Judge Puts Time Limit on TMT Cross-Examinations

An artist’s rendering of TMT with its vents open. TMT photo.

During the Hawai‘i Board of Land and Natural Resources contested case hearing on the Thirty Meter Telescope on Monday, Oct. 31, 2016, Hearing Officer Riki May Amano ruled that the time for cross-examination of each witness be limited.

Also on Monday, the TMT International Observatory announced an alternative location in the Canary Islands, if the project cannot be built on Hawai‘i Island.

Mauna Kea is the project’s first location choice.

The outcome of the contested case hearing will decide where the observatory is built.

During Monday’s hearing, Amano ruled that cross-examination will be limited to 30 minutes. Many of the petitioners objected to this ruling, pleading with Amano to reconsider.

“Please give us the time we need to defend ourselves,” said petitioner William Freitas.

Amano accepted each objection, but stood by her ruling, further explaining that based on the lengths and quality of the cross-examinations thus far, she felt, “limiting it to 30 minutes is going to help us focus and prepare,” citing her authority and responsibility for the conduct of the hearing.

In addition, Amano explained that testimony and evidence must only come from the witness, not the person conducting the cross-examination.

Many of the pro se litigants (parties representing themselves in court without the assistance of an attorney) have struggled with their cross-examinations, often testifying and arguing with the witness.

Amano further explained the ruling would help her focus on the facts. She said her leniency had led to what she described as resulting in “a weirdly situation.”

However, if the litigants begin to properly cross-examine the witnesses, she would consider on a case-by-case basis if more time would be allotted.

The hearing continued with University of Hawai‘i-Hilo witness James T. Hayes.

The university took Dr. Hasinger out of order on Oct. 27 to accommodate his schedule.

Petitioner Clarence Kukauakahi Ching resumed his cross-examination of Hayes.

Ching spent much of his allotted time having Hayes read directly from the Environmental Impact Statement during his cross-examination. Hayes also chose to answer a majority of questions by reading aloud, rather than answering in his own words about the document and project he managed.

Amano attempted to explain that there is no reason to read the document aloud, explaining that everyone has a copy and is familiar with it. However, Hayes continued to read the document rather than answer questions about the information.

Harry Fergerstrom was the last petitioner on Monday to cross-examine Hayes. Fergerstrom was unable to finish, so he and Brannon Kamahana Kealoha will continue their cross-examination of Hayes when he returns.

At the end of the hearing, UH-Hilo Attorney Tim Lui Kwan told Amano he would not be present on Wednesday.

Amano replied, “Who is going to be signaling the witnesses?”

The room erupted in laughter.

Attorney Kwan, taking Amano’s remark more seriously, replied that the alleged signaling never happened.

Earlier in the hearing, petitioner William Freitas approached the podium to inform Amano that he believed the UH witness Perry White was being coached by someone at the UH-Hilo table. White could be seen shifting his eyes to the UH table throughout his testimony.

Amano admonished White, directing him to focus on the cross-examiner. University Attorney Ian Sandison objected to the accusation and apologized for fidgeting.

During the cross-examination of UH-Hilo witness Dr. Hasinger, petitioner Freitas repeated his concerns and motioned to have the witness’ testimony struck from the record because Freitas claimed he saw Dr. Hasinger coaching White, and wanted it noted on the record.

Big Island Now will provide coverage of next week’s TMT hearing.

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