In another major setback for the Thirty Meter Telescope, a Hilo Circuit Court judge today invalidated the state’s approval of the project’s sublease for Mauna Kea, attorneys for the plaintiff announced.
Judge Greg Nakamura ruled the state Board of Land and Natural Resources violated the constitutional rights of E. Kalani Flores by not holding a hearing when it consented to the agreement between the University of Hawaii at TMT International Observatory in 2014, according to the Native Hawaiian Legal Corp.
A written ruling wasn’t immediately available so the full impact of the decision isn’t clear.
David Kopper, attorney for plaintiff E. Kalani Flores, said he believed the ruling would require the Land Board to go through a seperate contested case hearing if it wants to renew its consent.
“They (UH and TIO) can do whatever they want but it’s not legally enforceable unless you have this consent from the board,” he told the Tribune-Herald. “There is no consent at this time.”
Officials with UH, the state attorney general’s office and TIO weren’t immediately available for comment.
Previously in the case, Nakamura had remanded the sublease to the Land Board for additional review. That occurred last March but it doesn’t appear the state took additional action.
“To me it confirms that Native Hawaiian cultural practices have a right to be involved in these agency decisions,” Kopper said of the ruling. “And their interests are no less important than other commercial interests.”
In a press release, Flores said: “Judge Nakamura’s ruling reaffirms our position that the BLNR’s actions have failed to protect Native Hawaiian rights and the public’s interest in these public lands on Mauna a Wakea.”
This is the second time a court has found the state erred in approving the $1.4 billion project, opposed by some Native Hawaiians who say it will desecrate sacred land.
A year ago, the state Supreme Court also ruled that opponents’ rights were violated by the Land Board voting in favor of a conservation district land use permit before a contested case, which is a quasi-judicial hearing, was held in 2011.
That resulted in a second hearing being held for the permit, which has been ongoing since October and is scheduled through January.
A TIO board member said last month that the organization intends to resume construction either on Mauna Kea or the Canary Islands, its alternate site, in April 2018.
The telescope organization’s partners are 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.
