The Hawaii Supreme Court has voted unanimously to vacate the permit allowing the Thirty Meter Telescope to be built atop Mauna Kea, a mountain on the east side of Hawaii Island.

The justices concluded that the state Board of Land and Natural Resources violated due process when it approved a permit for the $1.4 billion project in 2011 prior to holding a contested case hearing.

The state and University of Hawaii, which applied for the permit in 2010 on behalf of the TMT Observatory Corporation, argued that the 2011 permit was preliminary and the final permit was issued in 2013. But the justices weren’t swayed.

Hawaii State Supreme Court Chief Justice Mark Recktenwald gestures during attorneys oral arguments. mauna kea tmt. 27 aug 2015. photograph Cory Lum/Civil Beat

Supreme Court of Hawaii Chief Justice Mark Recktenwald gestures during attorneys’ oral arguments in the TMT hearing last August.

Cory Lum/Civil Beat

“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,” wrote Chief Justice Mark Recktenwald and associate justices Paula Nakayama and Sabrina McKenna in the majority opinion. “Our Constitution demands more.”

The ruling leaves the door open for Thirty Meter Telescope officials to return to the state Board of Land and Natural Resources and seek another permit for the observatory.

The decision is a victory for many Native Hawaiian activists and their supporters who have successfully prevented the construction of the telescope this year through protests and vigils on Mauna Kea. Dozens were arrested for blocking construction on the mountain, where 13 observatories have already been built.

Activists celebrated on social media, which has fueled international protests against what many see as the desecration of sacred ground.

But the ruling is a disappointment to TMT supporters who see the observatory as an opportunity to vastly improve the university’s existing research capabilities, provide jobs and education on the Big Island and further the search for life on other planets.

The University of Hawaii and the TMT issued statements Wednesday saying that they are figuring out what to do next.

Law enforcement officers arrest a demonstrator on Mauna Kea on June 24.

Law enforcement officers arrest a demonstrator on Mauna Kea on June 24.

Cory Lum/Civil Beat

“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,” said university spokesman Dan Meisenzahl in a statement. “UH is currently reviewing the Court’s decision to determine the best path forward.”

Henry Yang, chair of the TMT International Observatory board of directors, thanked the state Supreme Court for its timely ruling and said the organization respects its decision.

“TMT will follow the process set forth by the state, as we always have,” he said in a statement. “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.”

Due Process And Public Trust

Wednesday’s ruling may be a shock to some, but it reflects critical questions the justices asked during oral arguments in August. The justices grilled attorneys representing the state and university about the process of approving the TMT and questioned whether the procedure satisfied the appearance of justice.

The Court concluded that it did not. Part of the problem was that the justices thought the BLNR’s separate permit approvals were extremely similar.

Artist's rendering of the Thirty Meter Telescope with all vents open. The vents are designed to optimize air flow over the primary mirror so as to reduce mirror seeing effects.

Artist’s rendering of the proposed Thirty Meter Telescope.

Thirty Meter Telescope

“The virtually indistinguishable documents of 2011 and 2013 give the impression that none of the testimonies, arguments, or evidence submitted to BLNR between the two were seriously considered,” read the majority opinion.

Associate Justices Richard Pollack and Michael Wilson, who signed the concurring opinion, agreed with the majority and further contended that the BLNR violated its constitutional obligation to protect public trust resources.

“The Board’s obligations were to protect Native Hawaiian customs and traditions to the extent feasible, to effectuate the values of the public trust, and to provide a procedure befitting the compelling interests at stake,” the concurring opinion reads.

McKenna signed their opinion in part.

Attorney General Doug Chin said in a statement that his office will advise the BLNR regarding next steps.

“Today’s decision provides direction to a new Land Board and another opportunity for people to discuss Mauna Kea’s future,” Chin said.

‘To Delay Is To Win’

Kealoha Pisciotta, who leads Mauna Kea Aina Hou, an organization that’s one of the plaintiffs in the lawsuit, is happy with the ruling but noted that the majority opinion didn’t address the issue of whether building the TMT on Mauna Kea violates state law regarding what’s allowed in a conservation district.

That suggests that the project could conceivably come before the state Supreme Court again in several years if another permit is approved.

The narrow focus also makes it tough to figure out how the ruling could impact a similar case challenging the construction of a telescope on Haleakala, Maui, that’s pending before the state Supreme Court.

Pisciotta isn’t looking forward to going through the BLNR’s contested case process again. It’s the second time that a court has ruled against the board for improperly approving telescope construction on Mauna Kea, she said.

The last time was in 2006 when a judge ruled the board shouldn’t have approved a permit sought by the Keck Observatory and NASA. The project was abandoned after NASA didn’t renew funding.

Pisciotta’s not confident that the BLNR will follow proper procedure the next time around. Plus, the contested case proceedings can be grueling.

Still, Pisciotta is grateful for the decision and the fact that it means the TMT won’t be built in the near future.

“In this case, to delay is to win,” she said.

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