A recent ruling by the Supreme Court of Hawaii regarding the issuance of a conservation district land use permit for the construction of a telescope on Maui may influence the case involving plans to construct one of the world’s largest optical telescopes on Mauna Kea.
According to court documents, the state Supreme Court ruled on Dec. 13 that the Board of Land and Natural Resources should have had a contested case hearing prior to approving a permit for a large telescope that is currently under construction on the summit of Maui’s Haleakala. Native Hawaiian group Kilakila O Haleakala had been fighting against its construction since 2010.
Similar to the Kilakila O Haleakala case, six petitioners opposing the $1.3 billion Thirty Meter Telescope project on Mauna Kea are arguing that the state violated due process when issuing the conservation district land use permit. According to an article previously published by Stephens Media Hawaii, BLNR granted approval of the TMT’s conservation district use permit at its meeting in Honolulu on Feb. 25, 2011, while at the same time requiring a contested case hearing be held. The appellants argue the hearing should have been held before the approval.
Legal counsel for parties involved with the TMT project met in Judge Greg Nakamura’s courtroom Thursday morning.
Richard Naiwieha Wurdeman represented the six appellants, Julie China represented appellee BLNR, and Jay Stuart Handlin represented the University of Hawaii at Hilo. New to the courtroom was Douglas Ing, who was acting as legal counsel for TMT Corp. who requested to file an amicus curiae brief, also known as a friends of the court brief.
An amicus curiae involves an entity that may not have a direct relationship to the lawsuit, and is not listed as a party, but as precedential interest in the outcome. The court sometimes allows those with similar interests to make an argument to the court, even though they are not part of the direct outcome.
“TMT has been in planning for over 10 years. Time and resources are running out. TMT is asking that it be allowed to be a part of the case,” Ing told Nakamura.
China and Handlin responded by supporting Ing’s proposal.
Wurdeman, however, said Ing’s request was “improper.”
“The issue of due process was the first issue raised in the brief. At no time did TMT make any effort to intervene, to come before the court as an amicus, and briefs are due on Tuesday. This is a pretty untimely request on TMT’s part,” Wurdeman said.
Ing referenced the recent Kilakila O Haleakala decision as reason for the TMT Corp.’s involvement.
“Kilakila was only rendered a month ago and that’s why we decided to come before this court. I didn’t come here because we were asked to by the counsel. TMT alone made that decision. We seek to provide a different perspective than the parties currently. We think we can bring that perspective,” he said.
Nakamura granted Ing’s request to file an amicus brief and ruled that oral arguments be heard regarding the Kilakila case on Feb. 13.
TMT spokesperson Sandra Dawson said she was happy with the court’s decision.
“I’m happy that TMT is going to be a party, amicus curiae. We think we have a separate insight to bring to this case. I’m also happy that there will be oral arguments on the Kilakila O Haleakala decision,” Dawson said.
Kealoha Pisciotta, president of Mauna Kea Anaina Hou and one of the six petitioners in the case, said she thought it was a “safe decision.”
“There’s no harm in letting them speak to it, but they do have to stick with the scope of what’s been said and done so far,” she said.
Pisciotta’s fellow appellants include nonprofit organization Kahea: The Hawaiian Environmental Alliance, Clarence Kukauakahi Ching, the Flores Case Ohana, Deborah J. Ward, and Paul Neves.
Pisciotta and her fellow appellants have opposed the project since the beginning on the basis that Native Hawaiians hold the mountain to be sacred, as it is home to ancestral burial sites and holds cultural significance.
The TMT project formed in 2003. Observatories and universities from Canada, Japan, China, India and the United States support the initiative. The telescope is projected to begin operations in 2022. Construction is still slated for April or May of 2014.
The telescope will allow astronomers to watch for new-forming stars and planets, and will search for the very first stars and galaxies in the universe.
All parties will meet in court for oral arguments Feb. 13.
Email Megan Moseley at mmoseley@hawaiitribune-herald.com