Even as a judge called Monday for a fresh start in considering whether to let a huge telescope project on Mauna Kea proceed, protests and legal maneuvering pointed to a rocky road to a key hearing in June.

Opponents of the telescope packed a government board room as hearing officer Riki May Amano and attorneys settled on a schedule to review the issue in a new contested case hearing.

At stake are matters of balancing scientific advancement, native rights, the environment, business interests, government processes and the rule of law. 

The case centers on the building of the Thirty Meter Telescope on top of Hawaii Island’s tallest mountain, a unique location for astronomical research, and currently home to 13 other telescopes.

Construction of the TMT was halted indefinitely in 2015 after opponents, primarily Native Hawaiians and their supporters who consider the mountain sacred, blocked construction workers from reaching the summit. Through social media, the story quickly spread internationally.

In December, the Hawaii Supreme Court invalidated the University of Hawaii’s permit to build the TMT, finding that the state Board of Land and Natural Resources had violated due process when it granted a permit for the $1.4 billion project before holding the required contested case hearing.

Judge Riki Amano gestures during TMT contested hearing held at DLNR building. 16 may 2016.
Judge Riki Amano said during a pre-hearing conference at the Kalanimoku Building downtown that she was seeking an orderly and fair process. Cory Lum/Civil Beat

At Monday’s pre-hearing conference, Amano set a May 31 deadline to submit motions and requests to be a party to the contested case process.

Lawyers for the opposing sides — the University of Hawaii Hilo, the applicant seeking to build the TMT, and Mauna Kea Hui, the petitioner opposing it — will have until June 13 to respond.

Amano, a retired Hawaii Island Circuit Court judge appointed by the Land Board to consider the case, set the contested case hearing for June 17, in Hilo.

Attorney Richard Naiwieha Wurdeman TMT contested hearing held at DLNR. 16 may 2016
Attorney Richard Naiwieha Wurdeman, in the center, represents Native Hawaiian petitioners in the case, while Tim Lui-Kwan, left, is the attorney for permit applicant UH Hilo. Cory Lum/Civil Beat

Protesters, many wearing red, chanted in unison before the pre-hearing conference at BLNR’s hearing room in downtown Honolulu. They complained about the small size of the room. They occasionally interrupted the proceedings — for example, asking Amano and Tim Lui-Kwan, attorney for UH Hilo, to speak up so they could be heard.

They also murmured support for Richard Naiwieha Wurdeman, the attorney for Mauna Kea Hui.

‘Consider It Anew’

Amano explained several times to Lui-Kwan and Wurdeman that she would rely on their help in coming up with a case process. She said that she was essentially a “clean slate,” that she had never served as a hearing officer in such a case before, and that her primary goal was to make sure the process was orderly, fair and by the book.

“We are all officers of the court,” she said. “We are supposed to do it right, or try to.”

Lui-Kwan was eager to settle on a process schedule, and he proposed one for Wurdeman and Amano to consider. But Wurdeman advised against rushing things, arguing that there was already a short time frame involved.

Lui-Kwan also wanted to submit, as documentation in the case, all materials, including testimony, after Feb. 25, 2011, the date that the Land Board’s public hearing concluded and a preliminary permit was issued to TMT, followed by a final permit in 2013.

“We are all officers of the court. We are supposed to do it right, or try to.”— Hearing officer Riki May Amano

Wurdeman disagreed that the entire record of the permit process should be included, arguing that material after the 2011 date wasn’t relevant to the contested case before Amano.

The judge sided with Wurdeman.

“I would be very concerned about making the same mistake, because then I would have all the information that the other hearing officer had and that the Supreme Court criticized,”  she said. “So, that’s why I’ve been so careful not to look at anything, because I think the idea was I was supposed to look at it fresh. It’s the process. I’m supposed to consider it anew. And that’s what I’m trying to do.”

There were disclosures at the hearing suggesting the process may not go smoothly.

For one, Wurdeman said he is considering a motion to keep the Attorney General’s Office out of the contested case, given the AG’s role in the earlier flawed process.

He also said he had filed Freedom of Information Act requests with the AG and the Land Board chair to obtain records related to the case. Wurdeman said he was “not trying to delay things” but said he was still waiting for the AG and BLNR chair to fulfill the requests.

There may also be disagreements as to who may be allowed to be parties in the case. They include the TMT consortium itself and Kealoha Pisciotta, president of another TMT opponent represented by Wurdeman, Mauna Kea Anaina Hou.

Amano herself also offered a disclosure: She attended the graduation of a niece Saturday whose parents held a party afterwards at the Imiloa Astronomy Center. Amano previously was accused by some of having a conflict of interest because her family has membership in Imiloa.

The contested case also comes in the wake of the passage this year of a legislative bill that allows any party to the appeal of a state contested-case hearing to go directly to the Hawaii Supreme Court, bypassing appellate courts.

The new law does not take effect until Aug. 1. Supporters say it will streamline the case process, although may be moot in the TMT case because it already went to the high court.

Below is a short video of a chant from protesters at the contested case hearing:

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