Hawaii Supreme Court justices expressed skepticism about the state Land Board’s process of approving construction of the Thirty Meter Telescope on Mauna Kea during oral arguments in a case challenging the state’s endorsement of the $1.4 billion project.

The justices grilled state attorneys Thursday about whether the Board of Land and Natural Resources was wrong to approve a permit for the project in 2011 prior to holding a contested case hearing.

State attorneys argued that the 2011 permit was preliminary and that final approval was given after the contested case hearing in 2013, while telescope opponents contended their right to due process was violated.

Mauna Kea supporters gather outside Aliiolani Hale, Hawaii State Supreme Court Building before oral arguments are scheduled. 27 aug 2015. photograph Cory Lum/ Civil Beat

Mauna Kea supporters gather outside Aliiolani Hale before oral arguments Thursday.

Cory Lum/Civil Beat

“I was a trial judge for a long time, I don’t recall ever making a decision where I decided the case before the trial,” Justice Richard Pollack told a University of Hawaii attorney at one point.

That line of questioning dominated the hearing at Aliiolani Hale in downtown Honolulu, which attracted hundreds of people and lasted so long that the State Judiciary offered to comp parking for people who couldn’t refill their meters.

The justices’ questioning of Richard Wurdeman, the attorney for TMT opponents, was far less confrontational, allowing him more time to develop his own points.

There is no deadline for the Supreme Court to issue a decision, and in the meantime the TMT may legally proceed with construction.

TMT demonstrator lays on the ground refusing to move out of the DLNR motorcades movement up the Maunkea Observatory access road as hundreds of anti TMT and protect Maunakea demonstrators slowed the movement of the DLNR motorcade from the Maunakea Visitors Center. 24 june 2015. photograph Cory Lum/Civil Beat

An anti-TMT demonstrator lies on the ground to block construction crews from heading up Mauna Kea last June.

Cory Lum/Civil Beat

Native Hawaiian cultural practitioners and environmental activists have been trying to stop the telescope’s construction for a decade, but resistance intensified this year after dozens of protesters were arrested in April blocking construction crews from going up the mountain.

The TMT Observatory Corporation, a nonprofit organization funded by universities in the United States, China, Japan and Canada, hasn’t been able to resume construction.

The lawsuit brought by Mauna Kea Anaina Hou, KAHEA: The Hawaiian-Environmental Alliance and others challenges many aspects of the project, including whether building the telescope violates state rules governing conservation districts.

But on Thursday, justices zoomed in on the issue of due process, aiming a barrage of questions at University of Hawaii attorney Jay Handlin and Deputy Attorney General Julie China.

The Land Board is supposed to appoint a hearings officer to conduct a quasi-judicial contested case hearing on whether a permit should be granted if there is a public request for one. The board did so for the TMT’s permit application, but only after issuing conditional approval of the permit in 2011.

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments. 27 aug 2015.  photograph by Cory Lum/Civil Beat

Justice Sabrina McKenna pursues a line of questioning.

Cory Lum/Civil Beat

Justice Sabrina McKenna was particularly skeptical, asking whether it would ever make sense for a court to give a judgment before holding a trial.

“Justice can perform its function in the best way only if it satisfies the appearance of justice,” she said, quoting a previous court decision.

“Justice must not only be done, but manifestly seen as done,” she said.

That was encouraging to TMT opponents who packed the courtroom and sang in Hawaiian both before and after the hearing. One of the petitioners, 26-year-old Hāwane Rios, told Civil Beat after the hearing that when the Land Board approved the permit for the telescope in 2011, she lost hope in the system.

“Today I feel like I’m regaining some of that hope,” she said.

An Illegal Process?

In 2011, the state Board of Land and Natural Resources approved the University of Hawaii’s permit for the TMT on the condition that the university wait until after the contested case hearing before starting construction. The board approved the permit again in 2013 after receiving a recommendation to do so from the hearings officer who conducted the contested case hearing.

Attorney Jay Handlin during oral arguments. Hawaii State Supreme Court. Aliiolani Hale. 27 aug 2015. photograph by Cory Lum/Civil Beat

UH attorney Jay Handlin speaks to the justices.

Cory Lum/Civil Beat

When several justices questioned Handlin about whether the board violated the law, the attorney insisted the final approval wasn’t given until April 2013 and that the project didn’t move forward until the contested case hearing was resolved.

“We have an agency that needs the flexibility to interpret its own rules,” he said of the Land Board.

But Pollack pointed out that there isn’t anything in the Land Board’s rules that would have allowed it to revoke the 2011 permit if the university had lost the contested case hearing.

He questioned whether a rejection of the permit after the contested case hearing was even a real possibility, and referenced a letter from the Sierra Club protesting the 2011 vote.

Justice Paula Nakayama said that nothing in the Land Board’s rules allows a preliminary decision, and Justice Michael Wilson quoted from testimony criticizing the vote: “It seems like a done deal by the time you get to these hearings.”

Later, China hesitated after McKenna asked her when the Land Board started the practice of approving a permit before the contested case hearing.

Julie China, Attorney from the AG’s office during oral arguments. Mauna Kea. Hawaii State Supreme Court. 27 aug 2015. photograph by Cory Lum/Civil Beat

Julie China in the courtroom.

Cory Lum/Civil Beat

“I couldn’t find any reported cases where this process had been followed,” said McKenna in a second attempt to ask the question. “That’s why I’m asking, when did the board start adopting this process?”

“I can’t recall. I’m sorry ma’am,” China said.

“Do you think the process that BLNR followed here furthers public confidence in the system?” she asked.

China said she thought so, sparking cries of opposition from the courtroom audience.

‘Unclear’ Calculations

Meanwhile, Wilson questioned the logic behind the TMT Observatory Corp.’s assertion in its environmental analysis of the project that the telescope would have only have an “incremental” adverse impact on the mountain’s cultural resources.

If built, the telescope would be the 14th observatory built on the mountain since the 1960s.

Visitor makes a photograph of the various telescopes on the summit of Mauna Kea. 9 april 2015. photograph Cory Lum/Civil Beat

A visitor takes a photograph of telescopes on the summit of Mauna Kea last April.

Cory Lum/Civil Beat

The university did an inadequate job of managing the mountain’s environment and cultural resources for several decades, a 1998 state audit found.

The final environmental impact statement for the TMT acknowledges that the cumulative impact of telescope development on Mauna Kea’s cultural resources is “substantial, significant, and adverse.”

Wilson quoted from the analysis: “The project will add a limited increment to the level of cumulative impact, but would not tip the balance of any specific cumulative impact from a less than significant level to a significant level.”

Hawaii State Supreme Court  wide view. 27 aug 2015. photograph Cory Lum/Civil Beat

Richard Wurdeman speaks for TMT opponents inside a packed courtroom.

Cory Lum/Civil Beat

“How did they calculate this tipping of the balance? It’s a little unclear,” Wilson asked Handlin. The attorney replied the analysis focuses on what harm the project would cause existing resources.

Wilson also asked Wurdeman, the TMT opponents’ attorney, about the project’s potential impact on the mountain.

Wurdeman argued that telescope development on Mauna Kea has gotten out of hand.

“Mauna Kea is more than a mountain, is the embodiment of the Hawaiian people,” Wurdeman said. “Unfortunately given that tremendous significance… Mauna Kea has really become an absolute mess.”

Left, Governor George Ariyoshi speaks to right, Princess Abigail Kawananakoa before oral arguments on Mauna Kea at Aliiolani Hale / Hawaii State Supreme Court Building. 27 aug 2015. photograph by Cory Lum/Civil Beat

Former Gov. George Ariyoshi speaks to Princess Abigail Kawananakoa, a descendent of King Kalakaua, before the hearing.

Cory Lum/Civil Beat

“We can’t incrementally continue to build and build and build up there,” he said. “This is a conservation district, this is not an industrial district.”

Under questioning from the justices, he suggested that the Board of Land and Natural Resources rehear the TMT’s permit application and consider imposing conditions such as the required decommissioning of telescopes.

The Supreme Court is also weighing a decision on the Daniel K. Inouye telescope atop Haleakala on Maui, which deals with similar issues regarding due process and the use of a conservation district.

Click here to listen to an audio recording of Thursday’s oral arguments.

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