After facing years of setbacks from protests and legal challenges, the Thirty Meter Telescope cleared its last major hurdle Tuesday before the Hawaii Supreme Court.
The judges ruled 4-1 to affirm the approval of the project’s Conservation District Use Permit by the state Board of Land and Natural Resources, after previously ruling against the agency nearly three years ago because of due process issues.
Thayne Currie, a Maunakea astronomer and TMT supporter, said the project has been worth the wait, and he thinks the court applied the “letter of the law” in both decisions.
“We are excited and ecstatic about what the future may hold for the island and for the ability of the island to be a place where we discover more about the universe,” he said.
TMT International Observatory had selected a backup site in the Canary Islands in case it can’t build the next-generation observatory on Maunakea. While no announcement has been made about when construction could resume, Henry Yang, TIO board chairman, said in a statement the organization is “excited to move forward in Hawaii.”
“We remain committed to being good stewards of the mountain and inclusive of the Hawaiian community,” Yang said. “We will honor the culture of the islands and its people and do our part to contribute to this future through our ongoing support of education and Hawaii Island’s young people.”
The 180-foot-tall observatory is slated to be built at the 13,100-foot elevation below the mountain’s summit. The court upheld the project’s sublease with the University of Hawaii earlier this year.
Some Native Hawaiians consider the mountain sacred, and the project has faced opposition from Hawaiians and environmentalists who say Maunakea is already overbuilt or that it will interfere with cultural and religious practices. Protesters interrupted the groundbreaking in 2014 and construction in 2015 by blocking the Maunakea Access Road.
While acknowledging that the construction of telescopes on the mountain, seen as one of the best places in the world for astronomy, has caused significant cumulative impacts to cultural resources, the court found mitigation efforts to be satisfactory.
Those include removal of five telescopes, removal of the Poliahu Road and lease payments that will help fund conservation efforts. TIO also is paying $1 million a year to fund educational programs on Hawaii Island.
The ruling supported the Land Board’s conclusion that the project won’t interfere with cultural or religious practices at the summit or Lake Waiau, and that there are no ahu or other cultural resources on the project site, prior to two being built by protesters. The justices noted that cultural practices and astronomy have been able to coexist.
Kealoha Pisciotta, an appellant who uses the mountain for religious practices, disagreed with those findings, and she doesn’t think the ruling will settle the issue.
“The long and the short of it is this now opens all Conservation Districts to development,” said Pisciotta, who characterized the ruling as “extreme.”
She said no decision had been made about whether to appeal the ruling to the U.S. Supreme Court, but she didn’t rule out additional legal measures or protests on the mountain. Pisciotta said decisions will be made as a group, and she asked others to “stay in aloha, and don’t give up.”
“I think what we’ll see is great change,” she said. “Because in the end, reality is what we all agree to. I don’t think people are going to see this as just.”
KAHEA: The Hawaiian-Environmental Alliance, one of the contested case participants, said on Facebook that the ruling “wrongly relies on representations that there is ‘no evidence’ of Hawaiian cultural practices. … Thousands of Hawaiian cultural practitioners have affirmed the sacredness of the entirety of Mauna Kea.”
Opponents have 10 days from the ruling to ask for reconsideration and 10 days from final judgment to appeal to the U.S. Supreme Court. The final judgment will occur after the dissenting opinion is published.
The dissenting opinion had not been published by press time.
Following the favorable ruling, Currie said TMT supporters will take everything “one step at a time” and that they will continue to reach out to those who disagree with building the telescope on Maunakea.
“To those who oppose the project, we respect you, and we want to find a way forward,” he said.
Scott Ishikawa, a spokesman for TIO, said the next step for the organization is to submit a construction plan. He couldn’t say when construction would resume. The Canary Islands remains a backup site, though TIO plans to move forward in Hawaii.
If construction resumed in 2019, the project could be complete in 2029, Ishikawa said.
Gov. David Ige said during a press conference that he respects the right of opponents to protest the project peacefully, but added he will ensure the project can proceed following the ruling.
Asked if that means he would bring in the Hawaii National Guard if needed, he said, “I am committed to assuring the right of the project and of the permittee to proceed … is enforceable, whatever that means.”
Ishikawa said TIO also respects the rights of protesters, but it expects the county and state to provide “safe passage for our workers.” During protests three years ago, construction workers were repeatedly blocked from ascending the mountain.
While the ruling likely won’t settle the debate over how the mountain should be managed, he said, “I think the lesson out of all this debate is TMT realizes it is special, Maunakea is special, and we promise to be the best stewards to help care of her.”
The partners for the $1.4 billion project selected Maunakea as the proposed site in 2008.
The current partners are Japan, China, India and Canada, in addition to the University of California and Caltech.
Email Tom Callis at tcallis@hawaiitribune-herald.com.