TMT Hearing: Native Hawaiian Practitioner Testifies

An artist’s rendering of the Thirty Meter Telescope at sunset. TMT photo.

The state Board of Land and Natural Resources Contested Case Hearing on the Thirty Meter Telescope project proposed by the University of Hawai‘i at Hilo, wrapped up for the month and will resume in December.

At the beginning of this week’s proceedings the hearing officer, retired Judge Riki May Amano, addressed  the Hawai‘i Supreme Court appeal made by Mauna Kea Anania Hou; KAHEA: The Hawaiian Environmental Alliance; the Flores-Case ‘Ohana; and individual petitioners Kealoha Pisciotta, Clarence Kukauakahi Ching, Deborah Ward and Paul Neves.

Records filed last week show that in addition to the due process violation, the appellants argue that Judge Amano has a conflict of interest in hearing this case, that she has shown bias in her rulings and therefore, should be disqualified as the hearing officer.

Amano explained that the Supreme Court ruled to dismiss the appeal; however, another appeal seeking to restore full cross-examination rights was filed by Attorney Alan Sinkin, the representative for The Temple Lono, an ancient Hawaiian faith.

All parties agreed to continue with the hearing while awaiting the ruling on Lono’s appeal to Hawai‘i’s highest court.

University witness James T. Hayes returned to the witness stand for the last cross-examination of his written, direct testimony.

During Brannon Kamahana Kealoha’s cross-examination, he asked Hayes about the 2000 Mauna Kea Management Master Plan.

Kealoha asked Hayes whether the information in the 2000 Master Plan was ever fact-checked. Hayes said that he did not check it but that he assumed the information the UH Board of Regents used in the plan was accurate.

Kealoha went on to question Hayes on his experience and specifically his knowledge of the culture when preparing the cultural impacts portion if the Environmental Impact Statement.

Kealoha asked if any cultural advisors helped complete the cultural impacts portion of the EIS. Hayes said that through a survey done with Cultural Surveys Hawaii, 18 people from the public were consulted, but no official cultural advisor.

Kealoha asked him how he can decide that a project won’t affect cultural practices he is not a part of. Hayes replied he did not know what his personal religion was. Clarifying his statement, Kealoha said the culture he referred to is “collective.”

And Hayes then replied, “I don’t know what culture you’re referring to.”

Following Hayes was UH-Hilo witness Robert McLaren of the Institute for Astronomy.

McLaren testified on the development of the Mauna Kea Science Reserve.

Petitioner William Freitas questioned McLaren on his background and experience to testify as an expert witness on decommissioning observatories.

McLearn said the only experience he has with decommissioning a telescope was removing the 24-inch Planetary Patrol Telescope in the early 1990s. This was done to give the Gemini Observatory the location on the mountain.

In previous testimony, McLearn discussed decommissioning and the removal of septic tanks. While doing so, he mentioned that often there are contaminants from the septic tank. Freitas went on to question McLearn on the risk for further contamination and whether adding more development to the mountain added more risk for contamination.

McLearn said, “I didn’t say there is not potential, I said I didn’t think it was likely. I can’t predict the future, so I can’t be sure.”

At the beginning of the hearing on Nov. 16, the schedule for UH-Hilo’s witnesses for the hearing was revised, causing objections across the room by nearly all litigants.

Attorney Sinkin pointed out that it was not the change in scheduling and order, but that a couple days prior, the university sent out an email removing Smith from the witness list completely.

UH-Hilo Attorney Tim Lui Kwan said that the university was “trying to shorten the list to move it along.”

Judge Amano ruled that it was unfair to call Smith to the stand without notice.

Instead, Native Hawaiian practitioner Wallace Ishibashi Jr. was called to the witness stand.

Ishibashi is the senior advisor at the Office of Mauna Kea Management. He previously served as the Cultural Advisor at OMKM after working in construction for over 20 years.

Ishibashi testified about his personal experience growing up and being taught traditional cultural practices, including annual visits to Mauna Kea.

“Mauna Kea is a very special place,” said Ishibashi.

He explained his ancestral ties are to Pu‘u Poliahu and the importance of access to the mountain.

“The construction of telescopes on Mauna Kea has not diminished my ability to practice my culture, to worship or to pay my respect to our ancestral spirits,” said Ishibashi. “In fact, the telescopes have made it easier to continue my cultural practices at the summit area of Mauna Kea.”

Ishibashi was referring to the roads built and maintained by the observatories that provide year-round access for residents and visitors.

“The telescopes on Mauna Kea represent mankind’s most advanced search for knowledge,” explained Ishibashi, “This quest for knowledge is the main reason I support TMT.”

Ishibashi testified that Native Hawaiians are “adaptive people.” Comparing the use of backhoes to dig the taro fields to the use of telescopes on Mauna Kea, Ishibashi asserted that “it doesn’t make it any less Hawaiian.”

“I am proud that we as Hawaiians will have the opportunity to have this project built in the best place in the world, right here on Mauna Kea.”

During Pisciotta’s cross-examination of Ishibashi, the practitioner said that based on state Department of Land and Natural Resources rules, moving any rocks on the mountain requires a permit and that any unpermitted structures, including upright stones used in ceremonies, would be removed after 30-days.

“Just rearranging rocks on the summit is a no, no,” said Ishibashi.

The cross-examiners went on to question Ishibashi about is role and authority on the mountain, the legitimacy of the rules enforced by OMKM and DLNR and about his experience as a cultural advisor.

E. Kalani Flores asked Ishibashi to explain further his role as senior advisor. In doing so, Ishibashi explained that when he is on the mountain, he will clean up and take care of any and all kinds of incidents, admitting that he knocked down an unpermitted ceremonial rock placed upright on the summit within the TMT construction site.

Flores then asked Ishibashi about the hearing participants’ site visit back in September.

Flores asked why the procession drove through the site, rather than stopping to allow all parties to get out and view the site.

Ishibashi said that they were “following orders. I’m not sure if it was the rangers or our hearing officer, but they just wanted us to spin around the site.”

Adding that even though he was in the lead car, he “wasn’t aware of what was happening behind.”

When Flores questioned him on the rules OMKM follows and implements, Ishibashi said that they follow the rules set by DLNR. After further questioning, he said that the rules are not finalized because of the contested case hearing. He said that the process of completing the rules would include cultural practitioners, many of whom are participating in the contested case.

Ishibashi will return to the stand on Thursday, Dec. 1. in the Willie K. Room at The Grand Naniloa Hotel Hilo – a DoubleTree by Hilton on Banyan Drive in Hilo on the island of Hawaii, followed by UH-Hilo witnesses Judge Walter Heen, Clifford Smith and Tom Nance. 

Heen will testify about the history of UH management of Mauna Kea; Smith on Mauna Kea flora; and Nance on water resources.

The BLNR contested case hearing on the TMT project is also scheduled for December 2, 5, 6, 8, 12, 13, 16, 19 and 20. January 2017 scheduled hearing dates include the 3 to 5, 9 to 12 , 19, 23 to 26, 30 and 31.

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