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TMT Hearing: UH-Hilo Witnesses Testify

October 28, 2016, 4:14 PM HST
* Updated November 3, 12:19 PM
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tmt sunset

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

The Hawai‘i Board of Land and Natural Resources contested case hearing on the Thirty Meter Telescope continued this week in the Crown Room at the Naniloa in Hilo on Hawai‘i Island.

With more than 20 individuals and/or groups now involved, and many of them representing themselves, a lot of time was spent sorting through documents, reading definitions, and struggling to properly lay a foundation and to formulate appropriate questions.

The University of Hawai‘i’s first witness, Perry J. White, completed his testimony and was followed by UH-Hilo witnesses James T. Hayes and Gunther Hassinger.

Perry White

On Tuesday, Oct. 25, the hearing continued with White’s cross-examination. Although White was being cross-examined on only his direct testimony and exhibits the university assigned him, he answered “I don’t know,” or a version thereof, in reply to many of the petitioners’ questions.

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Several cross-examiners expressed dismay at White’s answers. Retired Judge Riki May Amano acknowledged them and asked everyone to keep moving forward.

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White testified that the entire size of the project would be approximately five acres. According to White, the only part of the project that would extend outside the five acres was the access road.

During C.M. Kaho‘okahi Kanuha’s cross-examination of White, petitioner William Freitas approached the podium and informed the judge he believed White was being coached by someone at the UH-Hilo table.

White can be seen shifting his eye to the university’s table throughout his testimony.

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Judge Amano admonished White, directing him to focus on the cross-examiner.

University Attorney Ian Sandison objected to the accusation and apologized for fidgeting.

Many of the petitioners added to Freitas’ claim during their turn questioning the witness. Noting the seriousness of the accusation of coaching, Judge Amano asked Sandison to respond.

“We did not intend to alter his testimony in any way,” said Sandison, adding that they instructed White to respond truthfully to the best of his ability.

Sandison motioned for White’s testimony to be added as evidence and subject to Judge Amano’s evaluation for the weight of the testimony.

Judge Amano denied the motions to strike White’s testimony and decided to wait until all the witnesses were been called before entering any of their testimony into evidence.

Wednesday, Oct. 26, began with recalling UH-Hilo witness James T. Hayes.

James T. Hayes

The second witness for UH-Hilo was Hayes of Parsons Brinckerhoff America Inc. PB America was obtained by the TMT Corporation for the Environmental Impact Statement in 2010 for the Conservation District Use Application (CDUA).

Hayes compiled and wrote the EIS for the TMT project, a critical component of the permit application, the CDUA. He also assisted with the CDUA.

Hayes testified that the TMT project fully complies with local and federal laws.

Much like their experience with White, the petitioners struggled to ask questions Hayes would and could answer.

Hayes thumbed through the documents, sometimes humming and mumbling under his breath, reading directly from the EIS for many of his answers rather than answering the question directly. At one point, he said he didn’t want to misquote the document he prepared.

Hayes prefaced nearly all of his answers with “probably,” “I believe it was,” “similar to,” “not seeing it” and “I’m sort of familiar with the general background.”

One of the areas Hayes’ written direct testimony covers is the impact the TMT project could have on the view of the skyline.

Kealoha Pisciotta, representing Mauna Kea Aina Hou, asked Hayes if the project would impact the view to Maui.

Hayes admitted that he did not know if it would impact the view to Maui, saying that no one asked the question, but rather asked general questions about cultural practices.

Pisciotta also asked if the EIS of the TMT project included the views important to native practitioners, such as to Kaua‘i, Wakea, Orion, the North Star or the Southern Cross. He replied no to all.

E. Kalani Flores of the Case-Flores Ohana questioned Hayes on the color planned for the outside of the observatory, noting that in the EIS it states that the TMT observatory color would be an aluminum-like finish similar to the Subaru telescope. It is documented that the Subaru’s color is metallic, not aluminum.

Flores attempted to clarify what the color would be, its level of reflectivity and if it meets the criteria for the laws permitting a project in the Conservation District of Mauna Kea.

Flores also pointed out that the documents of the Mauna Kea Science Reserve Master Plan were not the full copies provided by the university as an exhibit submitted to be evidence.

Judge Amano questioned the UH-Hilo attorneys if this was an intentional omission.

Sandison admitted Flores was correct and that it was “our error,” adding that the university would correct the mistake and redistribute the exhibit.

Judge Amano asked Flores to submit his copy into evidence and told UH-Hilo not to resubmit the document. She explained she would like to have both copies to compare when reviewing the information before making her final decision on this case.

“Mr. Flores, I don’t know what law school you went to or what YouTube videos you are watching, but I think I better take lessons from you, so thank you very much,” Judge Amano concluded.

When questioned, Hayes also said that the area for the TMT project would be five acres, adding that the access road would be three acres and an additional “batch plant area” would take up four acres.

Hayes argued that because of the impact of the observatories already on Mauna Kea, the TMT project’s impact on the environment and natural resources would not be substantial and adverse if the project were built or not.

Hayes further argued that because there are already telescopes in the conservation district, building the 18-story observatory would only incrementally add to already substantial adverse impacts.

During roll call Thursday morning, many of the petitioners expressed they were there “under duress and coercion”—as Brannon Kamakana Kealoha put it, “and a little bit of sacrilege.”

Several petitioners added that they were standing in solidarity with Standing Rock, the movement to block the development of a pipeline on Native American lands in North Dakota.

“I also stand in solidarity for Standing Rock and all indigenous people,” said petitioner Freitas.

Gunther Hasinger, Ph. D

Following Hayes, out of order, Dr. Hasinger, the director of the Institute for Astronomy (IFA) at the University of Hawai‘i at Mānoa, was called as the next witness for UH-Hilo on Thursday, Oct. 27.

Dr.  Hasinger testified that IFA participates in the long-term planning and visioning on Mauna Kea. As he put it, UH-Hilo manages the land and the outside of the observatories and IFA oversees and manages what goes on inside the observatories.

IFA currently operates telescopes on both Mauna Kea on the Big Island and on Maui’s Haleakalā.

During Dr. Hasinger’s oral summary of his direct written testimony, he testified to the importance and relevance of astronomy, about education programs and why he believes the project should be built on Mauna Kea.

Regarding the idea of coexistence, Dr. Hasinger stated he strongly believes it is not only possible for astronomy and native practitioners to coexist but that “It’s necessary to coexist.”

During the cross-examination of Dr. Hasinger, Freitas repeated his concerns regarding White’s testimony. He motioned that Dr. Hasiger’s testimony be struck from the record because Freitas claimed he saw Hasinger coaching White on Tuesday and wanted it noted on the record.

Several petitioners moved to second this motion, stating that they, too, witnessed coaching.

Judge Amano acknowledged again that she redirected White at the time and asked them to continue with cross-examination.

Dr. Hasinger had testified earlier about the benefits of astronomy, pointing out the role astronomy played in the existence of computers, cell phones, reading glasses, weather forecasting, GPS navigation systems and many other technological advances that directly impact the everyday lives of mankind.

But Pisciotta clarified during her cross-examination of Dr. Hasinger that the merits of astronomy are not the issue, arguing that, for example, if a hospital was being built, there would still be the same issues with the project, but that would not mean that anyone is “against healthcare.”

She argued that it’s a land use issue and motioned to strike Dr. Hasinger’s testimony because the case is about a Conservation District Use Application, not the merits of astronomy. The motion was denied.

Pisciotta was one of the first Native Hawaiian women to work on the Mauna Kea summit as a telescope assistant technician.

As Pisciotta continued with her cross-examination of Dr. Hasinger, she expressed to Judge Amano her concern over the guidelines for questioning the witnesses. She explained that the witnesses have a lot of power over what they are allowed to question because they could simply omit the information from their direct testimony.

Another moment of contention occurred on Thursday when Dr. Hasinger testified that King Kalākaua wanted to bring an observatory to Hawai‘i.

Petitioner Attorney Lanny Alan Sinkin motioned to strike the testimony about Kalākaua, arguing that the witness testified on knowledge he doesn’t have.

Judge Amano acknowledged his motion and asked Sinkin to move forward with his questioning.

As the week progressed, Judge Amano continued to emphasize the way a hearing works, the importance of submitting all documents into evidence, the necessity of and how to lay foundation properly in order to ask the witnesses questions relevant to this case. She stressed that during their cross-examination of each witness, the petitioners need to, “stop testifying.”

She added that reiterating evidence is what the witness under oath is supposed to say. It is not information being injected in the questioning.

At the end of the evening Thursday, petitioner Pua Case objected to the hearing extending over 11 hours, arguing that it doesn’t allow all of the parties to fully participate in the hearing. She added that making accommodations for Dr. Hasinger’s schedule made her concerned that making exceptions and very long days would be a regular occurrence.

On Monday, Oct. 31, when the case continues, Judge Amano will discuss who gets to object and when, explaining that she follows a very general practice for objections and that they usually only come from the person presenting the witness.

“In my weak moments,” objections were allowed to be made, said the judge. But she noted that with 20 or more involved in this case, it is imperative they follow the guidelines and be prepared and efficient moving forward.

The BLNR Contested Case Hearing will resume Monday, Oct. 31, in the Willie K. Crown Room at the Naniloa Hotel on Banyan Drive in Hilo with UH-Hilo.

UH witness James T. Hayes will return to the stand, as not all parties had the opportunity to cross-examine him on Tuesday; Dr. Hasinger was only available Thursday.

The next UH witness expected Monday is Chad Kalepa Baybayan, who will testify about Mauna Kea, astronomy and traditional Polynesian navigation.

After Baybayan, UH-Hilo is expected to call Clifford Smith, testifying on Mauna Kea flora.

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

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TMT Contested Case Hearing Gets Underway

 

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