A Hilo Circuit Court judge on Thursday overturned the state’s approval of the Thirty Meter Telescope’s sublease for Mauna Kea.
The Native Hawaiian Legal Corp., which was representing plaintiff E. Kalani Flores, said Judge Greg Nakamura ruled the state Board of Land and Natural Resources violated their client’s constitutional rights for rejecting his request for a contested case hearing before it consented to the agreement in 2014.
The sublease is between TMT International Observatory and the University of Hawaii at Hilo, which holds a master lease for much of the mountain. At the time, the Land Board said the decision was a matter of internal management, not subject to the quasi-judicial hearings.
“To me, it confirms that Native Hawaiian cultural practices have a right to be involved in these agency decisions,” said NHLC attorney David Kopper. “And their interests are no less important than other commercial interests.”
TIO needs the Land Board’s consent on a sublease and land use permit to resume building its telescope on Mauna Kea. It will lack that approval once the ruling is finalized.
Despite the additional setback, representatives for the state attorney general’s office, UH and TIO avoided making any statements about how much the project will be impacted since a written ruling hasn’t been issued. That could take weeks.
“This morning Judge Nakamura issued a verbal ruling that the Land Board in July of 2014 should have held a contested case hearing before it consented to a sublease between the University of Hawaii-Hilo and the Thirty Meter Telescope,” Josh Wisch, spokesman for the attorney general’s office, said in an emailed statement.
“It is premature to discuss the impact of today’s ruling by the court on the TMT project or other Land Board dispositions, or whether the state will appeal, until Judge Nakamura issues his written order.”
He added that it shouldn’t impact an ongoing contested case for the $1.4 billion project’s conservation district use permit under retired Judge Riki May Amano.
Kopper said he thinks the ruling would require the Land Board to go through a separate contested case hearing if it wants to renew its consent.
“If they want a sublease, then yes, there needs to be a separate contested case hearing,” he said.
Nakamura previously remanded the sublease to the Land Board for additional review. That occurred in March but it doesn’t appear the state took additional action.
Flores, in a press release, said “Judge Nakamura’s ruling reaffirms our position that the BLNR’s actions have failed to protect Native Hawaiian rights and the public’s interest in these public lands on Mauna a Wakea.”
This is the second time a court has found the state erred in approving the next-generation telescope, opposed by some Native Hawaiians who say it will desecrate sacred land.
A year ago, the state Supreme Court ruled that opponents’ rights were violated by the Land Board voting in favor of the land use permit before a contested case was held in 2011.
That resulted in the second hearing, which has been ongoing since October and is scheduled through January.
Scott Ishikawa, TIO spokesman, said the organization was waiting for the written order before making any conclusions.
He said the sublease with UH was still valid in the meantime.
“I think we are all going to have to wait for the judge’s written decision to see how he interprets this,” Ishikawa said.
TIO is making $300,000 annual lease payments for its 6 acres. That would eventually increase to $1.08 million.
UH spokesman Dan Meisenzahl made a similar statement.
“The University of Hawaii has a valid sublease to TMT that is subject to BLNR consent,” he said. “… Today the judge ruled on the consent of the sublease and not the sublease itself and we look forward to receiving further clarity when the written order is released.”
Kealoha Pisciotta, a TMT opponent and Native Hawaiian cultural practitioner, said the decision was great news, especially since they are fighting TMT on “two fronts.”
Flores initially was representing himself. He filed the lawsuit in August 2014.
Thayne Currie of the pro-telescope group Yes2TMT said the focus remains on the current contested case.
“That will determine the outcome,” he said in an email. “The anti-telescope side may try to put additional legal rocks in the road, but we are optimistic about bringing TMT to Hawaii: we are winning the case and Hawaiian voices for TMT are being heard. With the sublease, hopefully BLNR will color inside the lines next time.”
A TIO board member said last month that the organization intends to resume construction either on Mauna Kea or the Canary Islands, its alternate site, in April 2018.
The telescope organization’s partners are Caltech, University of California, Association of Canadian Universities for Research in Astronomy and national institutes in Japan, China and India.
Email Tom Callis at tcallis@hawaiitribune-herald.com.
