HAWAII – On Friday, the Hawaii Supreme Court ordered the Thirty Meter Telescope court case be transferred from the Intermediate Court of Appeals (ICA) to their review, and opponents of the $1.4 billion observatory planned for Mauna Kea called the announcement “good news”.
The Mauna Kea Hui is challenging the state Board of Land and Natural Resources’ decision to grant a conservation district use permit (CDUP) to the University of Hawaiʻi at Hilo for construction of the TMT. The state Third Circuit affirmed the BLNR decision, which the Mauna Kea Hui appealed to the ICA, and on May 10 the Hui filed an application to transfer the case to the Hawaii Supreme Court. The University of Hawaii at Hilo opposed the transfer in a May 15 filing.
The Mauna Kea Hui members – Kealoha Pisciotta of Mauna Kea Anaina Hou, Deborah J. Ward, Clarence K ū Ching, the Flores-Case ʻOhana (E. Kalani Flores and Pua Case), Paul Neves, and KAHEA: The Hawaiian-Environmental Alliance – are encouraged by the Hawai`i Supreme Court’s decision. The Hui is being represented by attorney Richard Naiwieha Wurdeman. They issued a media release on Friday.
One of the criteria that the Supreme Court considers in granting an application for transfer is whether the matter involves a question of imperative or fundamental public importance. Wurdeman said UHH, on behalf of TMT, had strenuously objected to his clients’ application for transfer of the appeal from the ICA to the Hawaii Supreme Court for review. Mauna Kea Hui
The State Department of Land and Natural Resources issued a Notice to Proceed to TMT on March 6th, but the project remains in a state of delay as opposition has managed to perpetually block construction crews from the Mauna Kea Access Road. A round of arrests on April 3 only galvanized the resistance. The situation forced the governor to take action.
The grant of transfer comes in the wake of UH’s public concessions of its mismanagement of Mauna Kea and agreements to Governor Ige’s plans for purported “improvements” on Mauna Kea, all of which fall short because they were premised on continued support of the TMT project. “These are interesting, to say the least,” said Wurdeman, “given the University’s vigorous opposition in legal battles.”Mauna Kea Hui
The Mauna Kea Hui noted the legal parallel to another observatory project being carried out on Maui’s Haleakala.
In a separate case, the ICA had earlier ruled against the Kilakila o Haleakal ā ’s similar appeal concerning the University ’s CDUP for an Advanced Technology Solar Telescope (ATST) to be constructed on the Haleakal ā summit. The Hawaiʻi Supreme Court subsequently granted a request for review and oral arguments were held in April in that case. Now, appeals from both the TMT and ATST CDUPs are under review by the Hawaiʻi Supreme Court. The Supreme Court has not yet issued an order on whether oral arguments will be held in the Mauna Kea case.
Deborah Ward said the court’s decision to hear the case is “heartening” and Kealoha Pisciotta stated, “This is good news and recognizes the importance of our case for all of Hawaiʻi.” Both cases may bear on the ways conservation districts islandwide will be treated. CDUPs are essentially variances for construction in conservation districts and can be granted only if a project meets eight criteria, including an absence of substantial adverse impact, preservation of natural beauty, and consistency with conservation district purposes.
“The transfer signals that the Hawai’i Supreme Court, in unanimity, believes that the so-called TMT Conservation District Use Permit deserves the utmost legal scrutiny and priority,” stated K ū Ching.Mauna Kea Hui