East Hawaii News

UPDATE: State Supreme Court Invalidates TMT Permit

December 2, 2015, 2:35 PM HST
* Updated December 2, 9:49 PM
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***Updated at 6:35 p.m. to include a statement from the University of Hawai’i.***

***Updated at 5:30 p.m. to include a statement from Henry Yang, Chair of the Thirty Meter Telescope Board of Directors.***

***Updated at 3:15 p.m. to include additional information regarding the Hawai’i Supreme Court’s Wednesday ruling.***

The Hawai’i Supreme Court has invalidated a Conservation District Use Permit for the Thirty Meter Telescope.

Wednesday’s ruling was delivered on the same day that a temporary stay on TMT’s permit was set to expire.

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In the ruling, the Supreme Court said that the Board of Land and Natural Resources “put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held.”

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State Supreme Court justices said in their ruling that “We therefore vacate the 2 judgement of the Circuit Court and the permit issued by the Board, and remand so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.”

The challenge to the permit was filed by Mauna Kea Anaina Hou, Clarence Kukauakahi Ching, the Flores-Case Ohana, Deborah J. Ward, Paul K. Neves, and KAHEA: The Hawaiian Environmental Alliance.

TMT was not listed as a defendant in the case. The plaintiffs filed the suit against the BLNR, Hawai’i Department of Land and Natural Resources, DLNR and BLNR chair Suzanne Case, and the University of Hawai’i at Hilo.

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“At times, it has been excruciating, knowing that among other things, we were up against one of the biggest, most influential law firms in the state, that we were also up against the whole university system and the State of Hawai’i, including the Governor,” Ching told Big Island Now Wednesday afternoon. “It was a typical David versus Goliath kind of thing, and it appears we were right all the time.”

Justices noted a lack of due process in the BLNR’s issuance of the permit today. They cited the Sandy Beach Fund v. City and County of Honolulu case back in 1989, saying that by holding a vote on TMT’s permit before a contested case hearing could be held, “the Board denied the Appellants their due process right to be heard at ‘a meaningful time and in a meaningful manner.’ Furthermore, justices called the decision to issue the permit before the contested hearing a “lacked both the reality and appearance of justice.”

The process started over five years ago, when UH-Hilo submitted an application on behalf of TMT for the permit on Sep. 2, 2010. Five months later, the board approved the permit, despite objections from opponents. At that time, a contested case hearing was called for and a condition was noted that no construction could take place until that hearing was completed.

In 2013, the Third Circuit Court upheld the decision of both the BLNR and a hearing officer who oversaw a hearing regarding the permit a year earlier.

Construction has been on hold since April, when opponents of the TMT project blocked the Mauna Kea Access Road, preventing crews from reaching the work site.

Henry Yang, Chair of the Thirty Meter Telescope Board of Directors issued the following statement Wednesday evening in regarding to the Hawai’i Supreme Court’s ruling:

“We thank the Hawai’i Supreme Court for the timely ruling and we respect their decision. TMT will follow the process set forth by the state, as we always have.  We are assessing our next steps on the way forward. We appreciate and thank the people of Hawai’i and our supporters from these last eight-plus years.”

Additionally, the University of Hawai’i issued its own statement on the Hawai’i Supreme Court ruling, saying that it believes that “Maunakea is a precious resource where science and culture can synergistically coexist, now and into the future, and remains strongly in support of the Thirty Meter Telescope. UH is currently reviewing the court’s decision to determine the best path forward.”

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