and includes almost all of the land 

on Mauna Kea above the 12,000-foot elevation, except for certain 

portions that lie within the Mauna Kea Ice Age Natural Area

Reserve (“MKIANAR”). 

The General Lease allows the University to use the MKSR as 

a scientific complex and reserve. The University began 

operating the first observatory on Mauna Kea in 1968. 

Thereafter, the following additional astronomical observatories 
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became operational in the summit region of the MKSR: the 

University 2.2-meter Telescope (1970), the United Kingdom 

Infrared Telescope (“UKIRT”)(1979)(now owned by the University), 

the NASA Infrared Telescope Facility (operated by the 

University)(1979), the Canada-France-Hawaiʻi Telescope (1979);

(5) the California Institute of Technology (“Caltech”)

Submillimeter Observatory (“CSO”)(1986), the James Clerk Maxwell 

Telescope (“JCMT”)(1986)(now owned by the University), the Very 

Long Baseline Array (1992), the W. M. Keck Observatory, first 

phase (1992) and second phase (1996), the Subaru Observatory 

(“Subaru”)(1999), the Gemini North Observatory (1999), and the 

Submillimeter Array (2002). The 4.6 mile segment of Mauna Kea 

Access Road just past the Onizuka Center for International 

Astronomy (also known as Hale Pōhaku),2 located at the 9,200 foot 

level of Mauna Kea, is unpaved until just above 11,600 feet, 

where it then extends near to the summit and loops along the Puʻu 

Kea, Puʻu Hauʻoki, and other puʻu to reach existing observatories 

through paved or unpaved driveways. The roads have also 

increased access to the summit area of Mauna Kea for at least 

some Native Hawaiian cultural practitioners. 

Construction of these observatories and roads has had 

significant cumulative adverse impacts on cultural,

 

2 The University also manages the Hale Pōhaku mid-level facilities and

the Summit Access Road between Hale Pōhaku and the MKSR, including 400 yards 

on either side of the road, but excluding the MKIANAR. 
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archaeological, and historic resources in the MKSR. The 

observatories have also had significant cumulative adverse

impacts on geology, soils, and slope stability in the MKSR 

because they significantly modified the preexisting terrain, the 

tops of certain puʻu were flattened to accommodate observatory 

foundations, and some materials removed from the puʻu were pushed 

over their sides, creating steeper slopes more susceptible to 

disturbance.

In response to significant criticism raised in a 1998 

audit, the University’s Board of Regents (“BOR”) adopted the 

MKSR Master Plan (“Master Plan”) in 2000, which updated

management guidelines for the areas of Mauna Kea managed by the 

University, including the MKSR. The Master Plan established the 

Office of Mauna Kea Management (“OMKM”), housed in the 

University of Hawaiʻi at Hilo (“UHH”). The OMKM is advised by 

volunteer residents of the Big Island of the Mauna Kea 

Management Board and Kahu Kū Mauna (Guardians of the Mountain)

to effectuate the Master Plan’s goals of (1) protecting 

cultural, natural, educational/scientific, and recreational 

resources; (2) preserving and protecting the cultural and 

natural landscape; (3) preserving and managing cultural 

resources and practices for future generations; (4) defining 

areas for use of cultural, natural and recreational resources; 

(5) protecting the right to exercise traditional cultural 
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practices; (6) allowing for sustainable, integrated planning and 

management; and (7) protecting and enhancing astronomy research. 

The Master Plan identifies five types of astronomy 

development and their locations within the 525-acre Astronomy 

Precinct area of the MKSR, described as Areas A through F, for 

redevelopment or expansion of existing observatory facilities. 

These locations include Area E, intended for development of a 

next generation large telescope, such as the TMT.

After preparation of the Master Plan, a Comprehensive 

Management Plan was also finalized in April of 2009. Various 

sub-plans were also prepared, including a Cultural Resources 

Management Plan and a Decommissioning Plan for the 

decommissioning of existing telescopes. 

C. The TMT

In 2003, Caltech and the University of California formed 

the TMT Corporation, a California non-profit public benefit 

corporation, for the purpose of fostering astronomy through 

building a thirty meter telescope. In 2008, the TMT 

Corporation, in consultation with the University, began 

assessing the development of the TMT in Area E, on the northwest 

slope of Mauna Kea, below the summit ridge. This location was 

selected for a next generation large telescope (1) due to its 

significant distance from historical and cultural sites, 

including Kūkahauʻula and Lake Waiau, (2) to minimize visibility 
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from significant cultural areas on the summit and from Waimea, 

Honokaʻa and Hilo, (3) to reduce wind shear forces, (4) because 

it is not a good wēkiu bug habitat, and (5) to minimize its 

potential to obscure astronomical observations by existing 

observatories. On May 23, 2009, a draft Environmental Impact 

Statement (“EIS”) for the TMT was published; some of the 

Appellants submitted comments before issuance of the May 8, 2010 

Final EIS.

TMT International Observatory, LLC (“TIO”) was formed on 

May 6, 2014 as a nonprofit organization comprised of

the Regents of the University of California, Caltech, the 

National Institutes of Natural Sciences of Japan, the National

Astronomical Observatories of the Chinese Academy of Sciences, 

the Department of Science and Technology of India, and the 

National Research Council of Canada, and succeeded TMT 

Corporation as owner of the TMT project. TIO was formed so that 

the voting power and telescope observing time could vary amongst 

its members proportionate to their respective contributions to 

the TMT Project.

The TMT would be the first optical/infrared observatory of 

its size to integrate adaptive optics, which corrects for image 

distortion caused by the atmosphere, into its design. The 

proposed TMT project actually consists of four components, the 

TMT observatory within Area E (“TMT Observatory”), an access way 
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from the Mauna Kea Access Road (“Access Way”), upgrades to 

existing transformers at the electrical substation near Hale 

Pōhaku in the mid-level of Mauna Kea, and a headquarters in 

Hilo. With respect to construction of the TMT Observatory, the 

observatory dome, support building, and the area disturbed 

during construction would be about five acres (“the TMT 

Observatory site”). The issues on appeal in this case focus on 

the proposed TMT Observatory and Access Way.

The ground surface of the proposed TMT Observatory is 600 

feet below the summit ridge. The proposed TMT Observatory would 

have a total height of roughly 180 feet above that ground 

surface, with an exterior radius of 108 feet and a dome shutter 

102.5 feet in diameter.

Conservation District Use Application (“CDUA”) HA-3568 for 

the TMT was originally submitted on September 2, 2010. The BLNR 

initially granted a CDUP on April 12, 2013. In our December 2, 

2015 opinion in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 

136 Hawaiʻi 376, 363 P.3d 224 (2015) (“Mauna Kea I”), we vacated 

the Circuit Court of the Third Circuit’s May 5, 2014 order 

affirming the BLNR’s issuance of the first CDUP. We held that

the BLNR’s approval of a CDUP before conducting a contested case 

hearing violated the due process rights of parties with standing 

to assert Native Hawaiian traditional and customary rights. 

Mauna Kea I, 136 Hawaiʻi at 390-91, 363 P.3d at 238-39. We also 
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held that a state agency must perform its functions in a manner 

that fulfills the State’s affirmative obligations under the 

Hawaiʻi Constitution. Mauna Kea I, 136 Hawaiʻi at 414, 363 P.3d 

at 262 (Pollack, J., concurring, in which Wilson, J., joined, 

and McKenna, J., joined as to Part IV). We therefore ordered a 

remand to the BLNR for a contested case hearing before the Board 

or a new hearing officer. Mauna Kea I, 136 Hawaiʻi at 399, 363 

P.3d at 247. 

On remand, the BLNR appointed a hearing officer, retired 

Third Circuit judge Riki May Amano (“Hearing Officer” or 

“Amano”), who conducted a contested case hearing over forty-four 

days, on the following dates in 2016 and 2017: October 20, 24-

27, and 31; November 2 and 15-16; December 1-2, 5-6, 8, 12-13, 

16, and 19- 20; January 3-5, 9-12, 19, 23-26, and 30-31; 

February 13-16, 21-23, and 27-28; and March 1-2. The Hearing 

Officer issued her “Proposed Findings of Fact, Conclusions of 

Law, and Decision and Order” on July 26, 2017.

After submission of exceptions to the proposed decision and 

responses to the exceptions and oral arguments, on September 27, 

2017, the BLNR issued its 271-page Findings of Fact, Conclusions 

of Law and Decision and Order (“BLNR Decision and Order”)

containing 1070 Findings of Fact (“FOF” singular or “FOFs” 
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plural) and 512 Conclusions of Law (“COL” singular or “COLs” 

plural).3 

Five of seven board members, BLNR Chairperson Case and 

members James A. Gomes, Thomas H. Oi, Samuel “Ohu” Gon III, and 

Christopher Yuen signed the BLNR Decision and Order to indicate 

agreement. Members Stanley H. Roehrig and Keith “Keone” Downing 

signed with the notation “I do not concur[.]”

Pursuant to Act 48 of 2016,4 direct appeals were filed to 

this court.5

 

3

Due to the length of the BLNR Decision and Order, many of the specific 

FOFs, COLs, and CDUP conditions referenced in this opinion are not quoted. 

The entire BLNR Decision and Order is available on-line at 

https://perma.cc/H49Z-XN7B.

4

Act 48 of 2016, effective August 1, 2016, added Hawaiʻi Revised Statutes 

§ 183C-9 to make final decisions and orders from contested cases concerning 

conservation districts directly appealable to this court. 2016 Haw. Sess. 

Laws Act 48, §§ 2 & 14 at 76, 82.

5

In SCOT-17-0000777, the appellants are Petitioners-Appellants Mauna Kea 

Anaina Hou (“MKAH”) and its President Kealoha Pisciotta, Clarence Kukauakahi 

Ching, Flores-Case ʻOhana, Deborah J. Ward, Paul K. Neves, and KAHEA: The 

Hawaiian Environmental Alliance (collectively the “MKAH Appellants”). The 

MKAH Appellants’ previous appeal resulted in our December 2, 2015 opinion in 

Mauna Kea I. SCOT-17-0000811 was filed by Intervenor-Appellant Temple of 

Lono (“Appellant Temple of Lono” or “Temple”). SCOT-17-0000812 was filed by 

Intervenors-Appellants Mehana Kihoi, Joseph Kualiʻi Camara, Leinaʻala 

Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, 

Cindy Freitas, William Freitas (“Kihoi Appellants”), and Intervenor-Appellant 

Harry Fergerstrom (“Appellant Fergerstrom”). The appellees are the BLNR, the 

State of Hawaiʻi Department of Land and Natural Resources (“DLNR”), the State 

of Hawaiʻi (the “State”), and Suzanne D. Case (“Case”), in her official 

capacity as Chair of the BLNR (usually collectively referred to as the 

“BLNR”), and the University of Hawaiʻi at Hilo (“UHH”). Intervenors-appellees 

are TMT International Observatory, LLC (“TIO”) and Perpetuating Unique 

Educational Opportunities, Inc. (“PUEO”). A fourth appeal, SCOT-17-0000705, 

filed on October 10, 2017, by Intervenor-Appellant Dwight J. Vicente, was 

dismissed on March 15, 2018 based on a failure to file an opening brief after 

notice was provided. 

 
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III. Points of Error on Appeal

The great majority of the BLNR’s FOFs and COLs are not 

challenged on appeal. The points of error that are alleged on 

appeal by the various Appellants are categorized and summarized 

as follows:6

A. Disqualification Issues

1. Whether the BLNR erred by refusing to 

disqualify Amano as the Hearing Officer based 

on her family membership in the ʻImiloa 

Astronomy Center;

2. Whether the BLNR erred by refusing to 

disqualify Deputy Attorneys General who had 

advised the BLNR in Mauna Kea I from continuing 

to advise the Hearing Officer and the BLNR in 

the contested case hearing after remand; 

3. Whether the BLNR erred by overruling objections 

to the participation of BLNR members Yuen and 

Gon in the contested case hearing after remand.

B. Native Hawaiian Rights Issues

1. Whether the BLNR fulfilled its duties under 

Article XII, Section 7 and Ka Paʻakai o Ka ʻĀina 

v. Land Use Commission;

2. Whether the BLNR erred in concluding that the 

Hawaiʻi Constitution does not protect 

contemporary native Hawaiian cultural 

practices;

3. Whether the TMT Project violates religious 

exercise rights of Native Hawaiians protected 

by federal statutes;

4. Whether the Hearing Officer should have allowed 

briefing and a hearing on a motion to 

disqualify UHH as applicant based on its 

alleged hostility toward the traditional 

Hawaiian faith;

 

6 Various appellants raise various issues on appeal, some which are 

duplicated by other appellants and some of which are asserted by only one 

appellant. Appellants raising the various issues are sometimes identified. 
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5. Whether the Hearing Officer should have allowed 

briefing and a hearing on a motion to dismiss 

based on violation of the desecration statute

of the Hawaiʻi Penal Code;

6. Whether the Hearing Officer should have 

excluded challenges to the legal status of the 

State of Hawaiʻi and its ownership of Mauna Kea 

as well as the existence of the Kingdom of 

Hawaiʻi. 

C. Public Trust and Land Use Issues

1. Whether the TMT Project violates Article XI, 

Section 1 of the Hawaiʻi Constitution and 

public trust principles;

2. Whether conditions of Hawaiʻi 

Administrative Rules (“HAR”) § 13-5-30(c) 

(1994) for issuance of a CDUP were satisfied.

D. Other Procedural Issues 

1. Whether the original CDUA should have been 

stricken and a new CDUA required;

2. What the nature of the proceeding was below, 

and whether there is an appropriate record on 

appeal;

3. Whether TIO and PUEO should have been admitted 

as parties;

4. Whether the Hearing Officer’s scheduling of 

presentations by the parties violated 

Appellants’ due process rights;

5. Whether the Hearing Officer improperly failed 

to issue final orders in a timely fashion;

6. Whether the Hearing Officer improperly failed 

to provide reasoned explanations for her 

orders;

7. Whether the Hearing Officer improperly failed 

to provide required rulings and explanations 

for thousands of proposed findings of fact;

8. Whether the entire proceeding was not 

legitimate.
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IV. Standards of Review

The standards for reviewing each of the points of error 

alleged on appeal are set out in Hawaiʻi Revised Statutes (“HRS”)

§ 91–14(g) (2012 & Supp. 2016), “Judicial review of contested 

cases,” which provides as follows:

(g) Upon review of the record the court may affirm the decision 

of the agency or remand the case with instructions for further 

proceedings; or it may reverse or modify the decision and order 

if the substantial rights of the petitioners may have been 

prejudiced because the administrative findings, conclusions, 

decisions, or orders are:

(1) In violation of constitutional or statutory provisions; 

(2) In excess of the statutory authority or jurisdiction of the 

agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Clearly erroneous in view of the reliable, probative, and 

substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of 

discretion or clearly unwarranted exercise of discretion.

Under HRS § 91–14(g), conclusions of law are reviewable 

under subsections (1), (2), and (4); questions regarding 

procedural defects are reviewable under subsection (3); findings 

of fact are reviewable under subsection (5); and an agency’s 

exercise of discretion is reviewable under subsection (6). Save 

Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawaiʻi 

16, 24–25, 211 P.3d 74, 82–83 (2009).

Pursuant to HRS § 91–14(g), an agency’s conclusions of law 

are reviewed de novo. United Pub. Workers, AFSCME, Local 646, 

AFL–CIO v. Hanneman, 106 Hawaiʻi 359, 363, 105 P.3d 236, 240 

(2005).
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An agency’s exercise of discretion will not be overturned 

unless arbitrary, or capricious, or characterized by a clearly

unwarranted exercise of discretion. Paul’s Elec. Serv. Inc. v. 

Befitel, 104 Hawaiʻi 412, 417, 91 P.3d 494, 499 (2004) 

(citing HRS § 91–14(g)(6)).

In the next section, we analyze each point of error based 

on the applicable standard of appellate review.7 We provide 

additional factual and procedural background information as 

appropriate.

V. Discussion of Points of Error on Appeal

A. Disqualification Issues

1. Whether the BLNR erred by refusing to disqualify 

Amano as the Hearing Officer based on her family 

membership in the ʻImiloa Astronomy Center

a. Background

Appellants assert that the BLNR erred by refusing to 

disqualify Amano as the Hearing Officer based on her family 

membership in the ʻImiloa Astronomy Center (“ʻImiloa”). After 

our remand in Mauna Kea I, the BLNR delegated the conduct of the 

contested case hearing to a hearing officer, pursuant to HAR § 

13-1-32(b) (2009), and through the procurement process of HRS §

103D-304 (2012). The BLNR appointed a committee of three, 

consisting of retired Hawaiʻi Supreme Court Associate Justice 

 

7 Some points of error are addressed in footnotes.
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James E. Duffy, Jr., Deputy Attorney General Stella Kam, and 

BLNR Member Christopher Yuen, to evaluate hearing officer 

applicants. The BLNR issued Minute Order No. 1, attaching 

Amano’s disclosure statement as Exhibit 1 and setting a deadline 

for any objections to her appointment. 

Appellants objected to Amano’s selection, citing Mauna Kea 

I, 136 Hawaiʻi at 389, 363 P.3d at 237 (“[J]ustice can perform 

its high function in the best way only if it satisfies the 

appearance of justice.” (quoting Sifagaloa v. Bd. of Trs. of the 

Emps. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992)) 

(emphasis omitted). They argued Amano could not be impartial 

because she was a dues paying member of ʻImiloa, which is a part 

of UHH. They pointed out that TIO is listed on the website as a 

corporate member of ʻImiloa, and that ʻImiloa had benefited and 

would benefit from the TMT Project, as it was among the 

recipients of over $100,000 in contributions to outreach 

activities already made by TIO,8 and, as stated in the Final EIS, 

the TMT Project “will work with . . . ʻImiloa to develop exhibits 

that reflect the nationally-recognized natural resources” of the 

area. 

 

8 It is unclear how much ʻImiloa received of the over $100,000, but 

according to the Final EIS, these amounts were contributed from 2008-10 and 

other recipients included the Akamai Intern program, the Waiākea High School 

Robotics program, the IfA Elementary School Robotics program, the Journey to 

the Universe program, Kona teachers’ workshops, a DOE mentoring program 

workshop, and intern employment.
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Amano then filed a supplemental disclosure stating she had 

been unaware that ʻImiloa was connected to UHH and that it had 

not crossed her mind that ʻImiloa was or could be connected to 

the instant case. She further stated that her family membership 

to ʻImiloa had been active since April 2008 with annual dues of 

$85, and it was set to expire and would not be renewed. She 

indicated she had visited ʻImiloa five to six times since 2008 

and had used the 10% restaurant and gift shop discount an 

average of three times per year. She also stated that when she 

and her husband joined ʻImiloa, it seemed to them like a 

membership-based cultural organization like the Japanese 

Cultural Center of Hawaiʻi and the Bishop Museum on Oʻahu. 

Appellants filed supplemental objections additionally 

arguing that the membership reflected Amano’s personal and 

financial support of the astronomy mission of UHH, which 

includes development of the TMT Project. Appellants asserted 

that, at minimum, an appearance of a conflict or an appearance 

of impropriety existed, requiring disqualification.9 

In Minute Order No. 4, the BLNR denied the objections, 

ruling that the membership does not confer a right to 

participate in ʻImiloa’s governance. The BLNR noted that in 

 

9

Appellants also argued below and on appeal standards governing an 

arbitrator’s duties of disclosure under HRS Chapter 658A, which do not apply 

and are not further discussed. 
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accordance with Sussel v. City & Cty. of Honolulu Civil Serv. 

Comm’n, 71 Haw. 101, 108, 784 P.2d 867, 871 (1989), 

administrative adjudicators are disqualified for an “appearance

of impropriety,” which is similar to the standard for the 

disqualification of judges. The BLNR noted that Hawaiʻi Revised 

Code of Judicial Conduct (“HRCJC”) Rule 2.11(a) (2014) requires

disqualification of a judge if “the judge’s impartiality might 

reasonably be questioned.”10 The BLNR reasoned that even if 

 

10 HRCJC Rule 2.11(a)(2)(A) and (C) (2014) provide:

Subject to the rule of necessity, a judge shall

disqualify or recuse himself or herself in any proceeding 

in which the judge’s impartiality* might reasonably be 

questioned, including but not limited to the following 

circumstances:

. . . .

(2) The judge knows* that the judge, the judge’s spouse or 

domestic partner,* or a person within the third degree of 

relationship* to either of them, or the spouse or domestic 

partner* of such a person is:

 (A) a party to the proceeding, or an officer, 

director, general partner, managing member, or trustee of a 

party;

. . . . 

(C) a person who has more than a de minimis* interest 

that could be substantially affected by the 

proceeding. . . .

The starred terms are defined as follows:

*“Impartiality” means “absence of bias or prejudice in 

favor of, or against, particular parties or classes of parties, 

as well as maintenance of an open mind in considering issues that 

come or may come before a judge.” “Knows” means “actual 

knowledge of the fact in question. A person’s knowledge may be 

inferred from circumstances.” “Third degree of relationship” 

“includes the following persons related to the judge by blood or 

marriage: great-grandparent, grandparent, parent, uncle, aunt, 

brother, sister, child, grandchild, great-grandchild, nephew, and 

niece.” “De minimis” in the context of interests pertaining to 

disqualification of a judge, means “an insignificant interest 

that could not raise a reasonable question regarding the judge’s 

impartiality.” “Terminology,” HRCJC.
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ʻImiloa was classified as a party based on its affiliation with 

UHH, the Hearing Officer’s family membership did not create the 

fiduciary or managerial relationship between an adjudicator and 

party precluded by HRCJC Rule 2.11(a)(2)(A). The BLNR opined 

that no reasonable person would infer that the possible benefits

from the membership would cause Amano not to be impartial. The 

BLNR concluded that the membership was a “de minimis” interest 

under HRCJC Rule 2.11(a)(2)(C)11 that did not rise to the level 

of an “appearance of impropriety.” The BNLR characterized 

Amano’s membership as akin to a museum membership, not a 

membership in an advocacy group.

The BLNR also concluded that the membership “does not

remotely resemble the prejudgment found objectionable in . . . 

[Mauna Kea I]” where the BLNR had voted on the merits of the 

CDUA before holding the contested case hearing. It ruled that 

Amano’s membership did not show personal and financial support 

of the astronomy mission at UHH. It also ruled that exposure to 

ʻImiloa’s exhibits about astronomy on Mauna Kea did not imply 

prejudgment, and that the Hearing Officer’s entitlement to a 

“presumption of honesty and integrity” remained intact. The 

BLNR also accepted Amano’s representation and found that Amano 

 

11 See supra note 10.
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did not know ʻImiloa was part of UHH or that it had any 

connection with the CDUA. 

The BLNR also discussed whether it should exercise its 

discretion to replace the Hearing Officer despite a lack of 

grounds for disqualification. It declined to do so because 

Amano had been selected as the most qualified applicant by the

committee. 

Appellants filed a motion for reconsideration. Both UHH 

and TIO responded that the motion should be denied on the 

merits, but to preemptively eliminate any basis for further 

delays and appeals, they requested that an alternative hearing 

officer be appointed. The BLNR denied the motion, stating it 

would be nearly impossible to find a hearing officer who 

subjectively appears fair to every possible person interested in 

the TMT Project. The BLNR also noted that the Appellants had 

not objected to Amano’s disclosed involvement in mediating 

employment disputes involving UHH, which arguably demonstrated 

more substantive connections to UHH. 

Appellants later filed a renewed motion to disqualify, 

asserting Amano should be disqualified because Amano (1) had not 

ruled on Appellants’ motions to disqualify the BLNR’s and the 

Hearing Officer’s counsel and to strike the CDUA and/or for 

summary judgment, (2) allegedly disregarded cultural protocol in 

accessing Mauna Kea during the site visit, (3) was escorted to 
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the restroom by armed and uniformed DLNR Enforcement (“DOCARE”) 

officers who stood guard at hearings, showing her fear of the 

parties, (4) had allegedly ridden in a vehicle with a UHH 

employee for the site visit, (5) had a connection to Deputy 

Attorney General Harvey Henderson, and (6) did not require UHH 

to disclose witness statements, exhibits, and position 

statements before the Appellants’ deadlines. 

The renewed motion was also denied by the BLNR. With 

respect to the new arguments, the BLNR ruled: (1) the lack of a 

ruling on two motions, out of more than fifty filed by the 

parties, did not evidence an appearance of impropriety; (2) not 

following Appellants’ proposed site visit route also did not 

evidence an appearance of impropriety; (3) the presence of 

DOCARE officers did not evidence bias, as the officers protect 

the safety of everyone present; (4) Amano had been driven on the 

site visit by a DOCARE officer, not a UHH employee; (5) Amano’s 

connection with Henderson did not evidence bias, as her 

connection was limited to having attended law school with his 

wife, who was also a member of the Board of Governors of Maximum 

Legal Services Corporation, for which Amano served as Executive 

Director; and (6) there was no evidence of bias based on Amano’s 

setting of deadlines. 
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b. Analysis 

On appeal, the parties repeat the arguments they made 

below. Preliminarily, Appellants’ additional argument, that 

UHH and TIO should be judicially estopped from arguing that the

BLNR did not err in denying disqualification, lacks merit. The 

issue on appeal is whether Amano should have been disqualified. 

Judicial estoppel prohibits parties from taking inconsistent 

positions. Lee v. Puamana Cmty. Ass’n, 109 Hawaiʻi 561, 575–76, 

128 P.3d 874, 888–89 (2006). UHH and TIO have consistently 

argued that there was no basis for disqualification; thus, 

judicial estoppel does not apply.

Turning to the merits, we review the alleged due process 

violation de novo, but we are bound by relevant factual findings 

made by the BLNR unless they are clearly erroneous. The BLNR

found that Amano did not know ʻImiloa was part of UHH or that it 

had any connection with the TMT application, that ʻImiloa 

membership is akin to a museum membership and is not a 

membership in an advocacy group, that the membership does not 

confer a right to participate in ʻImiloa’s governance, that the 

membership did not show personal and financial support of the 

astronomy mission at UHH, and that exposure to ʻImiloa’s exhibits 

about astronomy on Mauna Kea did not imply prejudgment. These 

findings are not clearly erroneous. The BLNR also ruled that no 

reasonable person would infer that the possible benefits from 
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the membership would cause Amano not to be impartial. These 

rulings of law are not wrong.

With respect to the applicable law, the BLNR properly 

concluded that “an administrative adjudicator should [not] be 

allowed to sit with impunity in a case where the circumstances 

fairly give rise to an appearance of impropriety and reasonably 

cast suspicion on [the adjudicator’s] impartiality.” Sussel, 71 

Haw. at 109, 784 P.2d at 871 (citation omitted), and that 

administrative adjudicators are held to the same standard as 

judges. The BLNR also concluded that, like judges, 

administrators serving as adjudicators are presumed to be 

unbiased. Sifagaloa, 74 Haw. at 192, 840 P.2d at 372, and that

this presumption is rebutted only by a showing of a 

disqualifying interest, either pecuniary or institutional, or 

both. See id. 

The BLNR applied the correct test for impropriety: whether 

a reasonable person knowing all the facts would doubt the 

impartiality of Amano, or whether the circumstances would cause 

a reasonable person to question Amano’s impartiality. We agree 

that the circumstances of this case did not rebut the 

presumption that Amano would be capable of impartially 

performing her duties. Amano’s connection to ʻImiloa was too 

attenuated, as her connection was not shown to be anything other 

than a membership, no different than a membership of a member of 
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the general public. The membership did not represent an unusual 

commitment to ʻImiloa, different from what any other member might 

have. Membership alone does not lead to a conclusion that a 

member supports a mission to build the TMT, even assuming that 

this is ʻImiloa’s mission. No disqualifying interest was shown 

and the circumstances did not fairly give rise to an appearance 

of impropriety and reasonably cast suspicion on her 

impartiality. For the reasons given by the BLNR, the bases for 

disqualification asserted in the renewed motion for 

reconsideration are also without merit. Therefore, there was no 

error in the denial of the requests to disqualify the Hearing 

Officer. 

2. Whether the BLNR erred by refusing to disqualify 

Deputy Attorneys General who had advised the BLNR in 

Mauna Kea I from continuing to advise the Hearing 

Officer and the BLNR in the contested case hearing 

after remand. 

MKAH Appellants assert that the BLNR erred by denying their 

motion to disqualify Deputy Attorneys General Julie China and 

William Wynhoff (collectively “the DAGs”), who had represented 

the BLNR in the first appeal leading to Mauna Kea I. Appellants 

argue these DAGs should have been disqualified based on White v. 

Bd. of Educ., 54 Haw. 10, 501 P.2d 358 (1972). They also assert 

the DAGs should have been disqualified because they conferred 

with UHH and TIO attorneys during the pendency of the appeal in 
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Mauna Kea I regarding arrests and prosecution of individuals on 

Mauna Kea. 

In White, a public school teacher requested a hearing due 

to a proposal to terminate her employment. 54 Haw. at 11, 501 

P.2d at 360. After the hearing officer had prepared proposed 

findings of fact and conclusions of law, the deputy attorney 

general who had represented the Superintendent of Education in 

the adversary hearing against the teacher advised the Board of 

Education as decision maker with respect to the hearing 

officer’s findings and conclusions. 54 Haw. at 16, 501 P.2d at 

363. We held that a deputy attorney general who had acted as 

counsel for the Superintendent against the teacher in the 

adversary hearing should not have been consulted by the Board in 

its decision making capacity. Id.

White is distinguishable. With respect to the issues in 

this case, the DAGs advised and represented the DLNR, BLNR, and 

the Hearing Officer in their adjudicative capacities and not as 

adversaries of the Appellants.12 Appellants also assert the DAGs 

should also have been disqualified because they conferred with 

counsel for UHH and TIO regarding the arrests and prosecution of 

 

12 The Intermediate Court of Appeals made a similar distinction in 

Kilakila ʻO Haleakalā v. Bd. of Land & Nat. Res., No. CAAP-13-3065, 2014 WL 

5326757 (App. Oct. 17, 2014)(mem.), in affirming the BLNR’s denial of 

Kilakila’s motion to disqualify the deputy attorney general who had 

represented the BLNR in an adjudicative capacity in both proceedings. 

Kilakila, mem. op. at 38–39, 2014 WL 5326757, at *25. 
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protesters on Mauna Kea. As argued by the BLNR, however, it is 

the DAGs’ duty “to administer and render legal services to . . . 

the State departments and offices as the governor may direct.”

State v. Klattenhoff, 71 Hawaiʻi 598, 602, 801 P.2d 548, 550 

(1990), abrogated on other grounds by State v. Walton, 133 

Hawaiʻi 66, 324 P.3d 876 (2014). It is also their duty to “give 

advice and counsel to the heads of departments . . . and other 

public officers, in all matters connected with their public 

duties, and otherwise aid and assist them in every way requisite 

to enable them to perform their duties faithfully.” HRS § 28-4 

(1993). The DAGs had a duty to advise the BLNR with respect to 

legal issues regarding possible conferral of trespassing charges 

to county prosecutors. These legal issues differ from the 

issues involved in this appeal as to whether a CDUP should have 

been granted. 

Therefore, even if the DAGs represented the BLNR in an 

adversarial position as to whether to confer trespassing charges 

to county prosecutors regarding Mauna Kea protests, the

adversarial representation was not with respect to whether a 

CDUP should have been authorized after the remand. Indeed, as 

the BLNR points out, if the BLNR had determined that no CDUP 

should issue, the DAGs would have been responsible for defending 

that decision. 
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The DAGs have always been required to assist the BLNR in a 

manner to enable the Board to perform its duties faithfully. 

Their duty never changed, and they have consistently represented 

the interests of the BLNR. This differs from White, in which 

the deputy attorney general first represented the 

Superintendent, then the BOE, who could have had differing 

interests. 

For all of these reasons, the BLNR did not err in denying 

Appellants’ motion to disqualify based on White.

3. Whether the BLNR erred by overruling objections to the 

participation of BLNR members Yuen and Gon in the 

contested case hearing after remand. 

Appellants argue that the BLNR committed a due process 

violation by overruling their objections to the participation of 

BLNR members Christopher Yuen (“Yuen”) and Samuel Gon (“Gon”) in 

the proceedings after remand. Due process requires 

disqualification where “circumstances fairly give rise to an 

appearance of impropriety and reasonably cast suspicion on the 

adjudicator’s impartiality.” Kilakila ʻO Haleakalā v. Bd. of 

Land & Nat. Res., 138 Hawaiʻi 383, 425, 382 P.3d 195, 237 (2016) 

(“Kilakila III”) (Pollack, J., dissenting) (citations omitted). 

The test for prejudgment in an agency context is “whether a 

disinterested observer may conclude that (the agency) has in 

some measure adjudged the facts as well as the law . . . in 

advance of hearing the matter.” Mauna Kea I, 136 Hawaiʻi at 395, 
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363 P.3d 243 (citation omitted). As noted earlier, 

administrative adjudicators are, however, entitled to a

“presumption of honesty and integrity.” Sifagaloa, 74 Haw. at 

193, 840 P.2d at 372. 

a. Yuen’s participation

Soon after the Hearing Officer was appointed, Appellants 

filed objections asserting Yuen should be disqualified. By 

Minute Order No. 9 dated June 3, 2016, the BLNR overruled these 

objections. On appeal, Appellants reassert their arguments 

below regarding Yuen’s participation. Appellants point to a 

1998 interview of Yuen published online by environmenthawaii.org in which Yuen made statements regarding Mauna Kea, 

which Appellants characterize as “strong and favorable opinions 

and positions of future telescope development.” Specifically, 

Appellants take issue with the following statements made by Yuen 

during the interview:

For all the criticism and the auditors [sic] report —

I just don’t see a lot of harm that’s been done to those 

resources [historic sites, archaeological sites, bug 

communities, cleanliness of the area, public safety issues, 

some culturally significant areas] by the astronomy 

facilities being put up there and with all this activity in 

the last 20—25 years.

. . . .

The auditor’s report was critical. There were some 

delays. The big archaeological study was late, certainly 

the arthropod study was delayed. But if you try to 

identify what has gone wrong — has something been destroyed 

or lost? Again, apart from just the thing that you have 

all those domes sticking up there, it’s been done in a 

pretty responsible way.
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There are people that don’t like having all those 

buildings up there — which is a valid point of view, but 

the basic decision was made almost 20 years ago. And, 

honestly, I don’t see what difference it would make to have 

a few more telescopes up there as long as you site them 

properly. It doesn’t make a qualitative change in the 

mountaintop if you do that.

The MKAH Appellants focus on two lines to assert Yuen had 

prejudged the CDUA: “[H]onestly, I don’t see what difference it 

would make to have a few more telescopes up there as long as you 

site them properly. It doesn’t make a qualitative change in the 

mountaintop if you do that.” 

Yuen’s comments, however, also contained criticism of 

telescope projects. The quotation above contains his comments

delays in completing studies. He also criticized the manner in 

which the Subaru telescope had been constructed, which involved 

the grading out of puʻu and potential destruction of bug 

habitats. He also stated that Mauna Kea “is a very important, 

prominent place” and that individuals who “don’t like having all 

those buildings up there” had a “valid point of view.” He 

opined that, unfortunately, the State had already irrevocably 

changed the landscape nearly twenty years ago when it first 

allowed telescopes. He also stated that any future telescope 

project would need, at minimum, to be “site[d] . . . properly,” 

meet the demands of good stewardship, and leave intact habitat 

and archaeological and cultural sites. 
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Thus, Yuen’s comments, made in 1998, did not indicate he 

would approve all future telescope applications. In the context 

of the entirety of Yuen’s comments, the BLNR did not err in 

ruling that the circumstances did not fairly give rise to an 

appearance of impropriety and did not reasonably cast suspicion 

on Yuen’s impartiality. See Kilakila III, 138 Hawaiʻi at 425, 

382 P.3d at 237 (Pollack, J., dissenting). 

Appellants also argue that Yuen should have been 

disqualified because he had been a member of the panel that 

selected Amano and had voted on Appellants’ motions to 

disqualify her. There is no due process violation based on

this assertion.

13 

Thus, Yuen’s disqualification was not required by due 

process, and the BLNR did not err by denying Appellants’ request 

to disqualify him.

 

13 To the extent Appellants also argue a statutory basis for 

disqualification, Appellees correctly respond that Yuen was appointed to the 

BLNR pursuant to HRS § 171-4(b) (1993 & Supp. 2005), which requires that the

BLNR have at least one member “with a background in conservation and natural 

resources.” HRS § 84-14 (1993 & Supp. 2012) then provides: 

A person whose position on a board, commission, or 

committee is mandated by statute, resolution, or executive 

order to have particular qualifications shall only be 

prohibited from taking official action that directly and 

specifically affects a business or undertaking in which the 

person has a substantial financial interest; provided that 

the substantial financial interest is related to the 

member’s particular qualifications.

(Emphasis added). There was no allegation or evidence that Yuen has a 

substantial financial interest in the TMT Project. 
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b. Gon’s participation

Appellants first objected to Gon’s participation during 

closing arguments before the BLNR. Appellants reiterate their 

argument below that Gon should have been disqualified because he 

had previously voted and signed off on the original CDUP vacated 

by Mauna Kea I. During their appeal of the first CDUP, however, 

Appellants represented they were not seeking recusal of any 

member of the BLNR. See Mauna Kea I, 136 Hawaiʻi at 398, 363 

P.3d at 246. In addition, Mauna Kea I remanded the case for a 

second contested case hearing “before the Board or a new hearing 

officer,” not a new Board. Mauna Kea I, 136 Hawaiʻi at 399, 363 

P.3d at 247. Moreover, there is no legal authority requiring a 

Board member to be disqualified because he had approved a 

decision that is later vacated and remanded. If such authority 

existed, no vacated decision could ever be remanded to the same 

board or lower court judge.14

Thus, Gon’s disqualification was not required by due 

process, and the BLNR did not err by denying Appellants’ request 

to disqualify him.

 

14 Like Yuen, Gon was appointed to the BLNR as a member with “particular 

qualifications,” in Gon’s case pursuant to HRS § 171-4(c) (1993 & Supp. 2014) 

as a member “with demonstrated expertise in native Hawaiian traditional and 

customary practices.” Like Yuen, Gon is statutorily prohibited from taking 

official action only where it “directly and specifically affects a business 

or undertaking in which [he] has a substantial financial interest.” HRS § 

84-14(a). See supra note 13. There is also no allegation or evidence that 

Gon has a substantial financial interest in the TMT Project. 
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B. Native Hawaiian Rights Issues

1. Whether the BLNR fulfilled its duties under 

Article XII, Section 7 and Ka Paʻakai o Ka ʻĀina v. 

Land Use Commission

The protection of Native Hawaiian traditional and customary 

rights is enshrined in Article XII, section 7 of the Hawaiʻi 

Constitution, which provides as follows:

The State reaffirms and shall protect all rights, 

customarily and traditionally exercised for subsistence, 

cultural and religious purposes and possessed by ahupuaʻa 

tenants who are descendants of native Hawaiians who 

inhabited the Hawaiian Islands prior to 1778, subject to 

the right of the State to regulate such rights.

These rights of Native Hawaiians who inhabited the Hawaiian 

Islands before 1778 are property interests protected by the due 

process clause of Article I, section 5 of the Hawaiʻi 

Constitution. Flores v. Bd. of Land and Nat. Res., 143 Hawaiʻi 

114, 126, 424 P.3d 469, 481 (2018) (citing Mauna Kea I, 136 

Hawaiʻi at 390, 363 P.3d at 238).

In Public Access Shoreline Hawaii v. Hawaiʻi Cty. Planning 

Comm’n (“PASH”), we reaffirmed the State’s obligation to 

protect the reasonable exercise of customary and traditionally 

exercised rights of Hawaiians to the extent feasible. 79 Hawaiʻi 

425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995). Then in Ka

Paʻakai o Ka ʻĀina v. Land Use Comm’n, we set out an analytical 

framework “to help ensure the enforcement of traditional and 

customary Native Hawaiian rights while reasonably accommodating 

competing private development interests.” 94 Hawaiʻi 31, 35, 7 
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P.3d 1068, 1072 (2000). We held that in order to fulfill its 

duty to preserve and protect customary and traditional Native 

Hawaiian rights to the extent feasible, as required by Article 

XII, Section 7 of the Hawaiʻi Constitution, an administrative 

agency must, at minimum, make specific findings of fact and 

conclusions of law as to the following: (1) the identity and 

scope of valued cultural, historical, or natural resources in 

the relevant area, including the extent to which traditional and 

customary Native Hawaiian rights are exercised in the area; (2) 

the extent to which those resources -— including traditional and 

customary Native Hawaiian rights —- will be affected or impaired 

by the proposed action; and (3) the feasible action, if any, to 

be taken by the agency to reasonably protect Native Hawaiian 

rights if they are found to exist. Ka Paʻakai, 94 Hawaiʻi at 47, 

7 P.3d at 1084. MKAH and Kihoi Appellants assert that the BLNR 

failed to meet these obligations.

The Ka Paʻakai analysis is designed to effectuate Article 

XII, Section 7 and protect rights traditionally and customarily 

exercised by Native Hawaiians for subsistence, cultural and 

religious purposes. The first step of the analysis required the 

BLNR to make specific findings and conclusions about the 

identity and scope of valued cultural, historical, or natural 

resources in the relevant area, including the extent to which 

traditional and customary Native Hawaiian rights are exercised 
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in the area. The BLNR made numerous findings of fact and 

conclusions of law in this regard.

15

The issues on appeal relate to Native Hawaiian cultural 

resources, and we therefore focus our discussion on these 

issues. In addition to testimonial evidence, in reaching its 

findings, the BLNR had available numerous recent research 

studies, plans, and impact assessments documenting cultural 

resources on Mauna Kea, including Native Hawaiian traditional 

and customary practices.16

In summary, the BLNR found that the majority of Native 

Hawaiian cultural practitioners on Mauna Kea conduct their 

practices at the summit of Mauna Kea (Puʻu Wēkiu), Lake Waiau, 

 

15 See FOFs 175-225 regarding HAR § 13-5-30(4) on pp. 219-25, 531-567 on 

pp. 91 to 98 regarding biologic resources, 568-675 on pp. 98 to 116 regarding 

archaeological and historic resources, FOFs 676-839 on pp. 116-55 regarding 

cultural resources and practices, FOFs 840-860 on pp. 155-58 regarding visual 

and aesthetic issues, FOFs 861-888 on pp. 158-63 regarding hydrology and 

water resources, and COLs 365-437 on pp. 244-54.

16 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]”).
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Puʻu Līlīnoe, or Kūkahauʻula. Cultural practices at Mauna Kea 

include solstice and equinox observations on Puʻu Wēkiu, burial 

blessings, depositing of piko (umbilical cord) near Lake Waiau 

as well as collection of its water for use in healing and ritual 

practices, the giving of offerings and prayers at the ahu lele 

(sacrificial altar or stand), behind the visitor center adjacent 

to Hale Pōhaku, monitoring or observing the adze quarry, or 

observing stars, constellations, and the heavens.

The BLNR found no evidence, however, of Native Hawaiian

cultural resources, including traditional and customary 

practices, within the TMT Observatory site area and the Access 

Way, which it characterized as the relevant area. There was no 

physical evidence that the TMT Observatory site was used for 

storing piko, iwi (bones of the dead), placenta or other 

artifacts. There was no evidence of ahu (shrine or altar), lele 

(sacrificial altar), or other historic properties therein. 

There was also no evidence of mele (song, anthem, or chant) or 

hula being performed in the area. After extensive surveying, no 

archaeological or historic sites or burials were found in any of 

the TMT Observatory site or Access Way areas. 

The BLNR also analyzed Native Hawaiian cultural resources

in the vicinity of the TMT Observatory and the Access Way. 

Native Hawaiians had erected ahu in the general vicinity of the 

TMT Observatory site. The closest, consisting of a single 
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upright stone and several support stones, is 225 feet away, 

another is 1300 feet away, and a third is 1600 feet away. The 

BLNR concluded that the two ahu built on the Access Way in 2015 

as protests against the TMT did not constitute a traditional and 

customary right or practice, and in any event did not meet 

PASH’s requirement of reasonableness. PASH, 79 Hawaiʻi at 447, 

903 P.2d at 1268.

The BLNR conducted a thorough analysis as required by the 

first step of the Ka Paʻakai analysis. The BLNR found no Native 

Hawaiian cultural resources or traditional or customary 

practices within the TMT Observatory site and Access Way areas. 

It correctly concluded that the two ahu constructed on the TMT 

Access Way in 2015 as protests against TMT are not protected as 

Native Hawaiian traditional or customary rights.

The second step of the Ka Paʻakai analysis required the BLNR 

to make findings regarding the extent to which cultural

resources -— including traditional and customary Native Hawaiian 

rights -— will be affected or impaired by the proposed action. 

The BLNR found that the TMT Project will not adversely impact 

cultural resources, whether in the relevant area of the TMT 

Observatory site and Access Way, or in other areas of Mauna Kea. 

If the three ahu in the vicinity of the TMT Observatory site are 

within the relevant area, the BLNR found that the TMT would not 

affect them. Also, if the summit is considered to be within the 
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relevant area, the BLNR found that the TMT Observatory will not 

be visible from Lake Waiau, Puʻu Līlīnoe, or Kūkahauʻula, which 

are culturally sensitive areas of the summit of Mauna Kea, and 

that the TMT would not impact the other cultural practices 

discussed above. The BLNR also found that since 2000, cultural 

and/or spiritual practices have been occurring while astronomy 

facilities have existed, and that those activities would not be 

prevented by the TMT Observatory, which would be located 600 

feet below the summit ridge. 

The third Ka Paʻakai requirement requires findings regarding 

the feasible action, if any, to be taken to reasonably protect 

Native Hawaiian rights if they are found to exist. Native 

Hawaiian rights were not found to have been exercised in the 

relevant area, so the third requirement was not required to be 

addressed. In any event, the BLNR discussed measures that had 

been taken to avoid impact on Native Hawaiian rights and 

practices in the Mauna Kea summit area17 and imposed special 

conditions to avoid impacts on those practices.18

 

17 FOF 747 states: 

The University and TIO have established measures to avoid and 

minimize direct and indirect impacts on cultural practices, 

including but not limited to the following:

(1) selecting a site off of the Kūkahauʻula summit and away 

from known historic and traditional cultural properties and 

cultural resources;

(2) selecting a site that minimizes the impact of the TMT 

Project on viewplanes;

(continued. . .)
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 The MKAH Appellants also challenge the following two 

conditions imposed by the BLNR for issuance of the CDUP, 

alleging that they demonstrate that “preservation and protection 

of native Hawaiian rights are not being addressed before the 

land is reclassified,” as Ka Paʻakai requires, and that the BLNR 

 

(continued. . .)

(3) complying with all applicable provisions of the CMP and 

sub-plans;

(4) engaging in direct and regular consultation with Kahu 

Kū Mauna, with the broader Hawaiʻi Island community, and 

with cultural practitioners on various issues;

(5) establishing an outreach office to engage with the 

larger community;

(6) developing and implementing a Cultural and Natural 

Resources Training Program for all TMT staff and 

construction workers; and 

(7) minimizing TMT Observatory operations (up to 4 days per 

year) to accommodate cultural activities on culturally 

sensitive days of the year.

18 Special Conditions 30, 34, and 36 provide as follows:

30. Should historic remains such as artifacts, burials or 

concentration of charcoal be encountered during 

construction activities, work shall cease immediately in 

the vicinity of the find, and the find shall be protected 

from further damage. The contractor shall immediately 

contact the State Historic Preservation Division . . . 

which will assess the significance of the find and 

recommend an appropriate mitigation measure, if necessary; 

the Applicant will also notify the Office of Hawaiian 

Affairs at the same time;

. . . .

34. Daytime activities at TMT will be minimized on up to 

four days per year, as identified by Kahu Kū Mauna;

. . . . 

36. UHH shall allow reasonable access to the area 

established under Condition 35 for the exercise of any 

native Hawaiian traditional and customary practices to the

extent feasible, reasonable, and safe. The allocation of 

this area shall be in addition to all other cultural and 

access rights of native Hawaiians to other areas of Mauna 

Kea as provided by law or by other conditions set forth 

herein[.]
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improperly delegated its duty to protect and preserve Native 

Hawaiian rights:

35. UHH shall consult with the Kahu Kū Mauna Council and 

cultural practitioners to the extent feasible to plan for, 

and establish, an appropriate area on Mauna Kea, within the 

MKSR, to be used by native Hawaiians for religious and 

cultural purposes; provided that this condition shall not 

affect the timing of TMT construction or operation. 

. . . .

41. Kahu Kū Mauna shall review policies concerning the 

construction and retention of personal or group shrines 

such as ʻahu, and recommend policies to OMKM and/or the BLNR 

as appropriate, within 18 months. . . .

This “improper delegation” argument stems from our holding 

in Ka Paʻakai that an agency cannot delegate its duties to a

developer. Ka Paʻakai, 94 Hawaiʻi at 50-51, 7 P.3d at 1087-88. 

Again, it was not necessary to address the third Ka Paʻakai

requirement. In addition, although at first blush conditions 35 

and 41 may appear to be delegations, they are not; they are 

outside and in addition to Ka Paʻakai requirements, and were 

imposed to ensure that Native Hawaiian practices in the Mauna 

Kea area will continue to be protected. 

Thus, the BLNR discharged its Ka Paʻakai duties. 

2. Whether the TMT Project violates religious exercise 

rights of Native Hawaiians protected by federal 

statutes. 

Kihoi Appellants assert that the BLNR erred by not 

addressing the substantial burden and impact the TMT would have 

on their rights under the Free Exercise Clause of the First 

Amendment to the United States Constitution. The BLNR Decision 

and Order, however, describes each of the Kihoi Appellants, then 
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addresses each of their testimonies, their witnesses, and 

arguments. The Kihoi Appellants also erroneously assert that 

the testimony of Appellant Kanaele was never addressed, as his 

testimony was addressed in BLNR Decision and Order FOFs 21, 250, 

794, and 886.

Kihoi Appellants also cite to The Religious Freedom 

Restoration Act, 42 U.S.C. §§ 2000b et seq. (“RFRA”), which they 

allege requires application of a strict scrutiny standard when 

determining whether the Free Exercise Clause has been violated. 

In State v. Sunderland, 115 Hawaiʻi 396, 403, 168 P.3d 526, 533 

(2007), however, we “already [took] note of the fact that the 

United States Supreme Court, in [City of Boerne v. Flores, 521 

U.S. 507 (1997)], invalidated RFRA insofar as it ‘exceeded the 

enumerated powers of Congress and was, therefore, 

unconstitutional.’ . . . As a result, RFRA is inoperative as to 

the individual states.” Thus, RFRA applies only to the federal 

government, and does not apply to the TMT Project. Sunderland, 

115 Hawaiʻi at 403 n.9, 168 P.3d at 533 n.9.

Kihoi Appellants also argue that the land use provisions of 

the “Religious Land Use and Institutionalized Persons Act of 

2000” (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq., protect 

individuals, houses of worship, and other religious institutions 

from discrimination in zoning and landmarking laws. Kihoi 

Appellants did not raise any argument under that statute during 
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the contested case proceeding. In any event, as held by the 

Ninth Circuit Court of Appeals in Navajo Nation v. U.S. Forest 

Serv., 535 F.3d 1058, 1077 (9th Cir. 2008), RLUIPA “applies only 

to government land-use regulations of private land – such as 

zoning laws – not to the government’s management of its own 

land.” 

Therefore, this point of error is without merit.

3. Whether the Hearing Officer should have allowed 

briefing and a hearing on a motion to dismiss based 

on a request to disqualify UHH as applicant based on 

its alleged hostility toward the traditional Hawaiian 

faith.

Appellant Temple of Lono alleges that the Hearing Officer 

failed to allow briefing and a hearing on its attempts to have 

UHH disqualified as the applicant for the CDUA based on 

statements UHH made in a pre-hearing memorandum. The issue 

arises out of statements contained in UHH’s August 1, 2016 

memorandum in opposition to Appellant Temple of Lono’s motion 

before the Hearing Officer seeking summary judgment on two 

claims regarding its religious practices, that (1) “the summit 

of Mauna a Wākea is a sacred site of special significance in the 

traditional Hawaiian faith” and that (2) “the traditional 

Hawaiian faith is still practiced.”

The Temple’s opening brief does not quote the allegedly 

offending language, but asserts that it is in a section entitled 
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“Policy Considerations for Motion,” in which UHH included the 

following statements:

The problem with fundamentalism in religion – any religion – is 

its intolerance and inability to compromise. Fundamentalist 

religion when confronted with a conflict between cooperation and 

conformity to doctrine invariably chooses the latter, regardless 

of the harm it brings to the society of which it is a part. The 

Temple wants a religious servitude over all of Mauna Kea, for the 

purpose of advancing its own religious agenda.

The Temple’s religious fundamentalism calls into play the 

tension between the establishment clause and the free exercise 

clause. The Temple wants full expansion of the free exercise 

clause regarding Mauna Kea. . . . In short, the Temple cannot 

use this proceeding to obtain a religious servitude over Mauna 

Kea, as part of advancing the Temple’s fundamentalist agenda.

Appellant Temple of Lono challenged this language as an ad 

hominem19 attack. The Hearing Officer denied various attempts to 

have UHH disqualified as the CDUA applicant based on this 

language in its memorandum. 

UHH argues that the offending language was not an attack on 

Appellant Temple of Lono, but rather was a response to the 

Temple’s argument that because Mauna Kea is viewed as sacred and 

is of special significance to its faith, the TMT Project could 

not be constructed there. UHH indicates that while it believes

Mauna Kea could accommodate both the TMT Project and traditional 

Native Hawaiian religion, the Temple rejects that sharing of 

Mauna Kea. It asserts that the language in question argued that 

such an absolutist position amounted to seeking a religious 

 

19 Black’s Law Dictionary 48 (10th ed. 2014) defines “ad hominem” as 

“[a]ppealing to personal prejudices rather than to reason; attacking an 

opponent’s character, esp. in lieu of a rational response to the opponent’s 

stand or statement. . . .”
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servitude over the mountain, which would itself run afoul of the 

establishment clauses of both the federal and state 

constitutions. 

Despite UHH’s reasoning, the tenor of the language in its 

memorandum was unnecessary. Neither the Hearing Officer nor the 

BLNR were required to disqualify UHH as the CDUA applicant based 

on this language, and this argument is without merit.20

4. Whether the Hearing Officer should have excluded 

challenges to the legal status of the State of Hawaiʻi

and its ownership of Mauna Kea as well as the 

existence of the Kingdom of Hawaiʻi. 

Appellant Fergerstrom asserts that the summit of Mauna Kea, 

as well as the ahupuaʻa of Kaʻohe in the District of Hāmākua are 

lands still held by the Hawaiian Kingdom. He alleges that the 

Hearing Officer wrongfully denied him his right to present 

expert testimony from Professor Williamson Chang of the 

University of Hawaiʻi William S. Richardson School of Law. 

Professor Chang proposed to testify that the State of Hawaiʻi 

does not exist as a matter of United States Constitutional law 

 

20 Appellant Temple of Lono also argued in Point of Error B(5) that the 

Hearing Officer should have allowed briefing and a hearing on a motion to 

dismiss based on violation of the desecration statute of the Hawaiʻi Penal 

Code, HRS § 711-1107 (2014). The Hearing Officer considered the motion and 

properly denied it based on the grounds that: (1) the agency lacked 

jurisdiction to adjudicate alleged violations of the Penal Code; and (2) the 

Temple failed to carry its summary judgment motion burden. Thus, this point 

of error is without merit.

 
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because annexation through a Joint Resolution of Congress rather 

than through a Treaty of Annexation was ineffective.21

The United States Supreme Court’s interpretations of the 

United States Constitution are, however, binding throughout the 

United States. As pointed out by Professor Jon M. Van Dyke in 

his book WHO OWNS THE CROWN LANDS OF HAWAIʻI, at page 212 note 86:

The U.S. Supreme Court gave tacit recognition to the 

legitimacy of the annexations of Texas and Hawaiʻi by joint 

resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 

196 (1901), that “territory thus acquired [by conquest or 

treaty] is acquired as absolutely as if the annexation were 

made, as in the case of Texas and Hawaii, by an act of 

Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 

(1868), stating that Texas had been properly admitted as a 

state in the United States. 

In other words, like Hawaiʻi, Texas was also admitted as a state 

through a joint resolution of Congress. The United States 

Supreme Court has thus indicated that the process by which 

Hawai‘i was incorporated into the United States was lawful and 

binding, and we are bound by this determination. In addition, 

as we stated in State v. Kaulia, “[W]e reaffirm that ‘[w]hatever 

may be said regarding the lawfulness’ of its origins, ‘the State 

of Hawaiʻi . . . is now a lawful government.’” 128 Hawaiʻi 479, 

 

21 For a historical perspective, see Congress’s Joint Resolution to 

Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the 

Kingdom of Hawaii signed into law by then-President Bill Clinton on November 

23, 1993 as Public Law No. 103–150, 107 Stat. 1510 (1993), quoted in full in 

Office of Hawaiian Affairs v. Housing and Community Development Corp. of 

Hawaii, 117 Hawaiʻi 174, 183-86, 177 P.3d 884, 893-96 (2008). For additional 

Native Hawaiian perspectives, see Volume 39, Number 2 (Summer 2017) of the 

University of Hawaiʻi Law Review.
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487, 192 P.3d 377, 385 (2013) (citing State v. Fergerstrom, 106 

Hawaiʻi 43, 55, 101 P.3d 652, 664 (App. 2004)).

The BLNR is bound by the United States Supreme Court’s and 

this court’s precedents regarding the legal status of the State 

of Hawaiʻi. Therefore, the Hearing Officer did not err by 

excluding the proposed evidence.

C. Public Trust and Land Use Issues

1. Whether TMT Project violates Article XI, Section 

1 of the Hawaiʻi Constitution and public 

trust principles. 

Article XI, Section 1 Hawaiʻi Constitution provides as 

follows:

For the benefit of present and future generations, 

the State and its political subdivisions shall conserve and 

protect Hawaii’s natural beauty and all natural resources, 

including land, water, air, minerals and energy sources, and 

shall promote the development and utilization of these resources 

in a manner consistent with their conservation and in furtherance 

of the self-sufficiency of the State.

 All public natural resources are held in trust by the State 

for the benefit of the people.

In In re Water use Permit Applications, 94 Hawaiʻi 97, 9 

P.3d 409 (2000) (“Waiāhole I”), in ruling that under Article XI, 

Sections 1 and 7 and the sovereign reservation, water is a

public trust resource, we stated that “[w]e need not define the 

full extent of article XI, section 1’s reference to ‘all public 

resources’ at this juncture.” Waiāhole I, 94 Hawaiʻi at 133, 9 

P.3d at 445. Since then, “[t]his court has never precisely 

demarcated the dimensions of the public trust doctrine as 
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incorporated in Article XI, Section 1.” See Mauna Kea I, 136

Hawaiʻi at 404, 363 P.3d at 252 (Pollack, J., concurring). 

The plain language of Article XI, Section 1 provides that 

all public natural resources, including land, are held in trust 

by the State for the benefit of the people. We therefore now 

hold that conservation district lands owned by the State,22 such 

as the lands in the summit area of Mauna Kea, are public 

resources held in trust for the benefit of the people pursuant 

to Article XI, Section 1.23 The plain language of Article XI, 

Section 1 further requires a balancing between the requirements 

of conservation and protection of public natural resources, on 

the one hand, and the development and utilization of these

resources on the other in a manner consistent with their 

conservation. We have also stated that the balancing must be 

“consistent with . . . conservation [of these resources] and in 

furtherance of the self-sufficiency of the State.” Waiāhole I, 

94 Hawaiʻi at 139, 9 P.3d at 451. We have also stated Article 

XI, Section 1, requires the state both to “protect” natural 

resources and to promote their “use and development,” consistent 

 

22 HRS § 183C-2 (2011) provides that the “`[c]onservation district’ means 

those lands within the various counties of the State bounded by the 

conservation district line, as established under provisions of Act 187, 

Session Laws of Hawaii 1961, and Act 205, Session Laws of Hawaii 1963, or 

future amendments thereto.”

23 Other types of public lands (and whether or how public trust principles 

should apply to such lands) are not before us at this time.
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with the conservation of the natural resources. Id. We have 

also indicated that any balancing between public and private 

purposes must begin with a presumption in favor of public use, 

access and enjoyment. Waiāhole I, 94 Hawaiʻi at 142, 9 P.3d at 

454.

24

 

24 We note that Appellants only assert a violation of public trust 

principles under Article XI, Section 1, and although Appellees raise 

arguments based on permissible uses of ceded lands pursuant to Section 5(f) 

of the Admission Act of 1959, Appellants have not alleged a violation of the 

ceded lands trust. Section 5(f) ceded lands trust purposes are “[1] the 

support of the public schools and [2] other public educational institutions, 

[3] the betterment of the conditions of native Hawaiians, as defined in the 

Hawaiian Homes Commission Act, 1920, as amended, [4] the development of farm 

and home ownership on as widespread a basis as possible for the making of 

public improvements, and [5] the provision of lands for public use.” Office 

of Hawaiian Affairs v. State, 96 Hawaiʻi 388, 390, 31 P.3d 901, 903 (2001). 

Ceded lands are also subject to Article XII, Section 4 of the Hawaiʻi 

Constitution, which provides that “[t]he lands granted to the State of Hawaii 

by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, 

of the State Constitution, excluding therefrom lands defined as ‘available 

lands’ by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, 

shall be held by the State as a public trust for native Hawaiians and the 

general public.” Article XVI, Section 7 in turn provides that “[a]ny trust 

provisions which the Congress shall impose, upon the admission of this State, 

in respect of the lands patented to the State by the United States or the 

proceeds and income therefrom, shall be complied with by appropriate 

legislation. Such legislation shall not diminish or limit the benefits of 

native Hawaiians under Section 4 of Article XII.” 

The BLNR also cites to Article X, Section 5 of the Hawaiʻi Constitution, 

which creates the University and gives it title to all real property conveyed 

to it, to “be held in public trust for its purposes, to be administered and 

disposed of as provided by law.” 

These other constitutional provisions and effectuating legislation are 

not at issue in this case, but they may play a part in defining public trust 

principles under Article XI, Section 1 with regard to conservation district 

lands owned by the State. Therefore, with respect to the Article XI, Section 

1 public trust as to conservation lands, we do not wholesale adopt our 

precedent setting out public trust principles as applied to the state water 

resources trust. See Waiāhole I, 94 Hawaiʻi at 133-44, 9 P.3d at 445-56, and 

its progeny. Rather the dimensions of this trust remain to be further 

demarcated. 
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In our de novo determination of whether these requirements 

of Article XI, Section 1 have been met, we consider relevant 

findings in the BLNR Decision and Order.25

With respect to the requirements of conservation and 

protection of public natural resources, the BLNR’s finding that 

the TMT Project will not cause substantial adverse impact to 

geologic sites is not challenged. The TMT Project does not 

involve the irrevocable transfer of public land to a private 

party. The TMT is to be decommissioned at the end of its 

anticipated 50 year useful life or at the end of the lease,26

whichever comes first, pursuant to the Decommissioning Plan, and 

the land must then be restored. The BLNR also imposed as 

conditions of the CDUP various measures that will help protect 

the land in the area, such as requiring compliance with all laws 

as well as representations made regarding measures designed to 

reduce the negative impact of the project, requiring funding of 

the re-naturalization of the closed access road on Puʻu Poliʻahu, 

 

25 We do not address Justice Pollack’s suggested analytical framework for 

addressing whether an agency is in compliance with its public trust 

obligations because, as he states, the BLNR has fulfilled its public trust 

obligations in any event. See Section IV of the Opinion of Pollack, J., 

Concurring in Part and Concurring in Judgment.

26 The current General Lease expires on December 31, 2033.
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and permanent decommissioning of three telescopes as soon as 

possible and two additional telescopes by December 31, 2033.27

With respect to the development and utilization of the land 

consistent with its conservation and in furtherance of the selfsufficiency of the State, with a presumption in favor of public 

use, access, and enjoyment, Appellants point out that in

Waiāhole I, we upheld the exercise of Native Hawaiian 

traditional and customary rights as a public trust purpose. 

Waiāhole I, 94 Hawaiʻi at 137, 9 P.3d at 449. Appellants assert 

that the use by Native Hawaiians of the land proposed to be used 

for TMT is a public use while use by TMT users is a private use. 

As discussed earlier, however, there was no actual evidence 

of use of the TMT Observatory site and Access Way area by Native 

Hawaiian practitioners. Furthermore, in general, astronomy and 

Native Hawaiian uses on Mauna Kea have co-existed for many years

and the TMT Project will not curtail or restrict Native Hawaiian

uses. In addition, the TMT is an advanced world-class telescope 

designed to investigate and answer some of the most fundamental 

questions regarding our universe, including the formation of 

stars and galaxies after the Big Bang and how the universe 

evolved to its present form. Native Hawaiians will also be 

included in other direct benefits from the TMT. Use of the land 

 

27 See the additional discussion in Section V(C)(2)(a) below regarding 

decommissioning, including funding for decommissioning. 
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by TMT will result in a substantial community benefits package, 

which has already provided over $2.5 million for grants and 

scholarships for STEM education benefitting Hawaiʻi students. 

The package also includes an additional commitment to provide $1 

million annually for this program. The TMT Project will also 

result in a workforce pipeline program that will lead to a pool 

of local workers trained in science, engineering, and technical 

positions available for employment in well paid occupations. 

TIO will pay sublease rent to the University, the first 

telescope developer on Mauna Kea to do so, which will be used 

for the management of Mauna Kea through the Mauna Kea Special 

Management Fund, administered by OMKM. Thus, use of the land by 

TMT is consistent with conservation and in furtherance of the 

self-sufficiency of the State.

We therefore hold that the TMT comports with Article XI, 

Section 1 public trust principles and that the BLNR met its 

duties as trustee under the Article XI, Section 1 public land 

trust28 through its Decision and Order.29 

 

28 We held in Mauna Kea I that an agency must perform its functions in a 

manner that fulfills the State’s affirmative obligations under the Hawaiʻi 

constitution. Mauna Kea I, 136 Hawaiʻi at 414, 363 P.3d at 262 (Pollack, J., 

concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part 

IV). In addition, “[t]he duties imposed upon the state are the duties of a 

trustee and not simply the duties of a good business manager.” Waiāhole I, 94 

Hawaiʻi at 143, 9 P.3d at 455 (citation omitted). Therefore, in performing 

its duties, the role of an agency is not merely to be a passive actor or a 

neutral umpire, and its duties are not fulfilled simply by providing a level 

playing field for the parties. Mauna Kea I, 136 Hawaiʻi at 414, 363 P.3d at 

(continued. . .)
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2. Whether the conditions of HAR § 13-5-30(c) for 

issuance of a CDUP were satisfied.

Pursuant to HAR § 13-5-24(c)(4) (1994), “astronomy 

facilities under a management plan approved simultaneously with 

the [Board] permit” is a permissible land use in the resource 

subzone, within which the MKSR is situated. Before granting a 

CDUP for any proposed land use, however, the BLNR must consider 

the eight criteria of HAR § 13-5-30(c) in evaluating the merits 

of the specific proposed use. HAR § 13-5-30(c) provides:

(c) In evaluating the merits of a proposed land use, the 

department or board shall apply the following criteria:

(1) The proposed land use is consistent with the 

purpose of the conservation district;

(2) The proposed land use is consistent with the 

objectives of the subzone of the land on which the 

use will occur;

(3) The proposed land use complies with provisions 

and guidelines contained in chapter 205A, HRS, 

entitled “Coastal Zone Management”, where applicable;

(4) The proposed land use will not cause substantial 

adverse impact to existing natural resources within 

the surrounding area, community, or region;

(5) The proposed land use, including buildings, 

structures, and facilities, shall be compatible with 

 

(continued. . .)

262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., 

joined as to Part IV.) 

29 FOF 360 states that “TIO has already received substantial funds and 

will undertake additional fundraising efforts once a decision has been made 

as to the project approval.” Although the BLNR addressed funding of 

decommissioning after completion, it is unclear whether other than an 

agreement from TIO to perform, the BLNR has adequately ensured that buildings 

or equipment will not be left behind and the areas used by TMT will be 

restored in the event full funding is not obtained for completion of 

construction or insufficient funds for decommissioning are available. Its 

duties as trustee require that it do so. The BLNR has discretion under 

Special Condition 43 to impose “[o]ther terms and conditions” on the CDUP. 

Therefore, the BLNR should ensure that the areas used by TMT will be restored

to their natural states at no cost to the State, whether through requiring an 

appropriate performance bond or through imposing funding and/or other 

requirements.
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the locality and surrounding areas, appropriate to 

the physical conditions and capabilities of the 

specific parcel or parcels;

(6) The existing physical and environmental aspects 

of the land, such as natural beauty and open space 

characteristics, will be preserved or improved upon, 

whichever is applicable;

(7) Subdivision of land will not be utilized to 

increase the intensity of land uses in the 

conservation district; and

(8) The proposed land use will not be materially 

detrimental to the public health, safety, and 

welfare.

The applicant shall have the burden of demonstrating that a 

proposed land use is consistent with the above criteria.

The BLNR made extensive FOFs and COLs regarding each of the 

eight criteria. See BLNR Decision and Order, pp. 77 to 189, FOF 

429-1040, pp. 213-37, COL 121-321. Appellants generally allege 

that the BLNR’s findings in this regard are erroneous, but their 

generalized assertions relate only to subsections (4) through 

(6), as discussed below.

a. HAR § 13-5-30(c)(4)

HAR § 13-5-30(c)(4) prohibits a “proposed land use” if it 

will “cause substantial adverse impact to existing natural 

resources within the surrounding area, community, or region.” 

HAR § 13-5-2 (1994) defines “natural resources” to mean 

“resources such as plants, aquatic life and wildlife, cultural, 

historic, recreational, geologic, and archeological sites, 
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scenic areas, ecologically significant areas, watersheds, and 

minerals.”30

The BLNR concluded that the TMT Project will not cause 

substantial adverse impacts to existing natural resources within 

the surrounding area, community, or region. Appellants agree 

with the BLNR’s conclusion that the cumulative effects of 

astronomical development and other uses in the summit area of 

Mauna Kea, even without the TMT, have already resulted in 

substantial, significant and adverse impacts, but challenge the 

BLNR’s conclusion that, therefore, the impacts on natural 

resources within the Astronomy Precinct of the MKSR would be 

substantially the same even in the absence of the TMT Project.

Similar to the Advanced Technology Solar Telescope (“ATST”)

atop Haleakalā, Kilakila III, 138 Hawaiʻi at 402-05, 382 P.3d at 

214-17, it is undisputed that even without the TMT, the 

 

30 In Ka Paʻakai, we declined to define “cultural resources” stating, 

“‘[c]ultural resources’ is a broad category, of which native Hawaiian rights 

is only one subset. In other words, we do not suggest that the statutory 

term, ‘cultural resources’ is synonymous with the constitutional term, 

customary and traditional native Hawaiian rights.” Ka Paʻakai, 94 Hawaiʻi at 

47 n.27, 7 P.3d at 1084 n.27. Although not specifically asserted by 

Appellants as a point of error, the BLNR suggested in COL 203 that cultural 

practices are not cultural resources protected by HAR § 13-5-30(c)(4), 

stating “[u]nder the definition of ‘Natural resource’ in HAR § 13-5-2, 

cultural, historical, and archaeological ‘sites’ are ‘natural resources’; but 

cultural practices are not necessarily.” However, the DLNR had included 

Native Hawaiian “cultural practices” within its assessment of “natural 

resources,” despite the University’s incorrect position that “cultural 

practices” are not “natural resources.” In addition, the BLNR’s HAR § 13-5-

30(c)(4) analysis contains numerous references to its assessment of the 

impact of the TMT Project on cultural practices. See, e.g., COLs 198, 199, 

205-10, 212, and 215. Therefore, any error in COL 203 is harmless. 
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cumulative effect of astronomical development and other uses in

the summit area of Mauna Kea have resulted in impacts that are 

substantial, significant and adverse. We opined in Kilakila

III, however, that the “BLNR does not have license to endlessly 

approve permits for construction in conservation districts, 

based purely on the rationale that every additional facility is 

purely incremental. It cannot be the case that the presence of 

one facility necessarily renders all additional facilities as an 

‘incremental’ addition.” Kilakila III, 138 Hawaiʻi at 404, 382 

P.3d at 216. 

As discussed earlier, there was no evidence of use of the 

TMT Observatory site and Access Way area for Native Hawaiian 

cultural practices. The BLNR asserts that in determining 

whether the TMT Project would have a substantial adverse impact 

on natural resources within the broader surrounding area, 

community, or region, as prohibited by HAR § 13-5-30(c)(4), it 

properly considered a host of measures designed to address 

environmental and cultural impacts of the TMT Project.

31 These 

 

31 In its FOF 522, the BLNR listed a number of measures designed to reduce 

or offset the negative impact of the TMT project, including: (1) site 

selection and infrastructure design to lessen the visual, cultural and 

environmental impact; (2) TMT Access Way design to reduce impact; (3) 

implementing a cultural and natural resources training program; (4) 

developing educational exhibits; (5) restoring Puʻu Poliʻahu; (6)providing a 

sense of place within the TMT facilities; (7) providing financial 

contributions to support cultural programs; (8) implementing specific 

cultural and community outreach efforts; (9) implementing cultural observance 

days; (10) continuing consultation with the State Historic Preservation 

Division and Kahu Kū Mauna Council regarding protocols for the relocation of 

(continued. . .)
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measures included project level measures, as well as the 

University’s commitment to decommissioning the CSO, Hōkū Keʻa, 

and the UKIRT telescopes by the time TMT is operational. 

Appellants assert that these measures are insufficient and 

that, in any event, there is no commitment to restore the 

abandoned Poliʻahu Road and to decommission three telescopes. FOF 

344 indicates, however, that TIO committed to restore the closed 

access road on Puʻu Poliʻahu in accordance with plans already 

approved by the DLNR. Also, the University committed to the 

decommissioning and restoration of the CSO, Hōkū Keʻa, and the 

UKIRT telescopes by the time TMT is operational. Moreover, 

Special Conditions 10 and 11 for the CDUP provide:

10. The University will decommission three telescopes 

permanently, as soon as reasonably possible, and no new 

observatories will be constructed on those sites. This 

commitment will be legally binding on the University and 

shall be included in any lease renewal or extension 

proposed by the University for Mauna Kea; 

11. Notwithstanding any lease renewal or extension, 

consistent with the Decommissioning Plan, at least two 

additional facilities will be permanently decommissioned by 

December 31, 2033, including the Very Long Baseline Array 

antenna and at least one additional observatory.32

 

(continued. . .)

the modern shrine (11) working with OMKM to develop and implement a wēkiu bug 

habitat restoration study (12) developing and implementing an invasive 

species prevention and control program; and (13) continuing consultations 

with cultural practitioners. 

32 Although Special Condition 11 lacks the language included in Special 

Condition 10 specifying that it is a legally binding commitment, we interpret 

it and the other conditions included in the BLNR’s Decision and Order to be 

similarly binding.
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With respect to the decommissioning commitment and 

requirement, the University owns four telescopes on Mauna Kea: 

UKIRT, JCMT, Hōkū Keʻa, and the University 2.2-meter Telescope. 

The University operates the University 2.2-meter Telescope and 

Hōkū Keʻa; UKIRT and JCMT are operated by other organizations. 

CSO and Hōkū Keʻa have already submitted their notices of intent 

to decommission. The University has also committed to 

decommission UKIRT by the time TMT becomes operational. In 

addition, Special Condition 11 requires that the Very Long 

Baseline Array antenna and at least one additional observatory 

be decommissioned by December 31, 2033.

With respect to funding for decommissioning, in January 

2010, OMKM promulgated a Decommissioning Plan as a Sub-Plan of 

the Mauna Kea Comprehensive Management Plan. The 

Decommissioning Plan calls for all new telescopes and existing 

telescopes that renegotiate their subleases to develop 

decommissioning funding plans to provide assurances of funds to 

finance the removal of their facilities and restore sites when 

the time to decommission arrives. The CSO decommissioning will 

be performed under the Decommissioning Plan. TIO has also 

committed to decommissioning the TMT under the Decommissioning 

Plan. Its funding plan calls for depositing a million dollars 

per year, with adjustments for inflation, commencing upon 

observatory operation for the 50-year useful life of the TMT. 
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The University is responsible for funding and executing the 

decommissioning of its own facilities. Before the transfer of 

ownership of the UKIRT and JCMT facilities to itself, the 

University secured $2.5 million for each telescope from the 

United Kingdom to defray the anticipated costs of 

decommissioning those telescopes.

Thus, contrary to Appellants’ assertion, there are 

commitments to restore the abandoned Poliʻahu Road and to 

decommission three telescopes by the time TMT is operational. 

There is also a requirement to decommission two additional 

telescopes by December 31, 2033, a commitment to not seek any 

additional telescope sites to replace the five telescopes that 

will be removed, and a plan for decommissioning other 

telescopes, including the TMT. 

It was appropriate for the BLNR to consider these measures 

in its HAR § 13-5-30(c)(4) analysis. Kilakila III, 138 Hawaiʻi 

at 404-05, 382 P.3d at 216-17; Morimoto v. Bd. of Land & Natural 

Res., 107 Hawaiʻi 296, 303, 113 P.3d 172, 179 (2005). 

The BLNR also recognized that “[t]he incremental nature of 

a project’s impacts, standing alone, cannot endlessly justify 

development within an existing developed area[,]” but found 

that, “in this case, the TMT Project’s compliance with all 

applicable rules, regulations, and requirements, the Master 

Plan, CMP, sub-plans, and the TMT Management Plan, along with 
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the mitigation measures committed to in the TMT Final EIS, CDUA, 

and TMT Management Plan, demonstrate that the TMT Project will 

not cause substantial adverse impact to the existing natural 

resources within the surrounding area, community, or region 

under HAR § 13-5-30(c)(4).” Because (1) the TMT will not cause 

substantial adverse impact to existing plants, aquatic life and 

wildlife, cultural, historic, and archaeological sites, 

minerals, recreational sites, geologic sites, scenic areas,

ecologically significant areas, and watersheds, (2) mitigation 

measures of restoring the abandoned Poliʻahu Road and 

decommissioning 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). 

b. HAR § 13-5-30(c)(5)

HAR § 13-5-30(c)(5) required the BLNR to evaluate whether 

“[t]he proposed land use, including buildings, structures, and 

facilities, [is] compatible with the locality and surrounding 

areas and appropriate to the physical conditions and 

capabilities of the specific parcel or parcels.” Appellants 

specifically challenge the BLNR’s conclusion that TMT is 

“compatible with the locality and surrounding areas.” In this 
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case, the BLNR analyzed the TMT for purposes of HAR § 13-5-

30(c)(5) in the context of the 525-acre Astronomy Precinct of 

the MKSR. In Kilakila III, we affirmed the BLNR’s analysis of 

the ATST project within the Haleakalā High Altitude Observatory

(“HO”) site, a single, highly developed 18.166-acre area within 

a much larger conservation district. Kilakila III, 138 Hawaiʻi 

at 405, 382 P.3d at 217. Appellants argue that the area 

evaluated for impacts for the ATST on Haleakalā differs 

significantly from the 525-acre Mauna Kea Astronomy Precinct, 

which encompasses an area including the summit and Northern 

Plateau areas of Mauna Kea. 

There do not appear to be any clear criteria as to how to 

determine what should constitute the appropriate “locality and 

surrounding areas.” Nonetheless, total deference to the BLNR’s 

decision regarding the area to be evaluated would allow many of 

the HAR § 13-5-30(c) criteria to be circumvented through 

strategic delineation, and there accordingly must be a sound and 

rational basis for defining the relevant locale.

In this case, it is true that Astronomy Precinct is 525 

acres, and much larger than the site evaluated in Kilakila III. 

Under the MKSR Master Plan, however, astronomy development is 

restricted to a defined 150-acre portion of the 525-acre 

Astronomy Precinct. The issue raised by Appellants regarding 

HAR § 13-5-30(c) is whether “[t]he proposed land use . . . [is] 
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compatible with the locality and surrounding areas. . . .” The 

BLNR noted that the proposed location of the TMT Project is a 

half mile from the summit area, in proximity to the eleven other 

previously developed facilities for astronomy within the 

Astronomy Project. Therefore, on these facts, we cannot say 

that the BLNR erred in concluding that the TMT Project is 

“compatible with the locality and surrounding areas.”

c. HAR § 13-5-30(c)(6)

HAR § 13-5-30(c)(6) (1994) provides: “The existing physical 

and environmental aspects of the land, such as natural beauty 

and open space characteristics, will be preserved or improved 

upon, whichever is applicable[.]”

Appellants allege this requirement was not met. The BLNR 

points out that, in Kilakila III, we upheld the BLNR’s findings 

and conclusions with respect to § 13-5-30(c)(6) on the grounds 

that:

BLNR noted that “[t]he ATST will not enhance the natural beauty 

or open space characteristics of the HO site.” However, because 

“[t]he HO site contains various astronomy facilities, including 

support buildings, roads and parking lots[,]” and “the proposed 

ATST is similar to existing facilities,” BLNR concluded that 

“[t]he ATST will be consistent with and will preserve the 

existing physical and environmental aspects of

the land. . . .” Additionally, BLNR considered numerous 

mitigation commitments in the CDUA, which were designed to 

mitigate impacts on biological resources. . . . Therefore,

similar to its analysis of HAR § 13-5-30(c)(4), BLNR articulated 

with “reasonable clarity” why the ATST would preserve the 

existing physical and environmental aspects of the land.

They cite to Kilakila III, 138 Hawaiʻi at 407, 382 P.3d at 219.
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The BLNR cites to various measures, including the removal 

of telescopes from the summit ridge, which will be taken to 

preserve the natural beauty and open space characteristics of 

the land. Furthermore, the University formally committed that 

this is the last new area of Mauna Kea where a telescope project 

would be sought. The BLNR’s findings with respect to HAR § 13-

5-30(c)(6) are not clearly erroneous. 

Therefore, Appellants’ allegations based HAR § 13-5-30(c)

are without merit.

D. Other Procedural Issues 

1. Whether the original CDUA should have been stricken 

and a new CDUA required. 

MKAH Appellants argue the Hearing Officer erred when she 

denied their motion to strike the CDUA because TIO and TOC are 

different corporations. They assert the CDUA “should have been 

stricken and a new application submitted” because the CDUA had 

been brought by UHH on behalf of TOC, not on behalf of TIO. 

The sections of the Hawaiʻi Administrative Rules cited by 

the MKAH Appellants do not support their position. HAR § 13-5-

31 (1994) does not explicitly state who may apply for a permit; 

rather, it requires the signature of the landowner. HAR § 13-5-

31(a)(5). HAR § 13-5-31(b) then allows “the State of Hawaii or 

government entity with management control over the parcel” to 

sign as landowner when the CDUA pertains to state or public 
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land. The rules do not require the CDUA applicant to submit a 

new application after a change in developers.

33

Appellants assert they were not given an opportunity to 

comment on the actual entity for which the CDUP was ultimately 

intended. Appellants had ample opportunity during the contested 

case hearing, however, to comment on TIO, challenge its 

participation by opposing its admission as a party, and crossexamine its witnesses. 

Therefore, this point of error is without merit.

2. What the nature of the proceeding was below, and 

whether there is an appropriate record on appeal.

Appellant Temple of Lono asserts that the manner in which 

the proceedings were handled after remand makes it unclear 

whether this was a new contested case or a resumption of the 

prior contested case. It argues that if the remand was treated 

as initiation of a new contested case, then the process had to 

provide some means for people to qualify as parties by 

requesting a contested case, such as a public hearing, citing to 

HAR § 13-1-29 (2009). It further asserts that after remand, the 

BLNR stated that the contested case was being “resumed” but also 

stated that “no chapter 92 public meeting was required to “start 

up” the contested case. It asserts that, after remand, the 

 

33 If a proposed project has changed significantly, however, it appears an 

amended application would be required to comport with due process 

requirements of adequate notice and an opportunity to be heard on the actual 

project. 
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proceeding “ended up as a hybrid recognized nowhere in the 

rules.” 

Appellant Temple of Lono appears to misapprehend the 

difference between a “contested case” and a “contested case 

hearing.” “‘Contested case’ means a proceeding in which the 

legal rights, duties, or privileges of specific parties are 

required by law to be determined after an opportunity for agency 

hearing.” HRS § 91-1 (1993 & Supp. 2017). In Mauna Kea I, we 

vacated the judgment that followed the first contested case 

hearing and remanded the case for a new hearing without 

dismissing the contested case itself. 136 Hawaiʻi at 399, 363 

P.3d at 247. Thus, in the contested case hearing after remand, 

just as in a new trial after remand, a new record on appeal is 

created based on admitted evidence. 

The Hearing Officer therefore appropriately 

included in the record on appeal filings from the contested case 

up until the point in time that the CDUA was originally 

approved. She then continued the proceeding from that point, 

with filings and evidence from the second contested case 

hearing. This point of error is therefore without merit.

3. Whether TIO and PUEO should have been admitted as 

parties.

MKAH Appellants, Appellant Temple of Lono, and Appellant 

Fergerstrom assert the Hearing Officer and the BLNR erred by 
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admitting TIO and PUEO as parties to the contested case hearing 

after our remand in Mauna Kea I. They assert TIO and PUEO’s 

motions to intervene were not timely because they were filed 

after our remand, five and a half years after the February 25, 

2011 board meeting at which the BLNR approved the CDUA and 

ordered that a contested case hearing be held. 

As discussed in the previous section, we remanded for a new 

“contested case hearing,” and did not require initiation of a 

new “contested case.” Admitting interested parties to 

participate for the new contested case hearing on remand was 

consistent with the due process concerns of Mauna Kea I. See

id. Also, HAR § 13-1-31(a) (2009) requires the decision maker 

to determine the parties “within a reasonable time following the 

ten-day period following the board meeting.” The “board 

meeting” in question is “the board meeting at which the subject 

matter of the request is scheduled for board disposition” 

identified in HAR § 13-1-29 (2009), which, in this case, was the 

February 25, 2011 board meeting. 

HAR § 13-1-31(b) and (c) (2009), however, do not support 

Appellants’ assertion that TIO and PUEO’s applications were 

untimely. Subsection (b) gave the Hearing Officer authority to 

admit parties based “upon timely application.” Subsection (c)

gave the Hearing Officer discretion to admit parties “who can 

show a substantial interest in the matter” so long as “the 
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requestor’s participation [would] substantially assist the board 

in its decision making.”

Although PUEO and TIO “were not admitted “at the ‘same 

time’ as the request for [the MKAH Appellants] on or about 

February 25, 2011 for a contested case hearing,” there was no 

abuse of discretion or other error. Although HAR § 13-1-31(d)

(2009) states, “All persons with similar interests seeking to be 

admitted as parties shall be considered at the same time so far 

as possible[,]” it does not preclude a later addition of 

parties.

Thus, the intervention of new parties after remand from 

this court was not erroneous. 

4. Whether the Hearing Officer’s scheduling of 

presentations by the parties violated Appellants’ due 

process rights.

This issue arises out of an August 23, 2016 procedural 

ruling by the Hearing Officer requiring all parties to 

simultaneously submit witness lists, their witnesses’ written 

direct testimonies, exhibit lists, and exhibits, at a date to be 

set sometime in October 2016. Appellants argue that as the 

party seeking the CDUP, UHH had the burden of presenting a case 

sufficient to secure the BLNR’s approval of the CDUA, citing to 

HAR § 13-1-35(k) (2009), which provides:

The party initiating the proceeding and, in the case of 

proceedings on alleged violations of law, the department, shall 

have the burden of proof, including the burden of producing 
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evidence as well as the burden of persuasion. The quantum of 

proof shall be a preponderance of the evidence.

They assert that opponents have no burden of proof and should 

not have been required to put on their case simultaneously with 

UHH. They further assert that requiring them to prepare their

case without seeing UHH’s case violated their due process 

rights. 

The Hearing Officer has discretion to determine hearing 

procedures pursuant to HAR § 13-1-32(b) and (c) (2009), but it 

appears that there was an abuse of that discretion. As 

Appellants argue, UHH had the burden, and even if exhibit lists 

and exhibits were properly ordered to be simultaneously 

submitted, the opponents of granting a permit for construction 

of the TMT should not have been required to submit their 

testimonies simultaneously with UHH. Despite the Hearing 

Officer’s initial deadline, however, Appellants were able to add 

new witnesses and exhibits throughout the evidentiary proceeding 

well past that deadline, and rebuttal witnesses were allowed 

upon a showing of good cause. Moreover, Appellants do not 

allege any actual prejudice due to the initial simultaneous 

submission requirement. Thus, Appellants were provided their 

due process right “to be heard at a meaningful time and in a 
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meaningful manner[.]” Sandy Beach Def. Fund v. City Council, 70 

Hawaiʻi 361, 378, 773 P.2d 250, 261 (1989) (citations omitted).

34

5. Whether the Hearing Officer improperly failed to 

provide required rulings and explanations for 

thousands of proposed findings of fact.

Appellant Temple of Lono asserts the Hearing Officer failed 

to comply with the requirement to provide a ruling on each of 

its proposed FOFs. It cites HRS § 91-12 (1993), which provides 

as below, with emphases added: 

Decisions and orders. Every decision and order adverse 

to a party to the proceeding, rendered by an agency in a 

contested case, shall be in writing or stated in the record and 

shall be accompanied by separate findings of fact and conclusions 

of law. If any party to the proceeding has filed proposed

findings of fact, the agency shall incorporate in its decision a

ruling upon each proposed finding so presented. The agency shall 

notify the parties to the proceeding by delivering or mailing a 

certified copy of the decision and order and accompanying 

findings and conclusions within a reasonable time to each party 

or to the party’s attorney of record.

The Hearing Officer’s Proposed Findings of Fact, 

Conclusions of Law, Decision and Order stated in the 

Introduction section:

Any proposed finding of fact submitted by the parties which is 

not specifically incorporated is rejected for one or more of the 

following reasons:

 

34 In Point of Error D(5), Appellant Temple of Lono asserts there was 

often significant time between the filing of its motions and issuance of 

rulings on those motions, and asserts eighteen motions were not decided or

decided late. Of the eighteen motions, all but one were filed after the July 

18, 2016 motions deadline, and the Hearing Officer eventually ruled on all 

motions. In Point of Error D(6), the Temple alleges that the Hearing Officer 

refused to provide “reasoned explanations” for her rulings. The record 

indicates that explanations were provided to the Temple for all of the 

rulings. Therefore, these points of error lack merit.

 
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-- They are repetitious or similar to the Hearing Officer’s own 

findings of fact or conclusions of law or decision and order, 

and/or

-- They are not supported by reliable and/or probative evidence, 

and/or

-- They are in whole or in part not supported by and/or are 

contrary to the facts or law, and/or

-- They are immaterial, superfluous, and/or irrelevant to the 

material facts, issues, and/or law of this case.

Appellant Temple of Lono alleges that without specific 

rulings on each proposed finding, a party is left to first 

search out which proposed findings the Hearing Officer rejected. 

It asserts that the proposing party must engage in pure 

speculation as to which of the above possible reasons or 

combination of reasons a proposed finding had been rejected, and 

that this process does not provide a meaningful opportunity to 

file exceptions. 

In Mitchell v. BWK Joint Venture, 57 Haw. 535, 540-43, 560 

P.2d 1292, 1296-97 (1977), we held that HRS § 91-12 was not 

violated when a board rejected wholesale a number of

proposed findings “for the reason that these findings of fact 

had been disapproved by the board or were repetitious of 

testimony which was already in evidence”. We also stated:

The respondent offered 53 proposed findings, of which the Board 

accepted 20. It rejected the remaining proposed findings “because 

they are, in whole or in part, contrary to the facts or the law 

or because they are immaterial.” Such a statement indicated the 

Boardʼs ruling with respect to its adoption or rejection of all 

53 of the proposed findings, and we see no objection to

including all 53 rulings in one sentence instead of 53 separate

sentences.
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Mitchell, 57 Haw. at 541-42, 560 P.2d at 1296-97(emphasis 

added). In Application of Hawaiian Tel. Co., we also stated 

that “[i]t is a settled rule in administrative law that a 

separate ruling on each proposed finding filed by a party is not 

indispensable. . . . All that is required is that the agency 

incorporate its findings in its decision.” 54 Haw. 663, 668, 

513 P.2d 1376, 1379 (1973) (citation omitted). Also, the ICA 

ruled in Outdoor Circle v. Harold K.L. Castle Tr. Estate, that 

where an agency “made and incorporated reasonably clear 

findings” and “[b]y choosing those, it impliedly rejected all 

others,” the agency did not violate HRS § 91-12. 4 Haw. App. 

633, 645, 675 P.2d 784, 792 (1983). The ICA also ruled in 

Survivors of Timothy Freitas, Dec. v. Pac. Contractors Co., that 

HRS § 91-12 does not require “a separate ruling on each proposed 

finding”. 1 Haw. App. 77, 84, 613 P.2d 927, 932 (1980). To the 

extent the Hearing Officer did not adopt the Temple of Lono’s 

proposed findings, they were impliedly rejected on the merits.

Therefore, this point of error is also without merit.35

 

35 Finally, in Point of Error D(8), Appellant Temple of Lono asserts that 

because the new Hearing Officer knew that the BLNR had earlier approved the 

permit, there is a question of how the Hearing Officer “would be any less 

influenced by the premature approval of the permit than the hearing officer 

in the first proceeding.” In Mauna Kea I, however, we ordered that the 

permit issued in the first proceeding be vacated and the matter remanded to 

the BLNR “so that a contested case hearing can be conducted before [the BLNR] 

or a new hearing officer, or for other proceedings consistent with this 

opinion.” Mauna Kea I, 136 Hawaiʻi at 381, 399, 363 P.3d at 229, 247. The 

Hearing Officer was therefore required to read the court’s opinion, which 

details the previous procedural history. If Appellant Temple of Lono’s 

(continued. . .)
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VI. Conclusion

Upon our careful review of the issues raised in these 

appeals as discussed above, we affirm the BLNR’s September 27, 

2017, Decision and Order authorizing issuance of a CDUP for the 

TMT. 

Richard Naiwieha Wurdeman /s/ Mark E. Recktenwald

for appellants 

Mauna Kea Anaina Hou, /s/ Sabrina S. McKenna

Kealoha Pisciotta, 

Clarence Kukauakahi /s/ Richard W. Pollack

Ching, Flores-Case ʻOhana,

Deborah J. Ward, Paul K. /s/ Jeannette H. Castagnetti

Neves, and Kahea: 

The Hawaiian Environmental 

Alliance

Gary Z. Zamber

for intervenor-appellants

Temple of Lono, Mehana 

Kihoi, Joseph Kualiʻi Camara, 

Leinaʻala Sleightholm, 

Kalikolehua Kanaele, 

Tiffnie Kakalia, Brannon 

Kamahana Kealoha, Cindy 

Freitas, and William Freitas

Intervenor-appellant

Harry Fergerstrom, pro se,

on the briefs

 

(continued. . .)

position was correct, there could never be a new contested hearing after 

remand if an agency or hearing officer was aware of the prior ruling that had 

been set aside; decisions of judges are also sometimes vacated and remanded 

to them for further proceedings consistent with an appellate court’s 

decision. Thus, this point of error is also without merit. 
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Clyde J. Wadsworth

(William J. Wynhoff, Kimberly 

Tsumoto Guidry, Julie China,

and Kalikoʻonalani D. Fernandes 

with him on the briefs)

for appellees State of Hawaiʻi, 

Board of Land and Natural Resources, 

and Chairperson Suzanne D. Case

John P. Manaut, Ian L.

Sandison, Joyce W.Y. 

Tam-Sugiyama and Lindsay N. 

McAneeley for appellee

University of Hawaiʻi at Hilo

Ross T. Shinyama and J. Douglas

Ing (Brian A. Kang and Summer H.

Kaiawe with them on the briefs)

for intervenor-appellee

TMT International Observatory LLC

Lincoln S.T. Ashida and Newton J. 

Chu (Vaughn G.T. Cook with them on

the briefs) for intervenor-appellee

Perpetuating Unique 

Educational Opportunities, Inc.