In a victory for those challenging the planned Thirty Meter Telescope, the Hawaii Supreme Court on Friday granted a request to allow the case to bypass the Intermediate Court of Appeals and go directly to the state’s highest court.
"This is good news and recognizes the importance of our case for all of Hawaii," said Kealoha Pisciotta, one of the Mauna Kea Hui members appealing a Circuit Court’s ruling upholding the state Board of Land and Natural Resources’ decision to grant a conservation district use permit to the University of Hawaii at Hilo for construction of the $1.4 billion telescope planned for the summit of Mauna Kea.
Also appealing are Deborah J. Ward, Clarence Ku Ching, the Flores-Case Ohana (E. Kalani Flores and Pua Case), Paul Neves and KAHEA: The Hawaiian-Environmental Alliance. (Ward is no relation to Deborah Ward, spokeswoman for the Board and Department of Land and Natural Resources.)
Speaking on behalf of the TMT, Honolulu attorney Doug Ing of Watanabe Ing LLC said in a statement, "We do not expect that the transfer of the appeal to the Supreme Court will change the anticipated outcome. We remain confident that the court will uphold the previous ruling that the Conservation District Use Permit granted for TMT is consistent with Hawaii law."
The case had been working its way toward trial in the intermediate court when the plaintiffs filed the application for transfer of their case last month.
Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui, said his clients felt the appeal was so important that it begged to be heard by the state’s highest court.
One of the criteria the court considers in granting an application for transfer is whether the matter involves a question of imperative or fundamental public importance, Wurdeman said.
"Given the tremendous public interest in this case, we certainly felt it was appropriate for the Supreme Court," he said. "It ultimately would have ended up there anyway."
Wurdeman said the application for transfer also noted that the Supreme Court is considering another case with similar issues: the appeal of a conservation district use permit awarded for the Daniel K. Inouye Solar Telescope on the summit of Haleakala. The Supreme Court heard oral arguments in the Haleakala case in April.
One of the key legal issues being argued in both cases is whether the BLNR failed to meet all eight criteria required before construction is allowed in the state’s protected Conservation District, which the court has already observed as tolerating the least degree of development.
A ruling could lead to greater restrictions over development in the Conservation District, an area that encompasses 2 million acres including the summits of Haleakala and Mauna Kea.
In a news release Friday, Mauna Kea Hui member Ward said the court’s decision to hear the case is "heartening," and Ching said, "The transfer signals that the Hawaii Supreme Court, in unanimity, believes that the so-called TMT conservation district use permit deserves the utmost legal scrutiny and priority."
The grant of transfer comes in the wake of UH’s concessions of previous mismanagement of the Mauna Kea summit and agreements to Gov. David Ige’s plans for improving oversight.
Wurdeman said UH-Hilo, on behalf of the TMT, had strenuously objected to his clients’ transfer application.
UH spokesman Dan Meisenzahl said Friday that officials are still reviewing this latest development and might have a comment at a later date.
Construction of the telescope has been halted by Native Hawaiians who consider the 13,796-foot summit of Mauna Kea sacred. Many astronomers, meanwhile, view the summit as the premier location to view the heavens, with its high altitude, atmospheric stability, minimal cloud cover, low humidity, minimal atmospheric pollutants and transparency of the atmosphere to infrared radiation.
The 18-story TMT telescope is being billed as the largest optical telescope in the world and is scheduled to be operational in 2024.