(BIVN) – The hearing officer in the Thirty Meter Telescope contested case hearing has issued her decision, and is recommending a Conservation District Use Permit be granted, allowing the observatory to be built on Mauna Kea.
Retired Judge Riki May Amano filed her Proposed Findings of Fact, Conclusions of Law, and Decision and Order on Wednesday, siding with the applicant, the University of Hawaii-Hilo, as well as the international group spearheading the TMT project, which will sublease the land on the northern plateau from the university. The sublease is also the focus of a separate contested case hearing.
The final decision on the permit will now be up to the Board of Land and Natural Resources.
“We are currently reviewing the Order,” the DLNR wrote in a statement. “Now that Judge Amano has issued the Order, the Board will set a deadline for the parties to file exceptions to her recommendations and another deadline for the parties to file responsive briefs to the exceptions. The Board will also set a date for oral argument before the Board. After oral argument, the Board will issue its final written decision and order.”
Governor David Ige issued a quick statement on the decision.
“I want to thank hearing officer and former Judge Riki May Amano for her diligent work in making a recommendation to the Board of Land and Natural Resources regarding the Thirty Meter Telescope (TMT) project at Mauna Kea,” Ige said. “We are in the process of reviewing the conditions included in the decision. Regardless of the BLNR’s ultimate decision, I support the co-existence of astronomy and culture on Mauna Kea along with better management of the mountain.”
UPDATE (5:34 p.m.) – TMT executive director Ed Stone issued a statement on Amano’s decision:
“TMT welcomes the recommendation that a state permit be issued and we respectfully look forward to the next steps,” Amano said. “We appreciate that Judge Riki Amano worked carefully and tirelessly to ensure all voices were heard during the contested case hearing. We are grateful to all our supporters and friends who have been with us during the hearing process and over the past ten years and we remain respectful of the process to ensure the proper stewardship of Maunakea.”
UPDATE (6:14 p.m.) – Kealoha Pisciotta, a member of Mauna Kea Anaina Hou and one of the participants in the contested case opposed to the TMT project, said over the phone that “everyone feels generally bad, but not unhopeful,” in regards to Amano’s recommendation. “It’s really hard to face the fact that we have a bad political situation. When the politics fail the only recourse is the court system,” Pisciotta said.
Pisciotta said she is “very disappointed,” adding she “would have assumed Amano would taken more time to assess the actual facts of the case. There were thousands of facts to be evaluated.”
“They’re still vastly far from moving a single rock or stone for TMT,” Pisciotta said, adding that proponents still have to go before the land board, get through a contested case for the sublease, and then – if needed – three appellate courts, possibly.
In 2016, Governor David Ige signed HB1581 (ACT 48) into law allowing contested case hearings like this one to be directly appealed to the Hawai‘i Supreme Court. The law also requires the Supreme Court to give priority to contested case appeals of significant statewide importance. The new law took effect on August 1, 2016.
“We’re prepared,” Pisciotta said, adding that the TMT has to “tell their people the truth, this time” as far as how long it might take to begin construction. Pisciotta said TMT partners need to “really assess the legal challenges that are going to come.”
Stone has previously stated TMT wants “to ensure we have by April 2018 a site suitable to start construction should Maunakea not be feasible.” The observatory has signed a bilateral hosting agreement “governing the conditions for hosting TMT at Observatorio del Roque de los Muchachos (ORM) on La Palma,” but has stated their primary hope is to build TMT on Mauna Kea.
“We also feel hopeful,” Pisciotta said, because “the courts have been pretty consistent, coming down on the side of the environment and native Hawaiian rights.”
Amano’s recommendation comes with multiple conditions:
(1) UH Hilo shall comply with all applicable statutes, ordinances, rules, regulations, and conditions of the Federal, State, and County governments, and applicable parts of the HAR § 13-5 et seq.;
(2) UH Hilo shall obtain appropriate authorization from the Department for the occupancy of state lands, if applicable;
(3) UH Hilo shall comply with all applicable Department of Health administrative rules;
(4) Any work done or construction to be done on the land shall be initiated within two (2) 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 twelve (12) years of the approval. The UH Hilo shall notify the Department in writing when construction activity is initiated and when it is completed;
(5) Before proceeding with any work authorized by the Board, UH Hilo shall submit four copies of the construction and grading plans and specifications to the Chairperson or his authorized representative for approval for consistency with the conditions of the permit and the declarations set forth in the permit application. Three of the copies will be returned to UH Hilo. Plan approval by the Chairperson does not constitute approval required from other agencies;
(6) All representations relative to mitigation set forth in the Environmental Impact Statement and Conservation District Use Application are incorporated and adopted as conditions of the permit;
(7) All mitigation measures and management actions contained in the Historic Preservation Mitigation Plan, Construction Plan, Historical & Archaeological Site Plan, Maintenance Plan, and Arthropod Monitoring Plan, are incorporated as conditions of this permit;
(8) The TMT Project will comply with any terms and conditions outlined in the Comprehensive Management Plan and associated sub-plans; and
(9) The TMT Management Plan is approved, including all specific management actions articulated in the TMT Management Plan including, Cultural Resources Management, Natural Resources Management, Education & Outreach, Astronomical Resources, Permitting and Enforcement, Infrastructure and Maintenance, Construction Guidelines, Site Recycling, Decommissioning, Demolition & Restoration, Future Land Uses, and Monitoring, Evaluation & Updates. These management actions and their associated mitigation measures are incorporated as conditions of this permit.
Amano also included the following additional conditions to be implemented by UHH, Office of Mauna Kea Management and TIO, the international corporation behind the TMT observatory:
(1) Ensuring that employees attend mandatory cultural and natural resources training;
(2) Working with the ‘Imiloa Astronomy Center and OMKM to develop informational exhibits for visitors regarding the natural, cultural and archaeological resources of Mauna Kea;
(3) Funding the re-naturalization of the closed access road on Pu‘u Poli‘ahu, partial re-naturalization of the batch plant staging area after construction has been completed, and camouflaging of the utility pull boxes in certain locations to reduce the visual impact from the summit area;
(4) Implementing an invasive species control program;
(5) Working with OMKM to develop and implement a wēkiu bug habitat restoration study;
(6) Implementing the “Zero Waste Management” policy;
(7) Filling employment opportunities locally to the greatest extent possible;
(8) Mandating that employees traveling beyond Hale Pōhaku take part in a ridesharing program using project vehicles;
(9) Using energy savings devices such as solar hot water systems, photovoltaic power systems, energy efficient light fixtures, and Energy Star rated appliances;
(10) Providing $1 million annually, adjusted for inflation, for “Community Benefits Package” which will commence with construction and continue through the term of the sublease. The package will be administered via The Hawai‘i Island New Knowledge (THINK) Fund Board of Advisors;
(11) Partnering with other institutions to implement a Workforce Pipeline Program, headed by at least one full-time position through the Community Outreach office, to prepare local residents for jobs in science, engineering, and technical fields;
(12) The University will ensure that the survey of the power line corridor easement complies with DLNR standards and is in accordance with the conditions contained in the grant of easement (including the Mauna Kea Ice Age Natural Area Reserve) that was approved by the BLNR in August 1985. The University will provide copies of the survey to DOFAW;
(13) OMKM will consult with the U.S. Fish and Wildlife Service and experts who are advising OMKM, including representatives from the DLNR regarding surveys of the wēkiu bug and invertebrates along the utility corridor, including Pu‘u Hau Kea and the pu‘u west of the Parking Area 1;
(14) The construction contractor will be required to minimize the visual changes to land within the utility line right-of-way during utility upgrades. Any disturbance outside of the easement area of the construction corridor will be restored to the extent possible;
(15) UH Hilo will present a plan for handling recreational parking during construction to the OCCL for review and approval, at least one month prior to beginning construction;
(16) Following construction, TMT shall keep their area clean and free of trash or unattended tools and equipment, unless authorized in writing by OMKM and OCCL;
(17) The Archaeological Monitoring Plan will be submitted to the State Historic Preservation Division for review and approval prior to the onset of construction;
(18) TIO will pay a “substantial” amount for sublease rent. The rent would be deposited into the Manna Kea Land Fund, and only used for management of Mauna Kea;
(19) UH Hilo will notify OCCL of the date of the twice-annual inspections of the project site and allow Department staff to attend if available;
(20) UH Hilo will provide OCCL and BLNR a copy of their annual report to OMKM;
(21) UH Hilo will allow BLNR to name a DLNR representative to participate in the CMP five-year management review process;
(22) When provided or required, potable water supply and sanitation facilities shall have the approval of the Department of Health and the county Board of Water Supply;
(23) UH Hilo understands and agrees that this permit does not convey any vested rights or exclusive privilege;
(24) In issuing this permit, the Department and Board have relied on the information and data that UH Hilo has provided in connection with this permit application. If, subsequent to the issuance of this permit, such information and data prove to be false, incomplete or inaccurate, this permit may be modified, suspended or revoked, in whole or in part, and/or the Department may, in addition, institute appropriate legal proceedings;
(25) Where any interference, nuisance, or harm may be caused, or hazard established by the use, UH Hilo shall be required to take the measures to minimize or eliminate the interference, nuisance, harm, or hazard;
(26) Should historic remains such as artifacts, burials or concentration of charcoal be encountered during construction activities, work shall cease immediately in the vicinity of the find, and the find shall be protected from further damage. The contractor shall immediately contact the State Historic Preservation Division (692-8015), which will assess the significance of the find and recommend an appropriate mitigation measure, if necessary; the Applicant will also notify the Office of Hawaiian Affairs at the same time;
(27) During construction, appropriate mitigation measures shall be implemented to minimize impacts to off-site roadways, utilities, and public facilities;
(28) No construction work shall be initiated until the Applicant demonstrates compliance with all preconstruction conditions and mitigation measures outlined in this report. Once this condition has been satisfied, the Department will issue notice to proceed with construction;
(29) TIO shall set aside funds annually in a sufficient amount to allow for site observatory and access way site restoration;
(30) Daytime activities at TMT will be minimized on up to four days per year, as identified by Kahu Kū Mauna; and
(31) Other terms and conditions as may be prescribed by the Chairperson