After the Hawaii Supreme Court struck down the Thirty Meter Telescope construction permit in December, some speculated the $1.4 billion project would face years of legal wrangling and procedural delay.
Prospects for the project looked even gloomier after the TMT International Observatory board announced a deadline of early next year for reclaiming the permit and then launched into its Plan B search for an alternative site, with board members appearing in social media photographs inspecting a mountaintop in the Canary Islands.
Not to worry, astronomy supporters. A new law could speed up the legal process.
Gov. David Ige last week signed into law a measure that requires certain contested case hearings, including the one about to get underway for the TMT, to be appealed directly to the Hawaii Supreme Court.
The move slashes at least a year or more off the appeals process by allowing a shortcut around the circuit and intermediate courts, and puts the state in position to deliver a conservation district use permit to the TMT board under its stated time constraints.
TMT project opponents are outraged, claiming the law is aimed directly at them and that it effectively violates their due process rights.
“It undermines the fundamental principles of a democracy,” said Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui petitioners.
House Majority Leader Scott Saiki (D, McCully-Kaheka-Kakaako-Downtown), who introduced the measure, denied TMT is the sole target of the legislation.
Saiki said there have been a number of high-profile cases in recent years that have languished in the courts, whether it be the contentious Koa Ridge housing development in Central Oahu, which was delayed for the better part of two decades, or the Ho‘opili housing development in Ewa Beach, which was first proposed in 2006.
Requiring a direct appeal to the state Supreme Court will save both time and money for all parties involved, he said.
“My belief is that the public wants cases of this magnitude to be decided on their merits and not be subjected to delay tactics,” Saiki said.
Wurdeman said the bill is obviously aimed at the TMT.
“It is no secret,” he said. “It has been a full court press by the governor’s administration and the Legislature, especially the House majority, to accommodate and pass legislation that will help TMT after TMT threatened to look for alternative sites elsewhere. TMT is playing the governor and the Legislature and is simply posturing to get its project through.”
As written, House Bill 1581, now Act 48, requires decisions in contested case hearings before the commissions on water resource management, land use, public utilities and the Hawaii Community Development Authority, and cases involving conservation districts, such as the TMT, to be directly appealed to the state Supreme Court.
The law, which takes effect Aug. 1, also requires the high court to give priority to contested case appeals of significant statewide importance.
If the TMT contested case conducted for the state Board of Land and Natural Resources is finalized after July, its appeal would likely zoom to the top of the court’s list.
Robert H. Thomas, a veteran Honolulu land use and appellate lawyer, said he sees the new law shaving off a year or more of legal sparring on the way to the state’s highest court.
“Our state gets rapped frequently for our levels of process and regulation, and how they negatively impact projects such as TMT and economic growth generally,” he said. “The expense and timing of legal process is a large part of that.”
A series of recent projects seem to have died a “death by a thousand days” while tied up in agency process and court appeals, he said, and while he doesn’t think TMT was exclusively targeted by the law, it may have been the tipping point that prompted lawmakers to give it a try.
“This appears to be an effort to see if a more direct approach works, since it does seem that the Supreme Court of Hawaii is the final word on any big project anyway. Why not just send it straight to the justices, if they are going to decide it eventually?” Thomas said. “It certainly would cut down on the expenses by taking the case straight to resolution by the high court.”
But Campbell Estate heiress Abigail K. Kawananakoa, an opponent of the project, said she views the law as the latest example of “unequal justice” administered by state authorities.
“TMT embodies unequal justice,” Kawananakoa said in a statement. “DLNR violated the law in giving it a permit. When people protested, DLNR again violated the law with punitive ‘emergency rules.’ DLNR even had protesters arrested under these same illegal rules.
“Now the law has been changed to deny TMT opponents due process. The entire system of careful review has been wiped out,” she said.
Kawananakoa said that because the state is “destroying respect for the rule of law,” she fears it will lead to civil disobedience, “mayhem and anarchy.”
“Citizens only trust their government when due process is certain. It is the basis for a free society. Without it, there is little moral or practical incentive to obey voluntarily,” she said.
Meanwhile, Hawaii island astronomer Thayne Currie, a spokesman for the social media group Yes2TMT, said he’s feeling more optimistic about the TMT, thanks to strong leadership from elected officials and growing support on Hawaii island.
“We can do this,” he said. “I just hope the contested case hearing will be conducted in a decisive and extremely straightforward manner between the two parties, focused only on the facts. The people of Hawaii deserve this.”
The TMT board is aiming to build the cutting-edge observatory, featuring one of the most powerful telescopes in the world, by 2024.
Of course, winning permission to begin construction is one thing. Actually starting construction is another, as evidenced by the events of 2015.
TMT work crews, permit in hand, attempted to commence construction near Mauna Kea’s summit at least three times last year but were thwarted by protesters — even when the work convoy was accompanied by law enforcement.
Then, in December, the state Supreme Court formally halted the project after ruling that the Land Board erred in 2011 when it held the contested case hearing only after voting to approve the project. The court ordered that the contested case be held anew.
The hearings officer, retired Circuit Judge Riki May Amano, has called a pre-conference hearing in Honolulu on Monday for the attorneys representing all parties, kicking off a proceeding that is expected to be held on Hawaii island going forward.
Previously, the Mauna Kea Hui petitioners challenged not only the hearings officer selection process but Amano herself, saying the retired judge maintains the appearance of bias as a member of the ‘Imiloa Astronomy Center, which is part of the University of Hawaii at Hilo, the project’s applicant on behalf of TMT.
The arguments were rejected by state attorneys.
“My clients are fully prepared to finish this fight, and we are confident that we will prevail,” Wurdeman said.