TMT Hearing: Tension High as OMKM Director Testifies
The state Board of Land and Natural Resources Conservation District Use Application Contested Case Hearing on the Thirty Meter Telescope International Observatory (TIO) continued with applicant University of Hawai‘i witness Stephanie Nagata on Dec. 8, 2016, in Hilo.
A contested case hearing was requested with respect to the 2011 decision by the BLNR to issue a permit to build the $1.4 billion next-generation telescope near the summit of Mauna Kea.
The Hawai‘i Supreme Court ruled the permit invalid until a contested case hearing could be held to evaluate a petition by a group challenging the project’s approval.
Nagata, the director of the Office of Mauna Kea Management (OMKM), testified on the management of UH leased lands on Mauna Kea.
Nagata, who has served as the current director since 2012, was the interim director of OMKM for eight years and the associate director for eight years prior to that.
She testified that the Astronomy Prescient, located in the Conservation District and Historic District on Mauna Kea, is a boundary created by the university to make management easier and to consolidate astronomy to the one area of the mountain.
Nagata testified that OMKM consists of 10 employees and 11 rangers. The rangers report directly to her, she said. The rangers’ enforcement authority stems from the Public Access Plan.
Petitioner Kealoha Pisciotta attempted to clarify this authority. Nagata answered that they operated under state laws.
Upon further questioning, Nagata said that OMKM has the “legal authority” to enforce laws only when working with the Division of Conservation and Resources Enforcement.
Before moving on, Pisciotta noted for the record that she did not think Nagata answered the question.
Attorney Dexter Kaiama asked Nagata who assigns the rangers their duties and responsibilities.
After a series of confusing questions, it became clear that the OMKM gives guidance to the rangers on daily responsibilities and Mauna Kea Support Services handles the hiring and the human resources aspects.
Nagata was also questioned on OMKM’s Burial Treatment Plan.
Pisciotta asked Nagata about the process: who was contacted for Native Hawaiian input on the plan, and specifically, if Mauna Kea Anaina Hou, herself, Paul Neves or the Royal Order of Kamehameha had been contacted as individuals having cultural and lineal ties.
Nagata said they attempted to contact the individuals on the list but got no response. She said that Mauna Kea Anaina Hou is not an individual and as far as she knew, the group was not on the preapproved list of applicants.
Many questions posed by the various cross-examiners pertained to previous testimony by OMKM employees.
Petitioner Deborah Ward asked under what jurisdiction do OMKM employees have the authority to dismantle contemporary shrines and structures.
Nagata testified that these actions are in compliance with the existing rules and regulations.
Native Hawaiian cultural practitioner and OMKM Senior Advisor Wallace Ishibashi previously testified about OMKM’s policy regarding the removal of upright stones, ahu (shrines) and other items found on the mountain.
Ishibashi had testified that OMKM will remove unpermitted items without going to the advisory boards for each individual situation.
Ishisbashi testified that the procedures OMKM follows are the rules set by the DLNR. He stated that after 30 days, unpermitted items are removed.
Nagata testified that this is in compliance with DLNR laws.
She also stated that she was not aware of Ishibashi’s actions involving the upright stone until after it was taken down.
Pisciotta asked Nagata about her knowledge of the disappearance of her family stone from the mountain.
Nagata testified she was aware that the stone had been removed three times and that after the third time, the stone never returned.
Nagata said there used to be an ahu there but that in bad weather, it was blown down.
She told Pisciotta in order to rebuild, she would need a permit from the DLNR.
Nagata said an OMKM employee was not responsible and that there were no actions taken.
Pisciotta questioned Nagata regarding the times the public access road was closed to Native Hawaiian cultural practitioners but not to astronomers or observatory staff.
Nagata testified that the Comprehensive Management Plan gives OMKM jurisdiction to close the road for “health and safety reasons.”
Nagata stated that the University of Hawai‘i is responsible for the health and safety of the general public for anyone on the mountain, including Native Hawaiian cultural practitioners and that the observatories are responsible for their employees.
She also said that the vehicles used by astronomers and their staff are equipped to drive a road with ice and snow on it.
During petitioner William Freitas’ cross-examination, he said that “the emotionally charged day” was taking a toll on him.
Apologizing, Freitas said, “I get emotional when it comes to sacred sites.”
Frietas asked about the site visit that the hearing parties, including Judge Riki May Amano, made to the proposed Thiry Meter Telescope site last fall.
Nagata testified that it was Hearing Officer Amano who “indicated we’d drive through the sites.”
Frietas argued that in the previous cross-examination of Ishibashi, the hearing officer did not get to see the full view of the TMT site and the petitioners’ sacred sites from inside the vehicle. He said that it was also difficult to see the balloon which was to be 187 feet high representing the height of the structure.
Attorney Kaiama also questioned Nagata about OMKM’s meeting and the Sunshine Law. The Sunshine Law is Hawai‘i’s open-meetings law, which governs the manner in which all state and county boards must conduct their official business.
Nagata told Pisciotta that OMKM is not required to follow the Sunshine Law but that they follow it anyway.
Kaiama also questioned Nagata on the statements she made to Pisciotta regarding a permit being required to conduct a traditional cultural practice on Mauna Kea.
It would require talking to OMKM, advice from Kahu Kū Mauna and then an application submission to the DLNR.
Nagata testified that at this time there are no forms, no application or formal procedure available for someone like Pisciotta, for example, who may want to build or even rebuild an ahu.
During petitioner Mehana Kihoi’s cross-examination, Nagata stated that she does not believe Mauna Kea or any site in Hawai‘i is sacred.
Many times throughout the day, UH Attorney Tim Lui Kwan objected before a question was asked.
The reason for this was unclear, as the majority of these objections were overruled by Hearing Officer Amano. But it was also very clear that it impacted the cross-examiners’ line of questioning, often followed by Nagata requesting that the question be repeated.
In addition, a large amount of time throughout the day was spent while Nagata was asked to reference one of the over 30 exhibits she has associated with her written direct testimony.
Many participants expressed concerns over the impact the hearing is having on their lives, health and overall ability to prepare and present their case.
This is not the first time concerns of this type have come up since the contested case hearing began in early October.
To read Nagata’s written, direct testimony, go online.
The hearing continues Monday, Dec. 12, with the remaining cross-examination of Nagata. Out of the over 20 participants, about half are left to question Nagata.
Following Nagata, TMT International Observatory witness Naea Stevens will be called to the stand.
Stevens will testify about his experience working on the mountain, as well as how this access to the mountain has allowed him to connect with his Hawaiian heritage.
Download TIO’s full witness list here.
The BLNR contested case December hearing dates are 13, 16, 19 and 20.
UH witness Tom Nance is expected to testify Tuesday, Dec. 13, on water resources.
The university may rest its case and the TIO witnesses would continue on Friday, Dec. 16.
The dates in 2017 include Jan. 3 to 5, 9 to 12, 19, 23 to 26, 30 and 31.