The Hawaii Supreme Court says a permit issued by the Board of Land and Natural Resources to build the Thirty Meter Telescope (TMT) on Mauna Kea is not valid.
The opinion, written by Supreme Court Justice Mark E. Recktenwald, says the Board did not follow due process and therefore the permit must be invalidated as a matter of constitutional law.
The process followed by the Board here did not meet these standards. Quite simply, the Board put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand.
In September 2010, the University of Hawaii at Hilo (UHH) submitted a Conservation District Use Application (CDUA) to construct TMT on behalf of TMT Observatory Corp., a private non-profit corporation.
The Board voted to approve the permit at a public meeting in February 2011, subject to a number of conditions. It directed that a contested case hearing be conducted, and included a condition in the permit that no construction could be undertaken until the contested case hearing was resolved.
The Supreme Court said Wednesday that BLNR should not have voted on the permit before the hearing took place, which violated Hawaii’s constitutional guarantee of due process:
“Once the permit was granted, Appellants were denied the most basic element of procedural due process–-an opportunity to be heard at a meaningful time and in a meaningful manner. Our Constitution demands more.”
“Obviously we’re pleased with it. The court validated what we’ve been arguing,” said Richard Wurdeman, the plaintiffs’ attorney. “The permit has been invalidated by the Supreme Court, so they have to start all over again. New contested hearings need to be held. This process could take another several years.”
Henry Yang, Chair of the TMT International Observatory Board of Directors, released the following statement following the ruling: “We thank the Hawaii Supreme Court for the timely ruling and we respect their decision. TMT will follow the process set forth by the state, as we always have. We are assessing our next steps on the way forward. We appreciate and thank the people of Hawaii and our supporters from these last eight-plus years.”
“The University of Hawaii continues to believe that Mauna Kea is a precious resource where science and culture can synergistically coexist, now and into the future, and remains strongly in support of the Thirty Meter Telescope. UH is currently reviewing the court’s decision to determine the best path forward,” UH said in a statement.
“Today’s decision provides direction to a new Land Board and another opportunity for people to discuss Mauna Kea’s future. The Attorney General’s office will be advising the Land Board regarding next steps,” Attorney General Doug Chin said in a statement.
Kamana‘opono Crabbe, Ka Pouhana (CEO) of the Office of Hawaiian Affairs, said:
“The Office of Hawaiian Affairs respects the court’s decision. Our priority is ensuring responsible stewardship of Mauna Kea for all the people of Hawai‘i, and the continued reverence for this sacred mountain. OHA continues to urge all parties to be responsible stewards and protect our traditional and customary rights and practices as required by the Constitution, state laws and regulations. The Office of Hawaiian Affairs appreciates the court’s vigilance in ensuring proper procedures are followed to protect our land and cultural resources.”
Stay with KHON2.com for more on this developing story.
The ruling cites three sections of the Constitution of the State of Hawaii that were triggered by the permitting process:
Article XII, Section 7: TRADITIONAL AND CUSTOMARY RIGHTS
Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. [Add Const Con 1978 and election Nov 7, 1978]”
Article XI, Section 7: WATER RESOURCES
Section 7. The State has an obligation to protect, control and regulate the use of Hawaii’s water resources for the benefit of its people.
The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii’s water resources. [Add Const Con 1978 and election Nov 7, 1978]”
Article I, Section 5: DUE PROCESS AND EQUAL PROTECTION
Section 5. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]”