Is the stalled Thirty Meter Telescope really under construction?

Technically, that is true. Two years ago, former state Board of Land and Natural Resources Chair Suzanne Case signed off on a request by permit holder University of Hawaii at Hilo allowing the TMT to comply with conservation district use permit general condition No. 4, which required construction to start within two years.

While the permit was approved in 2017, Case allowed a two-year extension of condition No. 4 in 2019 due in part to the obstacles that were presented by the TMT protests that year.

Then, in 2021, Case signed off on No. 4, based on preliminary work undertaken in the summer of 2019, including a construction kickoff meeting with the civil contractor and subcontractors to review procedures and safety protocols.

But opponents of the planned $2.65 billion telescope formally challenged the construction designation in a move to reopen the 2017 contested case regarding the issue.

“There is no straight-face argument that they are constructing the TMT right now,” said Bianca Isaki, attorney for the Mauna Kea Hui, including KAHEA: The Hawaiian-Environmental Alliance.

A hearing on condition No. 4 is being planned before the BLNR, tentatively scheduled for its July 28 meeting. But there’s a chance the hearing will be delayed due to scheduling conflicts among the parties involved.

Anti-TMT groups have been urging their followers to attend the hearing in a show of force.

Several of the same interveners in the TMT’s 2017 contested case hearing are scheduled to face off against attorneys and representatives of TMT International Observatory, the University of Hawaii and PUEO (Perpetuating Unique Educational Opportunities) Inc.

The Mauna Kea Hui formally challenged compliance of condition No. 4 soon after it was approved by Case in 2021, but the department did not bring the motion before the board. Now, with a new chair, Dawn Chang, appointed by Gov. Josh Green to replace Case, and several new BLNR members, the motion is getting a hearing.

At issue is condition No. 4: “Any work done or construction to be done on the land shall be initiated within two (2) years of the approval of such use, in accordance with construction plans that have been signed by the Chairperson, and, unless otherwise authorized, shall be completed within twelve (12) years of the approval. The UH Hilo shall notify the Department in writing when construction activity is initiated and when it is completed.”

In its request for granting compliance with the condition, UH-Hilo said the following activities in June and July of 2019 constituted the start of construction: the removal of unpermitted ahu, or altars, near the project site, on-site GPS verification of locations and coordinates, the pre- construction meeting about procedures and safety protocols, locating and surveying on-site underground fiber-optic and electrical lines, inspections of construction equipment for invasive species, and the July 16, 2019, mobilization of 18 vehicles and equipment to the work site.

Crews attempted to access the TMT project site but protesters blocked access in an action that went on for several months, UH-Hilo Chancellor Bonnie Irwin wrote in a letter to the Department of Land and Natural Resources.

Mauna Kea Hui attorney Richard Naiwieha Wurdeman pointed out that the same work actions were listed in Irwin’s 2019 letter asking for a two-year construction deadline extension. Case granted the extension.

Two years later, those same work actions were held up as the reasons for declaring that the TMT project had started construction.

Wurdeman said that essentially represents a reversal of the DLNR’s position.

“The chair acted arbitrarily and capriciously without board approval,” the Honolulu attorney said. “We’re going to be asking that the board declare a material breach of the permit and its condition No. 4, and we will be asking that the permit be revoked.

“To date it has been six years since the permit was approved, and they have done absolutely nothing on the mountain,” he said.

In their counterargument filed with the board, TMT attorneys said Hawaii law simply doesn’t allow the review of an already-made agency decision.

In addition, they said, the petitioners are among the same people who prevented TMT work crews from starting construction.

“Petitioners have brought this proceeding with unclean hands, because they, with others, actively worked to advocate, manufacture and/or coordinate the very situation that they now seek to obtain relief from,” the court pleading said.

The proposed TMT has been dogged by delays and controversy for the better part of a decade. It was stopped by protesters in 2015 and 2019. The state Supreme Court put a hold on the project starting in late 2015, and so did the COVID-19 pandemic in 2020.

Meanwhile, the price of construction ballooned from an estimated $1.4 billion to what’s now closer to $3 billion, and the coalition of educational and science institutions behind the cutting-edge telescope are looking for additional money to fund the project.

To that end, TMT officials combined forces with the U.S.-led Giant Magellan Telescope, planned for Chile, to form the U.S. Extremely Large Telescope Program. Together they formally asked the National Science Foundation for funding.

Two years ago, the decadal survey report by the National Academy of Sciences Astro 2020 panel recommended that the NSF fund both telescopes to allow viewing time for American astronomers on both projects. The panel recommended that the telescope projects share $1.6 billion.

Since then, the foundation said it is considering buying into the TMT but, in doing so, launched a new environmental review process. To kick off the effort, four scoping meetings were held last summer on Hawaii island, where the telescope was roundly criticized by largely Native Hawaiian crowds.

According to the NSF’s original timeline, a draft environmental impact statement was expected to be ready by early this summer and the whole environmental review process was planned to take two years or more.

But the NSF apparently is experiencing its own delays as it continues processing the thousands of comments it received during the scoping phase.

“One critical aspect of processing comments, which NSF is currently focused on, is to analyze the comments to determine how they will shape NSF’s environmental review. This analysis is very important and requires significant and careful thought. As a result, it will take time to complete,” an NSF spokesperson said in an email.

The spokesperson also said officials are focusing on the planning for the Section 106 consultation process under the National Historic Preservation Act, which requires federal agencies to consult with parties on whether the proposed project will affect historical, cultural and archaeological resources.

He added that an update on progress should be coming later in the summer.

In the meantime, the battle for TMT’s opponents will be fought over the conservation district use permit.

Wurdeman said whichever way the BLNR rules, the matter is unlikely to conclude there.

“One way or the other, it will end up in the (state) Supreme Court,” he said.