The Thirty Meter Telescope project is headed back to the state Supreme Court.
The high court on June 5 accepted an appeal of a lower court ruling that vacated TMT International Observatory’s sublease for 6 acres on Mauna Kea.
In December, Hilo Circuit Court Judge Greg Nakamura ruled the state Land Board should have granted Native Hawaiian cultural practitioner E. Kalani Flores a contested case hearing for the sublease. The board denied his request before approving the sublease with the University of Hawaii at Hilo in 2014.
The state appealed the decision and made the request for the case to be transferred from the Intermediate Court of Appeals to the Supreme Court.
Attorney David Kopper of the Native Hawaiian Legal Corp., who is representing Flores, said he trusts the justices to support the lower court’s decision.
“We trust they will uphold native rights … to protect public lands and sacred places,” he said.
The Supreme Court ruled against the state in 2015 for the Land Board’s decision to approve a land use permit before a contested case was held. Justices said the agency put the “cart before the horse.”
That ruling prompted the start of a new contested case, which is awaiting a decision from hearing officer and retired Judge Riki May Amano.
Kopper said the Flores case is based in part on the earlier ruling. He said it could be precedent-setting for similar board actions.
“What the case is about is: Can the state transfer land without any input from the community?” Kopper said. “There has been no case like this which says they can do that without allowing someone like Mr. Flores to participate.”
The board denied the contested case request because it considered the sublease an administrative matter. Flores was a participant in the recent contested case, a quasi-judicial hearing, regarding the land use permit.
Flores referred comment to Kopper. He previously said the case also is about ensuring due process and that the sublease contains flaws pertaining to the master lease, which expires in 2033. TIO is anticipating UH to receive a new master lease.
Another contested case would be a major setback for TIO, which has said it intends to resume construction in April 2018. La Palma in the Canary Islands is being considered as a backup site.
Thayne Currie, TMT supporter and Mauna Kea astronomer, said he was glad to see the case move to the Supreme Court.
“I want to see the process move forward and every aspect of TMT be decided on its merits,” he said.
“The fact that it’s not stuck in limbo is a good thing.”
Kopper said briefs would be filed during the next two to three months, possibly followed by oral arguments.
TIO is not a party in the case. A spokesman said: “We look forward to the oral arguments in the case and the court’s ultimate decision.”
With the sublease vacated, TIO is no longer making lease payments, which started at $300,000 a year. The Office of Mauna Kea Management received 80 percent of those funds, while the other 20 percent was slated for the Office of Hawaiian Affairs.
A spokesman said TIO continues to make $1 million-a-year payments to its educational fund for Hawaii Island students.
Email Tom Callis at tcallis@hawaiitribune-herald.com.
