The latest legal challenge against the Thirty Meter Telescope project hinges on whether construction of the controversial and long-delayed observatory has actually already begun.
In 2017, Suzanne Case, then the chair of the state Board of Land and Natural Resources, granted the University of Hawaii at Hilo — which manages the lands at the Maunakea summit — a conservation district use permit for the TMT to use the summit land. But opponents contest whether TMT has satisfied one of the conditions of the permit.
That condition, Condition No. 4, required that any work on the land be initiated within two years, and completed within 12 years, after the permit was issued.
Because of the extenuating circumstances arising from the 2019 protests at the Maunakea Access Road, Case granted a two-year extension to Condition No. 4 in 2019, pushing the required start date back to 2021. But in 2021, Case determined that the condition had been met based on preliminary work done in 2019, including the removal of unpermitted ahu near the construction site, site surveys and moving several vehicles to the project location.
Native Hawaiian activist group Mauna Kea Hui challenged Case’s decision in 2021, arguing that the “work” done in 2019 does not reasonably constitute the start of the observatory’s construction.
That challenge never came before the full BLNR, but under a new chair and new state government administration, the board will discuss Condition No. 4 in the near future. The matter had been scheduled for July 28, but the BLNR announced the meeting has been deferred to an unspecified date.
Shelley Muneoka, board member for environmental group KAHEA, which is part of the Mauna Kea Hui, said it is unclear why the BLNR is discussing the extension two years later, but added that it seems to be happening without prompting from the Hui.
Bianca Isaki, attorney for the Mauna Kea Hui, told the Tribune-Herald that part of the problem is that a second extension relating to Condition No. 4 cannot be granted through administrative fiat, but must go through the BLNR. Despite this, she said, Case made her determination that the condition had been met without involving the full board.
“They took down some ahu and moved some boards around up there,” Isaki said. “I don’t think anyone would agree that that is the start of construction.”
Mauna Kea Hui member Kealoha Pisciotta said that, had it been requested by “a normal person” instead of TMT, the BLNR would have summarily dismissed any extension claiming such minor work fulfilled the condition.
“We need to make sure that when the state is saying things, they need to actually be true,” Pisciotta said. “They can’t claim that construction has begun when it hasn’t. I know it sounds trivial, but we can’t have the state endorsing positions that aren’t true.”
Isaki said that the Hui’s challenge requests that the extension relating to Condition No. 4 be rescinded, which would revoke the permit itself.
“It’s important to realize the TMT issue is still ongoing,” Pisciotta said. “These long-term leases are problematic for a lot of reasons, but one is that they’re leasing this land out for entire generations, and it allows too much destruction without any checks, like with (the Pohakuloa Training Area) and Maunakea. Eventually, it gives the false impression that they actually own the land when they don’t.”
A representative for UH declined to comment about the Condition No. 4 issue, and the state Maunakea Stewardship and Oversight Authority did not respond to a request for comment.
Meanwhile, a group of petitioners including KAHEA have issued another challenge to TMT.
On July 14, the group submitted a request to the United Nations’ Committee on the Elimination of Racial Discrimination asking for that body to issue a warning to the Canadian government — a partner in the TMT project — for violating the rights of Native Hawaiians by participating in the project.
Muneoka said that a similar challenge was made to the UN CERD regarding the American government’s involvement in the project, to limited effect. However, the UN CERD has issued repeated rebukes to the Canadian government about its use of force against Indigenous communities opposing the building of an oil pipeline, and Muneoka said that Canada must also preserve Indigenous rights when acting internationally.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.