Judge denies TRO to stop TMT construction

  • JOHN BURNETT/Tribune-Herald Petitioners Lanny Sinkin, left, and Kealoha Pisciotta, right, with device to ear, meet the media following unsuccessful hearing for TRO Tuesday in Hilo Circuit Court.
  • JOHN BURNETT/Tribune-Herald Attorney Ross Shinyama, representing the Thirty Meter Telescope, argues Tuesday before Hilo Circuit Judge Greg Nakamura.
  • Hilo Circuit Judge Greg Nakamura denied petitioners’ request Tuesday for a temporary restraining order to halt construction of the Thirty Meter Telescope on Maunakea. (JOHN BURNETT/Tribune-Herald)

  • JOHN BURNETT/Tribune-Herald Attorney Charles Heaukulani argues for Kealoha Pisciotta and Lanny Sinkin, who are sitting at defense table, and other petitioners Tuesday in Hilo Circuit Court.
  • JOHN BURNETT/Tribune-Herald An overflow crowd filled the gallery of Hilo Circuit Judge Greg Nakamura’s courtroom Tuesday.

HILO — Opponents and supporters of the construction of the Thirty Meter Telescope overflowed a Hilo courtroom Tuesday for a hearing on a petition for a temporary restraining order that would prohibit further construction activities on Maunakea unless TMT posts a performance bond of at least $1.4 billion, the project’s estimated price tag.

The crowded courtroom gallery remained quiet and essentially respectful as Hilo Circuit Judge Greg Nakamura denied the TRO petition filed by Mauna Kea Anaina Hou, Kealoha Pisciotta, Paul Neves, Clarence Ku Ching, Kaliko Kanaele, Cindy Freitas, William Freitas and Lanny Sinkin.

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The petition was part of a larger lawsuit filed by the opponents, who argued a 1977 state plan for Maunakea requires a bond with the state Board of Land and Natural Resources. Their attorney, Charles Heaukulani, said the Oct. 30, 2018, affirmation by a 4-1 vote of the Supreme Court of BLNR’s Sept. 27, 2017, approval of the project’s Conservation District Use Permit requires the performance bond.

“All we really need to know this morning is whether a performance bond has been supplied, whether there’s some funding or other mechanism to protect what the court says is the public interest,” said Heaukulani.

Heaukulani also told the judge if the community perceives authorities not requiring the bond as “another situation where TMT gets benefits that no one else could,” then “our community will tear itself apart.”

Respondents to the lawsuit are Thirty Meter Telescope International Observatory; Gov. David Ige; state Attorney General Clare Connors; BLNR Chairwoman Suzanne Case; BLNR members Stanley Roehrig, Thomas Oi, Samuel “Ohu” Gon III and Christopher Yuen; Hawaii County Mayor Harry Kim; and University of Hawaii President David Lassner.

Ross Shinyama, a TMT attorney, argued that neither the high court decision nor the 2009 Maunakea Comprehensive Management Plan require a performance bond. He told the court Heaukulani was asking Nakamura to “do something that Hawaii Supreme Court was not willing to do.”

“Laws matter. Court decisions matter. Decisions of state agencies matter,” Shinyama said. “Such decisions cannot just be disregarded, cannot just be tossed aside. This is not Saddle Road, Your Honor. This is a court of law. Decisions matter, and such decisions are binding … and this lawsuit should, in fact, be dismissed. … You don’t get a second bite of the apple just because you lost. You don’t get a second bite of the apple just because you disagree with the decision.”

Shinyama also told the court TMT plans to file a motion to dismiss the civil suit altogether.

Hundreds of protesters of the project — who refer to themselves as kia‘i or guardians of Maunakea — have gathered at the intersection of Daniel K. Inouye Highway, also known as Saddle Road, and the Maunakea Access Road.

The protests have stymied construction vehicles from going up the access road for more than a week now despite the arrests of 38 individuals, most of them kupuna, or elders, on July 17 for obstructing government operations.

In his denial of the TRO, Nakamura said, “There’s no evidence presented at this juncture to show that respondent Thirty Meter Telescope Observatory LLC … is financially unable to complete the project.”

He said the petitioners are unlikely to prevail on the merits of the lawsuit, and the 2009 Maunakea comprehensive plan “is apparently the controlling management plan and supersedes prior plans.”

“The TMT project has received approvals consistent with the policies behind the approvals. There is a public interest in having the project implemented,” the judge said.

Another TMT attorney, Douglas Ing, said in a statement, “The court made the right decision today. These issues were raised during the recent contested case hearings and the state Land Board ruled against the same petitioners on these very issues.”

Pisciotta said after the hearing she respects the court, but “as a kanaka, I’m tired of having the burden of proof shifted onto us.”

“What we didn’t see today is them prove that the 2009 comprehensive management plan actually even addressed TMT,” she said. “… That’s what I’m having a hard time with. We’re always being criminalized and held as the one who’s in error. But so far, we’ve been right in all these ways, but the law is not acknowledging that and that’s what is perplexing.”

Sinkin said they’ll refine the TRO petition and re-file.

“This isn’t over yet,” he said. “We’ll be pursuing the TRO by amending the complaint to make clear issues we don’t think the judge saw clearly. … We expect to have greater success when we get there.”

The suit is one of three filed since Ige announced the access road would be closed July 15 to permit construction vehicles to drive to the observatory construction site.

In what would appear to be an unusual decision, a three-judge panel in Honolulu ruled Tuesday that Neves, a Hilo kumu hula and Native Hawaiian cultural practitioner who wants to ascend Maunakea for religious purposes, would be allowed an exception to the state of emergency declared June 17 by Ige. Neves asked the court to invalidate the emergency proclamation, but the ruling applies only to Neves, and with conditions.

And E. Kalani Flores, a Native Hawaiian cultural practitioner from Waimea, is suing three county police chiefs — Susan Ballard of City and County of Honolulu, Paul Ferreira of Hawaii County and Tivoli Faaumu of Maui County.

The suit, filed Friday in Kona, claims Honolulu and Maui police “have no lawful authority as police officers on Hawaii Island” and that Flores’ “constitutional rights to assemble” and of “free speech, religion and … traditional and customary rights are being violated.”

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Fifty-six Honolulu police officers that arrived July 17, reportedly at the request of Hawaii police, returned Tuesday to Honolulu, according to a Honolulu Police Department spokeswoman.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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