Wednesday | July 26, 2017
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Court remands TMT sublease

State officials will have more than the Thirty Meter Telescope’s land use permit to reconsider after a Hilo Circuit Court judge remanded the $1.4 billion project’s sublease Friday.

After hearing from plaintiff E. Kalani Flores, who was representing himself, and attorneys for the state and University of Hawaii, Judge Greg Nakamura ordered the state Board of Land and Natural Resources to revisit its approval of the giant proposed telescope’s land lease on Mauna Kea and the issues raised by opponents who consider the mountain sacred.

The ruling, which appears to leave the sublease with UH intact, isn’t as bruising for the project as the state Supreme Court’s ruling overturning its Conservation District use permit last December, but it nonetheless gave the mostly Native Hawaiian opponents of the next-generation observatory another reason to cheer.

Applause filled the gallery following the decision, and Flores, who was greeted by more than two dozen supporters outside the courtroom, held his fist in the air in a show of triumph.

Still, he acknowledged there’s more work for them to do.

“(Nakamura’s) saying that the Mauna Kea Anaina Hou case, the Supreme Court ruling … (reaffirms) certain things, and now the board has got to take those into consideration,” Flores, a Hawaii Community College professor and Hawaiian cultural practitioner, told supporters. “… But beyond that, it’s kind of vague. It didn’t say whether it was invalidated or not. It doesn’t say. It just says it is being remanded back to the board.”

“It’s good,” he added, “so mahalo!”

Flores, who was a plaintiff in the case that overturned TMT’s land use permit, further stalling construction of the 180-foot-tall telescope, argued that the state was continuing to put “the cart before the horse” by approving the sublease for 6 acres below the mountain’s summit in 2014.

He noted that the sublease is only valid as long as UH’s master lease for the mountain, set to expire in 2033, exists, and he questioned whether the state could be sued by TMT if the university isn’t granted an extension.

Additionally, Flores said a contested case hearing and a cultural impact analysis should be held on the sublease. He also said former Land Board member Rob Pacheco should have recused himself from voting on the sublease since he operates a commercial tour on the mountain.

“I’m trying to bring integrity to this whole process,” he said to Nakamura.

Deputy Attorney General Julie China said a contested case hearing, like the one that occurred for consideration of the now-defunct land use permit, isn’t required for a sublease. She also said there is no requirement that Pacheco recuse himself, and if he did, the sublease would still have been approved.

Flores responded that if Pacheco’s vote is invalid, so is his motion to approve the agreement.

China declined to comment after the ruling.

UH attorney Arsima Muller also said Flores’ claims are without merit.

A spokesman for the state Attorney General’s Office said in an email that he would defer comment until he was able to review the order, which he had not yet received from the court.

While the project continues to face legal challenges, TMT officials have said Mauna Kea, one of the world’s premiere astronomy sites, remains their main choice, though they are looking for alternative locations. The mountain is home to 13 telescopes, with some planned to be removed.

TMT’s land use permit, overturned because the Land Board voted for it before having the contested case hearing, is expected to go before a new hearing’s officer later this year.

Nakamura, who previously ruled in favor of the state on the land permit issue, officially remanded the permit back to the board late last month.

Scott Ishikawa, a TMT spokesman, said project officials are deferring comment about Friday’s ruling since they were not a party to the lawsuit.

TMT officials have said they want to know whether they can proceed with the project by late this year or early next year.

TMT is currently paying $300,000 a year for its sublease. That will increase to $1.08 million in a decade.

The telescope, expected to see more than 13 billion light years away, is one of three next-generation observatories planned. The other two are in Chile.

TMT’s partners include Caltech, University of California, Association of Canadian Universities for Research in Astronomy, and national institutes in Japan, China and India.

Email Tom Callis at tcallis@hawaiitribune-herald.com.

 

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