Despite getting banged up a bit by the state Supreme Court, the backers of the Thirty Meter Telescope remain committed to Mauna Kea as the site for the $1.4 billion next-generation observatory.
A member of the TMT International Observatory Board also conceded that the project — currently planned to become operational in 2024 — might take longer to build if the court insists on correcting perceived due process flaws related to the telescope’s state permit.
But Michael Bolte, a University of California, Santa Cruz, astronomy professor, indicated that the board plans to see the project through because, among other things, Mauna Kea “clearly provides the best window to the universe in the Northern Hemisphere.”
Prior to embarking on the government approval process, he said, TMT officials examined several potential sites around the world before concluding that Hawaii’s tallest mountain was the best locale for astronomy.
Bolte said in an email that the board continues to be “committed to working with all stakeholders in Hawaii to integrate science and culture, provide the best possible stewardship of the mountain, provide local educational opportunities and enable this global scientific endeavor.”
He added that the board has yet to schedule a date for the restart of construction.
During oral arguments Aug. 27, the Supreme Court justices zeroed in on the issue of due process.
Attorneys representing the state and the University of Hawaii at Hilo appeared to wobble and waver when asked to explain why the state Board of Land and Natural Resources in 2011 didn’t hold off its vote on the telescope’s Conservation District Use Permit before holding a contested case hearing.
At least one justice implied that the process lacked the appearance of being fair.
After the hearing, anti- TMT activists were elated. Many predicted the court, at a minimum, would order a do-over on the permit process, a possibility that could set the project back for years.
UH law professor Williamson Chang said while there’s a huge danger in reading too much into Supreme Court oral arguments, this hearing was remarkable because of the unrelenting nature of the questioning — almost to the point where it would be difficult for the court to ignore the apparent shortcoming in its ruling.
Chang, who is representing Mauna Kea protesters in court, predicted the justices would send the case back to Circuit Court with instructions that might not leave much of an option other than to order the BLNR to hold another contested case hearing.
With a new contested case hearing and the inevitable court appeals, the case could go on for years, he said.
Backers of the case must be shaken, Chang said. The possibility of a major delay, with substantial additional costs, could lead to the loss of investors.
“Any delay is a win for the protectors,” Chang said, using the protesters’ preferred description.
But former Supreme Court Justice Robert Klein said just because the justices focused on due process during the hearing doesn’t mean the court will order a permit do-over.
“The court’s job is to make sure that the litigants’ constitutional right to due process is protected,” Klein said. “But keep in mind that due process is a flexible concept and its dimensions are not always symmetrical.”
Indeed, over the years various courts in the U.S., including in Hawaii, have held that requirements of due process can vary depending on the situation — and as long as there’s an appearance of fairness.
State attorneys have argued that the TMT contested case hearing was fair and that it was understood by all sides that construction wouldn’t proceed while the hearing was ongoing.
But Kealoha Pisciotta, one of the appellants in the TMT case, insists there was no fairness, that the decision came off as a done deal before she and others were allowed to present their case. What board members should have done, she said, was hold off on taking a vote and let the contested case hearing be decided before making their final decision.
Pisciotta said that given the demanding questions by the justices, she remains cautiously optimistic that the court will move on the due process issue.
“The right to have a trial and be heard properly is fundamental,” she said.
But due process is only one of the arguments in the case, Pisciotta said. The suit also argues constitutional issues — such as protections for cultural and religious rights as Native Hawaiians — and maintains that the Land Board failed to find that the project met all eight criteria before construction was allowed in the state conservation district, which the court has observed as tolerating the lowest degree of development.
Attempts to launch construction on the TMT were halted in April and July as protesters blocked work crews.
The anti-TMT movement has grown over the year, buoyed by social media and sustained by a new generation of Native Hawaiians. Its muscle was demonstrated at last month’s Aloha Aina Unity March in Waikiki, where thousands showed their support for the Mauna Kea “protectors.”
Meanwhile, Hawaii’s astronomy community continues to search for ways to make the telescope a reality.
“The observatories on Maunakea remain committed to finding a way forward and confident that a community based vision for the future of Maunakea will emerge through dialog,” Doug Simons, director of the Canada-France-Hawaii Telescope, wrote in an email to the Honolulu Star-Advertiser. He used the astronomy community’s preferred single-word spelling for the peak.
“We recognize that the scientific capability that TMT brings will revolutionize our ability to understand the universe. The best astronomical research in the world is happening on Maunakea. It is home to the most scientifically productive telescopes in the world, making Hawaii the international leader in astronomical science. We are proud of the value science brings to the state of Hawaii.”
