Telescope sublease hearing case goes to state Supreme Court

The nagging question of whether the state must hold a separate and potentially time-consuming Thirty Meter Telescope contested case hearing on the project’s sublease has been kicked upstairs to the state Supreme Court.

The state Supreme Court quietly granted the state’s request to transfer the case a couple of weeks ago after state attorneys argued, in part, that the sublease question should be considered by the same court in tandem with the anticipated appeal of the upcoming TMT permit decision.

The ongoing contested case hearing about the project’s conservation district use permit is now in the hands of hearings officer Riki May Amano, who is weighing the evidence presented over more than four months of hearings in Hilo and preparing to make a recommendation to the state Board of Land and Natural Resources.

Whichever way the board rules, it is likely the case will be appealed to the state Supreme Court under Act 48, a fast-track provision approved by the 2016 state Legislature.

Meanwhile the TMT International Observatory board continues to insist on starting construction in April, whether it’s on Hawaii’s tallest mountain or an alternative peak on La Palma in the Canary Islands.

In his order in January, Hawaii island Circuit Judge Greg Nakamura said the board violated the constitutional rights of plaintiff E. Kalani Flores of Hilo by denying his request for a contested case 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 to sublease to others.

Flores, who is also a party in the ongoing case before Amano, appealed the board’s denial to the Circuit Court. In the meantime the state Supreme Court ruled that the board erred in voting to approve TMT’s conservation district use permit prior to holding a contested case hearing. 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.”

But the state, in its application for transfer, argued that it is under no obligation to grant a contested case hearing because, in approving the lease, it was merely acting as a landlord and engaging in the custodial management of public property under its control.

“Without clear direction from this court, the increased volume of contested case hearings (set by this precedence) could overwhelm the affected agencies,” the document said.

David Kauila Kopper, a Native Hawaiian Legal Corp. attorney representing Flores, said the high court already chimed in on the matter in its concurring Mauna Kea opinion, saying that government agencies cannot act as “a passive actor or a neutral umpire” when it comes to decisions affecting the constitutional rights of Native Hawaiians to exercise their traditional and customary practices.

“The state wants to create a law so that it has immunity in this situation,” he said.

The TMT stopped making sublease payments in February pending a ruling in the case. TMT and university officials had agreed to defer the payments that called for $300,000 annually for the first three years starting in 2014 and rising to more than $1 million after 10 years.