TMT Hearing: UH Calls Archeologist to the Stand

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

Conservation District Use Applicant University of Hawai‘i called archeologist Richard Nees to the witness stand on Monday, Dec. 5, 2016, in the state Board of Land and Natural Resources Contested Case Hearing on the Thirty Meter Telescope.

Nees is employed by Pacific Consulting Services Inc. of Honolulu, an employee-owned services firm providing archaeological and environmental consulting services to public and private-sector clients throughout Hawai‘i and the Pacific.

Nees has 26 years of experience in Hawai‘i archeology.

He began archaeology investigations on Mauna Kea in 2005. The areas being monitored include the Astronomy Prescient, the Science Reserve, the Road Corridor and the Natural Area Reserve.

Nees’ archaeological monitoring of sites on the leased lands on Mauna Kea began in 2012.


Nees testified that his direct testimony was written from a template provided to his office by UH Attorney Tim Lui Kwan.

Nees said he had no previous experience giving testimony. He said he was given a template, filled in his experience and wrote an introduction.

After further questioning, Nees explained that the template he was given was his colleague’s, Dr. Sara Collins’ testimony from the previous TMT hearings.

Through the numerous petitioners’ cross-examination, the topic of the template was a repeated area of concern.

Nees’ written, direct testimony states that Mauna Kea is sacred.


During Petitioner Deborah Ward’s cross-examination, she asked Nees if this was correct. He replied, “I believe that’s what Dr. McCoy wrote.”

Dr. Pat McCoy is a senior archaeologist at PCSI.

This added further confusion about who penned which portions of Nees’ written, direct testimony.

Another area of contention was whether Nees had the authority and expertise necessary to suggest and make specific mitigation recommendations in his written, direct testimony.

The mitigation measures suggested by Nees are taken from the Final Environmental Impact Statement for the TMT project.


Nees testified he has not read the FEIS but used the mitigation suggestions from it because they were already included in the template.

During Ward’s cross-examination, Nees agreed it was fair to say that based on his lack of knowledge about the one-hour cultural course—one form of mitigation recommended in the FEIS—that it is incorrect for him to state that it will prevent adverse impacts to cultural resources on Mauna Kea, if the project were to be approved.

Nees testified that a document, as well as monitoring the project, are forms of mitigation.

In addition, Nees said choosing not to do an aspect of the project, for example, not placing a road in a specific location previously considered, was a form of mitigation for the TMT.

When asked how watching something mitigates an adverse impact on the environment, Nees stated, “I don’t know.”

Nees further testified that it was accurate to say as an archeologist, he is not qualified to make the statement about mitigation measures.

Next, petitioner E. Kalani Flores, representing the Flores-Case ‘Ohana, cross-examined Nees.

Flores said that he could not locate multiple references Nees made citing exhibits in his testimony.

When asked about references Nees cited in his written, direct testimony, he said they were incorrect.

Flores also asked Nees about the exhibits that were associated with his testimony. Nees stated that he did not read nor was he familiar with the majority of the exhibits. He was only familiar with the two documents he co-wrote and he said he looked at parts of the other exhibits.

During Petitioner Cindy Freitas’ cross-examination, Nees testified that while monitoring during his annual visits, he discovered that new ahu (shrines) were found on Mauna Kea. He said there was clear evidence of cultural practices in various locations on the mountain.

In his written, direct testimony, Nees also testified that there are hundreds of shrines inside and outside of the Adz Quarry on Mauna Kea, numerous burials and hundreds of shrines in the summit area.

He said there is also evidence of pilgrimages to the summit and Lake Waiau, and many “fine spots” that could be undetermined cultural and/or historical locations.

Nees testified about these “fine spots” during multiple petitioners’ cross-examinations, explaining that there are many unknown sites that very well could be burials or areas of cultural and/or historic significance on the mountain and within the Science Reserve.

Petitioner Harry Fergerstrom motioned to strike Nees as a witness as he did not conduct the archeological study for the TMT project and because he had not read documents pertinent to the project proposal.

Fergerstrom said he did not know why Nees was even on the stand testifying.

Hearing Officer Riki May Amano dismissed the motion and said that it will go to the weight given to the witness’ testimony.

During UH Attorney Kwan’s redirect of the university’s witness, Kwan stated that the errors in Nees’ written, direct testimony had been amended during the final cross-examinations and the new testimony was redistributed to all parties. 

Also during Kwan’s redirect, Nees testified that there were no burials in the TMT project zone or directly adjacent to the site.

Multiple objections by petitioners were raised regarding his previous testimony stating there are known and very likely unknown burials on Mauna Kea.

Petitioner William Freitas argued, “I think, truthfully, Mr. Nees had answered my questions so, so truthful that Mr. Kwan is trying to redirect the understanding of his answers to my questions.”

Judge Amano acknowledged, “That’s possible.”

Freitas added that Nees already answered him and said, for the record, that a lot of archeological studies can’t tell if there are any of Freitas’ or other Native Hawaiian’s kūpuna under the ground on Mauna Kea.

Following Kwan’s redirect of the witness, Judge Amano (retired) allowed for an additional 15 minutes per party to re-cross-examine Nees.

Click here to read Richard Nees’ written direct testimony.

University witness Fritz Klasner is scheduled to testify on Tuesday, Dec. 6, 2016, in the Willie K. Room at The Grand Naniloa Hotel Hilo on Banyan Drive.

Klasner is expected to testify on the management of natural resources in the Mauna Kea Science Reserve.

Following Klasner, the university is expected to call Stephanie Nagata, who will testify on the management of Mauna Kea.

UH witness Judge Walter Heen testified on 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.

For the full UH-Hilo witness list go online.

The BLNR contested case hearing on the TMT project is also scheduled for Dec. 8, 12, 13, 16, 19 and 20.

Next year’s scheduled hearing dates include Jan. 3 to 5, 9 to 12, 19, 23 to 26, 30 and 31.

TMT Hearing: Hawaiian Language Ruling Clarified

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