Hawaii Supreme Court Invalidates Thirty Meter Telescope Permit
UPDATED: In order to proceed, project officials must return to the state Board of Land and Natural Resources to seek re-approval.
The Hawaii Supreme Court has voted unanimously to vacate the permit allowing the Thirty Meter Telescope to be built atop Mauna Kea, a mountain on the east side of Hawaii Island.
The justices concluded that the state Board of Land and Natural Resources violated due process when it approved a permit for the $1.4 billion project in 2011 prior to holding a contested case hearing.
The state and University of Hawaii, which applied for the permit in 2010 on behalf of the TMT Observatory Corporation, argued that the 2011 permit was preliminary and the final permit was issued in 2013. But the justices weren’t swayed.
“Once the permit was granted, Appellants were denied the most basic element of procedural due process 鈥 an opportunity to be heard at a meaningful time and in a meaningful manner,” wrote Chief Justice Mark Recktenwald and associate justices Paula Nakayama and Sabrina McKenna in . “Our Constitution demands more.”
The ruling leaves the door open for Thirty Meter Telescope officials to return to the state Board of Land and Natural Resources and seek another permit for the observatory.
The decision is a victory for many Native Hawaiian activists and their supporters who have successfully prevented the construction of the telescope this year through protests and vigils on Mauna Kea. Dozens were arrested for blocking construction on the mountain, where 13 observatories have already been built.
Activists celebrated on social media, which has 聽against what many see as the desecration of sacred ground.
But the ruling is a disappointment to TMT supporters who see the observatory as an opportunity to vastly improve the university鈥檚 existing research capabilities, on the Big Island and further the search for life on other planets.
The University of Hawaii and the TMT issued statements Wednesday saying that they are figuring out what to do next.
鈥淭he University of Hawaii continues to believe that Mauna Kea is a precious resource where science and culture can synergistically coexist, now and into the future, and remains strongly in support of the Thirty Meter Telescope,鈥 said university spokesman Dan Meisenzahl in a statement. 鈥淯H is currently reviewing the Court鈥檚 decision to determine the best path forward.鈥
Henry Yang, chair of the TMT International Observatory board of directors, thanked the state Supreme Court for its timely ruling and said the organization respects its decision.
鈥淭MT will follow the process set forth by the state, as we always have,” he said in a statement. “We are assessing our next steps on the way forward. We appreciate and thank the people of Hawaii and our supporters from these last eight-plus years.鈥
Due Process And Public Trust
Wednesday鈥檚 ruling may be a shock to some, but it reflects critical questions the justices asked during oral arguments in August. The justices representing the state and university about the process of approving the TMT and questioned whether the procedure satisfied the appearance of justice.
The Court concluded that it did not. Part of the problem was that the justices thought the BLNR鈥檚 separate permit approvals were extremely similar.
鈥淭he virtually indistinguishable documents of 2011 and 2013 give the impression that none of the testimonies, arguments, or evidence submitted to BLNR between the two were seriously considered,鈥 read the majority opinion.
Associate Justices Richard Pollack and Michael Wilson, who signed the concurring opinion, agreed with the majority and further contended that the BLNR violated its constitutional obligation to protect public trust resources.
鈥淭he Board鈥檚 obligations were to protect Native Hawaiian customs and traditions to the extent feasible, to effectuate the values of the public trust, and to provide a procedure befitting the compelling interests at stake,鈥 the concurring opinion reads.
McKenna signed their opinion in part.
Attorney General Doug Chin said in a statement that his office will advise the BLNR regarding next steps.
“Today’s decision provides direction to a new Land Board and another opportunity for people to discuss Mauna Kea’s future,” Chin said.
‘To Delay Is To Win’
Kealoha Pisciotta, who leads Mauna Kea Aina Hou, an organization that鈥檚 one of the plaintiffs in the lawsuit, is happy with the ruling but noted that the majority opinion didn’t address the issue of whether building the TMT on Mauna Kea violates state law regarding what’s allowed in a conservation district.
That suggests that the project could conceivably come before the state Supreme Court again in several years if another permit is approved.
The narrow focus also makes it tough to figure out how the ruling could impact a similar case challenging the construction of a telescope on Haleakala, Maui, that鈥檚 pending before the state Supreme Court.
Pisciotta isn鈥檛 looking forward to going through the BLNR’s contested case process again. It鈥檚 the second time that a court has ruled against the board for improperly approving telescope construction on Mauna Kea, she said.
The last time was in 2006 when a judge ruled the board聽shouldn鈥檛 have approved a permit sought by the Keck Observatory and NASA. The project was abandoned after NASA didn鈥檛 renew funding.
Pisciotta鈥檚 not confident that the BLNR will follow proper procedure the next time around. Plus, the contested case proceedings can be grueling.
Still, Pisciotta is grateful for the decision and the fact that it means the TMT won鈥檛 be built in the near future.
“In this case, to delay is to win,” she said.
