HONOLULU (HawaiiNewsNow) -
The $300 million Daniel K. Inouye Solar Telescope on the summit of Haleakala is halfway completed. It could become Hawaii's third largest telescope, unless the state's high court decides to halt construction.
Legal experts said that could happen if the Supreme Court sides with Hawaiian activists, who claimed the project's supporters rammed it through the permitting process.
"Our hands are tied. It's a done deal," said the late Kahu Charlie Maxwell in 2010.
"I've told them many times that it shouldn't happen. It's an insult on our culture."
The allegations center on the late Sen. Inouye's staff and University of Hawaii leaders, who critics say pressured a Land Department hearings officer.
They cited emails describing secret meetings with the Land Board and its former chief William Aila. The hearings officer called those meetings improper.
"A hearings officer is supposed to be like a judge and all parties who are represented by counsel are not supposed to be communicating with the person who's in that capacity," said attorney Eric Seitz.
The Supreme Court justices talked about those emails in a hearing last month. In one of the emails, former Inouye aide Jennifer Sabas offered to "carry the UH message" in meeting with state officials.
"It makes it pretty clear that this was an improper ex-parte communication, wouldn't you concede that," said Associate Justice Sabrina McKenna.
Added Associate Justice Paula Nakayama:
"Would it be okay for the Senator to call one of us up on a case? Or a decision maker? Obviously that's not right so how can it be proper for somebody to carry the Senator's message to those decision makers?"
Associate Justice Mike Wilson asked questions about the lobbying of the hearings officer.
"(The hearings officer) reached out on his own to UH and said are you behind this pressure," Wilson said.
"And then the determination of the Land Board was that (the hearing officer) acted in a way that involved ex parte communication ... and then he was removed."
The UH said its contacts were limited to procedural questions. According to the university, the hearings officer was taking too long to decide and it was worried federal funding would lapse.
The UH is asking the justices not to stop construction.
"The remedy has to be to ask the Chair Aila to recuse himself for failure to make a disclosure," said Lisa Munger, an attorney for UH.
"But the remedy can't be, you can't have the project."
If the court finds those contacts were improper, attorney Eric Seitz said it could order UH to restart the entire permit process.
"If they made errors procedurally, which would have affected the outcome, then without question the whole process and conclusions are tainted," he said.
It's unclear when the Supreme Court will rule. When it does that decision could also the Thirty Meter Telescope on Maui, which is also facing legal challenges.