The 23 parties that sparred and skirmished for more than four months during the Thirty Meter Telescope contested case hearing replay will get one last opportunity to argue their case before the state Board of Land and Natural Resources on Wednesday.
A standing-room-only crowd is expected at the
9 a.m. hearing in the Crown Room of the Grand Naniloa Hotel in Hilo.
Former Hawaii island Circuit Judge Riki May Amano, the contested case hearings officer, formally recommended that the board approve the conservation district use permit allowing construction of the cutting-edge telescope, expected to be one of the largest and most powerful ever built.
With each party allotted 15 minutes to present oral arguments, it’s going to be a long day, and the Land Board is unlikely to make an immediate decision on the issue.
Whatever the board decides, don’t expect it to be the end of things. The losing side is likely to appeal to the state Supreme Court under Act 48, a fast-track provision approved by the 2016 state Legislature with the TMT in mind.
The Supreme Court already ruled against the TMT once when it ordered a replay of the project’s 2011 contested case hearing because the Land Board had approved the permit before holding the hearing.
Many of the anti-TMT forces believe they have another decent shot of stopping the $1.4 billion project if it goes to appeal.
“I’m hopeful the (land) board will do their job,” said Kealoha Pisciotta, leader of the Mauna Kea Hui petitioners. “If they don’t do their job, we’re prepared to do what we have to do.”
Pisciotta and others said they were unfairly treated by Amano during the hearing.
Pisciotta said, for example, Amano failed to rule on every finding of fact submitted by the parties, as required. Instead, she rejected hundreds of findings in broad, generalized dismissals.
“There is no doubt in my mind that this proceeding will not ultimately result in the TMT receiving a permit,” added Lanny Sinkin, attorney for petitioner Temple of Lono.
Sinkin filed a formal objection over the issue, asking that the hearing be sent back to Amano to allow her to address every finding. However, the University of Hawaii at Hilo disputed the contention in its own filing, saying Sinkin misread the law, and the board declined to grant Sinkin’s objection.
Sinkin said Amano also failed to adequately address the state statute prohibiting desecration.
“Instead, she simply cut and pasted whatever the university had to say about that issue,” he said. “That dismissive approach to a critical question is simply further proof that the hearing officer was simply looking for ways to dismiss Native Hawaiian concerns.”
Sinkin said the Supreme Court could not have been clearer about the need to observe the rules on due process. Yet “the numerous violations of due process rights” ignored an explicit warning in Supreme Court Justice Richard Pollack’s concurring opinion highlighting the importance of giving adequate consideration to Native Hawaiians’ constitutionally protected rights, he said.
“The current proceeding is filled with examples of those rights being violated,” he said. “While I expect the Board of Land and Natural Resources to go through the motions and then approve the permit, the contested case will then go to court.”
Attorneys for TMT International Observatory LLC argued in a filing that no one has been denied their due process rights.
“To the absolute contrary, the hearing officer and the Board of Land and Natural Resources have bent over backwards to provide the parties, particularly the anti-TMT petitioners/intervenors, with a contested case full of accommodations that exceed the requirements of procedural due process under (the law).”
TMT spokesman Scott Ishikawa put it this way:
“The hearing ran for
44 days over a four-month span. Everyone had a chance to be heard. Judge Amano was very fair and flexible in keeping the hearing on a reasonable schedule while at the same time accommodating many of the parties’ work and travel schedules.”
As for Wednesday’s hearing, the state Department of Land and Natural Resources appears to be trying to avoid a circus atmosphere. According to a department news release, Na Leo TV will provide livestreaming, but there will be no viewing available at the Grand Naniloa. Also, signs, posters and other displays will not be allowed inside the Crown Room or on the hotel’s property.
Meanwhile the Thirty Meter Telescope announced Monday that it made the second half of its $1 million annual payment to the THINK Fund, a reserve established to support educational opportunities for Hawaii island students and teachers, including grants and scholarships.
The annual contribution is distributed through the Hawaii Community Foundation and the Pauahi Foundation.