An artist’s rendering of the Thirty Meter Telescope at sunset. TMT photo.
Hearing Officer Riki May Amano addressed the ruling she made the previous day during the state Board of Land and Natural Resources Contested Case Hearing on the Thirty Meter Telescope.
On Thursday, Dec. 1, 2016, she had ruled that participants using Hawaiian language must write down the words used and submit them to the court transcriptionist in order to have them included in the record.
“We hear lots of Hawaiian words,” (retired) Judge Amano said during the hearing on Friday, Dec. 2. “Some can be easily picked up throughout the testimonies.”
She said that some Hawaiian words, because they are used only once or twice, may not be easily picked up by the court reporter.
“If you wish to use it, I’m not saying don’t, that’s fine, but I would like for you folks to have a clear record,” said Judge Amano. “So I think it would be important to you to have accurately what you said in the hearing reflected in the court record.”
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Following Petitioner C.M. Kaho‘okahi Kanuha’s cross-examination Thursday, Dec. 1, Judge Amano had informed him that the Hawaiian words and phrases he used must be written down and submitted to the court transcriptionist in order to be on record, otherwise, the record would read, “Hawaiian Language.”
Kanuha argued that the state recognizes both English and Hawaiian languages, therefore, he should be allowed to use both languages, adding that an interpreter was needed.
Judge Amano said Friday that she is aware of the laws and cited Hawai‘i State Constitution, Article 15, Section 4, as well as a federal case that ruled an interpreter is not required.
“I don’t understand Hawaiian,” said Judge Amano. “I understand if a name is used, it’s a name. Saying something in Hawaiian or writing something in Hawaiian—I do need to understand it. I do have to ask it be given to me so that I can give you an answer because I don’t understand Hawaiian. So I pointed you to the constitutional section. I read it exactly as I see it. I am aware of what the law requires and does not require. I’m trying to help keep the record clear.”
Kanuha spoke predominantly in English during the remainder of his questioning on Thursday, using Hawaiian words and phrases when inquiring about University of Hawai‘i at Hilo witness Wallace Ishibashi’s cultural practices on Mauna Kea. He also asked the meaning of Hawaiian phrases used and Ishibashi gave the meaning during his responses.
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University of Hawai‘i at Hilo Witness Judge Walter Heen testified on Friday, Dec. 2, in support of the TMT project and about the history of UH management of Mauna Kea.
Judge Heen was the first director of the Office of Mauna Kea Management, as well as a former trustee of the Office of Hawaiian Affairs.
The observatories prior to the Office of Mauna Kea Management had free reign on the mountain as far as we could tell, said Judge Heen.
“As far as they were concerned, they owned the mountain,” said Judge Heen. “We had to convince them that they didn’t.”
Judge Heen testified that establishing OMKM was a struggle with UH. Another point of difficulty with UH was the fact that it was the lessee, not the owner of the mountain.
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“The University of Hawai‘i Board of Regents, after a series of highly contentious public hearings on Hawai‘i Island in 1998, adopted the 2000 Master Plan to provide for local oversight of observatory development within the Science Reserve on Mauna Kea,” wrote Heen in his testimony for Friday’s hearing. “Another demand of the public hearings was that Native Hawaiians have unrestricted access to Mauna Kea. OMKM was established in response to those demands.”
During Petitioner Clarence Kukauahi Ching’s cross-examination, Judge Heen stated that he “insisted” the applicants submit an Environmental Impact Statement upon receiving the TMT project proposal.
However, during Petitioner Mehana Kihoi’s cross-examination, Judge Heen testified that he never actually read the EIS, even though he insisted on its completion and supports the TMT project.
In responce to Kihoi’s questioning, Judge Heen said he personally does not believe Mauna Kea is sacred and that he did not know if others believe the mountain is sacred.
Several cross-examiners asked Judge Heen legal questions. There seemed to be confusion as to why Judge Amano was not allowing this line of questioning as many continued to do so. Judge Amano continued to sustain the objections as this line of questioning reoccurred with many of the cross-examiners. They were asked to move on with their questioning.
While Heen is a retired judge, he was not on the stand to provide legal opinions on any matter or answer questions that do not pertain to his written, direct testimony.
However, in Judge Heen’s written testimony, he said, “All of OMKM’s activities since its inception were and continue to be designed to protect Mauna Kea from uncontrolled and unwarranted intrusion and to preserve Native Hawaiian tradition and customary rights and the mountain’s natural environment, all as guaranteed by the Hawai‘i State Constitution, state statutes and court decisions.”
During Attorney Dexter Kaiama’s cross-examination of the judge, the hearing officer ruled that Kaiama could not question Heen on a previous court decision he made regarding the existence of the Hawaiian Kingdom.
Attorney Lanny Alan Sinkin, representing the Temple of Lono, addressed Judge Amano’s rulings on excluding questioning of Judge Heen on the laws and rulings he cited in his written direct testimony.
Sinkin joined the objections made by the previous petitioners, arguing that the prior rulings about the continuing existence of the Hawaiian Kingdom are directly connected to the hearing.
Sinkin went on to point out that the Hawai‘i Constitution, Section 7, Traditional Customary Rights, says that “The state reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes.”
Sinkin also asked Judge Heen if, at the time in OMKM’s creation, it was envisioned that the entity would enact and enforce regulations on spiritual practices on the mountain.
Judge Heen replied, “No, it was not.”
Sinkin asked the judge if he testified earlier that he does not believe Mauna Kea is sacred and does not know if other Native Hawaiians believe it to be sacred.
Judge Heen stated, “That’s right.”
Sinkin asked what sacredness Judge Heen refers to on page two of his written, direct testimony.
Judge Heen had written that the Kahu Kū Mauna council advises OMKM on conflicts over “‘western’ intrusion and preservation of the sacredness of Mauna Kea.”
“People obviously said it was scared,” stated Judge Heen.
During Brannon Kamahana Kealoha’s cross-examination, Judge Heen testified, “Yes, I am aware [that] many, if not most or all Hawaiian people on the island, consider Mauna Kea sacred.”
Judge Heen testified that Stephanie Nagata from OMKM called him to testify in the hearing.
Kealoha prefacing his statement with intentions of no disrespect, pointing out that there were many questions Judge Heen was unable to answer or said he didn’t know throughout the cross-examination that day.
Kealoha went on to question Judge Heen on the reasons Native Hawaiian women were arrested during prayer in the middle of the night on the mountain in the summer of 2015.
Judge Heen said there are times when access may need to be denied or limited “with respect to preventing damage to the environment of Mauna Kea.”
“What kind of damage do praying women cause?” asked Kealoha.
Judge Heen stated, “I have no idea.”
In his written, direct testimony, Judge Heen wrote, “I am satisfied that UH-Hilo and OMKM continue to accord the utmost concern for the protection of Native Hawaiians’ access to Mauna Kea and the mountain’s environment.”
Click here to read Judge Heen’s written direct testimony
UH witness Richard Nees is scheduled to testify on Monday, Dec. 5, 2016, in the Willie K. Room at The Grand Naniloa Hotel Hilo on Banyan Drive.
Nees is expected to testify on archeological surveys on Mauna Kea.
Following Nees, the university is expected to call Fritz Klasner and Stephanie Nagata.
Klasner will testify on the management of natural resources in the Mauna Kea Science Reserve.
Tom Nance was scheduled to testify on water resources, but due to schedule constraints, is not expected to testify until later in the month.
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