After the state Supreme Court ruled in December that the Board of Land and Natural Resources broke its own rules in granting the project a permit in 2011, the board had to start over. Now it will hold a new contested case hearing before any further permitting can happen. And it will do so as leaders of the TMT project openly review alternative sites for the telescope in Chile, the Canary Islands and India.
Lest any telescope supporter point the finger of blame at Native Hawaiian opponents, let’s be clear: This is a problem of the state’s own making.
To be sure, Native Hawaiian protestors objected to a process that granted a building permit before the original contested case hearing could be held. Protesters were fighting against further development in what many of them consider to be a sacred place, but their objection was over the lack of due process.
The whole affair is a classic example of state leaders cutting corners to ensure the outcome they want rather than trusting the legal process to yield the best result. Had the board simply followed usual — and legal — procedures in evaluating the permit application, it might well have ended up with a properly granted permit; and construction of the telescope might already be well underway.
Even though things didn’t work out that way, plenty of good has come from what did transpire, namely, the Native Hawaiian protests on Mauna Kea that captured international attention last year. The civil disobedience pressured Gov. David Ige to halt construction at the TMT site and undertake a seven-week review of protestors’ claims.
The 12-point plan the governor released last May called for significant changes in how the University of Hawaii manages the summit under a long-term lease granted by the state. Among the most significant changes: UH is giving back control of 10,000 acres not specifically needed for the astronomy purposes of its lease and decommissioning telescopes currently on the summit that are not being used. A new group, the Mauna Kea Cultural Council, is being created to review all leases and requested renewals, whether for scientific or cultural purposes.
Ige must hold the BLNR accountable for executing a process that is above reproach and in line with every rule and requirement governing such matters.
Fostering more mindful management of the iconic summit — management that takes into account Mauna Kea’s scientific, cultural and environmental importance and the views of stakeholders relevant to each of those areas — is long overdue. Ige and the UH leaders who embraced his plan deserve credit for a thoughtful response to dynamics that have existed for years, but that previous leaders didn’t address.
But the best intentions of the governor couldn’t stop the Supreme Court from calling out the fundamental flaw in the permitting process last December.
“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 in the majority opinion. “Our Constitution demands more.”
The Next Hearing
That demand may be met later this year in a new contested case hearing set to be overseen by retired Hawaii Circuit Judge Riki May Amano.
But even Judge Amano’s appointment carries with it a controversy in which the board’s judgment once again is being called into question. An attorney for the Native Hawaiian cultural group Mauna Kea Anaina Hou and other interested parties says that the board hasn’t followed its own rules for delegating the authority for the hearing to Amano.
Lawyer Richard Naiwieha Wurdeman contends the board was required to hold a public hearing on the matter first — a step that was skipped. Now Wurderman tells Civil Beat he’ll file formal objections to Amano’s selection sometime before the April 15 deadline the board has set for complaints on the issue.
All of which may add to the undetermined time it will take to make a final decision on TMT’s future on Mauna Kea. And that may be time the project doesn’t have: TMT officials have popped up in news coverage making visits to alternative sites on three continents. While continuing to reaffirm that Mauna Kea remains their first choice, officials say they must have contingency plans in case things don’t work out in Hawaii.
If the governor truly wants the TMT project on Hawaii Island, there is no time to waste. Ige must hold the Board of Land and Natural Resources, headed by Department of Land and Natural Resources Chairperson Suzanne Case, accountable for executing a process that is above reproach and in line with every rule and requirement governing such matters.
If state authorities can’t be relied upon to follow a process that’s above reproach, they’ll have only themselves to blame if the TMT project sets sail for brighter horizons.