Hawaii Supreme Court denies telescope foe’s bid for hearing

In a triumph for the Thirty Meter Telescope, the state Supreme Court on Wednesday unanimously ruled against a TMT opponent who was seeking an additional contested case hearing for the stalled Mauna Kea project.

The high court ruled that E. Kalani Flores was not entitled to a hearing on the project’s sublease because it was not required “by statute, administrative rule or due process under the circumstances of this case.”

Additionally, the court said Flores, as a petitioner in the recent contested case over the project’s conservation district use permit, was already afforded the opportunity to defend the right to his Native Hawaiian cultural practices on Mauna Kea.

“On this particular record, we are not convinced that an additional contested case hearing would offer any probable value in protecting against the erroneous deprivation of his interest in engaging in traditional Native Hawaiian cultural practices on Mauna Kea,” says the ruling written by Associate Justice Paula Nakayama.

For the TMT, Wednesday’s 5-0 decision leaves only the question of whether the $1.4 billion project will be issued a conditional use permit allowing it to proceed with construction near the summit of Hawaii’s tallest mountain.

The question is before the court following an appeal of a state Board of Land and Natural Resources’ approval of its use permit last fall following a 44-day contested case hearing. Flores was among the petitioners in that case.

A Native Hawaiian cultural practitioner who is a Hawaiian studies professor at Hawaii Community College in Kailua-Kona, Flores sued the state in 2014, claiming he was denied the right to a hearing over the 8.7-acre sublease the University of Hawaii intended to enter with TMT International Observatory LLC for the telescope.

The Environmental Court of the Third Circuit agreed with Flores, ruling that BLNR’s denial infringed upon his constitutional right to due process. The state appealed to the high court.

“While Mr. Flores is disappointed with the outcome of this case, his good faith effort to defend his constitutional rights, as a Hawaiian, to participate in government decisions which may result in disregard for Hawaiian cultural practices and harm to Hawaiian identity is truly admirable,” said attorney Moses Haia, executive director of the Native Hawaiian Legal Corp., the firm that represented Flores.

“While ruling that a contested case was not required under the specific circumstances of this case, the court nonetheless confirmed that the actions of the BLNR here may still be subject to a contested case” under Hawaii law, Haia said in a statement.

In its ruling, the court rejected one of the state’s main arguments that the agency didn’t have to hold the contested case hearing because it was simply engaging in the custodial management of public property as part of internal business. However, the court found other arguments more compelling.

Both supporters and critics of the TMT were closely following this case because a new contested case hearing could have added many months of delay to the project billed as the most powerful optical telescope in the world.

Any significant new delay at this point could push the multinational TMT board of governors to move its project to its backup site in the Canary Islands.

Richard Naiwi Wurdeman, attorney for Mauna Kea Hui petitioners, said he didn’t believe the ruling offers any insight into how the court may rule on the conservation district use permit case.

The issues in the sublease appeal were limited and completely independent of the issues raised in the appeal of the land board’s approval of the use permit, he said.

“I don’t believe the Supreme Court’s ruling in this particular matter should be considered in any way as to how the court may ultimately rule in the more significant conservation district use permit appeal,” he said.

Following the ruling, state Attorney General Russell Suzuki said he was pleased by the outcome, and the University of Hawaii issued a statement expressing the same and describing the decision “as a significant step forward in what has been a very long and important process. …”

“Regardless of what happens, UH stands fully committed to collaborative stewardship that demonstrates Maunakea as an inspiring and harmonious global model for culture, the environment and groundbreaking scientific discovery coming together synergistically for the benefit of all,” the statement said.

Henry Yang, chairman of the TMT International Observatory board, said he was gratified by the court’s decision.

“We thank all of the community members who contributed their thoughtful views during this entire process,” Yang said in a statement. “We will assess our next steps, as we await resolution of the final appeal before the court related to the conservation district use permit. While it has been a long journey to get here, we remain committed to Hawaii and thank everyone for their support over the last 10-plus years.”