‘Back to square one’ for TMT

In a ruling that could set back development of the Thirty Meter Telescope for years, the Supreme Court of Hawaii on Wednesday invalidated the permit allowing construction of the $1.4 billion project on Mauna Kea.

The court, in a unanimous decision, said the state Board of Land and Natural Resources erred when it approved the project’s Conservation District Use Permit before holding a contested case hearing to consider evidence about whether the permit should be granted .

The justices kicked the case back to the board for a new hearing.

“Quite simply, the board put the cart before the horse ,” said the majority opinion written by Chief Justice Mark Recktenwald.

A second opinion — written by Justice Richard Pollack, signed by Justice Michael Wilson and agreed to in part by Justice Sabrina McKenna — was issued concurrently in support of the majority opinion but went on to recount state laws and court decisions that offer protections for traditional Hawaiian rights.

Henry Yang, chairman of the TMT International Observatory Board of Directors, issued this statement in response to the ruling:

“We thank the Hawaii Supreme Court for the timely ruling and we respect their decision. TMT will follow the process set forth by the state, as we always have. We are assessing our next steps on the way forward. We appreciate and thank the people of Hawaii and our supporters from these last eight-plus years.”

TMT officials previously indicated they would forge ahead with construction of the cutting-edge telescope, which was scheduled to become operational in 2024, even if a major delay emerged from the court.

Such a delay may be inevitable because Wednesday’s order requires the project to go through the permitting process once again, where it likely will face a gauntlet of opposition, appeals and court challenges.

Attorney General Douglas Chin said his office would be advising the BLNR on its next steps.

“Today’s decision provides direction to a new Land Board and another opportunity for people to discuss Mauna Kea’s future,” Chin said in a statement Wednesday.

The University of Hawaii issued the following statement: “The University of Hawaii continues to believe that Maunakea is a precious resource where science and culture can synergistically coexist, now and into the future, and remains strongly in support of the Thirty Meter Telescope. UH is currently reviewing the court’s decision to determine the best path forward.”

Meanwhile, those who oppose the telescope were delighted by the ruling.

“We’re very pleased,” said Richard Naiwiehu Wurdeman, attorney for the Mauna Kea Hui plaintiffs. “It’s been a long, hard battle for us in the court system.”

Kealoha Pisciotta, president of Mauna Kea Anaina Hou and leader of the Mauna Kea Hui, said she was gratified by the vindication. She said the court correctly noted the lack of integrity in the process.

“This is going to throw TMT back to square one,” she said.

“We’ve been saying it was flawed from the beginning,” said Kaho‘okahi Kanuha, a leader of the Mauna Kea protesters.

All three vowed to continue the fight.

Kanuha said the “protectors” will now follow closely the permitting process and offer opposition every step of the way. If the TMT still prevails, he said, the battle will certainly return to the mountain.

“We will not allow our sacred mountain to be desecrated,” he declared.

The state Supreme Court on Nov. 17 granted a request for an emergency stay that blocked crews from working at the TMT site through Wednesday, averting a confrontation with protesters who had planned to stop crews from performing vehicle maintenance and repair at the work site.

Wurdeman called on the governor to pardon anyone arrested while protesting the TMT work crews.

“It’s obvious he owes an apology to all those who were exercising their civil liberties,” he said.

Wurdeman said the TMT case is reminiscent of what happened when state officials tried to cut corners on behalf of the Hawaii Superferry.

Ferry operations were halted in 2009 after the state Supreme Court ruled that a state law allowing the Superferry to operate without a full and complete environmental impact statement was unconstitutional.

In the Mauna Kea case, the BLNR in 2011 was on record in support of the project, “and the permit itself was issued before evidence was taken and subject to adversarial testing before a neutral hearing officer,” according to the majority opinion.

“While (applicant) UH (Hilo) and the board argue that the February 2011 decision was ‘preliminary’ and subject to revision, the fact remains that the board issued the permit prior to holding the contested case hearing,” the opinion said.

“This procedure was improper, and was inconsistent with the statutory definition of a contested case as ‘a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.’”

The court added: “Such a procedure lacked both the reality and appearance of justice.”

The second opinion written by Pollack concurs that the state committed a due-process violation but suggests “other provisions and guarantees of the Hawaii Constitution forge the right to a contested case hearing and establish procedures essential to safeguard the rights protected by the Constitution in cases such as this one.”

The opinion begins: “Rising to a majestic 13,796 feet above sea level, Mauna Kea, the highest mountain peak in the Hawaiian Islands, is of profound importance in Hawaiian culture. The summit region is sacred to Native Hawaiians, and because of its spiritual qualities, traditional and customary cultural practices are exercised throughout the summit area.”

Wurdeman said the second opinion puts TMT on notice that an approval won’t be automatic if the case returns to the state Supreme Court.

“They better consider the opinion carefully and decide whether further litigation is something they want to pursue,” he said.

“If they do, we’ll be ready,” he added.

Office of Hawaiian Affairs CEO Kamana‘opono Crabbe issued a statement applauding the court’s decision:

“Our priority is ensuring responsible stewardship of Mauna Kea for all the people of Hawaii, and the continued reverence for this sacred mountain. OHA continues to urge all parties to be responsible stewards and protect our traditional and customary rights and practices as required by the Constitution, state laws and regulations. The Office of Hawaiian Affairs appreciates the court’s vigilance in ensuring proper procedures are followed to protect our land and cultural resources.”

Mauna Kea Anaina Hou v. Board of Land and Natural Resources by Honolulu Star-Advertiser