The legal battle over the controversial Thirty Meter Telescope drew a step closer to resolution Thursday when the state’s highest court heard oral arguments in the case.
Attorneys representing both sides of the issue spoke before a full house of mostly red-clad Mauna Kea “protectors,” who rallied outside the Aliiolani Hale courthouse in Honolulu prior to the morning hearing and then chanted and sang inside the courtroom before and after the session.
The five justices of the state Supreme Court listened to the arguments of attorneys representing TMT foes Mauna Kea Hui as well as the University of Hawaii at Hilo and the state.
But the judges didn’t listen for long before they began peppering the lawyers with questions that focused on due process and a few other issues.
Among other things, the lawsuit on appeal claims the state Board of Land and Natural Resources violated the due process of telescope opponents when it approved the project’s Conservation District Use Permit in 2011 prior to holding a formal contested case hearing challenging the project.
Associate Justice Sabrina McKenna noted that the BLNR serves not only as an administrative agency, but as a quasi-judicial one that must abide by court rules.
“Do you think due process would allow a court, for example, in a situation where a plaintiff files a lawsuit, for the judge to say, ‘Here is my judgment in favor of the plaintiff. We will now have a trial’?”
UH-Hilo attorney Jay Handlin responded that the court acts that way all the time when it issues a preliminary injunction to stop a course of conduct before making a final ruling on a case.
But Associate Justice Richard Pollack added, “I was a trial judge a long time. I don’t recall a case where I decided a case before the trial.”
The panel also queried state attorneys about the impact of adding an additional telescope to the community of telescopes atop the mountain, including questioning apparent inconsistencies in the criteria used to determine there would be no significant impact on cultural resources on the summit.
Mauna Kea Hui attorney Richard Naiwieha Wurdeman said the summit of Mauna Kea has become an industrial center with significant negative impacts over the years.
“Mauna Kea has really become an absolute mess,” Wurdeman said. “It is a situation that is out of hand.”
But Julie China, deputy state attorney general, said astronomy has coexisted with other activities on the mountain for decades and the TMT will fit in nicely.
“For over seven years, since its inception, the Thirty Meter Telescope project has received the highest and unprecedented level of input, scrutiny and process,” she declared.
“In order for this telescope to see the light of day, or more specifically the stars at night, the university would have to comply with the terms of the Conservation District Use Permit, the TMT Management Plan, Comprehensive Management Plan, the Cultural Resources Management Plan, the Public Access Plan, the Natural Resources Management Plan and the Decommissioning Plan,” she said.
As for due process, China said the state made sure the project did not go forward during the contested case hearing.
“All parties saw it as a preliminary matter,” she asserted.
After the hearing, anti-TMT forces expressed optimism the court might rule their way.
Kealoha Pisciotta, president of Mauna Kea Anaina Hou, one of the plaintiffs, said she was pleased the panel had asked some tough questions on the due-process issue. She said opponents were shocked and disappointed when the permit was issued prior to the contested case hearing.
“We were distraught on that one, so I’m glad that rigorous debate was brought forward,” she said.
Lanakila Mangauil, one of the leaders of the Mauna Kea “protectors,” described Thursday’s proceeding in one word: wonderful.
“The judges were catching them on the exact same points we’ve been saying this whole time. It’s due process they did not follow, and you can see they were jumping around and creating their own rules. (The justices) could see they were stumbling all over themselves trying to justify their decisions.”
UH spokesman Dan Meisenzahl said, “It’s a long public process, as it should be. We feel that we followed the process to the letter of the law, and we look forward to the Supreme Court’s decision.”
Among the high-profile figures who came to watch the hearing were former Gov. George Ariyoshi and Abigail Kawananakoa, the Campbell Estate heiress and descendent of Queen Kapiolani, who opposes the TMT project.
The state Supreme Court, meanwhile, is considering another case with similar issues: the appeal of a Conservation District Use Permit granted to the Daniel K. Inouye Solar Telescope on the summit of Haleakala. The Supreme Court heard oral arguments in the Maui case in April but has not issued a ruling yet.
One of the key legal issues being argued in both cases is whether the BLNR failed to meet all eight criteria required before construction is allowed in the state’s protected Conservation District, which the court has already observed as tolerating the lowest degree of development.
Despite a couple of attempts to start construction on the TMT, work has been halted by Native Hawaiians and others who consider the 13,796-foot summit of Mauna Kea sacred.
Astronomers consider the summit one of the world’s best locations to view the heavens, with its high altitude, atmospheric stability, minimal cloud cover, low humidity, minimal pollution and transparency of the atmosphere to infrared radiation.
The 18-story TMT is being billed as the largest optical telescope in the world and is scheduled to be operational in 2024.
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Correction: Associate Justice Richard Pollack said, “I was a trial judge a long time. I don’t recall a case where I decided a case before the trial.” An earlier version of this story and the Friday print edition misquoted him as saying, "I was a proud judge a long time.
