Decision delays further stall Thirty Meter Telescope

HILO — For those who are wondering, 623 days have passed since the Board of Land and Natural Resources, meeting in Honolulu, approved a conservation district use permit for the Thirty Meter Telescope and ordered a contested case hearing.

Four hundred and six days — 13 months and one week — have elapsed since hearing officer Paul Aoki concluded the seven-day long hearing in Hilo, filled with hours of mind-numbing testimony and cross-examination. He’s kept a low profile since, despite rising anxiety on both sides of the $1 billion telescope proposal.

“They (Aoki) tend to take a while because they tend to be very thorough and consider everything that’s been presented to the hearing officer,” said Deborah L. Ward, spokeswoman for the Department of Land and Natural Resources, no relation to the Deborah J. Ward, a petitioner in the TMT case.

In astronomical terms, the photons that left the sun’s surface on the day of the BLNR hearing, Feb. 25, 2011, are 40 percent of the way to the nearest star.

When the BLNR moved to approve the University of Hawaii’s CDUP for the telescope on that day, it also slapped on two conditions that appear to be headed for conflict with each other. One is that construction of the TMT must begin within two years of the meeting — in other words, by Feb. 26. The other condition was that construction may not begin until a final decision is issued on the contested case hearing. The board may have to modify its original approval at a meeting in the next few months.

A contested case hearing is a quasi-judicial proceeding in which opposing sides may call witnesses and cross-examine each other on the merits of a case. At some point, Aoki will submit a report detailing the proposed findings of fact, conclusions of law, and a recommended order. After the parties are notified, the report will become a part of the public record.

Within 21 days, the opposing sides will have the opportunity to make written exceptions to the findings of fact, and respond to the other side’s objections.

Either side may then request an oral argument before the Land Board, which may then reconsider its previous vote to approve the CDUP.

“We’re anxious,” said Vaughan Cook, president of the Hawaii Island Chamber of Commerce, which has lobbied for approval of the TMT at community meetings. “We’re hopeful … that the project will move forward. We believe it’s in the interest of the community, the entire community, and we’re waiting.”

Interviews in the past few months with TMT principals have elicited various statements, all of which boil down to some version of “We don’t have any idea, but we’ll wait it out.”

But the TMT Observatory Corp. continues to plan for eventual approval. On Sept. 10, for example, it issued a detailed request for proposals for the crucial 3.5-meter tertiary mirror assembly system, which will direct the light collected from stars and distant galaxies into a suite of instruments in the observatory dome. The RFP states the hardware must be serviceable “during the course of the 50 years of TMT operation.”

Petitioner Paul Neves is also among those who await a response.

“I haven’t heard a thing,” Neves said. “We just wait and see what the hearing officer comes up with.

“It is taking a long time. Some people can read that as a good thing,” while some can read that as a not-so-good thing, Neves said.

He prefers to view the lengthy wait as a good sign that “people are looking over it closely.”

Michael Cain is DLNR’s custodian of records. As the file clerk, and a “neutral party,” he will be the first person in the state agency to know when Aoki’s report is filed. He doesn’t know when that will be.

“Right now, we are waiting on the report from the hearing officer, and I don’t have a deadline for it,” Cain said. Asked whether he is aware of any communication between DLNR and Aoki, he replied that “that’s not the type of question I can answer.”