Supreme Court Rules in Favor of State on TMT

A rendering of the Thirty Meter Telescope. Photo credit: Thirty Meter Telescope

The Hawai‘i Supreme Court ruled unanimously on Wednesday, Aug. 8, 2018, that the state Board of Land and Natural Resources (BLNR) was not required to hold a contested case hearing before consenting to a sublease by the University of Hawai‘i (UH) to TMT International Observatory (TIO) for the construction of the Thirty Meter Telescope (TMT) on Maunakea.

“We are pleased with the Supreme Court’s decision affirming the actions of UH and BLNR in the first of the TMT-related appeals,” said Attorney General Russell Suzuki.

“We are pleased with the Hawai‘i State Supreme Court’s decision to uphold the state Board of Land & Natural Resources’ sublease between the University of Hawaii and the TMT International Observatory,” said TMT International Observatory Board of Governors Chair Henry Yang. “We thank all of the community members who contributed their thoughtful views during this entire process. We will assess our next steps, as we await resolution of the final appeal before the court related to the Conservation District Use Permit. While it has been a long journey to get here, we remain committed to Hawai‘i and thank everyone for their support over the last 10-plus years.”

On Dec. 16, 2016, Hilo circuit court judge Greg Nakamura vacated BLNR’s consent to the sublease because no contested case was held. A contested case had been requested by E. Kalani Flores. UH and BLNR appealed Judge Nakamura’s decision, and the appeal was argued before the Hawai‘i Supreme Court last March.

Overturning the decision, the court held that the circuit court erred in ruling that BLNR violated Flores’s constitutional rights when it denied his request for a contested case hearing. The court stated:  “[W]e agree with BLNR and the university that BLNR was not required to hold a contested case hearing prior to consenting to the sublease because such a hearing was not required by statute, administrative rule, or due process under the circumstances of this case.”

The court noted that Flores already participated in a separate contested case hearing on BLNR’s approval of a conservation district land use permit to UH. In that hearing, Flores was “afforded a full and fair opportunity to express his views and concerns” as to the effect of the TMT’s construction on his Native Hawaiian cultural practices.

In a separate appeal, several parties have asked the Hawai‘i Supreme Court to overturn BLNR’s approval of the conservation district land use permit for the TMT. That appeal was argued in June and is currently pending before the Hawai‘i Supreme Court.

The University of Hawaiʻi provided the following statement on the Hawaiʻi State Supreme Court’s decision to uphold the state Board of Land and Natural Resources’ sublease between UH and the Thirty Meter Telescope International Observatory:

“The University of Hawaiʻi is pleased with the State Supreme Court’s unanimous decision in the Kalani Flores vs. Board of Land and Natural Resources matter announced today. It is a significant step forward in what has been a very long and important process, and we eagerly await the court’s decision on the conservation district use permit for the Thirty Meter Telescope. Regardless of what happens, UH stands fully committed to collaborative stewardship that demonstrates Maunakea as an inspiring and harmonious global model for culture, the environment and groundbreaking scientific discovery coming together synergistically for the benefit of all.”