HILO >> After nine days of exhaustive questioning of a half-dozen witnesses in a contested case hearing for the Thirty Meter Telescope, some TMT supporters are now privately describing the lengthy proceedings as a “filibuster” that will stall the project, and may even effectively block the $1.4 billion telescope from ever being built in Hawaii.
Testimony in the trial-like hearing for the proposed telescope began Oct. 20, and about 80 more witnesses are scheduled to testify. If the proceedings were to continue grinding along at their current pace of about six witnesses per month, the hearing would finally conclude sometime around the end of 2017.
Lawyers for the University of Hawaii complain the hearing so far has been characterized by “repetitive questions, attempts by cross-examiners to present their own testimony, and cross-examiners trying to argue with the witnesses and the hearings officer,” according to a recent UH filing.
But opponents of the TMT contend in a filing with the state Supreme Court that the hearing process has been so flawed that they have been “deprived once again of any meaningful participation and any meaningful opportunity to be heard” in the contested case.
The effort to build the telescope in Hawaii may now be hanging in the balance because many more months of delays or drawn-out court fights could be fatal to the project.
Officials with the TMT have said they hope to complete the contested case hearing and obtain a new conservation district use permit for the project by early 2017, which is essential to advance the TMT toward its new goal of beginning construction by April 2018.
One TMT board member has described the 2018 construction start date as a “hard deadline,” but a spokesman for the project declined to say exactly what would happen if that deadline isn’t met. The TMT announced in October that if the project cannot move forward in Hawaii, it has selected an alternate site for the telescope at Observatorio del Roque de los Muchachos in the Canary Islands in Spain.
The TMT would be the world’s most powerful telescope, but it is planned for a site on Hawaii’s tallest mountain that some Hawaiians consider sacred. For Hawaiian cultural practitioners, the summit is regarded as the meeting point of Wakea and Papa-hanau-moku, who became parents of the firstborn Native Hawaiian man, Haloa, the first ancestor of the Hawaiian people.
There are already 13 observatories on Mauna Kea, which is regarded by experts as one of the best sites in the world for modern astronomy.
Opponents of the project point out the environmental impact statement for TMT found the cumulative impact of those 13 existing facilities on the mountain has been “substantial, adverse and significant.” However, supporters of the project counter that the TMT observatory by itself would not have a significant additional impact on the mountain.
The telescope was supposed to begin construction near the summit of Mauna Kea in 2015, but TMT work crews were blocked by protesters at least three times last year.
More delays followed when the Hawaii Supreme Court in December 2015 effectively voided the first conservation district use permit issued by the state Board of Land and Natural Resources for the project. The court ruled the board erred when it approved the TMT conservation district permit before an earlier contested case hearing was held in 2011.
That court decision prompted the state to arrange the second contested case hearing now underway in Hilo, and 25 parties have joined in the latest proceedings. All but a handful of those contested case participants oppose the TMT.
The contested case hearing process is designed to tease out relevant facts for decision makers to consider as they weigh the impact that projects such as the TMT will have on the environment, Hawaiian culture or the rights of the public.
TMT opponents have used the forum of the latest contested case hearing to question supporters of the project for hours about subjects ranging from the geology of Mauna Kea and the disposal of wastes on the mountain to witnesses’ religious beliefs and their views on which lands are sacred.
Kealoha Pisciotta, president of an organization of cultural practitioners called Mauna Kea Anaina Hou, said supporters of the TMT are “out of order” if they suggest that the second contested case process is taking too long.
“It’s easy enough for them to complain about what we’re doing, when in fact the very suggestion that we need to move faster already defies the spirit of the due process to begin with,” Pisciotta said. ‘This is what got them in trouble the first time, because they were political, and they wanted to railroad it through. And now they want to complain that it’s taking too long.”
She denied that the opponents of the project are trying to drag out the proceedings in the hope that the TMT will give up and go elsewhere. The TMT opponents “don’t want to be in there any more than anyone else wants to be in there,” she said. “I mean, this is a hard process.”
She added, “I want it to go at the pace that justice requires.”
UH-Hilo is applying for the conservation district permit for the TMT, and its lawyers have complained in filings that the TMT opponents and their lawyer, Richard Wurdeman, are trying to disrupt the process.
A filing by UH lawyers last month alleged the TMT opponents “have been consistent and persistent in their efforts throughout the remanded contested case proceedings to disrupt and delay the orderly progression of proceedings while literally drowning the record with gratuitous charges of ‘unfairness.’”
Another sharp-edged filing by UH this month pointedly argued the contested case process does not give the TMT opponents the right to deliberately or unintentionally “filibuster or unnecessarily delay” the hearing with repetitive questions or “disruptive grandstanding.”
A spokesman for the university noted that a contested case hearing for a conservation district permit for the Advanced Technology Solar Telescope on Haleakala on Maui in 2011 was completed in four hearing days, and the first contested case hearing for the TMT in 2011 lasted seven days.
Scott Ishikawa, spokesman for the TMT, said planners for the telescope have been inviting input from the community about the project for more than eight years, and “unfortunately, many of the parties in the contested case have chosen to engage only now at the end phase of the permitting process — the contested case.”
“We recognize that there are larger issues that are beyond a telescope in the conservation district and we are respectful of those views. Many of these larger issues are being raised as part of the contested case hearings,” Ishikawa said in a written statement.
“After diligently following the process for so long, we should have the opportunity for a fair and efficient hearing focused on the issue at hand: whether the Thirty Meter Telescope meets the requirements of state law for a conservation district use permit,” Ishikawa said.
Retired Circuit Judge Riki May Amano is the hearings officer for the contested case, and Amano on Oct. 31 finally imposed a 30-minute time limit for each of the 25 contested case participants to question each witness.
Opponents of the telescope have now filed a notice of appeal signaling they want the state Supreme Court to overturn Amano’s ruling imposing that time limit. They argue there is nothing in state law requiring any time limit for cross-examining the hearing witnesses, and contend the purpose for Amano’s ruling “is to seemingly move the proceedings along for the UH-Hilo’s benefit.”
The TMT opponents previously attempted to have Amano removed, and have also given notice they will seek a ruling by the Supreme Court disqualifying her as the hearings officer. The telescope opponents also want lawyers from the state Attorney General’s Office disqualified as advisers to Amano.
Both sides suggested in recent filings that the Supreme Court may want to consider appointing a “special master” to oversee the contested case hearing to ensure the process is carried out properly.
Hawaii island farmer Richard Ha, who is a longtime supporter of the TMT, said he cannot believe the contested case process will continue to move at its current pace. He said the first witnesses who testified are among the most important, which is probably why the cross-examination required as much time as it did.
Still, Ha said he isn’t sure how the proceedings will play out. “It’s in their interest to stretch it as far as it can go, but that’s still part of the process, so it is what it is,” he said.
Pisciotta describes contested case hearings as “the people’s process” because they offer an opportunity to have people’s grievances and concerns heard without battling in court.
“We’re not just out there to just aggravate the situation. We’re out there to protect our rights and the rights of the general public,” she said. “TMT’s schedule should not even be a consideration here.”
