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The state has appealed a judge’s order requiring the state Board of Land and Natural Resources to hold a contested case hearing on the sublease between the University of Hawaii at Hilo and the Thirty Meter Telescope.
Hawaii island Circuit Judge Greg Nakamura last month sent the sublease agreement back to the Land Board for a contested case hearing, a move that is separate from the contested case hearing now ongoing in Hilo.
A new, separate contested case hearing likely would generate further delay for the stalled $1.4 billion next-generation telescope project planned for the summit of Mauna Kea.
However, there are measures now being considered by the state Legislature to prohibit contested case hearings from applying to leases or subleases.
Under SB 1232 and
HB 1411, a contested case hearing would not be required for land leases, lease extensions, consents to subleases or any other dispositions of public land.
State Attorney General Douglas Chin earlier said Nakamura’s ruling could have broad ramifications for a board that deals with multiple subleases every year all over the state, as well as other property interests.
In his order last month, Nakamura said the board violated the constitutional rights of plaintiff E. Kalani Flores of Hilo by denying his request for a hearing in 2014 prior to allowing the university to issue the 6-acre sublease to TMT.
UH’s 1967 lease of more than 11,000 acres at the summit of Mauna Kea requires the board’s consent in order 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 was an error in law. The court ordered a new hearing.
In his written order, Nakamura quoted the high court in its Mauna Kea ruling, saying “an agency is not at liberty to abdicate its duty to uphold and enforce rights guaranteed by the Hawaii Constitution when such rights are implicated by an agency action or decision.”
The state filed its appeal late Friday.
Meanwhile, TMT International Observatory’s sublease payments have been halted pending a ruling in the case. TMT and university officials agreed to defer the payments that called for $300,000 annually for the first three years starting in 2014.
The payments were scheduled to rise to more than $1 million after
10 years, with 80 percent of the money going to the Office of Mauna Kea Management for mountain stewardship and 20 percent going to the Office of Hawaiian Affairs.
TMT officials previously said they were hoping to obtain a permit by early 2017 for a timeline that would allow construction to commence by April 2018.
More recently the TMT board indicated it is close to reaching a backup agreement allowing it to build its observatory in the Canary Islands.
Meanwhile the current contested case hearing is continuing in Hilo with the intervenors presenting their case for why the TMT application should be denied.
The hearing, which started in October and has been on a two-week break, is scheduled to resume Monday and continue at least through the end of the month at the Grand Naniloa Hotel in Hilo.
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