Telescope foes to weigh legal options in wake of ruling

Opponents of the Thirty Meter Telescope say they plan to meet Monday to discuss their legal options in the wake of Tuesday’s Hawaii Supreme Court ruling that gives the green light for construction of the $1.4 billion project.

But options are limited and the outlook for reversal is highly improbable, according to attorneys who have been following the case closely.

“Going to the U.S. Supreme Court is a waste of money. It’s over as far as any additional judicial review,” said James Wright, former attorney for TMT opponent Abigail Kawananakoa.

The state’s highest court on Tuesday affirmed 4-1 the state Board of Land and Natural Resources’ decision to issue the conservation district use permit in the latest development in the five-year court battle against the proposed telescope.

The petitioners in the 44-day TMT contested case hearing appealed the board’s September 2017 decision.

Mauna Kea Hui leader Kealoha Pisciotta on Wednesday said the group of 15 or so petitioners plans to meet Monday to decide how to proceed.

On Tuesday state Attorney General Russell Suzuki said the challengers have a couple of legal options: File a motion within 10 days to the state Supreme Court asking for reconsideration, or petition for a review by the U.S. Supreme Court.

Both avenues apparently come with long odds.

“Seeking reconsideration is futile,” Wright said. “The (state) court went through full briefing and oral argument three times — twice on permit and once on sublease. No minds will be changed.”

Robert H. Thomas, a Honolulu land use and appellate lawyer, said he sees virtually zero chance of the U.S. Supreme Court reviewing the decision.

Thomas said the issues presented by the parties and resolved by the state Supreme Court were Hawaii state law issues — public trust, conflicts of interest, administrative procedures and others — that the U.S. Supreme Court is generally without jurisdiction to consider.

“I don’t see any big federal law issues, either. Thus, I would be surprised if there were a request asking the U.S. Supreme Court for review,” he said in an email.

To get a hearing before the country’s highest court, at least four of the nine justices must want to hear the case.

“A very tough hurdle, especially in this case,” he said.

Is this the end of the line in court for those who oppose the TMT?

“I would guess there aren’t many avenues open,” he said, “but I also never underestimate the creativity and ability of good lawyers to think of alternate ways to look at it.”

Mauna Kea Hui attorney Richard Naiwi Wurdeman could not be reached for comment.

Pisciotta said the group has other options apart from the U.S. Supreme Court, but she wouldn’t say what they were.

Billed as the most powerful optical telescope in the world, capable of seeing more than 13 billion light-years away, the Thirty Meter Telescope has been in the works for nearly a dozen years.

But to date it hadn’t been able to clear the obstacles laid before it in both Hawaii’s courts and on the slopes of the state’s tallest mountain.

The state’s high court in June heard oral arguments in the case after having rescinded the telescope’s permit 2-1/2 years ago on procedural grounds following protests that blocked construction near Mauna Kea’s summit.

Protesters in 2014 interrupted a groundbreaking for the TMT and then blockaded the mountain, holding a vigil on the road for months to prevent any construction.

On Wednesday the Mauna Kea “protectors” and Native Hawaiian activists on social media continued to express outrage and to urge followers to be vigilant.

Molokai activist Walter Ritte told his followers to vote for Native Hawaiians sympathetic with the cause and said: “SEE YOU ON THE MAUNA!!”

Meanwhile, in the Canary Islands, the alternative site for the TMT, the government approved an environmental impact statement for the project on La Palma island on the same day the court in Hawaii gave the project the green light here.

Online newspaper accounts quoted Spanish officials expressing disappointment. But they said there was still a sliver of hope.

Christophe Dumas, Operations Manager of the TMT International Observatory, released a statement:

“We want to express our gratitude to the Institutions and the community of the Canary Islands. However, in the current situation, there are still some steps to be taken in order to build the TMT in Maunakea, so we will continue advancing with the process in Spain to allow the TMT to be installed in La Palma in case it is not possible to do so in Hawaii.”

Leaders of the TMT consortium are reportedly scheduled to return to the island on Nov. 9 to meet with officials there.