High court hears TMT arguments, but there's no telling when they - Hawaii News Now - KGMB and KHNL

High court hears TMT arguments, but there's no telling when they'll rule

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HONOLULU (HawaiiNewsNow) -

The Hawaii Supreme Court heard oral arguments Thursday morning on the controversial Thirty Meter Telescope's sublease — and whether the telescope's opponents are entitled to another contested case hearing.

It's a decision that could determine whether or not the telescope will be built in Hawaii.     

In 2014, the state Board of Land and Natural Resources approved the University of Hawaii's sublease of six acres atop Mauna Kea for TMT. 

Big Island resident and Native Hawaiian cultural practitioner E. Kalani Flores appealed the Land Board's decision and requested a contested case hearing. 

The Board denied Flores' request, but in December 2016, Hawaii Circuit Court Judge Greg Nakamura ordered a new contested case hearing, saying the board's decision violated Flores' constitutional rights.

The state then appealed the decision and requested the case be transferred from the lower court to the state Supreme Court.

Attorneys for the state and the University of Hawaii argued Thursday that Flores' rights are already protected by other laws. 

"Under Hawaii law, the sublease consent won't affect Mr. Flores' right to exercise his cultural practices and there is no risk he will be deprived of that right," said Clyde Wadsworth, Solicitor General.  

Wadsworth said UH and TMT have established numerous protocols and procedures to ensure cultural practices aren't impacted.

But Flores' attorney, David Kopper, questioned that guarantee, and argued his client and the community should be allowed to participate and provide input before any decision to transfer state land.

"The Board of Land and Natural Resources' own rules requires it to be absolutely certain when it denies a request for contested case without a hearing. It still has a duty to take a closer look to make sure that the effects of their decision is not going to go too far and affect these critical rights of Native Hawaiians," Kopper said. 

The court will decide if another contested case hearing is necessary or it will reinstate TMT's sublease. 

It's unclear when the decision will be made. Kopper expects it to take at least five months. 

TMT officials have said they wanted to lock in a location for the $1.4 billion project by next month. 

They are looking at the Canary Islands as an alternative site, but say Mauna Kea is still their preferred choice.

"The (TMT) board will continue to gather information and they'll continue to look at both sites and they'll make a decision. When that decision is made, we just don't know," said TMT attorney Douglas Ing. 

In a separate appeal, opponents are asking the Hawaii Supreme Court to overturn the Land Board's approval of TMT's construction permit. No date for that hearing has been set yet. 

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