Special privilege and Special Condition 33 for TMT
UH’s lease with the state for astronomy on Maunakea expires in 2033. Is there a guarantee of a new lease beyond that?
The government sets legal processes to fulfill its various roles. In doing so, it’s charged to implement those processes consistently, much like private citizens are charged to follow laws regarding our roles in society. But an April 2019 document, Conditions for the TMT’s Conservation District Use Permit (CDUP), raises questions about whether applicable legal processes are being followed in regards to the Thirty-Meter Telescope project (TMT).
Such questions arise when considering the connections between TMT’s push to extend its sublease with University of Hawai‘i (UH), a condition in the UH Maunakea master lease with the Board of Land and Natural Resources (BLNR) regarding decommissioning all telescope facilities, and Special Condition 33 that the BLNR included in its Conservation District Use Permit (CDUP) for TMT.
The normal process
Two core BLNR responsibilities (as described in HRS Chapter 171-6, Chapter 171-7, and Chapter 26-15) involve the Board making decisions about who receives leases for public lands and whether permits are granted for proposed projects in conservation districts after applying strict criteria (HAR 13-5-30(c)(1-8)) to the evaluations. Such conservation areas include the Maunakea summit where 13 astronomy observatories were permitted to be built and where the BLNR supports TMT building its 18-story, five-acre footprint facility.
BLNR decisions about such leases are supposed to be made through an open, fair process (see HAR 13-1-11) that allows qualified applicants to vie equally for a chance to secure a lease (see HRS Chapter 171-14 and Chapter 171-16). The BLNR is required to make decisions in publicly noticed meetings during which the Board hears testimony from the public (see HAR 13-1-11.1), which the BLNR should take into account when making a decision.
Current Lease Stipulations
Currently the University of Hawaiʻi (UH) has a master lease from the BLNR for the Maunakea summit (see Attachment A of this 2014 UH sublease agreement with TMT) and a separate lease for the mid-level facilities at Hale Pōhaku where astronomers sleep and have their meals. With BLNR approval, UH granted a sublease to TMT to use an area near the summit on the northern flank of Maunakea. TMT’s sublease is for the life of UH’s master lease, which ends in 2033.
A condition of UH’s master lease is that at the end of the lease in 2033 all astronomy facilities must be decommissioned, including dismantling the structures and restoring the land to its natural state. Since the TMT indicates it will take 8 years to build its facility, and 5 years to decommission it (see Table 4-12 in this TMT report), they would need to start dismantling the project just as it’s completed in order to make the 2033 deadline.
Attempts at Lease Renewal
Given those constraints, it would be incredibly irresponsible for TMT’s investors to go forward with the project unless they had assurances that their lease would be renewed. But if the State were to do so, that would be inconsistent with the open, fair process the BLNR must go through when considering leases.
In keeping with such an open process, UH and TMT had tried back in 2013 to secure a longer lease. At its November 8, 2013 meeting, the BLNR addressed UH’s request to cancel its Maunakea leases and replace them with new 45-year leases. UH faced tremendous community opposition, and the proposal was not approved (see the BLNR submittals and minutes for its November 8, 2013 meeting).
This proposal to cancel current leases and establish new leases for a prolonged term, in essence, would have been equivalent to an action that is explicitly prohibited. A law (HRS Chapter 171-36(a)(1)) detailing lease restrictions establishes that “options for renewal of terms are prohibited.” This restriction is presumably to allow other interested parties an open, fair opportunity to seek a lease for a given parcel once a lease expires.
Nonetheless, the TMT and UH continued to forward the same plan of lease cancellations and concurrent new grants of long-term leases. The April 2014 UH sublease with TMT, Agreement 9(a)(1) stipulates that UH “shall use its best efforts to continue to…diligently pursue and take all actions necessary or advisable to complete the process currently underway with Lessor [DLNR] to obtain mutual cancellation of the current Master Lease subject to and concurrent with issuance of a new master lease…for a term of sixty-five (65) years and on terms and conditions materially consistent with the form of lease document submitted to the Lessor for consideration at its meeting of November 8, 2013.”
In short, UH’s sublease with TMT committed UH to continue advancing the same proposal that the community had resoundingly rejected and that the BLNR had not approved.
A Special Condition
In line with UH’s and TMT’s persistent efforts to pursue a new lease for a 45-year term, but in contradiction to the open and fair legal process for acquiring State land leases, the BLNR in its April 2019 stipulation of the CDUP conditions with the TMT seems to have confirmed plainly the foregone conclusion that they will provide the lease renewal.
Via Special Condition 33 of TMT’s CDUP, the BLNR mandates that in order to have funds set aside for TMT demolition and site restoration, “at the start of operations, TMT shall set aside $1 million annually for the 50-year life of the project” (see the CDUP Conditions that are listed following the BLNR notice to proceed). If TMT complies with this CDUP condition, then TMT cannot comply with the current lease directive that TMT decommission its facility and bring the area back to a natural state by 2033.
This contractual stipulation raises serious questions. Have TMT supporters swayed government officials to commit to future lease decisions in favor of UH and TMT? Have government officials become so brazen that they would grant, via CDUP Special Condition 33, extended leases to UH and TMT in contradiction to the open, fair processes defined by law?