Joanna Pokipala, left, her son Kala Pokipala, center, and Vivian Wong, right, gather with telescope protesters outside the Hawaii Supreme Court building in Honolulu on Thursday, June 22, 2018. Justices are considering an appeal to a decision granting a construction permit for the Thirty Meter Telescope planned for Hawaii's tallest mountain. Protesters say the project will desecrate land that's sacred to Native Hawaiians. (AP Photo/Jennifer Sinco Kelleher)
The Hawaii Supreme Court heard arguments Thursday in an appeal that could determine whether an embattled multi-nation telescope project can be built on a mountain Native Hawaiians consider sacred or have to move to a backup site in Spain's Canary Islands that's less desirable to scientists hoping to use the instrument for groundbreaking discoveries.
Much of the arguments centered around whether it was a conflict of interest for a hearings officer who made a key recommendation in favor of the project to be a member of a Hawaii astronomy center.
The state allowed retired judge Riki May Amano to preside over contested-case hearings for the contentious project despite complaints from telescope opponents who decried her paid membership to the Imiloa Astronomy Center.
The Big Island center is connected to the University of Hawaii, which is the permit applicant.
Opponents appealed to the Supreme Court after Amano recommended granting the permit and the state land board approved it.
"She should have never presided over the case," Richard Wurdeman, an attorney representing telescope opponents, told the justices. He noted the center included exhibits about the project planned for the Big Island's Mauna Kea, Hawaii's tallest mountain.
Amano was just a casual member of the center, a "remote and tenuous relationship" that doesn't create an appearance of impropriety, state Solicitor General Clyde Wadsworth told the justices.
Associate Justice Richard Pollack asked why Amano later cancelled her membership in response to the concerns. Wadsworth said the cancellation was not a concession of bias.
This is the second appeal before the high court involving the Thirty Meter Telescope. Justices are already considering another appeal challenging the state land board's decision to allow the University of Hawaii to sublease mountaintop land to telescope builders.
If the project can't proceed in Hawaii, telescope officials have identified an alternate site on the island of La Palma in the Canary Islands. But scientists prefer Mauna Kea. Scientists revere the mountain for its summit above the clouds that provides a clear view of the sky with very little air and light pollution.
Supporters say it will also bring economic and educational opportunities to Hawaii.
Justices also had questions about funding the multi-nation project, which had been previously estimated to cost $1.4 billion.
It's impossible for projects of this magnitude to have full funding, especially when a site hasn't been secured, said Ross Shinyama, a lawyer representing TMT International Observatory. Certain nations won't commit funds until a site is selected, he said.
A group of universities in California and Canada make up the telescope company, along with partners from China, India and Japan.
Plans for the 30-meter (98 feet) diameter telescope date to 2009, when scientists selected Mauna Kea after a five-year, worldwide campaign to find the ideal site for what telescope officials said will likely revolutionize understanding of the universe.
The project won a series of approvals from Hawaii, including a permit to build on conservation land in 2011. Protesters blocked attempts to start construction. In 2015, the state Supreme Court invalidated the permit, saying the board's approval process was flawed, and ordered the project to go through the steps again.
Protests disrupted a groundbreaking in 2014 and intensified after that. Construction stopped in 2015 after 31 demonstrators were arrested for blocking the work.
A second attempt to restart construction a few months later ended with more arrests and crews retreating.
Shinyama asked justices to allow this "global and noble effort" to proceed in Hawaii. It's not clear when justices will decide on either appeal.
Hawaii Gov. David Ige, who supports the telescope, said in a statement hours after Thursday's hearing he recognizes "our community has honest disagreements about this telescope and its place on Mauna Kea, and my administration has carefully followed the procedures required to ensure a fair consideration of dissenting voices."
Embattled Thirty Meter Telescope scores big win in Hawaii’s highest court
State supreme court rules that the US$1.4-billion observatory’s construction permit is valid, after years-long legal battle.
Hawaii’s supreme court has ruled in favour of building the Thirty Meter Telescope (TMT) atop the mountain Mauna Kea. The decision removes the last legal hurdle preventing the US$1.4-billion project from resuming construction on Hawaii’s Big Island.
“This clears the way for the TMT to begin construction,” says Doug Simons, executive director of the Canada-France-Hawaii Telescope, which is located on Mauna Kea. “So yeah, it’s a really big deal.”
“It is a tremendously important and significant decision that provides secure legal grounds to restart construction of this transformative facility,” says Michael Balogh, an astronomer at the University of Waterloo in Canada who chairs an advisory committee that represents Canadian astronomers' interests in the TMT.
A separate legal issue, involving the University of Hawaii’s sublease of land on Mauna Kea for the TMT site, was resolved in August. The state supreme court ruled in the project’s favour in that case, as well.
Telescope opponents have few legal options left; they include petitioning the US Supreme Court.
One of the groups opposing the TMT, the environmental advocacy organization KAHEA in Honolulu, said it was “disappointed” by the new ruling. “Thousands of Hawaiian cultural practitioners have affirmed the sacredness of the entirety of Mauna Kea,” the group said in a statement.
TMT officials have been considering an alternative site for the telescope, in Spain’s Canary Islands, in case they cannot resolve the obstacles to building in Hawaii. It could take months before project leaders decide whether to go ahead in Hawaii, now that they have the supreme court’s backing. Among the issues they face is how to restart construction on Mauna Kea, given the protests that broke out the last time they tried to do so.
“We remain committed to being good stewards on the mountain and inclusive of the Hawaiian community,” said Henry Yang, chair of the TMT International Observatory board of governors, in a statement.
The TMT is one of three planned mega-telescopes that would push astronomy into a new era of ground-based observing. The other two — the Giant Magellan Telescope and the European Extremely Large Telescope — are both under construction in Chile. The TMT is a multinational project involving two universities in California, plus the governments of Canada, China, India and Japan.
In Hawaii, the battle over how Mauna Kea is used may soon shift from the TMT to the University of Hawaii's master lease, which covers all the land on the mountain that is used for astronomical observatories. These include the Keck, Subaru and Gemini North telescopes. The lease expires in 2033, and Shelley Muneoka, a representative of KAHEA, says that the group is considering whether to challenge the lease's renewal.
Hawaii Supreme Court Affirms TMT Permit
October 30th, 2018
The Hawaii Supreme Court, by majority decision, today issued its opinion affirming the Board of Land and Natural Resources' decision to issue a Conservation District Use Permit (CDUP) for construction of the Thirty Meter Telescope (TMT) on Maunakea.
Henry Yang, Chair, TMT International Observatory Board of Governors, issued the following statement in response to the news:
"On behalf of the TMT International Observatory, we are grateful for the Hawaii State Supreme Court's ruling that will allow TMT to be built on Maunakea. We thank all of the community members who contributed their thoughtful views during this entire process. We remain committed to being good stewards on the mountain and inclusive of the Hawaiian community. We honor the culture of the islands and its people and do our part to contribute to its future through our ongoing support of education and Hawaii Islands’ young people. We are excited to move forward in Hawaii and will continue to respect and follow state and county regulations, as we determine our next steps. We are deeply grateful to our many friends and supporters for their tremendous support over the years.”
Work on the telescope on Maunakea was halted in 2015 when the Hawaii Supreme Court invalidated the Conservation District Use Permit on procedural grounds. That permit had been issued by the Board of Land and Natural Resources (BLNR) to the University of Hawaii Hilo to build TMT on Maunakea. The Supreme Court returned the case to the Hawaii Circuit Court and instructed that a new contested case hearing be conducted. The contested case got underway in October 2016.
Following 44 days of testimony by 71 witnesses over five months, the hearing concluded in early March 2017, and hearings officer Riki May Amano in July 2017 recommended that a state Conservation District Use Permit be re-issued to allow construction of the project on Maunakea. On Thursday, September 28, the State Land Board announced its decision to approve the Conservation District Use Permit to build TMT on Maunakea. Opponents challenged the new permit before the Hawaii State Supreme Court. Today’s ruling affirms BLNR’s decision to issue the CDUP.
In the majority opinion the Court noted: “In this opinion, we address whether the BLNR properly applied the law in analyzing whether a permit should be issued for the TMT. Upon careful consideration of the written submissions, the applicable law, and the oral arguments, and for the reasons explained below, we now affirm the BLNR’s decision authorizing issuance of a Conservation District Use Permit (“CDUP”) for the Thirty Meter Telescope (“TMT”).”
As for next steps, TMT will move forward with fulfilling the numerous conditions and requirements of the state CDUP prior to the start of any construction.