Thursday | March 30, 2017
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State to appeal TMT sublease ruling

The state will challenge a Hilo Circuit Court ruling requiring a contested case hearing for the Thirty Meter Telescope’s sublease with the University of Hawaii at Hilo.

Judge Greg Nakamura ruled orally last month that the state Board of Land and Natural Resources also should have held a hearing for that agreement, in addition to the $1.4 billion project’s land use permit.

He issued a written order Friday vacating the Land Board’s consent to the sublease, issued in 2014, for 6 acres on Mauna Kea, sending the issue back to the Land Board.

“This judgment may have broad ramifications for future cases before the Land Board,” said state Attorney General Doug Chin in a statement. “Therefore, while we respect the court’s decision, we do plan to appeal it within 30 days, as the law requires.”

E. Kalani Flores, a Native Hawaiian cultural practitioner, had appealed the Land Board’s consent to the sublease after being denied a contested case.

He initially filed the challenge pro se, but later was represented by the Native Hawaiian Legal Corp.

“I think the law is clear that the (Land Board) was supposed to give Mr. Flores a contested case hearing,” said NHLC attorney David Kopper. “… It’s been a fight with the department to honor practitioners’ rights.”

Kopper said a sublease contested case would address lease payments and property management.

A second contested case is ongoing for the project’s conservation district use permit that allows for construction of the 180-foot-tall observatory.

An earlier contested case in 2011 resulted in a favorable recommendation for the project, but the state Supreme Court ruled in December 2015 that the Land Board violated due process rights for project opponents by voting for the permit before that review started.

Since 2014, TIO has been paying $300,000 a year for its sublease. That is scheduled to gradually increase to $1.08 million after 10 years.

Eighty percent of the funds goes to the Office of Mauna Kea Management, while the other 20 percent is supposed to go to the Office of Hawaiian Affairs.

A TIO spokesman said it’s unclear how the sublease issue will affect the project’s timeline.

UH-Hilo holds a master lease for the Mauna Kea Science Reserve.

The appeal will go to the state Intermediate Court of Appeals.

Email Tom Callis at


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