Lā 252: Hawaii Supreme Court Invalidates Thirty Meter Telescope Permit

Honolulu Civil Beat Dec 2 2015  · By Anita Hofschneider

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In order to proceed, project officials must return to the state Board of Land and Natural Resources to seek re-approval.

The Hawaii Supreme Court has voted unanimously to vacate the permit allowing the Thirty Meter Telescope to be built atop Mauna Kea.

The justices concluded that the state Board of Land and Natural Resources violated due process when it approved a permit in 2011 prior to holding a contested case hearing.

The state and University of Hawaii, which applied for the permit in 2010 on behalf of the TMT Observatory Corporation, argued that the 2011 permit was preliminary and the final permit was issued in 2013. But the justices weren’t swayed.

“Once the permit was granted, Appellants were denied the most basic element of procedural due process — an opportunity to be heard at a meaningful time and in a meaningful manner,” wrote Chief Justice Mark Recktenwald and associate justices Paula Nakayama and Sabrina McKenna in the majority opinion. “Our Constitution demands more.”

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Demonstrators gather at he King Kamehameha statue on their way to the Governor’s office. 21 april 2015. photograph Cory Lum/Civil Beat

The ruling leaves the door open for TMT officials to return to the state Board of Land and Natural Resources and seek another permit for the observatory. The $1.4 billion project has already spent seven years navigating the approval process.

Dozens of project opponents were arrested this year for blocking construction of the telescope. Many Native Hawaiian activists and their supporters oppose the observatory because they consider Mauna Kea — already home to 13 observatories — a sacred place.

Associate justices Richard Pollack and Michael Wilson signed the concurring opinion, which McKenna signed in part.

A spokesman for the TMT said a statement on the ruling will be issued.

Kealoha Pisciotta, who leads Mauna Kea Aina Hou, one of the plaintiffs in the lawsuit, said she’s happy about the ruling but noted that the majority opinion didn’t address the issue of whether building telescopes on Mauna Kea violates state law regarding conservation districts.

That suggests the project could conceivably be before the state Supreme Court again in several years if another permit is approved. Still, Pisciotta is grateful for the ruling.

“In this case, to delay is to win,” she said.

This is a developing story. Check back for updates.