Activists want land board to revisit TMT permit issue

  • The sun sets behind telescopes at the summit of Maunakea on Big Island in 2019. (AP Photo/Caleb Jones, File)

The Board of Land and Natural Resources will rule on a petition by Native Hawaiian activists asking to reconsider whether the Thirty Meter Telescope missed a construction deadline this year.

In May, attorneys for the Mauna Kea Hui — an organization of Native Hawaiians dedicated to the cultural preservation of Maunakea — filed a petition requesting to reopen a 2016 contested case hearing regarding TMT’s Conservation District Use Permit, arguing that the observatory failed to begin construction before a September deadline as stipulated in the terms of the CDUP.

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According to the permit, construction of TMT was to have begun by Sept. 29. Mauna Kea Hui, in its petition, alleges no work has been done by that deadline, and that the CDUP should consequently be revoked.

Although in 2019 TMT was given the go-ahead to begin construction that July, a monthslong protest on the Maunakea Access Road halted construction at the TMT site.

Despite this, the University of Hawaii notified the state in April that some form of construction has begun, citing “removal of unpermitted structures; onsite GPS verification of locations and coordinates; construction kick-off meeting with civil contractor and subcontractors to review procedures, safety protocols and other related items; locating and surveying onsite underground fiber optic and electrical lines; inspections of (TMT) construction equipment for invasive species; and the mobilization of 18 vehicles and equipment to the worksite.”

The Department of Land and Natural Resources agreed in May with UH’s assertion that the requirement to begin construction before the Sept. 29 deadline was satisfied.

“The DLNR makes mistakes all the time, and we’re asking the BLNR to reconsider,” said Bianca Isaki, an attorney representing the Mauna Kea Hui.

“I just don’t think it’s true,” said Kealoha Pisciotta, one of the Mauna Kea Hui petitioners. “They didn’t begin any construction up there. I know they took down ahu, but that’s something else.”

Pisciotta was referring to a pair of ahu that were erected at the TMT site in 2015 and removed at the behest of UH in 2019 less than a month before the occupation of the access road. Those ahu appear to be the “unpermitted structures” referenced in UH’s assertion that construction has begun.

Isaki said it is generally considered “unreasonable” for contested case matters to go six months without a ruling, and sent a letter to the BLNR earlier this month reminding them to address the petition promptly.

The BLNR responded Wednesday, entering orders allowing for those named in the petition — including counsel for UH and TMT — to respond to the petition within 15 days, and for the petitioners to respond to those responses 10 days after their receipt.

Afterwards, the BLNR will make a ruling on the matter without a public hearing. Isaki said she expects that ruling to come within a few months.

Should the BLNR rule against granting the petition, Isaki said Mauna Kea Hui “might have legal options to pursue if they want.”

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On the other hand, if BLNR rules to grant the petition, she said the path is clear: Any further extensions of the CDUP deadline will require public hearings, and if no extension is pursued, then the CDUP expires within a year.

“Everyone agreed to this timeline,” Pisciotta said. “They made these agreements years ago, and they are legally binding.”

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