TMT wants seat at contested case hearing

After sitting out the previous contested case hearing, the nonprofit corporation that aims to build and operate the Thirty Meter Telescope on Mauna Kea has formally asked to become a party to the upcoming court-ordered hearing.

In a motion filed with the state Department of Land and Natural Resources, the TMT International Observatory Board says it has the most to lose and therefore should be given a seat at the table during the hearing.

“The TMT International Observatory will be most directly and immediately affected by the outcome of the contested case hearing,” TMT spokesman Scott Ishikawa said Friday in a statement.

But Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui petitioners, criticized the move as a concession that TMT is the real party of interest, not the University of Hawaii at Hilo, which is the project’s conservation district use permit applicant.

Wurdeman called for the dismissal of the Hilo application and said TMT should be required to reapply as the applicant.

“The millions of dollars in resources that the taxpayers have had to pay in this litigation, with the University of Hawaii carrying the burden, needs to come to an end, and TMT needs to be held accountable as the applicant and the litigant,” Wurdeman said. “My clients are prepared to litigate this matter to the fullest, and we are confident that we will prevail.”

The state Supreme Court in December ruled that the Board of Land and Natural Resources failed to follow the state Constitution when it approved the project’s permit before holding a contested case hearing. The court ordered a new hearing.

Three weeks ago DLNR announced it had hired retired Hawaii island Circuit Judge Riki May Amano as the hearings officer.

Ishikawa said the motion to become a party to the contested case hearing demonstrates the board’s commitment to Hawaii as its first choice for the location of the cutting-edge telescope expected to cost at least $1.4 billion.

Meanwhile the board continues to pursue a “Plan B” in case permission to build atop Hawaii’s tallest mountain cannot be obtained by the end of this year or by the beginning of next year, he said.

Ishikawa said that only the California Institute of Technology and the University of California were involved in the project in 2011 during the last contested case hearing. Since then the nonprofit corporation has taken on partners from Canada, India, China and Japan.

Wurdeman said TMT’s motion to be admitted as a party in the case now, “after years of litigation, confirms that the news about TMT moving to other locations is nothing but posturing.”

“TMT obviously still has every intention on trying to one day build on Mauna Kea, otherwise it would not be filing a motion to be admitted as a party at this point,” he said.

If, for some reason, TMT is allowed to join the contested case, a public hearing should be held to allow other parties to be determined and admitted if they have an interest as well, Wurdeman said.

But TMT’s motion, filed with DLNR on April 8, says the TMT board’s contractual right and responsibility is unique and not shared by the public, and no one in the general public stands to lose more if the hearing does not result in the issuance of a permit to authorize construction.

Last week the Mauna Kea Hui filed formal objections to the selection of Amano as the contested case hearings officer, saying there is a conflict of interest because she has a history of being a dues-paying member of the ‘Imiloa Astronomy Center, which is part of UH-Hilo.

The hui also contends BLNR violated the state’s open-meeting, or “sunshine,” law when it delegated responsibility for hiring the hearings officer to DLNR Chairwoman Suzanne Case during a meeting without giving notice that the meeting was a public hearing.

State law requires the board to first decide in a public hearing whether the board itself will conduct a contested case hearing, according to the complaint, and only if the board decides not to hold the hearing can it delegate hiring authority to the chairperson.

The filing asks that the hiring process be restarted.

State Attorney General Doug Chin has previously said the correct process was followed in making the hearings officer selection.