                                                             Electronically Filed
                                                             Supreme Court
                                                             SCOT-XX-XXXXXXX
                                                             29-NOV-2018
                            SCOT-XX-XXXXXXX
                                                             03:34 PM
          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

           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
________________________________________________________________

       APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
                 (BLNR-CC-16-002 (Agency Appeal))

            ORDER GRANTING IN PART AND DENYING IN PART
                    MOTION FOR RECONSIDERATION
     (By: Recktenwald, C.J., McKenna, J., and Circuit Judge
         Castagnetti, in place of Nakayama, J., recused,
   with Pollack, J., concurring and dissenting separately, and
     with Wilson, J., concurring and dissenting separately)

          Upon consideration of the motion for reconsideration
filed on November 19, 2018 by Petitioners-Appellants Mauna Kea
Anaina Hou and Kealoha Pisciotta, Clarence Kukauakahi Ching,
Flores-Case ʻOhana, Deborah J. Ward, Paul K. Neves, and KAHEA:
The Hawaiian Environmental Alliance; the declaration in support
thereof; the joinders thereto; and the record and files herein,
          IT IS HEREBY ORDERED that the motion for
reconsideration is granted in part and denied in part.           The
motion is granted in part to delete footnote 15.
          IT IS HEREBY FURTHER ORDERED that the motion for
reconsideration is granted in part to modify footnote 17 to read
as follows:
          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]”).

This court will issue an Order of Correction and Amended Opinion
incorporating these changes.
         IT IS HEREBY FURTHER ORDERED that, in all other
respects, the motion for reconsideration is denied.
         DATED: Honolulu, Hawaiʻi, November 29, 2018.
                                 /s/ Mark E. Recktenwald
                                 /s/ Sabrina S. McKenna
                                 /s/ Jeannette H. Castagnetti




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