Why were oral arguments challenging permit of Thirty Meter Telescope deferred? Nobody will say

Today, the Hawaiʻi Board of Land and Natural Resources was supposed to hear a 2-year-old challenge to the $2.65 billion Thirty Meter Telescope project on Maunakea, according to an order dated July 3.

But those oral arguments — to address whether the TMT International Observatory and the University of Hawai‘i, the current land manager of the Big Island mountain’s summit, met a time-sensitive condition in the project’s conservation district use permit — were deferred. Nobody will say why.

The Hawai‘i Department of Land and Natural Resources, which announced the postponement on July 21, provided no reason why the arguments would not be heard at the July 28 regular Land Board meeting. It also would not say how long the arguments will be stalled.

“As this is considered a continuation of a previous hearing, we cannot make any comment until the Board of Land and Natural Resources continues the hearing,” said Dan Dennison, senior communications manager of the Department of Land and Natural Resources.

He said the department is working with all parties on scheduling a continuation, and that all parties will be notified via another order when a new date is selected.

Land Board Chairwoman Dawn Chang also filed on July 17 a disclosure statement in relation to the matter in which she shared her history as principal at Ku‘iwalu Consulting from 2001 to 2022.

During her time at the firm, Chang was contracted in 2007 by the University of Hawai‘i to prepare a comprehensive management plan for state leased lands on Maunakea that are managed by the university.

In 2020, while Chang was still a principal at Kuʻiwalu Consulting, the firm was contracted by the Department of Land and Natural Resources to conduct an independent assessment of the university’s implementation of that comprehensive management plan. She was never employed by Thirty Meter Telescope as a consultant.

Chang said in here disclosure statement that she does not believe her previous work as a consultant in preparing the comprehensive management plan or independently evaluating the university’s compliance with the plan will affect her ability to be fair and objective in weighing the evidence and arguments fairly.

The Thirty Meter Telescope is one of a new class of extremely large land-based telescopes that will allow astronomers to see deeper into space and observe cosmic objects with unprecedented sensitivity and detail. Its 30-meter-diameter prime-mirror will enable observations from ultraviolet to mid-infrared wavelengths with up to 80 times the sensitivity of today’s largest telescopes.

The telescope, according to the TMT International Observatory website, will allow astronomers to address fundamental questions in astronomy ranging from understanding star and planet formation to unraveling the history of galaxies and the development of large-scale structure in the universe.

The Maunakea Hui, which is comprised of several groups and individuals opposed to the construction of the telescope atop Maunakea, is challenging the university’s compliance with condition No. 4 of the project’s conservation district use permit.

That condition stipulates that “any work done or construction to be done on the land shall be initiated within two years of the approval of such use, in accordance with construction plans that have been signed by the chairperson, and unless otherwise authorized, shall be completed within 12 years of the approval.”

The condition also says the university must notify the state Land Department in writing when construction activity is initiated and completed. The permit was approved by the Land Board in September 2017.

The university asked in the summer of 2019 for a two-year extension of the permit, citing work on the Thirty Meter Telescope project had been initiated, including a partial survey of the access road, locating underground fiber optic and electrical lines, testing GPS equipment and verification of benchmark locations and coordinates with the existing site survey.

There also was an attempt on July 15, 2019, to move construction equipment to the project site, but crews were blocked by demonstrators at the Maunakea Access Road.

The request was granted in September that year by then-Land Board Chairwoman Suzanne Case, moving the goal post to Sept. 26, 2021.

The university again asked the Land Department in April 2021 to acknowledge and concur that work on the telescope project had been initiated, adding that also included the removal of an unpermitted ahu (altar) in June 2019, a kickoff meeting at the beginning of July 2019 to discuss construction procedures and other concerns, and inspection of construction equipment and vehicles by the Big Island Invasive Species Committee on July 15, 2019.

The Maunakea Hui claims none of that constitutes work or construction.

“[TMT International Observatory] provides extensive contortions of the definitions of ‘work’ and ‘construction’ in support of its contention that [the University of Hawai‘i at Hilo] has initiated work or construction of the TMT,” says the Hui’s reply to the observatory’s Nov. 21, 2021, memorandum of opposition to the group’s challenge. “What is plain to the rest of the world, however, is that the TMT is not being constructed, nor will it be initiated any time soon”

The Maunakea Hui’s position is that:

• The Department of Land and Natural Resources incorrectly approved the university’s claims to have initiated work on the land or construction of what will be one of the world’s largest telescopes.

• The chairperson’s summary approval of the university’s request go against the due process rights of the Maunakea Hui because the reasons for non-compliance with condition No. 4 require full examination by the Land Board, which should reconsider its initial granting of the conservation district use permit in 2017.

• The university’s letter to the Land Department’s Office of Conservation and Coastal Lands was an improper request for determination of conditions under “an unlawful rule.”

• The university failed to provide supportive documentation for its claim to have initiated work on the land or construction of the Thirty Meter Telescope.

Attorney Bianca Isaki, one of two lawyers who represent the Maunakea Hui, has asked twice during the past two years for the board to set a hearing for the group’s motion, the first time in October 2021 and the second in February of this year.

When it will finally make it onto a board agenda, however, remains unknown. The parties involved are being tight-lipped about the proceedings.

“We’re just not comfortable really discussing our legal arguments right now before the hearing,” Isaki said in a voicemail, adding she was not able to answer any questions.

Riley Smith, the Hawai‘i Island representative on the state Land Board, said essentially the same: “Since this matter is in litigation, I am not able to comment further.”

Dan Meisenzahl, director of the University of Hawai‘i Office of Communications, said the university also does not comment on pending legal matters.

The university has managed the lands atop Maunakea since 1968; but it will hand over those stewardship duties to the new Maunakea Stewardship and Oversight Authority in July 2028 following a five-year transition phase. The new state agency and the board that oversees it were created last year by the Hawai‘i State Legislature.

All public documents related to the Maunakea Hui’s permit compliance challenge of the Thirty Meter Telescope, including any updates about a new hearing date, can be found online.