State Supreme Court rules TMT permit invalid; construction to remain on indefinite hold

State Supreme Court rules TMT permit invalid; construction to remain on indefinite hold
Published: Dec. 2, 2015 at 7:02 PM HST|Updated: Dec. 3, 2015 at 11:46 AM HST
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File Image of the construction site
File Image of the construction site

HONOLULU (HawaiiNewsNow) - The state "put the cart before the horse" when it issued a permit for construction of the Thirty-Meter Telescope before a contested case hearing on the issue was resolved, the state Supreme Court ruled Wednesday.

Justices ordered the matter be remanded to state Circuit Court "so that a contested case hearing can be conducted before the board or a new hearing officer, or for other proceedings consistent with this opinion."

Mauna Kea Hui filed the lawsuit in the case in 2013, alleging that the state had violated due process and failed to properly issue a permit for construction of the Thirty-Meter Telescope.

The court agreed, saying that the BLNR "denied the appellants their due process right to be heard" when it voted on the permit before the contested case hearing was held.

Mauna Kea Hui called Wednesday's ruling a major victory for their efforts to protect the mountain as a sacred Native Hawaiian place.

"We are thankful to the Supreme Court Justices for hearing our pleas and we're thankful to the people for standing up and for sticking with us all these years. It's a long time coming. It's a long time coming. We're very tired, but really feeling good today," said Kealoha Pisciotta, Mauna Kea Hui spokesperson.

Pua Case, a plaintiff in the lawsuit, added: "In this moment, I'm just sitting in thankfulness. In this moment, I'm celebrating a victory -- not just for us as a people and the Protectors -- for all of us who have stood not just for the Mauna, but for all things pono from the mountain to the sea."

Hawaii News Now's requests for comment from the Department of Land and Natural Resources were answered late Wednesday afternoon in a statement from state Attorney General Doug Chin.

"Today's decision provides direction to a new Land Board and another opportunity for people to discuss Mauna Kea's future," he said. "The Attorney General's office will be advising the Land Board regarding next steps."

The decision comes on the same day an emergency stay blocking construction crews from working on the Thirty Meter Telescope site was set to expire.

The two-week injunction was issued by justices the day before crews planned to return to Mauna Kea's summit to begin repair and maintenance on equipment, which has sat idle for months.

The state Supreme Court issued the temporary halt to the $1.4 billion telescope project, while they continued to consider the legal challenge over the validity of the TMT's permits.

Work has been stalled since April amid protests, the largest of which was in June -- when more than 750 people gathered to block TMT crews from reaching their construction site on the summit.

Rocks and boulders were pulled onto the road to prevent access and eventually, TMT officials called the effort off and turned their crews around citing concerns for their safety. Protesters, who call themselves Protectors, say they're standing in protection of the mountain as a sacred Native Hawaiian place.

TMT officials confirm construction, which was originally scheduled to start in April 2015 and take eight years to complete, would have meant the telescope would be operational by 2024.

Legal analysts say TMT will now have to start the contested case hearing process over before the Board of Land and Natural Resources. It's unclear how long that will take, but it doesn't mean the project is dead.

"It is a delay, but it is not an insignificant delay, we're not talking about a few weeks or a few months, we're talking about at least a year if not more," said University of Hawaii at Manoa Kudo Law Professor David Callies.

Ultimately, it's up to TMT to decide whether to move forward or move on to another site.

Telescope officials spoke exclusively with Hawaii News Now and said they appreciate the state Supreme Court's timely action on this case.

"We are assessing what our next steps are, but we fully intend to follow the relevant state laws. We certainly have the vision of the next generation telescope in Hawai'i in the Northern Hemisphere," said Thirty Meter Telescope Executive Director Ed Stone.

Henry Yang, chairman of the TMT International Observatory board of directors, said the body would respect the court's decision.

"TMT will follow the process set forth by the state, as we always have," Yang said, in a statement. "We are assessing our next steps on the way forward. We appreciate and thank the people of Hawaii and our supporters from these last eight-plus years.

In its ruling Wednesday, the state Supreme Court noted that BLNR voted to approve TMT's permit in 2011, subject to several conditions, including that a contested case hearing be held.

In a concurring opinion, state Supreme Court Justice Richard Pollack wrote that "the board failed to conduct a contested case hearing before deciding the merits of UH's application and summarily granted the requested permit without duly accounting for the constitutional rights and values implicated. The board acted in contravention of the protections of Native Hawaii customs and traditions."

In a statement Wednesday afternoon, the University of Hawaii said it "continues to believe Mauna Kea is a precious resources where science and culture can synergistically coexist."

The UH added it is reviewing the court's decision to "determine the best path forward."


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