State to appeal telescope ruling

State Attorney General Douglas Chin said Monday that the state will appeal a judge’s order requiring that the state Board of Land and Natural Resources hold an additional contested case hearing, this time on the sublease between the University of Hawaii at Hilo and the Thirty Meter Telescope.

Circuit Judge Greg Nakamura confirmed his Dec. 15 oral decision in a written order Monday, officially sending the sublease issue back to the Land Board for a contested case hearing.

The decision could result in months or even years of delay for the $1.4 billion project, already stopped in its tracks by a due-process error that resulted in the contested case hearing now ongoing in Hilo.

In his order, Nakamura said the board violated the constitutional rights of plaintiff E. Kalani Flores of Hilo by failing to hold a hearing as he requested prior to allowing the university to issue the sublease to TMT.

Flores asked for the hearing in 2014 before the board gave its consent to the sublease, but his request was denied. UH’s 1967 lease of more than 11,000 acres at the summit of Mauna Kea requires the board’s consent for it to sublease to others.

Flores appealed the board’s denial to the Circuit Court. Meanwhile the Hawaii Supreme Court ruled that the board’s vote to approve TMT’s conservation district use permit prior to holding a contested case hearing was illegal. The court ordered a new hearing.

Following the high court’s ruling last year, Nakamura sent Flores’ case back to the board to answer specific questions about how the Supreme Court’s decision affected the board’s approval of the sublease. The board did not respond.

In his order Monday, Nakamura quotes the Hawaii Supreme Court’s December 2015 ruling on the Mauna Kea contested case hearing, saying “an agency is not at liberty to abdicate its duty to uphold and enforce rights guaranteed by the Hawaii Constitution when such rights are implicated by an agency action or decision.”

David Kauila Kopper, an attorney with the Native Hawaiian Legal Corp., said he’s confident that Nakamura’s ruling will be upheld on appeal. He said it is consistent with current state law that gives Native Hawaiian cultural practitioners the same standing as property owners and developers.

“Native Hawaiian cultural practitioners are no less important than property owners and developers,” he said.

In a statement, Chin said Nakamura’s ruling could have broad ramifications for future cases before the Land Board, which deals with multiple subleases every year all over the state, as well as other property interests.

“Creating a new requirement to hold a contested case hearing before granting consent to each one may cause significant delays in many different areas,” added Joshua Wisch, special assistant to the attorney general.

Asked for a response to the ruling, TMT spokesman Scott Ishikawa said it is unclear how it will affect the project or its timeline. He said the TMT Observatory board won’t know anything until it learns about the state’s appeal or how the BLNR will implement the schedule on the additional contested case hearing.

TMT officials previously said they were hoping to obtain a permit by early 2017 in order to begin construction in April 2018, if not on Mauna Kea, then the alternate choice of the Canary Islands.

The TMT board indicated it was closing in on a backup agreement allowing it to construct the next-generation observatory on an island in the archipelago off the northwest coast of Africa.

UH spokesman Dan Meisenzahl said the university is reviewing its options in light of the judge’s ruling.

According to terms of the sublease, TMT’s payments are expected to reach more than $1 million a year in its 11th year, with 80 percent of the money going to stewardship of Mauna Kea and 20 percent to the Office of Hawaiian Affairs.

Meanwhile, the current contested case hearing, which started in October, is continuing in Hilo with the intervenors presenting their case for why the TMT application should be denied.