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Battle over TMT continues in circuit court

Updated: 
February 21, 2014 - 12:05am

The battle to put one of the world’s largest optical telescopes on a sacred Hawaiian mountain continued during a hearing at the 3rd Circuit Court in Hilo Thursday morning.

Backers of the Thirty Meter Telescope project sat alongside supporters of the six petitioners arguing that the state erred when granting a Conservation District Use Permit for construction of the telescope. TMT supporters wore yellow “TMT YES” buttons, while advocates for the petitioners sported traditional clothing or wore shirts printed with the slogan “Protect Mauna Kea.”

Around 9:30 a.m., Judge Greg Nakamura entered the room where legal counsel for the Board of Land and Natural Resources, University of Hawaii at Hilo and the appellants awaited to argue how a case regarding a telescope on Maui applies to TMT.

The state Supreme Court ruled Dec. 13, 2013 that BLNR was improper in its procedures that led to the issuance of a CDUP for a large telescope currently under construction on Maui’s Haleakala. Native Hawaiian group Kilakila O Haleakala had been fighting against the construction of the telescope since 2010.

The December ruling led TMT Corp. to file an amicus brief, which allows the corporation to speak on the case.

Acting as legal counsel for UH-Hilo, the recipient of the permit, was Jay Stuart Handlin. Richard Naiwieha Wurdeman represented the appellants, and new to the court was Hawaii Attorney General David Louie.

Wurdeman started by restating the appellants’ argument that BLNR violated due process when issuing the permit before holding a contested case hearing, and that the Kilakila case is applicable.

“What Kilakila certainly adds is a detailed analysis that the court went through and that it was clear, fundamentally that the holding of a vote prior to a contested case hearing was a due process violation,” he said.

In the case of TMT, the board approved the application for the permit during a Feb. 25, 2011 meeting, while at the same time directing that a contested case hearing be held.

Wurdeman argued the approval process was out of order.

“What they should have done is held off on taking a vote and let the contested case hearing to be decided then come to their final decision,” he said. “The only adequate remedy for this due process violation by BLNR is to vacate, remand and deny the CDUP permit and require them to restart the process.”

Louie followed by attempting to poke holes in Wurdeman’s argument.

“What does the Kilakila case say about the handling of this matter and where do we go from here?” he said. “The Kilakila case itself is very clear. It was legally and factually different from the TMT case. It does not apply. It does not require a remand and it does not require anything further.”

He argued that the Kilakila case ruling was not based off due process violations. He said the permit for the Maui-based telescope was granted before stating it was preliminary and conditional, and that petitioners in the Kilakila case were not made aware as to whether or not they would get a contested case hearing for two months after the board’s decision.

In the TMT case, Louie argued the board followed proper procedure since a contested case hearing was granted before a final decision was made.

“I understand they don’t like the result, but the proper procedures were followed,” he said.

Handlin reiterated essentially what Louie said and claimed the board followed the rules because the vote did not signify a final decision.

“What happened in February of 2011, our final decision will occur only after a contested case hearing is held and after further review by the board,” he said.

Wurdeman argued the board’s vote essentially implied a final decision was made.

“What the board should have done is give notice that there would be a contested case hearing. They should have deferred and not predetermined the case,” he said.

The hearing ended without a ruling by Nakamura. He is expected to mail his verdict to the parties involved within the next few weeks.

Email Megan Moseley at mmoseley@hawaiitribune-herald.com.