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Hawai?i Supreme Court Showdown for TMT

Mauna_Kea_observatory.jpg
Alan Light
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The Thirty Meter Telescope is back in state supreme court. Today, justices are hearing oral arguments on the project’s building permit. HPR’s Ku’uwehi Hiraishi reports.

The case before the Hawai’i Supreme Court today focuses on the conservation district use permit for the construction of the Thirty Meter Telescope on the summit of Mauna Kea.

The appeal comes from TMT opponents who disagree with the state land board’s decision last September to approve the permit after a lengthy contested case hearing.

David Forman teaches administrative law at the University of Hawai’i’s William Richardson School of Law. He says the outcome of this case will help fine tune the state’s process for dishing out land use permits.

“Is this the process that we want if somebody is trying to apply for a permit?,” says Forman, “Is it an appropriate burden? Is it something that increases the cost of doing business in the state of Hawai’i? Is it a cost that the people of Hawai’i are willing to accept because of the interests that are at stake?”

It’s been almost a decade since TMT scientists began courting Mauna Kea as the preferred site for the next-generation telescope. Opponents of the project consider the mountain sacred and are concerned with the level of development on the summit.

“One of the discussions is whether the amount of activity is appropriate in a conservation district,” says Forman, “And some of the parties were saying look at how much development there is, and so how could this have an adverse impact on you if it’s so heavily developed already? But then some of the parties were saying this level of development is inappropriate for a conservation district.”

Construction of the $1.4 billion project has been stalled since December 2015, when the Hawai’i Supreme Court ruled that the Board of Land and Natural Resources improperly awarded the permit prior to holding a contested case hearing.

“And that’s going to be a focus of argument I think - trying to make sense of the court’s position,” says Forman.

Justices focused on the question of whether due process rights were violated by approving the permit before holding a hearing. But Forman says the court also raised questions about traditional and customary rights, public trust obligations, and religion – which could come up in arguments today.

“There have been many attempts to get the court to focus in on these issues for decades,” says Forman, “And this may or may not be the case that forces the court to confront those issues.”

Oral arguments for a separate case involving the project’s sublease were held before the high court in April. No ruling has been issued.

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