Supreme Court rules in favor of state on TMT sublease; no decision yet on land use permit

The state Supreme Court ruled that a contested case hearing is not required for the Thirty Meter Telescope’s sublease on Maunakea.

The unanimous decision released Wednesday overturns a lower court ruling that would have required the state Land Board to grant another quasi-judicial hearing to determine if the $1.4 billion project should be built on the mountain, which some Native Hawaiians consider sacred.

E. Kalani Flores requested a contested case hearing for the sublease because of impacts he said the project would have to cultural and traditional practices. The state Land Board later denied the request.

Hilo Circuit Court Judge Greg Nakamura ruled in his favor during an appeal, and issued an order in January 2017 vacating the sublease.

While the high court justices agreed that Flores’ has a substantial interest, they ruled that he didn’t show he would provide evidence that is materially different from what was presented during the other hearings for the project. Flores had participated in the contested cases for the land use permit.

“Put simply, to mandate (the Board of Land and Natural Resources) to hold a full contested case hearing on whether it should consent to the sublease would require BLNR to bear the duplicative administrative burden of providing procedural protections that would be of no additional value in safeguarding Flores’ interest in engaging in traditional Native Hawaiian cultural practices on (Maunakea),” the ruling states.

The justices also said a hearing is not required by “statute, administrative rule, or due process.”

Earlier this year, the court also heard testimony in an appeal of the land use permit, approved by the Land Board last year following a second lengthy contested case. No decision has been made yet on that appeal.

Email Tom Callis at tcallis@hawaiitribune-herald.com.