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Hawaii Supreme Court voids Thirty Meter Telescope permit

Updated: 
December 3, 2015 - 9:26am

HILO — The Hawaii Supreme Court on Wednesday ruled the permit allowing construction of the Thirty Meter Telescope near the summit of Mauna Kea is invalid.

According to the court, the Board of Land and Natural Resources shouldn’t have issued a permit to build the $1.4 billion next-generation telescope until a contested case hearing to evaluate a petition by a group challenging the project’s approval could be held.

“Quite simply, the board put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand,” Chief Justice Mark Recktenwald wrote in the court’s opinion.

The high court on Nov. 17 granted an emergency stay blocking crews from working at the TMT site through Dec. 2. The ruling defused a budding confrontation with protesters planning to halt work at the site.

Wednesday’s ruling sends the case back to the board for a new round of hearings, a process that could take months or years while the permitting process is restarted. TMT officials have previously said they would continue with the process.

Kealoha Pisciotta, president of Mauna Kea Anaina Hou, one of the appellants in the case and a longtime critic of the telescope project, said she had just received word about the ruling when the Hawaii Tribune-Herald reached her for comment.

“Right on. I’m kind of taking it all in,” she said after hearing a portion of the opinion issued by the court.

“This is good news. It means the court recognizes that TMT was not issued the permit properly by the (Board of Land and Natural Resources), and it means they have to start over. And we’re ready to meet that challenge,” she said.

She added that a similar ruling in 2003 regarding a proposal by NASA and the W.M. Keck Observatory to add six new telescopes atop Mauna Kea eventually led to the project shutting down. It’s still too early to tell if the same thing might happen in this case, she said.

“What I think is sad is this demonstrates that the (BLNR) has put us through these proceedings — and before every single court in Hawaii, all the way to the highest court in the land — and they’ve repeatedly repeated errors. … My only hope is that they aren’t going to do it again,” Pisciotta said. “But we are prepared to go through another contested case hearing and to proceed on.”

Lanakila Mangauil, one of the leaders of the movement to block construction of the TMT, called news of the ruling “wonderful.”

“First of all, I have gratitude to the Mauna Kea hui for continuing to hold their ground on their case this whole time,” he said. “This is why we made our stand. The process wasn’t followed properly. It’s all about truth. The law needs to be upheld. These processes are put into place so … the proper protections are followed. …

“That’s why the citizens of Hawaii and the people who care for the mountain, we had to do what we had to do. If we had not made that stand on the mountain … all this time they would have been ripping apart the earth and damaging the ecosystem when the process was not even valid.”

He added that as a result of the ruling and after a months-long standoff, the public may finally see movement of a different sort at the telescope site.

“TMT has no legal stand on that mountain, and they should be coming to collect their machines,” he said.

Representatives from the University of Hawaii and TMT did not comment Wednesday afternoon in response to the ruling.

“Still under review. Will let you know,” wrote UH spokesman Dan Meisenzahl in an email.

The Department of Land and Natural Resouces also withheld comment, referring a request to the Attorney General’s Office.

In a prepared email statement, Attorney General Doug Chin said his office would be advising the Land Board regarding its next steps.

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

A group of universities in California and Canada plan to build the observatory with partners from China, India and Japan. The University of Hawaii subleases the land on Mauna Kea to TMT for the project. The planned construction site is on land considered sacred by some Native Hawaiians. Scientists say the location is ideal for the telescope, which could allow them to see into the earliest years of the universe.

The group suspended construction on Mauna Kea after protesters blocked the road to the summit.

Recktenwald wrote that conducting the permit vote before the hearing denied the due process rights of the appellants — Mauna Kea Anaina Hou, Clarence Kukaukahi Ching, Flores-Case Ohana, Deborah J. Ward, Paul K. Neves and Kahea: The Hawaii Environmental Alliance — to be heard at “a meaningful time in and in a meaningful manner.”

“Such a procedure lacked both the reality and appearance of justice,” the opinion states.

BLNR approved an application by UH-Hilo for a Conservation District Use Permit at a public board meeting on Feb. 25, 2011, after public hearings on the application on Dec. 2, 2010, in Hilo and the following day in Kailua-Kona. The approval came despite opponents’ requests that BLNR delay ruling on the permit until a contested case hearing could be held.

The board’s approval was conditional, including the conditions that a contested case hearing be conducted and construction was not to occur until the hearing was resolved. The board described the approval as “preliminary.”

A contested case hearing was held beginning in August 2011, the hearings officer issued his decision and order granting the permit on Nov. 30, 2012, and BLNR issued its own findings and conclusions and issued the permit on April 12, 2013.

Opponents appealed the agency ruling to the 3rd Circuit Court in Hilo, saying their due process rights had been violated by BLNR issuing the permit before the contested case hearing.

A ruling on May 5, 2014, by Judge Greg Nakamura sided with BLNR, saying the appellants rights weren’t violated because a contested case hearing had been held and construction had been halted. Today’s high court decision overturns that ruling.

The 13 telescopes already in place on the summit of Mauna Kea, Hawaii’s highest point, have played major roles in discoveries considered among the most significant to astronomy. Guenther Hasinger, director of the University of Hawaii Institute for Astronomy, said during an interview with The Associated Press in August that “there is almost no major astronomical discovery where there was not very important input from the telescopes on Mauna Kea.”

The Associated Press contributed to this story.

Email Colin M. Stewart at cstewart@hawaiitribune-herald.com and John Burnett at jburnett@hawaiitribune-herald.com.

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