State Supreme Court rules contested case hearing not necessary for TMT sublease

  • An artist rendering of the Thirty Meter Telescope against a backdrop of the other Maunakea telescopes.

The state Supreme Court handed the Thirty Meter Telescope project a lifeline Wednesday by ruling that a contested case hearing is not required for a sublease with the University of Hawaii at Hilo.

The 5-0 decision overturns a lower court ruling that would have required the state Board of Land and Natural Resources to grant another quasi-judicial hearing to determine if the $1.4 billion project should be built on Maunakea, which some Native Hawaiians consider sacred.

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Another hearing would have further delayed construction of the next-generation observatory, already held back by years because of legal challenges and protests, possibly destroying chances of it staying in Hawaii.

TMT supporters took the ruling as a reassuring sign, but they noted it remains to be seen how the high court will rule on the second appeal of a land use permit, which remains pending. Oral arguments in that case were held in June, three months after the sublease appeal was argued.

“They just came down on the letter of the law, and that’s encouraging for us,” said Thayne Currie, a Maunakea astronomer and TMT supporter.

The justices said a hearing is not required for granting a sublease by “statute, administrative rule or due process” under these circumstances. UH-Hilo holds a lease for the Maunakea Science Reserve until 2033, and is seeking a new land authorization.

While E. Kalani Flores, who requested the contested case, has a substantial interest in the outcome of the project, the justices ruled that he didn’t show he would provide evidence that is materially different from what was presented during the other hearings for the project. Flores, a Native Hawaiian cultural practitioner, participated in the contested cases for the land use permit.

“Put simply, to mandate BLNR to hold a full contested case hearing on whether it should consent to the sublease would require BLNR to bear the duplicative administrative burden of providing procedural protections that would be of no additional value in safeguarding Flores’ interest in engaging in traditional Native Hawaiian cultural practices on (Maunakea),” the ruling states.

Flores did not return a phone call requesting comment by deadline.

In a statement, TMT International Observatory board Chairman Henry Yang said the organization is pleased with the ruling and thanks “all of the community members who contributed their thoughtful views during this entire process.” He said they will assess the next steps as they wait for a ruling on the land use permit appeal.

“While it has been a long journey to get here, we remain committed to Hawaii and thank everyone for their support over the last 10-plus years,” Yang said.

UH called it a “significant step forward” for the project and said it eagerly awaits the final ruling.

“Regardless of what happens, UH stands fully committed to collaborative stewardship that demonstrates Maunakea as an inspiring and harmonious global model for culture, the environment and groundbreaking scientific discovery coming together synergistically for the benefit of all,” UH said in a statement.

The state previously had not fared well before the high court. In December 2015, the justices overturned the project’s land use permit because the Land Board voted in favor of it before holding the first contested case, thereby depriving opponents of due process.

That prompted a second hearing that took witness testimony throughout 44 days in Hilo. The Land Board again voted in favor last year, prompting another appeal by opponents that is awaiting a decision.

Before that occurred, Flores requested the board grant him a contested case for the sublease when that came up for a vote in 2014. The board denied that request, arguing its an administrative decision not subject to the hearings.

Hilo Circuit Court Judge Greg Nakamura ruled in Flores’ favor during an appeal, and issued an order in January 2017 vacating the sublease. The state then appealed the decision to the high court.

Before ruling, Nakamura remanded the case to the Land Board after taking judicial notice of the previous Supreme Court decision. The board then requested a stay on the ruling or that the court issue its decision “on appeal” and limit the ruling to whether a contested case should be granted.

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The lower court’s order denied the state’s request for a stay but granted the alternative request for a decision on appeal.

Email Tom Callis at tcallis@hawaiitribune-herald.com.