Judge considers TMT arguments

The battle to put one of the world’s largest telescopes on a sacred Hawaiian mountain continued with a hearing in 3rd Circuit Court in Hilo on Thursday morning.

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The battle to put one of the world’s largest telescopes on a sacred Hawaiian mountain continued with a hearing in 3rd Circuit Court in Hilo on Thursday morning.

Backers of the Thirty Meter Telescope project sat side by side with supporters of the six petitioners arguing the state erred when granting a Conservation District Use Permit for construction of the telescope.

Conversations about the impact of TMT could be heard throughout the courtroom. Some discussed how the telescope would enhance mankind’s understanding of the universe and bring much-needed jobs to the Big Island. Others spoke out about the importance of preserving Mauna Kea and respecting Native Hawaiian cultural practices.

The conversations ended when Judge Greg Nakamura entered the courtroom about 9:30 a.m.

Acting as legal counsel for University of Hawaii at Hilo, the recipient of the permit, was Jay Stuart Handlin. Richard Naiwieha Wurdeman represented the appellants, and new to the court was Hawaii Attorney General David Louie.

The hearing was scheduled to discuss how a recent Supreme Court ruling regarding a CDUP for a telescope on Maui applies to the TMT case.

The state Supreme Court ruled Dec. 13, 2013, the Board of Land and Natural Resources was improper in its procedures that led to the issuance of a permit for a large telescope currently under construction on Maui’s Haleakala. Native Hawaiian group Kilakila O Haleakala had been arguing the case since 2010.

The December ruling led TMT Corp. to file an amicus brief recently, which will allow the corporation to make a statement on the case.

Wurdeman started by restating the appellants’ argument BLNR violated due process when issuing the permit before having a contested case hearing, and the Kilakila case is in fact applicable in that regard.

“What Kilakila certainly adds is a detailed analysis that the court went through and that it was clear, fundamentally that the holding of a vote prior to a contested case hearing was a due process violation,” he said.

In the case of TMT, the board approved the application for the permit during a meeting Feb. 25, 2011, while at the same time directing that a contested case hearing be hosted.

Wurdeman argued the approval process was out of order.

“What they should have done is held off on taking a vote and let the contested case hearing to be decided then come to their final decision,” he said.

“The only adequate remedy for this due process violation by BLNR is to vacate, remand and deny the CDUP permit and require them to restart the process…”

Louie followed by attempting to poke holes in Wurdeman’s argument.

“What does the Kilakila case say about the handling of this matter and where do we go from here?” he asked. “The Kilakila case itself is very clear. It was legally and factually different from the TMT case. It does not apply. It does not require a remand and it does not require anything further.”

Louie argued the ruling in the Kilakila case was not based on due process violations. He said the board was at fault because the permit for the Maui-based telescope was granted before stating it was preliminary and conditional, and the petitioners in that case had to wait two months to get information regarding a contested case hearing after the decision was already made.

In the TMT case, Louie argued the board followed proper procedure since a contested case hearing was granted before the board made its final decision.

“I understand they don’t like the result, but the proper procedures were followed,” he said.

Handlin reiterated essentially what Louie said, and claimed the board followed the rules because the vote did not signify a final decision.

“What happened in February of 2011, our final decision will occur only after a contested case hearing is held and after further review by the board,” he said.

Wurdeman argued the board’s vote essentially implied a final decision was made.

“What the board should have done is give notice that there would be a contested case hearing. They should have deferred and not predetermined the case,” he said.

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The hearing ended without a ruling by Nakamura. He is expected to mail his verdict to the parties involved within the next few weeks.

Email Megan Moseley at mmoseley@hawaiitribune-herald.com

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