Telescope hits another roadblock in court

A Circuit Court judge ruled Thursday that the state Board of Land and Natural Resources should have held a contested case hearing before it consented to a sublease between the University of Hawaii at Hilo and the Thirty Meter Telescope.

The ruling, issued verbally by Third Circuit Court Judge Greg Nakamura, is another due-process setback for the TMT, but it’s unclear what affect it will have on the case or the project’s timeline.

“It is premature to discuss the impact of today’s ruling by the court on the TMT project or other Land Board dispositions, or whether the state will appeal, until Judge Nakamura issues his written order,” state Attorney General Doug Chin said in a statement.

“There is no reason to believe that today’s decision impacts other Mauna Kea observatories or the contested case hearing currently before retired Judge Riki May Amano,” Chin said.

The attorneys for the plaintiff, E. Kalani Flores, asserted Thursday that TMT lost its sublease as a result of the ruling.

David Kauila Kopper, an attorney with the Native Hawaiian Legal Corp., said the judge ruled that the BLNR violated the constitutional rights of Flores by failing to hold a hearing prior to allowing the university to issue the sublease to TMT.

Flores asked for a hearing on the matter in 2014 before the board gave its consent to the sublease, but his request was denied. UH’s 1967 lease of more than 11,000 acres at the summit of Mauna Kea requires the board’s consent for it to sublease to others.

Flores appealed the board’s denial to the Circuit Court. In the meantime the Hawaii Supreme Court ruled that the board’s vote to approve TMT’s conservation district use permit prior to holding a contested case hearing violated the law. The court ordered a new hearing, which is now underway in Hilo.

Following the high-court ruling last year, Nakamura sent Flores’ case back to the board to answer specific questions about how the Supreme Court’s decision affected the board’s approval of the sublease. The board apparently did not respond.

“The court’s decision vindicates the rights of Native Hawaiians to be involved in government decisions that directly impact their rights. Under the law, these rights are no less important than the rights of property owners to be heard on actions that affect their lands,” Kopper said in a press release.

Flores added, “Judge Nakamura’s ruling reaffirms our position that the BLNR’s actions have failed to protect Native Hawaiian rights and the public’s interest in these public lands of Mauna a Wakea.”

TMT spokesman Scott Ishikawa said he couldn’t speak about the implications of the ruling until the written order is issued.

But TMT officials, he said, are still hoping to obtain a permit by early 2017 and begin construction in April 2018, if not on Mauna Kea, then the alternate choice of the Canary Islands.

UH spokesman Dan Meisenzahl said, “The University of Hawaii has a valid sublease with TMT that is subject to BLNR consent. The consent had been obtained. Today the judge ruled on the consent of the sublease and not the sublease itself. We will receive further clarification when the written order is released.”

TMT’s payments on the sublease are expected to reach more than $1 million a year in its 11th year, with 80 percent of the money going to the Mauna Kea Land Management Fund and 20 percent to the Office of Hawaiian Affairs.