Opponents of the Thirty Meter Telescope are getting some help from other Native Hawaiian leaders and a former state Supreme Court justice in their request for reconsideration of a recent ruling in favor of the $1.4 billion project.
Appellants of the Conservation District Use Permit that allows the next-generation observatory to be built on Maunakea filed the request Tuesday, which asks the high court to reconsider the ruling and adopt a dissenting opinion from Associate Justice Michael Wilson.
He wrote impacts to the summit are already “substantially adverse” and that the state Board of Land and Natural Resources, which approved the permit, was applying a “degradation principle” to Maunakea that “extinguishes the legal protection afforded to natural resources in the conservation district.”
The court ruled 4-1 on Oct. 30 in favor of granting the permit.
While cumulative impacts on the mountain have been adverse, the majority opinion notes commitments by the University of Hawaii to remove five telescopes, including three before TMT is complete, in addition to other mitigation steps, as part of the construction permit. The opinion says it was appropriate for BLNR to consider these measures when voting in favor of the document.
Additionally, Colette Machado and Dan Ahuna, who are Office of Hawaiian Affairs trustees acting in an individual capacity, and the group Kua‘aina Ulu ‘Auamo filed an amici curiae brief in support of the appellants’ request for reconsideration.
They argue the majority opinion doesn’t recognize that cultural practices evolve through time, and that it erodes Hawaiian rights and the public trust doctrine.
The majority opinion says BLNR conducted a thorough analysis of cultural resources as required by a case known as Ka Pa‘akai, and found the telescope won’t interfere with cultural practices at the summit or Lake Waiau. The amici filers say the court relied on too narrow of a scope for the analysis.
“This articulation of the Ka Pa‘akai analysis confined only to a specific project footprint, as defined by the applicant and approving agency, diverges from established law and practical realities,” the filing says. “It threatens to create confusion and hardship by curtailing the scope of Native Hawaiian rights and their legal protections.”
Representing them are former state Supreme Court Justice Robert Klein, attorneys for Earthjustice and Melody Kapilialoha Mackenzie, a law professor at UH-Manoa.
Klein, who retired from the court in 2000, was the only part-Hawaiian on the court at the time of his retirement, according to a Honolulu Star-Bulletin article.
The 180-foot-tall telescope, to be built below the summit, would be the most powerful observatory on Maunakea, currently home to 13 telescopes.
Supporters say it will keep Hawaii at the forefront of astronomy and help unlock mysteries of the universe.
It has faced opposition from some Native Hawaiians because of concerns about impacts to cultural and natural resources.
Email Tom Callis at tcallis@hawaiitribune-herald.com.