New law could speed process for Thirty Meter Telescope
COURTESY TMT INTERNATIONAL OBSERVATORY
The Thirty Meter Telescope board is aiming to build the observatory by 2024 but it remains to be seen whether it will end up atop Mauna Kea as initially planned.
After the Hawaii Supreme Court struck down the Thirty Meter Telescope construction permit in December, some speculated the $1.4 billion project would face years of legal wrangling and procedural delay.
Prospects for the project looked even gloomier after the TMT International Observatory board announced a deadline of early next year for reclaiming the permit and then launched into its Plan B search for an alternative site, with board members appearing in social media photographs inspecting a mountaintop in the Canary Islands.
Not to worry, astronomy supporters. A new law could speed up the legal process.
Gov. David Ige last week signed into law a measure that requires certain contested case hearings, including the one about to get underway for the TMT, to be appealed directly to the Hawaii Supreme Court.
The move slashes at least a year or more off the appeals process by allowing a shortcut around the circuit and intermediate courts, and puts the state in position to deliver a conservation district use permit to the TMT board under its stated time constraints.
TMT project opponents are outraged, claiming the law is aimed directly at them and that it effectively violates their due process rights.
“It undermines the fundamental principles of a democracy,” said Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui petitioners.
House Majority Leader Scott Saiki (D, McCully-Kaheka-Kakaako-Downtown), who introduced the measure, denied TMT is the sole target of the legislation.
Saiki said there have been a number of high-profile cases in recent years that have languished in the courts, whether it be the contentious Koa Ridge housing development in Central Oahu, which was delayed for the better part of two decades, or the Ho‘opili housing development in Ewa Beach, which was first proposed in 2006.
Requiring a direct appeal to the state Supreme Court will save both time and money for all parties involved, he said.
“My belief is that the public wants cases of this magnitude to be decided on their merits and not be subjected to delay tactics,” Saiki said.
Wurdeman said the bill is obviously aimed at the TMT.
“It is no secret,” he said. “It has been a full court press by the governor’s administration and the Legislature, especially the House majority, to accommodate and pass legislation that will help TMT after TMT threatened to look for alternative sites elsewhere. TMT is playing the governor and the Legislature and is simply posturing to get its project through.”
As written, House Bill 1581, now Act 48, requires decisions in contested case hearings before the commissions on water resource management, land use, public utilities and the Hawaii Community Development Authority, and cases involving conservation districts, such as the TMT, to be directly appealed to the state Supreme Court.
The law, which takes effect Aug. 1, also requires the high court to give priority to contested case appeals of significant statewide importance.
If the TMT contested case conducted for the state Board of Land and Natural Resources is finalized after July, its appeal would likely zoom to the top of the court’s list.
Robert H. Thomas, a veteran Honolulu land use and appellate lawyer, said he sees the new law shaving off a year or more of legal sparring on the way to the state’s highest court.
“Our state gets rapped frequently for our levels of process and regulation, and how they negatively impact projects such as TMT and economic growth generally,” he said. “The expense and timing of legal process is a large part of that.”
A series of recent projects seem to have died a “death by a thousand days” while tied up in agency process and court appeals, he said, and while he doesn’t think TMT was exclusively targeted by the law, it may have been the tipping point that prompted lawmakers to give it a try.
“This appears to be an effort to see if a more direct approach works, since it does seem that the Supreme Court of Hawaii is the final word on any big project anyway. Why not just send it straight to the justices, if they are going to decide it eventually?” Thomas said. “It certainly would cut down on the expenses by taking the case straight to resolution by the high court.”
But Campbell Estate heiress Abigail K. Kawananakoa, an opponent of the project, said she views the law as the latest example of “unequal justice” administered by state authorities.
“TMT embodies unequal justice,” Kawananakoa said in a statement. “DLNR violated the law in giving it a permit. When people protested, DLNR again violated the law with punitive ‘emergency rules.’ DLNR even had protesters arrested under these same illegal rules.
“Now the law has been changed to deny TMT opponents due process. The entire system of careful review has been wiped out,” she said.
Kawananakoa said that because the state is “destroying respect for the rule of law,” she fears it will lead to civil disobedience, “mayhem and anarchy.”
“Citizens only trust their government when due process is certain. It is the basis for a free society. Without it, there is little moral or practical incentive to obey voluntarily,” she said.
Meanwhile, Hawaii island astronomer Thayne Currie, a spokesman for the social media group Yes2TMT, said he’s feeling more optimistic about the TMT, thanks to strong leadership from elected officials and growing support on Hawaii island.
“We can do this,” he said. “I just hope the contested case hearing will be conducted in a decisive and extremely straightforward manner between the two parties, focused only on the facts. The people of Hawaii deserve this.”
The TMT board is aiming to build the cutting-edge observatory, featuring one of the most powerful telescopes in the world, by 2024.
Of course, winning permission to begin construction is one thing. Actually starting construction is another, as evidenced by the events of 2015.
TMT work crews, permit in hand, attempted to commence construction near Mauna Kea’s summit at least three times last year but were thwarted by protesters — even when the work convoy was accompanied by law enforcement.
Then, in December, the state Supreme Court formally halted the project after ruling that the Land Board erred in 2011 when it held the contested case hearing only after voting to approve the project. The court ordered that the contested case be held anew.
The hearings officer, retired Circuit Judge Riki May Amano, has called a pre-conference hearing in Honolulu on Monday for the attorneys representing all parties, kicking off a proceeding that is expected to be held on Hawaii island going forward.
Previously, the Mauna Kea Hui petitioners challenged not only the hearings officer selection process but Amano herself, saying the retired judge maintains the appearance of bias as a member of the ‘Imiloa Astronomy Center, which is part of the University of Hawaii at Hilo, the project’s applicant on behalf of TMT.
The arguments were rejected by state attorneys.
“My clients are fully prepared to finish this fight, and we are confident that we will prevail,” Wurdeman said.
50 responses to “New law could speed process for Thirty Meter Telescope”
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The subtext of race underlies all the jockeying going on when reading between the lines. It is directly connected to Democratic party politics. All both are directly connected to by labor unions. Anyone getting in the way of this system is incompatible with it. It is a locally oriented and designed deviation from the standard full American system of law and justice and will eventually erode the very public works system that keeps the paychecks coming to those who have the job of erecting pillars to support that system. In this instance, Thomas fails to take a stand. Why? Wurdeman can’t beat the system because the entire state judiciary system is part and parcel of the system. Abigail has a shot at it because she knows race is at the core of it all and as such is part of the looting of this beautiful aina being disappeared day by day by organized crooks. There is a reason Waikiki is a “special district”.
Ms. Kawananakoa appears to be threatening violence if she doesn’t win the case. Violence is hardly part of the “due process” system she is advocating. If the TMT opponents don’t like the new law they should try to elect new legislators and a new governor who will promise to block the TMT. That’s the legitimate way things are done in a democracy. But she probably doesn’t believe in democracy. Maybe she thinks she should be able to rule by royal decree.
Yes Abigail is quite the hypocrite. On the one hand claiming she is the “rightful” Queen of Hawaii and that the State doesn’t really exist, and on the other hand attempting to use the State Court system to do her bidding.
Helps to have money.
You’re just making things up again. Please go see a psychiatrist and have some MRIs taken.
The on-going race wars shall continue. Most people who have at least three generations associated to Hawaii are mixed. Most of these same folks select “Hawaiian” as their identity because it provides access to schools, programs, and a level of social acceptance that is stronger than perhaps the rest of the other bloods they posses. I find nothing wrong with protesting and protecting. In this process however, protectors and protesters appear to suppress (or forget) the struggles of their non-Hawaiian ancestors. That can be a problem.
To be fair, many of these mixed folks don’t even know about the struggles of their non-Hawaiian ancestors. Can’t fault anyone for not knowing.
Correct 2liveque, by far the most discriminated groups in Hawaii the last 100 years were the Japanese and the Chinese.
This is not Race driven, this is greed driven. Just so happens that the Hawaiians are less greedy than the rest of them.
IT IS ALL ABOUT THE MONEY.
hywnsytl stop it! You’re killing me! Hawaiians are less greedy than the rest of them.” you say! There are currently 861 raced based for Polynesian-Hawaiians only programs in this State. They have their own illegal raced based school systems, and healthcare programs. Polynesian this and free Polynesian only that.
Who is the REAL greedy folks???
Diver Dave is right. Came to easy. Some of these Natives haven’t worked a day in their life and keep on asking for more. The ones that do work will have nothing to do with them
The issue will have to be decided ultimately by the Supreme Court anyway. This just cuts out the waste of time and moneys before the Circuit Court and Intermediate Court of Appeals.
Abigail shouldn’t talk. She didn’t make out bad at all. She should give her millions to her subjects who were sold down the road. Makes me laugh when she is the last to arrive so everyone has to stand up when she enters the room.
What’s with this Wurderman guy. Why does he, why do all the Hawaiian activists, have to use their Hawaiian middle name. Why does he want to drag this thing out? He is a hypocrite exploiting more money from hapless activists who don’t have a pot to piss in.
Wurdeman has only himself to blame. As the lawyer for the “Parade of the Obstructionists” he has filed frivolous lawsuit after frivolous lawsuit. He latest claiming that the good judge somehow has “conflict of interest” because she and her husband buys a yearly family membership to the Imiloa Astronomy Center to get a discount when she takes her grandchildren.
Wurdeman is either a very poor lawyer or should be sanctioned by the Court. “Conflict of Interest” laws deal with financial conflicts, not “the appearance of neutrality.” Judge Amano does NOT sit on any Board for Imiloa, have anything to do with financial decisions of Imiloa, and her family’s membership is to a center that has many displays dealing with the mythological Polynesian-Hawaiian creation story, not the birth of the Christ child.
It is NOT an elimination of due process when that very “process” has been abused time and again by the very people like Abigail Kawananakoa (the woman who also claims she is the “rightful” Queen of Hawaii) filing false claims after false claims to game the system and delay the system of Justice!
Mr DD’s personal interpretation of “frivolous” leads him astray. comme d’habitude.
Excuse me if I stay on the topic of the article, Mythmaker, unlike you who continually race baits that “race is at the core of it all”.
P.S. to Mythmaker, “In law, frivolous litigation is the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won.”
This law may not be a bad thing but to put in play now is wrong and everyone knows it. Mr wurderman is now being blamed for changing the system he did not build? by actually following the law? TMT was stopped because the STATE OF HAWAII BROKE THE LAW, why everyone keeps on blaming everyone else is astounding. State supreme court ruled against the State and not for anyone particular person or group.
hywnsytl, you are combining two different cases. The “process” was at issue with the court. The HSC said that they interpreted that BLNR should have somehow known that the permit issuance would be challenged and they should not have issued it before there was a contested case hearing.
The case in the above article has to do with Wurdeman filing a claim that the appointed Judge Amano had somehow “conflict of interest” based on her $58.00 a year “family pass” at Imiloa Astronomy Center. This is obviously not “conflict of interest” and Wurdeman knows it or is the most inept lawyer out there. NO, he knows exactly that it’s silly to call this “conflict of interest”, but knew it would get some play in the media, which it has. Unfortunately for him, this time the allegations are so over the top that it has become nothing more than the Salem Witch Trials where the accusers finally got so bold as to accuse the Judges of being witches too!
So all proposed commercial projects on conservation land will go straight to the supreme court. Wow!The supreme court is now the new commercial planning and permitting department. Break out the dynamite and bulldozers and destroy all conservation land forever if the price is right. This is an insult to the people of Hawaii. No amount if hush money is worth the destruction of conservation land. These land based telescopes will never take deep space pictures as well as the Hubble. SEE: http://hubblesite.org/the_telescope/
What other projects are now taking place or proposed on conservation land?
It is only fitting that the highest State Court rule on conservation State owned land. “State Owned”, being the operative words. “State” means ALL the Citizens of Hawaii. Not just the Citizens of a certain locale, or race, or religion.
Most all of these cases get appealed to the Hawaii Supreme Court anyway, so why not just cut out the middle man/woman and both sides come with their best arguments and cut out all the waste of tax payer money and time.
Due process is hardly “frivolous” – I made you look up the actual definition. You are improving, Mr DD – one day your dedication could turn out to be helpful. I conjecture you meant vexatious.
Also, “state” “owned”. Chain to title: 1778 all native Hawaiians without written titles. After 1778 to start of kingdom – Kamehameha and his warriors. Republic – anyone who could get a written deed or patent. Territory – some of the land of 1778 returned to its pre 1778 original owners. -State – “ownership” passed from US to new state. Two land trusts on top of the royal land trusts (which Campbell is one of). BTW, David Kalakaua named the Kawananakoa as next in line – Abigail didn’t make it up). The public including the Hawaiians (those who use their family Hawaiian name is their middle names) are beneficiaries of the public land trust. Solely the native Hawaiians, i.e., the nearest kinship group, are connected to the native Hawaiian land trust. The former is in state law, the latter is a mixed blending of state and federal law. The transfer of all the aboriginal lands to the state is at risk in judicial review pursuant to Rice as unconstitutional.
funny
Come now Mythmaker, you conveniently left out the Great Mahele in which land was offered for free to all that were on it in fee simple, and also you conveniently left out the The Land Act of 1865.
In 1865 the King’s land that was retained by Kamehameha III during the “Great Mahele” had become so encumbered with mortgage debt from bad business deals, gambling, and general drunkenness that is was in real danger of being lost to creditors. So, the Kingdom’s legislature voted to buy out the debt to save the land. A three man commission was set up to over see the land which from then on was not to be sold, only leased, and the money derived would go to sustain whoever might be King, but never again owned by the King or able to be passed on to any heirs, and the money derived from the leases would go to sustain who ever might be King.
King Kamehameha V happily signed off on the deal.
Later when the form of government changed to Democracy after the revolution of 1893 there were no more Kings, so the land was passed on to the new government, then to the Territorial government, then back to the State at Statehood.
The land is still owned by the government today, which means it is owned by all the good citizens of the State, not a particular race, just as it was owned by all the citizens of the Kingdom in 1865.
The “land trust” you speak of is the portion of public lands set aside in Territorial days for the Homelands experiment that is a dismal failure.
Mauna Kea is NOT a part of those areas set aside for Polynesian only homesteading, and is owned by All the good citizens of this State.
Just more myth making by Mythman.
Diver Dan, you are awesome. I’m with you. I get it, thank you.
Les kalanianeolepuapohakukeokihonoluluwaikiki Park
Wonderman funded by Abagail – both get the attention they so richly don’t deserve – spoiled children dressed up as idealists
Yes Abigail, just another ali’i trust baby living off her Polynesian-Hawaiian ancestors that really “stole” the land from the people.
She should give her millions to the “native Hawaiians”.
Yes lespark, but her arrogance is such that she believes that it entitles her to be the sole ruler over them. A White woman that claims to hate White people. Just another Walter Murray Gibson!
Wurdeman is upset that “due process of law” has been denied. However, delaying an outcome by tying it up in appeals courts is not due process, it is a tactic, a tactic that causes endless argument that ultimately renders the question moot. In such instances justice for either party is denied. Wurdeman’s clients should be thrilled that the case may go directly to the Supreme Court. After all, if their claim is truly just, they might win.
Well not directly to the Supreme Court, the “Parade of the Obstructionists” first get to have everyone listen to them be cry babies and tell how their “religion”, their race, and their “culture” should supercede all other good Citizen’s of the State in the “contested case hearing”.
It should be quite entertaining!
Perhaps this is an indication that the Supreme Court’s calendar is not very full. Lower courts do not handle cases swiftly enough.
Exactly what the “Parade of the Obstructionists” have been misusing them for.
All that the legislature has done is to rectify the unfairness brought about by the laws enacted during the Tom Gill years. Those laws have increased the cost of living in Hawaii immeasurably. And we wonder why so many people are unable to own a home or why we have so many homeless families on the streets?
About time. These legal delays are badly affecting our economy. The people deserve better and speedier decisions.
She should give her millions to the “native Hawaiians”.
wiliki and lesparks comments are really one in the same. Abigail is a multi-millionaire and so doesn’t care about money. Her only concern is POWER grabbing and the sovereignty fringe movement. If she can exert and maintain power over a rock, then it’s (in her mind) the first step to ruling over the Polynesian peoples. Simply delusional!
Special legislation has blown up in our faces before. Besides, it’s too late. The TMT Board has set a deadline to move on well before the end of the process under the new legislation. Bye, TMT and sorry for the anti-business, anti-science attitude in Hawaii.
It’s only May, JMV371.
As the saying goes, “If you can’t get ’em on facts, get ’em on process.” Without the new law, the small percentage of opponents of anything good for Hawai’i can get ’em on process. Why should the vocal few have the power to jerk the rest of us around like this? We live here too! Ms. Kawananakoa is the one embodying “unequal justice.” The new law injects some common sense.
LIKE
You mean like the transgenders, Ti_TI? The vocal minute few. But, you didn’t really think it was going to stop with Gay Marriage did you?
A person is BORN WITH his/her sexual identity and sexual orientation. The TMT issue is completely different. Shame on you for injecting such a lame argument. Stick to facts and logical arguments.
What happen to our drag strip in Campbell Park? Corrupt politicians, private developers and Campbell Estate. The plot thickens.
if the protesters piss you off, make a new law…brilliant!
No den, the “Parade of the Obstructionists” and their ilk have been misusing and gaming the system in the lower courts for 30 years. Then, when they lose, they always appeal to the highest State Court anyway. Might as well go there first on these kinds of issues. Saves all the drama too.
comment moderated…figures
Stop using bad words, den.
oh grow up Dave.