Oral Argument Before the Hawaii Supreme Court — No. SCOT-19-0000830
No. SCOT-19-0000830, Thursday, September 22, 2022, 10 a.m.
In the Matter of the Petition of KUʻULEI HIGASHI KANAHELE and AHIENA KANAHELE, Individuals, for a Declaratory Order Concerning the Invalid Classification of the De Facto and Improper Industrial Use Precinct on Approximately 525 Acres of State Land Use Conservation District Lands Located in Mauna Kea and Hilo, County of Hawaiʻi, Tax Map Key No.: 4-4-015:0090 (Por.)
The above-captioned case was set for oral argument on the merits at:
Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.
Attorneys for Appellants Kuʻulei Higashi Kanahele and Ahiena Kanahele:
Bianca Isaki of the Law Office of Bianca Isaki, and Lance D. Collins of the Law Office of Lance D Collins
Attorneys for Appellee TMT International Observatory LLC:
J. Douglas Ing, Brian A. Kang, Ross T. Shinyama, and Summer H. Kaiawe of Watahabe Ing LLP
Attorneys for Appellee University of Hawaiʻi:
Carrie K. S. Okinaga, General Counsel, Gary Y. Takeuchi, Deputy General Counsel, Jesse K. Souki, and Joseph F. Kotowski, III, Associate General Counsel
Attorneys for Appellee Land Use Commission, State of Hawaiʻi:
Patricia Ohara and Lori N. Tanigawa, Deputy Attorneys General, and Miranda C. Steed, Deputy Attorneys General
NOTE: Order assigning Circuit Judge Lisa W. Cataldo due to a vacancy, filed 07/31/20.
NOTE: Order granting motion to postpone oral argument from 08/04/22 to 09/22/22 at 10:00 a.m., filed 07/14/22.
COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Cataldo due to a vacancy.
Between 1968 and 2017, the Department of Land and Natural Resources (“DLNR”), through the Board of Land and Natural Resources, has issued thirteen conservation district use permits for the construction and operation of astronomy facilities on the Mauna Kea Science Reserve, land classified as a conservation district. Petitioners, Ku’ulei Higashi Kanahele and Ahiena Kanahele (the “Kanaheles”) appeal from a November 29, 2019 decision of the Land Use Commission (“LUC”) denying their request for declaratory relief. In their petition to the LUC, the Kanaheles requested that the LUC declare that the development of thirteen astronomy facilities, including the Thirty Meter Telescope, created a “de facto industrial use precinct” on Mauna Kea and was not appropriate within a conservation district.
The LUC denied the Kanaheles’ petition for declaratory relief, concluding that it lacked subject matter jurisdiction because it is the DLNR, not the LUC, that is “statutorily authorized to determine, permit, and enforce land uses within the State Conservation District.” The Kanaheles filed a direct appeal of the LUC’s decision to the Supreme Court of Hawaiʻi, arguing that the LUC erred in its determination that it lacked subject matter jurisdiction to issue the requested declaratory order.