Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 12, 1 December 2002 — OHA's motion to force NASA Mauna Kea EIS [ARTICLE+ILLUSTRATION]

OHA's motion to force NASA Mauna Kea EIS

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By Naomi Sodetani Afederal judge denied the Ofīice of Hawaiian Affairs complaint that NASA's proposed construction of six telescopes atop Mauna Kea violates federal environmental and cultural protection laws. OHA's motion for partial summary judgment had narrowly focused on the key issue of timing. The complaint pointed to evidence indicating thatthe space agency breached its own regulations by spending millions of dollars onthe project before itbegan assessing potential environmental or cultural impacts. On Nov. 18, Attorney Lea Hong, representing OHA in the matter, asserted that the agency clearly flouted federal laws by prematurely pouring massive funds into its controversial expansion of W.M. Keek Observatory, including building the telescopes. Federal environmental and historic preservation laws strictly mandate that "an environmental assessment must be completed in the earliest planning stages so that a range of alternatives could be considere d obj ective ly and without b ias ," H ong said . But U.S. District Judge Susan Oki Mollway denied the motion three days later, noting "a genuine issue of material fact as to whether NASA committedto the outrigger telescopes project prior to its initiation of the National Environmental Protection Act and National Historic Protection Act processes." An assessment should be prepared "early enough so thatit ean serve practically as an important contribution to the decision making process and will not be used to rationalize or to justify decisions already made." OHA's complaint cited statements from officials admitting that the outrigger telescopes intended for the Mauna Kea summit site have already been built as evidence that the project has already proceeded beyond the planning stage to implementation. Federal projects "must examine all impacts before it's too late to turn back," Hong said. 'They are not about waiting until the last possible moment, when the bulldozers are practically poised to go up the mountain." Silas DeRoma, NASA's attorney, flatly deniedthat NASA committed "an irretrievable, irreversible commitment of resources" prior to compiling its assessment. "NASA never stipulated anywhere that they did follow federal regulations," Hong noted. "They just made these weird arguments how 'theoretically, we don't have to install the outriggers on Mauna Kea, we ean put them some plaee else.' They didn't identify any other site they'd consider, yet admitted other sites would achieve none of the scientific goals they had sought." The Mauna Kea summit was selected by NASA for its superior viewing. The scopes will expand the capabilities of the WM. Keek Observatory, whieh already houses the world's two largest telescopes. OHA plans to file a motion for reconsideration, Hong said. Meanwhile, the OHA board considers the prospect of pursuing thematter with lengthy, costly litigation to prove NASA's negligence and to force the agency to prepare a more comprehensive environmental impact statement that addresses the expansion's cumulative impacts on cultural sites, the Wēkiu bug, an endangered species, as well as hazardous waste and hydrological issues. NASA's proposal is also the subject of a state Department of Land andNaturalResources contested case hearing. Hawaiian and environmental organizations want the land board to deny NASA the conservation district use permit it seeks, charging that more environmental and cultural review is necessary. The hearing will begin on Feb. 10, 2003. ■