An artist’s rendering of the Thirty Meter Telescope at sunset. TMT photo.
Photo credit: Kuʻuipo Freitas.
Petitioner Cindy Freitas was overcome with emotion during her cross-examination of Office of Mauna Kea Management Director Stephanie Nagata.
The state Board of Land and Natural Resources Conservation District Use Application Contested Case Hearing on the Thirty Meter Telescope continued with cross-examinations of University of Hawai‘i witnesses on Dec. 12 and 13, 2016, in the Willie K. Crown Room at the Grand Naniloa Hotel Hilo.
A contested case hearing was requested with respect to the 2011 decision by the BLNR to issue a permit to build the $1.4 billion next-generation telescope near the summit of Mauna Kea. The Hawai‘i Supreme Court ruled the permit invalid until a contested case hearing could be held to evaluate a petition by a group challenging the project’s approval.
There are now over 20 participants in the BLNR contested case hearing for the 18-story facility proposed for Hawai‘i’s highest mountain.
Petitioner Cindy Freitas questioned the OMKM Director Nagata on her written, direct testimony on the management of UH leased lands on Mauna Kea.
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Freitas choked back tears as she asked Nagata if destroying an ahu (shrine) was within compliance with Hawai‘i Regulatory Rules.
Nagata said she did not know.
During previous testimony, Nagata said that there was no written report made, no disciplinary actions were taken and that due to personal reasons, she would not reveal the name of the person who destroyed the shrine.
Petitioner William Freitas, Cindy Freitas’ husband, also appeared to be upset, expressing the impact of a highly emotional day on Thursday, Dec. 8.
William Freitas expressed the difficulty of questioning Nagata on the topic of ahu and their significance for Native Hawaiians like himself.
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Continuing to question OMKM’s management of the mountain and the implementation of the Comprehensive Management Plan, Cindy Freitas asked Nagata about her employee, Native Hawaiian practitioner and Senior Advisor Wallace Ishibashi, who previously testified about OMKM’s policy regarding the removal of what he referred to as “uprights” (stones), ahu and other items found on the mountain.
Ishibashi had testified that without a DLNR permit, any structures, including shrines and upright stones found on Mauna Kea, would be removed after 30 days.
Nagata testified she believed OKMK was within the guidelines of the CMP, as well as within compliance of their duty to abide by county, state and federal laws pertaining to Native Hawaiian access to the mountain for traditional and customary practices.
After a line of questioning regarding the dome design and a series of UH objections, Hearing Officer Riki May Amano, a retired judge, asked Cindy Freitas to wrap up her questioning.
Judge Amano explained that she does “expect the cross to go smoothly and it has not, because we’ve had to fumble through a lot of exhibits and it’s wasting time. I’m not here to speed up the process but I cannot allow the process to be inefficient.”
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Judge Amano was referring to the excessive amount of time it took for the witness to reference the large number of exhibits throughout the questions during cross-examination of Nagata’s written, direct testimony.
Cindy Freitas acknowledged Judge Amano’s understanding and patience but pointed out the sheer volume of “pertinent” documents to this case. She said she spent a lot of time preparing her questions and researching OMKM’s compliance with the CMP and its obligation to protect the cultural and customary practices of Native Hawaiians and the environment.
“I am here as a descendant to make sure my ancestor is guided in the most pono, truthful way,” explained Cindy Freitas.
Judge Amano allowed her to proceed with a final question—whether she believed Ishibashi was in compliance with the guidelines in the CMP and the Hawai‘i State Constitution when he laid down the upright stone that he previously testified about.
Nagata said, based on her understanding of the section on desecration of monuments, that she believed he was.
Cindy Freitas followed up by asking how he was in compliance.
Nagata turned to Judge Amano and asked, “Was that the last question?”
Judge Amano asked the witness to answer. Nagata then stated, “I do not think that this particular upright is a monument.”
Nagata then said, “I believe so,” when asked whether Native Hawaiians were in compliance with Article 12, Section 7, of the Hawai‘i State Constitution to build structures such as ahu and hale as part of their on-going protected practice of traditional cultural and customary religious and spiritual rights.
During her cross-examination by petitioner Cindy Freitas, Nagata also testified that after the June 2015 protests on the mountain over the construction of the project and the validity of its permits, Nagata and members who identified themselves as “The Protectors” met and agreed upon a joint statement.
Nagata stated that the meeting was “jovial” and a “good meeting” and produced a joint statement that was never released or circulated. OMKM had sent the members an email after the meeting asking how to distribute the statement and said they received no response.
Also during Nagata’s testimony, a line of questioning about the handling of ho‘okupu, offerings placed on the shrines, she explained that offerings are removed when there is a concern for the health and safety.
Attorney Lanny Alan Sinkin, representing the Temple of Lono, questioned Nagata on the policies and procedures for removing offerings immediately following ceremonies.
Nagata said that “obligation” has been “imposed” on OMKM to regulate such customary rights. She clarifyied her statement, adding that they have the right to “consider the regulation of such rights.”
Nagata also testified that health and safety reasons allow for immediate removal. She said “vermin” can become an issue when offerings are left to decompose.
Nagata testified that OMKM is “not specifically” obliged under the lease or current rules and regulations to immediately remove the offerings.
She also stated she does not have a spiritual practice.
Nagata also testified that she was aware that the Environmental Impact Statement found that previous development on Mauna Kea had a substantial, adverse and significant impacts on cultural resources but felt that impacts have improved since OMKM was formed.
Part of the CMP approval by the BLNR were several requirements of OMKM for continued and future use and development on the mountain.
One of these requirements is a five-year review and revision of the CMP.
Nagata told petitioner E. Kalani Flores that OMKM has not completed a full five-year review and revision of the CMP because they decided it wasn’t necessary, explaining that they produce annual reports. She said they didn’t think a five-year review would yield any more information than the annual reports and that all the information needed was included in accumulative annual reports.
Flores, representing the Case-Flores ‘Ohana, also questioned Nagata about the requirement to complete policies for scattering ashes by year four. Nagata said that to date, in the sixth year, no policies have been established.
Flores also asked Nagata about the BLNR requirement to create a list in the first year consisting of Native Hawaiian individuals and groups to contact for input when issues arise.
Nagata testified that though they have some names, the list will never be finalized because there will always be new names and families to add.
Upon further questioning by Flores, Nagata said to-date, there is no formal or informal list—only a discussion.
He asked her if it was difficult to create a log. Nagata said, “No, I guess not.”
When asked if not in compliance with the CMP why should the Conservation District Use applicant be granted approval, Nagata said, “I believe we are in compliance with the CMP. We are in compliance with the CMP management actions. There are some things that are a little behind but we don’t believe they necessarily apply… directly to the TMT project.”
During Petitioner Harry Fergestrom’s cross-examination, Nagata testified that Native Hawaiians can practice their traditional and cultural rights, but under the Public Access Plan, they are “subject to reasonable regulation.”
Nagata then stated in later testimony that the implementation of the CMP guidelines “does not diminish nor does it add. It says Native Hawaiians have the right to practice subject to regulation.”
At the beginning of this week’s proceedings, Judge Amano addressed a motion by Shelley Stephens to join the hearing as an additional party at this time.
Stephens made contact with the BLNR back in August but never made a clear request to join as a party.
Judge Amano explained that it is too late; however, Stephens may be allowed to participate if called as a witness by one of the other petitioners. At this time she is not expected to testify.
Following Nagata, UH witness Tom Nance testified about water resources. That coverage will be available at BigIslandNow.com on Thursday, Dec. 15.
The BLNR contested case hearing on the TMT project is scheduled for Dec. 16, 19 and 20. The dates in 2017 include Jan. 3 to 5, 9 to 12, 19, 23 to 26, 30 and 31.
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