Contested case hana hou? DLNR seeks hearing officer for TMT sublease

The state Department of Land and Natural Resources has taken the first step toward starting a contested case hearing for the Thirty Meter Telescope’s sublease on Mauna Kea by seeking applicants for a hearing officer.

But it remains unclear when or if the quasi-judicial hearing — the third so far — will be held.

The lower court ruling requiring a hearing for the sublease with the University of Hawaii at Hilo is under appeal, and the department’s solicitation for applicants is noncommittal. The deadline to apply was Friday afternoon.

The job notice says the agency seeks qualified applicants “in the event it is decided to hold a contested case hearing and use a hearing officer.”

“This solicitation is made for the purpose of identifying qualified candidates if and as necessary,” the notice says.

A hearing officer would need to devote a “substantial amount of time in the next six to (12) months,” according to the department.

Supporters and opponents of building the large observatory on the mountain said Friday they had not received instructions from the department on how to proceed. No additional information was available from the department by deadline.

The hearing, if scheduled, would be separate from the contested case covering the $1.4 billion project’s conservation district use permit. That hearing, a replay of a previous contested case from 2011, concluded witness testimony March 2. A decision from hearing officer Riki May Amano could be months away.

Meanwhile, TMT International Observatory, the nonprofit organization behind the long-delayed project, is preparing to relocate to the Canary Islands if it can’t resume construction on Mauna Kea by April 2018.

Doug Simons, director of the Canada-France-Hawaii Telescope, said it remains difficult to see how the project could meet that deadline.

“It simply makes it even less feasible to get all these decisions made on such a short time,” he said, regarding another contested case. But Simons hopes the TIO board will consider extending its deadline.

“The reality is TMT genuinely wants to come to Hawaii,” he said.

Construction was halted in 2015 because of protests from Native Hawaiians who say they were protecting a sacred mountain and a state Supreme Court ruling that vacated the land use permit. The high court ruled the Land Board violated due process rights of project opponents by voting to approve the permit before the first hearing was held.

E. Kalani Flores, who petitioned for a contested case hearing for the sublease, said his request also is about ensuring due process. It’s not clear if the hearing would involve other parties.

“It’s providing accountability for state agencies in following state laws,” he said.

“It’s unfortunate as Native Hawaiians we have to go to court to enforce the law or to protect cultural practices and rights,” added Flores, a Hawaiian studies professor at Hawaii Community College-Palamanui.

He said the sublease contains flaws pertaining to the expiration of UH’s master lease for the Mauna Kea Science Reserve, which is set to end in 2033.

“How can you approve a sublease for a project when you still haven’t finalized and made a determination on the master lease?” Flores asked.

UH-Hilo had sought to terminate the existing master lease and negotiate a new agreement to allow telescopes to continue operating after 2033. That process is on hold.

The Land Board denied Flores’ request for a contested case for the sublease in 2014, stating it was considered an administrative action not subject to the hearings.

Circuit Court Judge Greg Nakamura ruled otherwise in December after initially remanding the matter back to the Land Board in March 2016. Flores requested the judge make a decision late last year since the Land Board had not addressed the court’s remand.

The exhaustive review process has been frustrating for supporters of the telescope.

While witness testimony in the first contested case in 2011 lasted only seven days, the second hearing took 44 days of testimony with 71 witnesses as numerous activists and others joined the hearing.

Simons said he doesn’t blame opponents if they’ve used the process to their advantage.

“With the Supreme Court ruling and the demand for an open and extensive hearing process, this is the consequence of that,” he said. “That’s what happened. I just wish TMT had more time.”

Subjects addressed in the contested case included environmental impacts, Hawaiian cultural and religious practices, and scientific and economic benefits of the proposed project. Some parties also sought to introduce claims of Hawaiian sovereignty.

Simons said it’s important for everyone to be heard and feel they’ve been heard.

“I generally think when people are given an opportunity to be heard that’s an important part of the whole process of finding reconciliation on a deeper level,” he said.

Richard Ha, a supporter of the telescope, agreed.

“I always felt we got to follow the process whatever it happens to be,” he said.

“I’m uneasy like everyone else that we might run out of time,” Ha added.

Ha, a farmer, is part of the pro-TMT group Perpetuating Unique Educational Opportunities. The group includes Hawaiians who support educational components of the project. That includes $1 million a year for local schools and scholarships.

“Our position is to support education for keiki into the future,” Ha said.

He said they will participate in the sublease contested case if needed.

Thayne Currie, an astronomer on Mauna Kea, said he sees the PUEO approach as a way to find middle ground on the issue.

“From talking with the community, I think a reasonable outcome is ‘yes’ to TMT but making sure that the local community, including Hawaiians, benefits as they have started to already,” he said in a Facebook message.

The 180-foot-tall observatory, part of a new generation of telescopes capable of collecting the oldest light in the universe, would sit on Mauna Kea’s northern plateau at 13,100 feet above sea level.

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.