Deadline too short, TMT foes contend

A May 30 deadline has been set for submitting final arguments in the Thirty Meter Telescope contested case hearing, but project foes contend it’s not enough time considering the volume of documents, exhibits and transcripts generated by the proceeding.

They claim their due process rights are being violated by the deadline and other requirements imposed by hearings officer Riki May Amano.

The Temple of Lono, one of the petitioners opposed to the $1.4 billion project, filed an emergency motion with the state Board of Land and Natural Resources on Thursday seeking to halt the proceeding until it can be determined whether it is in compliance with applicable rules and does not unconstitutionally deny due process.

“The Temple seeks this stay because the Temple considers the process for determining the record in the proceeding to be clearly unconstitutional and highly prejudicial to the parties,” the motion says.

Many of the project foes have filed formal objections and are requesting anywhere from 75 days to 90 days of additional time to submit their findings, conclusions and arguments. They say it’s especially important for the parties who are participating in the hearing without the benefit of legal representation.

As of Friday, Amano, a former Hawaii island circuit court judge, had not ruled on the objections.

In a filing submitted to the hearing officer, E. Kalani Flores described the deadline as “totally unreasonable.”

“If these deadlines are not reconsidered, it is very clear that this would result in substantial harm and injury … and would indeed violate our constitutionally protected rights of due process,” the filing said.

The hearing, with 71 witnesses over 44 days, produced some 800 exhibits, more than 550 documents and 50 volumes of transcripts with a total of nearly 12,000 pages.

Lanny Sinkin, who represents the Temple of Lono, argued that with the exhibits challenged, denied and still subject to reconsideration, there is no final record for which the parties can base their arguments on. Therefore, establishing a deadline for final argument is out of order at this time.

“If the hearing officer is going to insist on ignoring the law, then that schedule should reflect the reality of this proceeding,” Sinkin wrote in a filing. “The hearing in this proceeding took 44 days. Seventy-one witnesses testified. Given that most of the protector interveners are pro se, a reasonable time to address the volume, extent and complexity of the record in this proceeding is at least 90 days.”

In another filing, Kealoha Pisciotta of Mauna Kea Anaina Hou argued that pro se parties should not be held to the same standard as parties with attorneys. She cited U.S. Supreme Court precedent indicating that pro se motions and pleadings should be given additional latitude.

“This isn’t what we do for a living. We aren’t professional lawyers,” she said. “It makes it hard for us to compete.”

Due process is a touchy subject with the TMT because the state Supreme Court in 2015 invalidated the project’s conditional use permit after determining that the BLNR violated due process when it approved the telescope before holding the original contested case hearing in 2011. The court ordered a new hearing.

In addition, TMT International Observatory’s plan to build the 180-foot-tall facility could face yet another delay following a judge’s December ruling that the Land Board should have granted petitioner Flores a contested case hearing for the project’s sublease on Mauna Kea. The state is appealing the ruling.

The TMT board is aiming to begin construction by April 2018, either on Mauna Kea or its backup site in the Canary Islands.