A proposed order seeking to prevent Gov. David Ige from testifying in the Thirty Meter Telescope contested case was denied Monday.
A proposed order seeking to prevent Gov. David Ige from testifying in the Thirty Meter Telescope contested case was denied Monday.
But the motion could resurface during a review of potential witnesses in the quasi-judicial hearing covering the observatory’s conservation district use permit application for Mauna Kea.
Riki May Amano, a retired judge overseeing the contested case hearing, said challenges to witnesses are better heard later in the process.
“I’m aware the Supreme Court (remanded the permit) because of failure to follow the process,” Amano said during the hearing at Hawaii Community College. “For that reason, I’m reluctant to support anything out of process. It’s just not worth it.”
The court remanded the permit after ruling in December that the state Board of Land and Natural Resources violated the state Constitution by voting in favor of it before having the first contested case hearing in 2011. BLNR will use Amano’s recommendation to decide whether the $1.4 billion project, which faced large protests from Native Hawaiians last year, can move forward.
State attorneys sought the protective order, which also would have covered BLNR Chairwoman Suzanne Case and BLNR member Stanley Roehrig, after an attorney representing six parties in the contested case placed them on their proposed witness list.
The state attorneys argued executive privilege should prevent Ige and Case from testifying.
Roehrig, they said, should be dismissed since the board will have to decide the project’s fate.
Deputy Attorney General Harvey Henderson called it an “end run” to disqualify them from overseeing the approval process.
But questions also were raised about connections between Roehrig and a nonprofit operated by Keahi Warfield, who leads the pro-TMT Native Hawaiian group, Perpetuating Unique Educational Opportunities Inc. PUEO, formed earlier this year, is a party to the contested case.
“It’s more than just a casual relationship,” said attorney Richard Wurdeman, suggesting a conflict of interest.
Wurdeman, who represents the six petitioners who participated in the original contested case, noted Keaukaha Youth One Development, which Warfield operates, rents property from Roehrig.
Warfield told the Hawaii Tribune-Herald that Roehrig was one of Keaukaha Youth One Development’s founders and the group leases property rent free from a trust belonging to Roehrig’s family.
He said Roehrig stepped down from the organization before joining the Land Board and he was not involved in forming PUEO.
Still, Warfield noted he considers Roehrig a “mentor” who showed him how to operate nonprofits.
“I’m not going to deny it either,” Warfield said.
Dwight Vicente, one of the approximately two dozen parties to the contested case, also weighed in on having Ige testify, but for different reasons than some other participants.
Vicente said he wants Ige to address his nationality. Because of the overthrow of the Hawaiian Kingdom, he claimed Ige, who was born and raised in Hawaii, is a Japanese national.
“You can’t call someone governor who is not qualified,” Vicente said. “He’s a foreign national.”
Amano responded, “Mr. Vicente, you’re off point.”
Several parties also discussed with Amano issues they think should be covered in the contested case.
She directed PUEO to file a motion and other parties to respond with challenges.
Some of the issues mentioned include eight criteria for building in a conservation district, Native Hawaiian cultural and religious practices, TMT’s sublease for the mountain and the project’s management plans.
Lanny Sinkin, representing the Temple of Lono, another participant, also proposed the hearing address claims that the Hawaiian Kingdom still exists and an allegation he made that TMT has hidden military capabilities.
He said he could present evidence for both.
Amano will host a site visit Sept. 26 on Mauna Kea.
She intends to have evidentiary hearings in October.
Email Tom Callis at tcallis@hawaiitribune-herald.com.