Supreme Court rules in favor of state in appeal relating to TMT

KAILUA-KONA — Today, the Hawaii Supreme Court ruled unanimously that the state Board of Land and Natural Resources was not required to hold a contested case hearing before consenting to a sublease by the University of Hawaii to TMT International Observatory for the construction of the Thirty Meter Telescope on Maunakea.

“We are pleased with the Supreme Court’s decision affirming the actions of UH and BLNR in the first of the TMT-related appeals,” said Attorney General Russell Suzuki.

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On Dec. 16, 2016, Hilo circuit court judge Greg Nakamura, now retired, vacated BLNR’s consent to the sublease because no contested case was held. A contested case had been requested by E. Kalani Flores. UH and BLNR appealed Judge Nakamura’s decision, and the appeal was argued before the Hawaii Supreme Court last March.

Overturning the decision, the Court held that the circuit court erred in ruling that BLNR violated Flores’s constitutional rights when it denied his request for a contested case hearing. The Court stated: “[W]e agree with BLNR and the University that BLNR was not required to hold a contested case hearing prior to consenting to the Sublease because such a hearing was not required by statute, administrative rule, or due process under the circumstances of this case.”

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The Court noted that Flores already participated in a separate contested case hearing on BLNR’s approval of a conservation district land use permit to UH. In that hearing, Flores was “afforded a full and fair opportunity to express his views and concerns” as to the effect of the TMT’s construction on his Native Hawaiian cultural practices.

In a separate appeal, several parties have asked the Hawaii Supreme Court to overturn BLNR’s approval of the conservation district land use permit for the TMT. That appeal was argued in June and is currently pending before the Hawaii Supreme Court.