State hearings officer urges approval of telescope construction

A former Hilo judge is recommending the controversial Thirty Meter Telescope project be granted a key state permit for work atop Mauna Kea, ending a lengthy contested case hearing that challenged the $1.4 billion project’s conservation district use permit.

Work on the telescope came to a halt when the Hawaii Supreme Court invalidated the project’s permit over due-process issues in late 2015, ruling that the state Land Board erred when it voted to approve the project’s permit in 2011 before holding a contested case hearing to consider evidence about whether the permit should be granted. The high court sent the case back to the board for a do-over of the proceeding, which got underway in October.

In a 305-page decision released Wednesday, former Circuit Judge Riki May Amano, the hearings officer for the case, recommended that the Board of Land and Natural Resources issue a conservation district use permit, subject to 40 conditions.

Some of the proposed conditions include providing an annual $1 million “community benefits package” from the start of construction through the end of the project’s sublease; requiring telescope employees to attend mandatory cultural and natural resources training; and filling jobs “locally to the greatest extent possible.”

As part of the case, Amano considered several hundred exhibits and documents and hours of testimony over four months of the Hilo hearing. “Based upon the evidence and testimony presented in this contested case hearing, and the files and records herein, UH Hilo has proven by a preponderance of the evidence that it meets the requirements for the granting of the (conservation district use permit) for the TMT Project,” Amano wrote in her recommendation.

She said the scope of the hearing was limited to three areas:

>> Whether the proposed land use is consistent with the state’s conservation district laws and administrative rules, which are designed to regulate land use for the purpose of conserving, protecting and preserving important natural and cultural resources.

>> Whether the proposed land use is consistent with protections under the state Constitution for traditional and customary rights.

>> Whether the proposed land use is consistent with the Constitution’s protections to conserve Hawaii’s natural beauty and natural resources that are held in trust by the state.

The TMT project — a partnership between universities and astronomy institutions in the United States, India, China, Japan and Canada — is expected to be the most powerful optical telescope in the world, capable of seeing more than 13 billion light-years away.

The project has proved controversial, with opponents contending the 18-story telescope will desecrate the mountain held sacred by some Native Hawaiians, and supporters contending it will provide economic and educational benefits.

TMT officials, who have insisted they would need “reasonably assured access” to a site by this fall to begin construction by April 2018, said they were pleased with Amano’s recommendation. As the legal proceedings stretched on, the TMT International Observatory board began eyeing a mountain in the Canary Islands as an alternative site.

“TMT welcomes the recommendation that a state permit be issued and we respectfully look forward to the next steps,” TMT Executive Director Ed Stone said in a statement. “We are grateful to all our supporters and friends who have been with us during the hearing process and over the past ten years and we remain respectful of the process to ensure the proper stewardship of Maunakea.”

The University of Hawaii, whose Hilo campus is the official applicant for the permit, also expressed appreciation for the decision.

Some opponents were dismissive of Wednesday’s ruling, saying the project still has a long road ahead. They promised to continue to fight against the telescope at the Board of Land and Natural Resources and in the courts. Cultural practitioner Kealoha Pisciotta, one of the leaders of those fighting the telescope, warned there are a series of “legal tripwires” ahead for the project.

“It’s not over, and we are hopeful, and the reason why I can say I have hope is because we’ve gone through this before, and we’ve actually won our legal case,” said Pisciotta, who is president of Mauna Kea Anaina Hou, one of the contested case parties. “The courts have been pretty steady on upholding both the civil rights of Native Hawaiians and environmental protections. So, that’s my hope.”

Opponents of the project still have the right to file exceptions to Amano’s decision, and can then go before the Land Board to oppose the permit, Pisciotta said. If a conditional use permit is granted anyway, the TMT opponents then can turn to the court to try to invalidate that permit, Pisciotta said.

An entirely separate contested case hearing also must be held in connection with a challenge to the sublease for the TMT development, telescope opponents said.

Pisciotta said the hearing on the conditional use permit was rushed in an apparent effort to meet a timeline that was imposed by the university. She also said some of the language in the decision appears to repeat almost word-for-word arguments that were made by the university in favor of the project, an approach she said is “inherently wrong.”

Other telescope opponents were more harsh, and lawyer Lanny Sinkin described Amano as a “biased judge.” Sinkin said he was invited by kahuna Palani Nobriga to represent the Temple of Lono in the conditional permit contested case hearing.

“The decision could just as well have been written by the TMT folks,” Sinkin said. “I learned early in that case that it was not an objective and impartial hearing officer that we were in front of, so I didn’t expect much to come of it.”

Sinkin contends that Amano refused to consider or allow arguments on some crucial issues, and “I knew that she was basically in the tank for the telescope. I watched that unfold through all of the 44 days of hearings.”

Harry Fergerstrom, another TMT opponent, also said the findings by Amano were no surprise. Fergerstrom said he considers the mountain to be a temple, and the controversy surrounding the mountain to be a First Amendment issue of freedom of religion.

“Of course, we know it had to be with collusion because she can’t think that fast,” said Fergerstrom, who is a traditional cultural practitioner. “I fully expected her to do exactly what she did.”