Native Hawaiians and the scientific community have been pitted against each other in a decades-long culture war over the construction of observatories and telescopes on sacred landscapes. In Mauna Kea Anaina Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian culture and rights by halting the construction of a new telescope on Mauna Kea. The decision must be read cautiously, however, as it is firmly rooted in the strict application of procedural due process

Furlong, Wesley J.

English

University of Montana School of Law

Public Land and Resources Law Review
Volume 0 Case Summaries 2015-2016
Mauna Kea Anaina Hou v. Board of Land and
Natural Resources
Wesley J. Furlong
Alexander Blewett III School of Law at the University of Montana, wfurlong@narf.org
Follow this and additional works at: https://scholarship.law.umt.edu/plrlr
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Recommended Citation
Furlong, Wesley J. (2016) "Mauna Kea Anaina Hou v. Board of Land and Natural Resources," Public Land and Resources Law Review:
Vol. 0 , Article 33.
Available at: https://scholarship.law.umt.edu/plrlr/vol0/iss6/33
Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 363 
P.3d 224 (Haw. 2015) 
 
Wesley J. Furlong 
 
Native Hawaiians and the scientific community have been pitted 
against each other in a decades-long culture war over the construction of 
observatories and telescopes on sacred landscapes. In Mauna Kea Anaina 
Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian 
culture and rights by halting the construction of a new telescope on 
Mauna Kea. The decision must be read cautiously, however, as it is 
firmly rooted in the strict application of procedural due process.  
 
I.  INTRODUCTION 
 
 Representing the most recent iteration of the decades-long 
culture war between Native Hawaiians and the scientific community, 
Mauna Kea Anaina Hou v. Board of Land and Natural Resources 
specifically centered on the Board of Land and Natural Resources’s 
(“BLNR”) approval of a Conservation District Use Application 
(“CDUA”) and issuance of a Conservation District Use Permit 
(“CDUP”) to construct the new Thirty Meter Telescope (“TMT”) on the 
top of Mauna Kea, on the island of Hawai’i.1 The scientific community 
argued that the TMT was essential to advancing our understanding of the 
universe, while Native Hawaiians, Native Hawaiian rights groups, and 
conservation organizations (“Appellants”) argued its construction would 
violate their rights and desecrate sacred landscapes. 2  The BLNR 
eventually approved the project, and the Appellants appealed, arguing 
the approval violated their due process rights, statues, and rules.3 The 
Supreme Court of the State of Hawai’i agreed with the Appellants and 
vacated the CDUP and CDUA, remanding the case to the BLNR.4 
 
II.  FACTUAL AND PROCEDURAL BACKGROUND 
 
Mauna Kea is an origins place in Native Hawaiian cosmology:  
 
                                                 
1.  Mauna Kea Anaina Hou v. Bd. of Land and Natural Res., 363 P.3d 
224, 227  (Haw. 2015). 
2.  Id. at 228. 
3.  Id.  
4.  Id. 
  
 
2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
 
“[i]t’s where the heaven and the earth come together, 
where all life forms originated from. . . . It is a temple, 
but one not made by man but for man, so that man could 
learn the ways of the heavens and the laws of this earth, 
which mean how do we live with each other; how do we 
live in relationship to the earth; how do we live in 
relationship to the heaven.”5 
 
In 2010, the University of Hawai’i at Hilo (“UHH”) submitted a 
CDUA to the DLNR to construct the TMT on the top of Mauna Kea.6 
The CDUA proposed the construction of the observatory and ancillary 
facilities on a five-acre site, as well as access roads.7 The proposed site 
would sit within the astronomy precinct of the Mauna Kea Science 
Reserve, which is within the Conservation District Resource subzone.8 
The CDUA explained that Mauna Kea was the ideal location for the 
TMT “‘principally because of the superb viewing conditions that its 
high-altitude/mid-ocean location provides.’”9 The CDUA noted that the 
Mauna Kea observatories “‘have helped Hawai’i become one of the most 
important centers for astronomical research in the world.’”10 
 On December 2 and 3, 2010, the BLNR held public hearings on 
the CDUA and the proposed project. 11  Nearly 200 people attended; 
eighty-four testified. 12  The BLRN also received numerous written 
comments. 13  There were at least six requests for a contested case 
hearing.14 In the following weeks, the Office of Conservation and Costal 
Lands (“OCCL”) issued a report to the BLNR summarizing the CDUA 
and the comments, including the requests for a contested case hearing.15 
The OCCL recommended that the BLNR approve the CDUA and issue a 
CDUP.16 The OCCL did not recommend that the BLNR hold a contested 
                                                 
5.  Id. at 234 (quoting testimony of Kealoha Pisciotta, President, 
Mauna Kea Anaina Hou) (ellipses in original).  
6.  Id. at 229. 
7.  Id. 
8.  Id. The CDUA noted that thirteen astronomy observatory facilities 
are currently located on Mauna Kea. Id.  
9.  Id. (internal citation omitted in original). 
10.  Id. (internal citation omitted in original). 
11.  Id. 
12.  Id.  
13.  Id.  
14.  Id. 
15.  Id. at 229-30. 
16.  Id. at 230. 
  
 
2016 MAUNA KEA ANAINA HOU 3 
 
case hearing.17 On February 17, 2011, the BLNR issued notice that it 
would “‘consider’” the CDUA at its next meeting on February 25, 
2011.18  
 At the February 25 meeting, the BLNR allowed for limited 
public comment. 19  Forty-one individuals testified on both sides, and 
several requests for a contested case hearing were made.20 The BLRN 
voted to approve the CDUA and then, shortly after, voted to hold a 
contested case hearing.21 Beginning in August 2011, a hearing officer, 
appointed by the BLNR, held a contested case hearing, soliciting 
“voluminous written direct testimony” as well as oral testimony from 
twenty-six witnesses. 22  On November 30, 2012, the hearing officer 
issued his determination, granting the CDUA and issuing the CDUP.23 
The hearing officer’s determination was appealed to the BLNR, which, 
on April 12, 2013, issued its own decision granting the CDUA and 
issuing the CDUP.24  
 Throughout the process, opponents of the TMT testified that the 
observatory “would negatively affect the viewplanes [sic] of cultural 
practitioners, . . . cultural practices[,] and the environment.” 25  The 
opponents also continuously argued that the BLNR’s decision to hold a 
contested case hearing after deciding to grant the CDUA and issue the 
CDUP violated their due process.26 
 The BLNR’s decision was appealed to the Hawai’i State Circuit 
Court for the Third Circuit.27 The Appellants argued that the contested 
case hearing violated their due process, statues, and rules.28 The circuit 
court upheld the BLNR’s decision, stating that the timing of the 
decisions did not have “‘legal consequence’” because the BLNR 
                                                 
17.  Id.  
18.  Id. (internal citation omitted in original). 
19.  Id. 
20.  Id.  
21.  Id. at 231-32. 
22.  Id. at 233. 
23.  Id. at 235. 
24.  Id. 
25.  Id. at 234. The CDUP was not uniformly opposed by Native 
Hawaiians. Indeed, the Supreme Court noted testimony that the TMT “was 
‘compatible with the sacred landscape,’” as it allowed mankind to “‘learn more 
about ourselves, our God, and what’s out there beyond the starts.’” Id. (quoting 
testimony of Wallace Ishibashi, Jr.). Testimony in support compared the mission of 
the TMT’s “search for knowledge and understanding to a search for the aumakua or 
ancestral origins of the universe.” Id.  
26.  Id. at 236. 
27.  Id. 
28.  Id. 
  
 
4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
 
“‘preliminarily grant[ed]’” the CDUP “‘essentially simultaneously with’” 
granting a contested case hearing. 29  The circuit court found that the 
CDUP did not prejudice the Appellants because they were granted a 
contested case hearing and the construction had been stayed. 30   The 
Appellants appealed to the Hawai’i Supreme Court. 
 
III.  ANALYSIS 
 
 The Supreme Court determined that the issue before it was 
whether the Appellants had been afforded “an opportunity to be heard in 
a meaningful time and in a meaningful manner when” the BLNR granted 
a contested case hearing after issuing the CDUP. 31  While the 
requirements of due process may be flexible and depend on many 
factors, “‘there are certain fundamentals of just procedure which are the 
same for every type of tribunal and every type of proceeding,’ including 
those before administrative agencies.”32 The Court noted that the most 
“basic elements of due process are notice and an opportunity to be heard 
at a meaningful time and in a meaningful manner.” 33  The Court, 
however, emphasized that merely “giving a person ‘a day in court’” does 
not assure that the process is fair.34 
 The Supreme Court held that it was “undisputed that [the] 
Appellants were entitled to a contested case hearing.”35 The Court noted 
that the “substantial interests of Native Hawaiians in pursuing their 
cultural practices on Mauna Kea” would be protected from “erroneous 
deprivation” by a contested case hearing, and that there was a “lack of 
undue burden on the government in affording [the] Appellants a 
contested case hearing.”36 The Court held that “a contested case hearing 
was ‘required by law’” because the Appellants’ “substantial interests” 
                                                 
29.  Id. (quoting Mauna Kea Anaina Hou v. Bd. Land and Natural Res., 
No. 13-1-349, slip op at 2 (Haw. 3d Cir. Apr. 1, 2014), available at http://ilind.net/ 
misc%20/2015/TMT-3rd-Circuit-Court.pdf). 
30.  Id. (quoting Mauna Kea Anaina Hou, slip op. at 3). 
31.  Id. at 237. 
32.  Id. (quoting Sifagaloa v. Bd. of Trs. of Emps.’ Ret. Sys. of Haw., 
840 P.2d 367, 371 (Haw. 1992)) (discussing HAW. CONST. art I, § 5) (internal 
citation and bracket omitted). 
33.  Id. at 239 (citing Sandy Beach Def. Fund v. City Council of City 
and Cnty. of Honolulu, 773 P.2d 250, 261 (Haw. 1989)). 
34.  Id. at 237 (quoting Haw. v. Brown, 776 P.2d 1182, 1185 (Haw. 
1989)). 
35.  Id. at 238. 
36.  Id. 
  
 
2016 MAUNA KEA ANAINA HOU 5 
 
were affected by the CDUP.37 When a contested case hearing is required, 
due process mandates that the parties be given a meaningful opportunity 
to be heard.38 
The BLNR and the UHH argued that the decision to issue the 
CDUP was “merely preliminary and tentative pending a contested case 
hearing.”39 The Supreme Court determined that regardless of whether the 
approval was “‘preliminary’ or not,” the BLNR nevertheless approved 
the CDUP. 40  Examining the administrative record and the expressed 
intent of the BLNR, the Court concluded that the BLNR’s approval of 
the CDUA and the issuance of the CDUP “was a determination on the 
merits.”41  
Due process “prohibits decisionmakers [sic] from being biased, 
and more specifically, prohibits decisionmakers [sic] from prejudging 
matters and the appearance of having prejudged matters.”42 The Court 
concluded simply that “sequence matters.” 43  The BLNR issued the 
CDUP “despite pending requests for a contested case hearing.”44 It was 
only after the BLNR issued the CDUP that it decided to hold a contested 
case hearing.45 The Court stated, “[t]his sequence plainly gives rise to the 
appearance of prejudgment and did not provide [the] Appellants with a 
meaningful opportunity to be heard.” 46  The Court concluded, “the 
circumstances of this case give rise to the reality and appearance of 
impropriety, and thereby violate the Due Process Clause . . . of the 
Hawai’i Constitution.”47 
 The Supreme Court found unpersuasive the BLRN’s and the 
UHH’s alternative argument that the BLNR was not required to provide 
the Appellants a contested case hearing. 48  Hawaiian law requires an 
agency to hold a contested case hearing after a public hearing on the 
same subject matter.49 While the Court noted that the case hearing was 
held after a public hearing, the “rule did not authorize [the] BLNR to 
                                                 
37.  Id. (quoting Sandy Beach Def. Fund, 773 P.2d at 261). 
38.  Id. at 239. 
39.  Id. 
40.  Id. 
41.  Id. at 241. 
42.  Id. at 237 (citing Sussel v. City and Cnty. of Honolulu Civil Serv. 
Comm’n, 784 P.2d 867, 871 (Haw. 1989)) (emphasis added). 
43.  Id. at 241. 
44.  Id. 
45.  Id.  
46.  Id.  
47.  Id. (discussing HAW. CONST. art. I, § 5, cl. 1). 
48.  Id.  
49.  Id. at 235 (quoting HAW. CODE R. § 13-1-28(b) (2009)) 
  
 
6 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0 
 
decide the merits and issue the permit before the contested case hearing, 
or before the request for a contested case hearing had been resolved.”50 
The Court concluded that “[i]n any event, due process would prohibit 
such a procedure.”51 
Throughout the permitting process, the Supreme Court found the 
“appearance of prejudgment continue[d].” 52  The Court succinctly 
concluded that the “BLNR acted improperly when it used the permit 
prior to holding a contested case hearing.” 53  The Court vacated the 
CDUP and remanded the case to the circuit court to remand to the BLNR 
“so that a contested case hearing can be conducted before the [BLNR] or 
a new hearing officer.”54 
 
IV.  CONCLUSION 
 
 While the Hawai’i Supreme Court’s decision in Mauna Kae 
Anaina Hou can be fairly read as a victory for Native Hawaiian rights, it 
should also be read in light of what the Supreme Court actually decided: 
procedural due process. The fact that Native Hawaiian cultural practices 
might be infringed upon by the CDUP certainly played a part in the 
Court’s decision. The Court did not decide, however, the merits 
underlying the BLNR’s decision to issue the CDUP. The new contested 
case hearing has yet to be held and a final decision on the issuance of the 
CDUP must still be made. Only then will the Appellants have the 
opportunity to challenge the merits of the decision to issue the CDUP. In 
any regard, the future development of observatories on Mauna Kae will 
continue to be the battleground in a culture war between Native 
Hawaiians and the scientific community.  
                                                 
50.  Id. at 246 (emphasis in original). 
51.  Id. 
52.  Id. 
53.  Id. at 247. 
54.  Id. 


Mauna Kea Anaina Hou v. Board of Land and Natural Resources

University of Montana

Public Land & Resources Law Review Volume 0 Case Summaries 2015-2016 Article 33 April 2016 Mauna Kea Anaina Hou v. Board of Land and Natural Resources Wesley J. Furlong Alexander Blewett III School of Law at the University of Montana, wfurlong@narf.org Follow this and additional works at: https://scholarworks.umt.edu/plrlr  Part of the Administrative Law Commons, Constitutional Law Commons, Environmental Law Commons, Indigenous, Indian, and Aboriginal Law Commons, Land Use Law Commons, Natural Resources Law Commons, Property Law and Real Estate Commons, Religion Law Commons, Science and Technology Law Commons, and the State and Local Government Law Commons Let us know how access to this document benefits you. Recommended Citation Furlong, Wesley J. (2016) "Mauna Kea Anaina Hou v. Board of Land and Natural Resources," Public Land & Resources Law Review: Vol. 0 , Article 33. Available at: https://scholarworks.umt.edu/plrlr/vol0/iss6/33 This Case Summary is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Public Land & Resources Law Review by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 363 P.3d 224 (Haw. 2015)  Wesley J. Furlong  Native Hawaiians and the scientific community have been pitted against each other in a decades-long culture war over the construction of observatories and telescopes on sacred landscapes. In Mauna Kea Anaina Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian culture and rights by halting the construction of a new telescope on Mauna Kea. The decision must be read cautiously, however, as it is firmly rooted in the strict application of procedural due process.   I.  INTRODUCTION   Representing the most recent iteration of the decades-long culture war between Native Hawaiians and the scientific community, Mauna Kea Anaina Hou v. Board of Land and Natural Resources specifically centered on the Board of Land and Natural Resources’s (“BLNR”) approval of a Conservation District Use Application (“CDUA”) and issuance of a Conservation District Use Permit (“CDUP”) to construct the new Thirty Meter Telescope (“TMT”) on the top of Mauna Kea, on the island of Hawai’i.1 The scientific community argued that the TMT was essential to advancing our understanding of the universe, while Native Hawaiians, Native Hawaiian rights groups, and conservation organizations (“Appellants”) argued its construction would violate their rights and desecrate sacred landscapes. 2  The BLNR eventually approved the project, and the Appellants appealed, arguing the approval violated their due process rights, statues, and rules.3 The Supreme Court of the State of Hawai’i agreed with the Appellants and vacated the CDUP and CDUA, remanding the case to the BLNR.4  II.  FACTUAL AND PROCEDURAL BACKGROUND  Mauna Kea is an origins place in Native Hawaiian cosmology:                                                    1.  Mauna Kea Anaina Hou v. Bd. of Land and Natural Res., 363 P.3d 224, 227  (Haw. 2015). 2.  Id. at 228. 3.  Id.  4.  Id.    2 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0  “[i]t’s where the heaven and the earth come together, where all life forms originated from. . . . It is a temple, but one not made by man but for man, so that man could learn the ways of the heavens and the laws of this earth, which mean how do we live with each other; how do we live in relationship to the earth; how do we live in relationship to the heaven.”5  In 2010, the University of Hawai’i at Hilo (“UHH”) submitted a CDUA to the DLNR to construct the TMT on the top of Mauna Kea.6 The CDUA proposed the construction of the observatory and ancillary facilities on a five-acre site, as well as access roads.7 The proposed site would sit within the astronomy precinct of the Mauna Kea Science Reserve, which is within the Conservation District Resource subzone.8 The CDUA explained that Mauna Kea was the ideal location for the TMT “‘principally because of the superb viewing conditions that its high-altitude/mid-ocean location provides.’”9 The CDUA noted that the Mauna Kea observatories “‘have helped Hawai’i become one of the most important centers for astronomical research in the world.’”10  On December 2 and 3, 2010, the BLNR held public hearings on the CDUA and the proposed project. 11  Nearly 200 people attended; eighty-four testified. 12  The BLRN also received numerous written comments. 13  There were at least six requests for a contested case hearing.14 In the following weeks, the Office of Conservation and Costal Lands (“OCCL”) issued a report to the BLNR summarizing the CDUA and the comments, including the requests for a contested case hearing.15 The OCCL recommended that the BLNR approve the CDUA and issue a CDUP.16 The OCCL did not recommend that the BLNR hold a contested                                                  5.  Id. at 234 (quoting testimony of Kealoha Pisciotta, President, Mauna Kea Anaina Hou) (ellipses in original).  6.  Id. at 229. 7.  Id. 8.  Id. The CDUA noted that thirteen astronomy observatory facilities are currently located on Mauna Kea. Id.  9.  Id. (internal citation omitted in original). 10.  Id. (internal citation omitted in original). 11.  Id. 12.  Id.  13.  Id.  14.  Id. 15.  Id. at 229-30. 16.  Id. at 230.    2016 MAUNA KEA ANAINA HOU 3  case hearing.17 On February 17, 2011, the BLNR issued notice that it would “‘consider’” the CDUA at its next meeting on February 25, 2011.18   At the February 25 meeting, the BLNR allowed for limited public comment. 19  Forty-one individuals testified on both sides, and several requests for a contested case hearing were made.20 The BLRN voted to approve the CDUA and then, shortly after, voted to hold a contested case hearing.21 Beginning in August 2011, a hearing officer, appointed by the BLNR, held a contested case hearing, soliciting “voluminous written direct testimony” as well as oral testimony from twenty-six witnesses. 22  On November 30, 2012, the hearing officer issued his determination, granting the CDUA and issuing the CDUP.23 The hearing officer’s determination was appealed to the BLNR, which, on April 12, 2013, issued its own decision granting the CDUA and issuing the CDUP.24   Throughout the process, opponents of the TMT testified that the observatory “would negatively affect the viewplanes [sic] of cultural practitioners, . . . cultural practices[,] and the environment.” 25  The opponents also continuously argued that the BLNR’s decision to hold a contested case hearing after deciding to grant the CDUA and issue the CDUP violated their due process.26  The BLNR’s decision was appealed to the Hawai’i State Circuit Court for the Third Circuit.27 The Appellants argued that the contested case hearing violated their due process, statues, and rules.28 The circuit court upheld the BLNR’s decision, stating that the timing of the decisions did not have “‘legal consequence’” because the BLNR                                                  17.  Id.  18.  Id. (internal citation omitted in original). 19.  Id. 20.  Id.  21.  Id. at 231-32. 22.  Id. at 233. 23.  Id. at 235. 24.  Id. 25.  Id. at 234. The CDUP was not uniformly opposed by Native Hawaiians. Indeed, the Supreme Court noted testimony that the TMT “was ‘compatible with the sacred landscape,’” as it allowed mankind to “‘learn more about ourselves, our God, and what’s out there beyond the starts.’” Id. (quoting testimony of Wallace Ishibashi, Jr.). Testimony in support compared the mission of the TMT’s “search for knowledge and understanding to a search for the aumakua or ancestral origins of the universe.” Id.  26.  Id. at 236. 27.  Id. 28.  Id.    4 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0  “‘preliminarily grant[ed]’” the CDUP “‘essentially simultaneously with’” granting a contested case hearing. 29  The circuit court found that the CDUP did not prejudice the Appellants because they were granted a contested case hearing and the construction had been stayed. 30   The Appellants appealed to the Hawai’i Supreme Court.  III.  ANALYSIS   The Supreme Court determined that the issue before it was whether the Appellants had been afforded “an opportunity to be heard in a meaningful time and in a meaningful manner when” the BLNR granted a contested case hearing after issuing the CDUP. 31  While the requirements of due process may be flexible and depend on many factors, “‘there are certain fundamentals of just procedure which are the same for every type of tribunal and every type of proceeding,’ including those before administrative agencies.”32 The Court noted that the most “basic elements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” 33  The Court, however, emphasized that merely “giving a person ‘a day in court’” does not assure that the process is fair.34  The Supreme Court held that it was “undisputed that [the] Appellants were entitled to a contested case hearing.”35 The Court noted that the “substantial interests of Native Hawaiians in pursuing their cultural practices on Mauna Kea” would be protected from “erroneous deprivation” by a contested case hearing, and that there was a “lack of undue burden on the government in affording [the] Appellants a contested case hearing.”36 The Court held that “a contested case hearing was ‘required by law’” because the Appellants’ “substantial interests”                                                  29.  Id. (quoting Mauna Kea Anaina Hou v. Bd. Land and Natural Res., No. 13-1-349, slip op at 2 (Haw. 3d Cir. Apr. 1, 2014), available at http://ilind.net/ misc%20/2015/TMT-3rd-Circuit-Court.pdf). 30.  Id. (quoting Mauna Kea Anaina Hou, slip op. at 3). 31.  Id. at 237. 32.  Id. (quoting Sifagaloa v. Bd. of Trs. of Emps.’ Ret. Sys. of Haw., 840 P.2d 367, 371 (Haw. 1992)) (discussing HAW. CONST. art I, § 5) (internal citation and bracket omitted). 33.  Id. at 239 (citing Sandy Beach Def. Fund v. City Council of City and Cnty. of Honolulu, 773 P.2d 250, 261 (Haw. 1989)). 34.  Id. at 237 (quoting Haw. v. Brown, 776 P.2d 1182, 1185 (Haw. 1989)). 35.  Id. at 238. 36.  Id.    2016 MAUNA KEA ANAINA HOU 5  were affected by the CDUP.37 When a contested case hearing is required, due process mandates that the parties be given a meaningful opportunity to be heard.38 The BLNR and the UHH argued that the decision to issue the CDUP was “merely preliminary and tentative pending a contested case hearing.”39 The Supreme Court determined that regardless of whether the approval was “‘preliminary’ or not,” the BLNR nevertheless approved the CDUP. 40  Examining the administrative record and the expressed intent of the BLNR, the Court concluded that the BLNR’s approval of the CDUA and the issuance of the CDUP “was a determination on the merits.”41  Due process “prohibits decisionmakers [sic] from being biased, and more specifically, prohibits decisionmakers [sic] from prejudging matters and the appearance of having prejudged matters.”42 The Court concluded simply that “sequence matters.” 43  The BLNR issued the CDUP “despite pending requests for a contested case hearing.”44 It was only after the BLNR issued the CDUP that it decided to hold a contested case hearing.45 The Court stated, “[t]his sequence plainly gives rise to the appearance of prejudgment and did not provide [the] Appellants with a meaningful opportunity to be heard.” 46  The Court concluded, “the circumstances of this case give rise to the reality and appearance of impropriety, and thereby violate the Due Process Clause . . . of the Hawai’i Constitution.”47  The Supreme Court found unpersuasive the BLRN’s and the UHH’s alternative argument that the BLNR was not required to provide the Appellants a contested case hearing. 48  Hawaiian law requires an agency to hold a contested case hearing after a public hearing on the same subject matter.49 While the Court noted that the case hearing was held after a public hearing, the “rule did not authorize [the] BLNR to                                                  37.  Id. (quoting Sandy Beach Def. Fund, 773 P.2d at 261). 38.  Id. at 239. 39.  Id. 40.  Id. 41.  Id. at 241. 42.  Id. at 237 (citing Sussel v. City and Cnty. of Honolulu Civil Serv. Comm’n, 784 P.2d 867, 871 (Haw. 1989)) (emphasis added). 43.  Id. at 241. 44.  Id. 45.  Id.  46.  Id.  47.  Id. (discussing HAW. CONST. art. I, § 5, cl. 1). 48.  Id.  49.  Id. at 235 (quoting HAW. CODE R. § 13-1-28(b) (2009))    6 PUBLIC LAND & RESOURCES LAW REVIEW Vol. 0  decide the merits and issue the permit before the contested case hearing, or before the request for a contested case hearing had been resolved.”50 The Court concluded that “[i]n any event, due process would prohibit such a procedure.”51 Throughout the permitting process, the Supreme Court found the “appearance of prejudgment continue[d].” 52  The Court succinctly concluded that the “BLNR acted improperly when it used the permit prior to holding a contested case hearing.” 53  The Court vacated the CDUP and remanded the case to the circuit court to remand to the BLNR “so that a contested case hearing can be conducted before the [BLNR] or a new hearing officer.”54  IV.  CONCLUSION   While the Hawai’i Supreme Court’s decision in Mauna Kae Anaina Hou can be fairly read as a victory for Native Hawaiian rights, it should also be read in light of what the Supreme Court actually decided: procedural due process. The fact that Native Hawaiian cultural practices might be infringed upon by the CDUP certainly played a part in the Court’s decision. The Court did not decide, however, the merits underlying the BLNR’s decision to issue the CDUP. The new contested case hearing has yet to be held and a final decision on the issuance of the CDUP must still be made. Only then will the Appellants have the opportunity to challenge the merits of the decision to issue the CDUP. In any regard, the future development of observatories on Mauna Kae will continue to be the battleground in a culture war between Native Hawaiians and the scientific community.                                                   50.  Id. at 246 (emphasis in original). 51.  Id. 52.  Id. 53.  Id. at 247. 54.  Id. 

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