Judge tosses TMT lawsuit

A Hilo judge on Friday dismissed a lawsuit against the Thirty Meter Telescope that sought an injunction to block its construction because the project did not post a security bond.

The lawsuit, which was filed in July by seven petitioners and the religious organization Mauna Kea Anaina Hou, argued that, because the TMT project did not post a $1.4 billion security bond, as required by the 1977 Maunakea Plan, the notice to proceed with construction was invalid.

The court in July had previously denied the plaintiffs’ petition requesting a temporary restraining order against the project, but has now dismissed the lawsuit outright.

“The court has decided that you don’t get to continually re-litigate an issue after you’ve lost,” said TMT attorney Ross Shinyama, explaining that the 1977 Maunakea Plan has been superseded by more recent management plans that don’t require a security bond.

For their part, petitioners have argued that the 1977 plan, as a founding document for more recently amended Maunakea plans, remains a valid document.

Shinyama said part of the petitioners’ argument relied on a footnote contained in the state Supreme Court’s 2018 decision affirming the state’s issuance of a Conservation District Use permit to TMT.

That footnote, labeled Footnote 29, states that the Board of Land and Natural Resources “should ensure that the areas used by TMT will be restored to their natural states at no cost to the state, whether through requiring an appropriate performance bond or … other requirements.”

Shinyama said that argument was futile and without merit, because there is nothing requiring the BLNR to make a performance bond mandatory.

On Friday, Judge Greg Nakamura agreed, dismissing the suit and vacating a hearing that was scheduled to take place on Tuesday.

“The judge ruled that the people of Hawaii don’t need to be protected,” said petitioner Kealoha Pisciotta after the hearing on Friday. “He’s accepted the TMT…position that it’s already been ruled on.”

Pisciotta said the Footnote 29 issue remains an open question.

Pisciotta and her fellow petitioners also filed a petition with the BLNR Friday requesting that the board require a security bond from TMT.

“A bond protects us from risky investments,” Pisciotta said. “We already know how much money we’re already paying for this.”

Shinyama said the conclusion of the lawsuit has eliminated the only legal current legal challenge against TMT itself. However, two other lawsuits have challenged the use of law enforcement to enable TMT construction.

Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.