The developer and eventual operator of the Thirty Meter Telescope has joined the chorus of those calling for the removal of former Hawaii island Circuit Judge Riki May Amano as contested case hearing officer.
The TMT International Observatory Board filed the request with the state Board of Land and Natural Resources in a submittal made public Friday.
In its filing, the California nonprofit said replacing Amano would be fair to all parties and would act as a “pre-emptive action” to eliminate any risk of appeal that might result in her selection as hearing officer.
What’s more, “it is the only option to ensure that this contentious issue and any alleged appearance of impropriety is resolved,” according to the document. “This will also minimize any further delay caused by Judge Amano’s selection as hearings officer.”
The filing by TMT’s attorneys with
the law firm Watanabe Ing in Honolulu urges the Land Board to replace Amano with the next alternate candidate from the list developed by the Land Board’s selection committee.
TMT, which formally asked to become a party to the contested case hearing April 8, joins both the Mauna Kea Hui petitioners and project applicant University of Hawaii at Hilo in calling for replacing Amano.
Perceived bias
The Mauna Kea Hui, a bloc of Hawaii island individuals and groups opposed to the planned observatory atop Hawaii’s tallest mountain, has objected to a perceived bias on Amano’s part due to her family membership at the ‘Imiloa Astronomy Center, which is part of UH Hilo.
UH Hilo, noting Amano’s failure to disclose a mediation she is conducting for the university, on Wednesday filed a statement asking for Amano to be removed, saying it fears the state Supreme Court on appeal will side with the petitioners’ “appearance of justice” arguments, resulting in crippling delays to the permit-approval process.
Amano could not be reached for comment earlier in the week. Joshua Wisch, special assistant to state Attorney General Doug Chin, said the former judge is not responding to news media inquiries.
Amano, he said, did submit her fifth disclosure of the proceeding on Thursday, describing the UH-Manoa meditation as a dispute involving a professor who claims the university failed to fund an astrochemistry faculty position after he obtained full funding for it in a grant.
In her disclosure, Amano denied her involvement in the mediation would affect her impartiality as TMT hearings officer.
Wisch said evaluating potential conflicts of interest is an ongoing process, and it is possible that additional disclosures will be necessary as the process continues.
In its statement submitted Wednesday, TMT said it had filed a motion to become a party in the contested case hearing a month and a half ago and has been eagerly awaiting a decision by Amano.
Company excluded
Meanwhile, a lot of important issues regarding the hearing have been addressed without any input from the company expected to build the $1.4 billion project, it said.
In the document, TMT described the Mauna Kea Hui’s argument against the hearings officer selection process as “meritless.”
The petitioners have argued that the selection was illegal because it was accomplished behind closed doors in violation of the state’s open-meetings law. State attorneys have countered that the law doesn’t apply in this type of proceeding.
Also in its filing, TMT said its position against Amano shouldn’t be construed as a lack of faith in the retired judge’s abilities as a jurist.
“That is not the case,” it said. “(The) request is simply being made to eliminate any potential risk of appeal that may result from Judge Amano’s selection as hearings officer and to minimize any further delay that has resulted because of her selection.”
Asked for comment on TMT’s request, Mauna Kea Hui attorney Richard Naiwieha Wurdeman said the nonprofit lacks the standing to raise the issue involving Amano.
“TMT is not a party,” he said.
Wurdeman said that if TMT wants to follow the law, the current UH application for the project’s conservation district use permit should be withdrawn and refiled by TMT with updated environmental documents.
He said the whole contested case process, from the time the permit was invalidated by the state Supreme Court in December and sent to the Land Board, has been riddled with violations of the law and errors that will be vulnerable on appeal.
“If TMT wants to make things right, it should insist on the entire process being in compliance with the law and not just pick and choose issues that are convenient for TMT,” Wurdeman said.
For now the next hearing in the contested case is scheduled for June 17 in Hilo to determine the actual parties. Amano set a May 31 deadline for those who are interested in becoming a party to the case.
At last count 24 people or groups, including the TMT, have asked to become a party to the hearing. A majority of those are individuals opposed to the project and who call themselves Mauna Kea cultural practitioners.
