TMT gets its day in court — again

Once again the fate of the stalled Thirty Meter Telescope rests with the state Supreme Court following oral arguments on Thursday.

Nearly three years ago the high court heard many of the same arguments in a similar appeal and decided that foes of the huge, cutting-edge telescope had their due process rights violated. The court ordered a do-over of the contested case process.

Following a 44-day hearing in Hilo and another approval by the state Board of Land and Natural Resources, the $1.4 billion project again landed on appeal before the Supreme Court.

“We are here to talk about whether or not a telescope will be built on one of the most sacred areas to the Hawaiian people,” Gary Zamber, a Hilo attorney representing TMT opponents, told the justices.

During Thursday’s arguments, the justices asked pointed questions on both sides of the issue and didn’t appear to signal which way they might be leaning — although due process issues again seemed to dominate much of the hearing.

Mauna Kea Hui attorney Richard Naiwieha Wurdeman argued, among other things, that the BLNR erred when it allowed former Circuit Judge Riki May Amano to be the contested case hearing officer even though she was a member of the University of Hawaii at Hilo’s ‘Imiloa Astronomy Center, creating the appearance of bias.

He also argued that state attorneys should not have been allowed to advise Amano because they previously argued in favor of the project.

Attorneys for the state and permit applicant, the University of Hawaii, discounted the due process arguments.

Hawaii Solicitor General Clyde Wadsworth said the Supreme Court in its last decision directed the land board to conduct a fair and respectful hearing designed to ensure the record is fully developed before a decision is made.

“That was this court’s mandate,” he said. “And that’s what the board provided to all parties.”

As for Amano’s link to UH-Hilo, Wadsworth said she had no power or controlling interest in the operation of the ‘Imiloa museum.

“Her alleged relationship with the University of Hawaii was too remote and tenuous to create an appearance of impropriety,” he said.

“She simply held an $85 annual museum pass, which doesn’t carry any more risk of prejudgment than having a Bishop Museum membership, being part of an alumni association or even just visiting the planetarium,” Wadsworth said.

Regarding the state attorneys and whether they should have advised Amano, Wadsworth said there was no problem because they never acted in a decision-making capacity.

During the two-hour hearing, the justices asked numerous questions, steering much of the argument around a variety of topics.

Justice Richard Pollack even brought up a new issue, saying the board appears to have ignored a requirement that ensures a developer has the financial means to build a project.

“It sounds to me a little like the cart before the horse again,” Pollack said, echoing the words featured prominently in the December 2015 high court ruling that sent the case back to the BLNR for a new contested case hearing.

The high court invalidated the project’s conditional use permit in 2015, ruling that the BLNR approved it prior to holding the first contested case hearing.

On Thursday, Oahu Circuit Judge Jeannette Castagnetti sat in place of Justice Paula Nakayama, who recused herself.

After the hearing, Wurdeman said the hearing went as well as could be anticipated.

“The court asked both sides some very good questions, and we’ll just have to wait on the court’s ruling,” he said.

Mauna Kea Hui leader Kealoha Pisciotta said she has faith in the justices and the justice system.

“We’re not asking the justices to make new law. We’re asking the justices to stand on the law they already made,” Pisciotta said.

Douglas Ing, the Honolulu attorney representing TMT, said he was optimistic, “but it’s just so difficult to tell from the arguments alone.”

Ing said the hearing focused on the due process because the written briefs focused primarily on due process.

“It’s easier to win on due process. It’s just error of law,” he said. “It’s much more difficult to beat the findings. It must be clearly erroneous. The standard is higher.”

If there’s an error, Ing said, the added delay could force TMT to move the project to its backup site in the Canary Islands.

“Delay is one of their strategies,” he said.

But the case is solid on due process if one considers existing case law, he said. “That’s not to say they won’t find something, however,” he added.

Lanny Sinkin, the attorney who represented Temple of Lono against TMT in the contested case hearing, said afterward that he was thrilled and optimistic.

“There are so many grounds for reversal. Procedural violations — dozens of them. Substantive violations,” he said.

“But we want them to go to the merit of the case,” Sinkin said, “because no one wants to go through this a third time. At the same time, if they strike down this permit, I trust the TMT will go to the Canary Islands and say enough already.”

UH’s Mauna Kea point man Greg Chun said the decision left for the court is a complicated and tough issue with a lot of moving parts.

In any case, Chun said in the future, the university will be managing the summit in a much more collaborative way.

“It’s a privilege to be up there,” he said. “But Mauna Kea demands of all of us a higher level of stewardship. So whatever the decision is, we will still have important kuleana and a role up there.”

Henry Yang, chairman of the TMT International Observatory board, issued this statement after the hearing:

“This is an important and timely step forward as we await resolution of the two appeals before the Hawaii State Supreme Court. We thank everyone who has engaged in this process. We remain firmly committed to being good stewards of the mountain and good neighbors in the community. We enthusiastically hope that we can move forward with our preferred site on Maunakea.”

It’s unknown when the court will issue a ruling. The court is also considering a separate appeal to the project’s sublease with UH. Oral arguments for that case were heard in March.

Joining the six original petitioners in Thursday’s appeal were eight others who were part of the contested case hearing.

Also arguing in favor of the project was Perpetuating Unique Education Opportunities, a pro-TMT group led by Native Hawaiians.