Sunday | February 19, 2017
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A mountain of challenges


Tribune-Herald staff writer

Dozens of supporters for Mauna Kea Anaina Hou, a Native Hawaiian group challenging a Board of Land and Natural Resource decision to approve a construction permit to build one of the world’s largest telescopes at the top of Mauna Kea, flooded the Third Circuit Court in Hilo on Friday morning.

Dressed in traditional Hawaiian apparel while chanting and chatting, they made their way to Hilo Circuit Judge Greg Nakamura’s courtroom where legal counsel for both groups presented their oral arguments.

Richard Naiwieha Wurdeman represented Mauna Kea Anaina Hou, while Jay Stuart Handlin acted as legal counsel for University of Hawaii at Hilo, an applicant for the California-based Thirty Meter Telescope project’s land-use permit. Julie China represented BLNR.

Wurdeman said the BLNR violated due process when approving the Conservation District Permit for the project because they approved the permit before having a contested case hearing.

“The BLNR didn’t have to make the approval. They shouldn’t have made the approval, but they did,” he said. “And that, first and foremost, is a gross error and it violated the due process rights and the remedy for that, your honor, is to vacate and conduct a contested case hearing in front of a neutral officer.”

Wurdeman then went on to say the applicant for the permit, UH-Hilo, did not meet the requirements for an issuance of a CDP.

“They’re building a metallic, 18-story, 8-and-a-half-acre industrial complex on top of Mauna Kea in an area that has not yet been developed,” he said. “It’s completely disingenuous to say that it is somehow preserving the area.”

Handlin responded by arguing the petitioners are incorrect in stating the BLNR and its applicant did not follow due process, arguing that the Department of Land and Natural Resources’ rules on practice and procedure say that a contested case hearing can be held after any public hearing.

“From a practical point of view, it makes sense because agencies deny applications all the time,” he said. “So imagine if someone comes in and they’re armed and ready to ask for a contested case and they get their contested case before the agency has acted. And the agency says, ‘Wait a second, we’re going to deny that case.’ Well, if the appellants have their way, if their rules apply here saying the contested case should go first before the agency says which way it’s going to go, respectively, that doesn’t make sense.”

He attempted to poke holes in Wurdeman’s argument that the project does not meet the requirements for a CDP.

“The last thing I want to say, the appellants’ position here, fundamentally, is that this project is responsible for reaching back in time and mitigating things that other past projects have done. They say it over and over and over again in their papers. They say that because prior land uses on Mauna Kea caused substantial adverse impacts, by definition, doing anything with this project will cause substantial impacts.”

China followed by arguing that the board was required to take in consideration the project’s economic and social benefits, as well as its effects on the land.

“The board is not constrained. It’s required there be a balance of protection of the natural resources and use that promotes the economic and social interest of the people. So, under the public trust doctrine, the board was correct to look at the TMT’s impact, both it’s impact and benefits.”

Wurdeman made a rebuttal, bringing up the issue of due process again after China and Handlin’s statements.

“Due process trumps everything and is fundamental in our constitution, you honor,” he said. “Whatever they ruled before evidence was presented, that’s what happened. They thought the petitioners had something to say and had a right to present evidence but they ruled before that happened.”

Judge Nakamura declared a recess following the oral arguments and did not make a decision on Friday.

The TMT project formed in 2003. Observatories and universities from Canada, Japan, China, India and the United States support the $1.3 billion initiative. The telescope is projected to begin operations in 2022.

TMT Manager of Hawaii Community Affairs Sandra Dawson previously told the Tribune-Herald that plans are in the works to start construction in the second quarter of 2014, pending a final decision of the TMT Board of Directors and a sublease granted by UH.

Kealoha Pisciotta, president of Mauna Kea Anaina Hou, said that if the ruling is not in their favor, they intend to file another appeal.

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