Hawai`i Supreme Court to hear Mauna Kea TMT permit case

Today, the Hawaiʻi Supreme Court issued its order granting the Mauna Kea Hui’s application for transfer of their case concerning the construction of a Thirty-Meter Telescope (TMT) on the sacred summits of Mauna Kea from review by the state Intermediate Court of Appeals (ICA). Mauna Kea Hui members, Kealoha Pisciotta of Mauna Kea Anaina Hou, Deborah J. Ward, Clarence Kū Ching, the Flores-Case ʻOhana (E. Kalani Flores and Pua Case), Paul Neves, and KAHEA: The Hawaiian-Environmental Alliance, are appealing the state Third Circuit’s affirmation of the state Board of Land and Natural Resources’ (BLNR) decision to grant a conservation district use permit (CDUP) to the University of Hawaiʻi at Hilo (UHH) for TMT construction.

Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui, said that his clients are encouraged by the Hawaii Supreme Court’s decision to grant the application for transfer. One of the criteria that the Court considers in granting an application for transfer is whether the matter involves a question of imperative or fundamental public importance. Wurdeman said UHH, on behalf of TMT, had strenuously objected to his clients’ application for transfer of the appeal from the ICA to the Hawaiʻi Supreme Court for review.

The grant of transfer comes in the wake of UH’s public concessions of its mismanagement of Mauna Kea and agreements to Governor Ige’s plans for purported “improvements” on Mauna Kea, all of which fall short because they were premised on continued support of the TMT project. “These are interesting, to say the least,” said Wurdeman, “given the University’s vigorous opposition in legal battles.”

In a separate case, the ICA had earlier ruled against the Kilakila o Haleakalā’s similar appeal concerning the University’s CDUP for an Advanced Technology Solar Telescope (ATST) to be constructed on the Haleakalā summit. The Hawaiʻi Supreme Court subsequently granted a request for review and oral arguments were held in April in that case. Now, appeals from both the TMT and ATST CDUPs are under review by the Hawaiʻi Supreme Court. The Court has not yet issued an order on whether oral arguments will be held in the Mauna Kea case.

Deborah Ward said the court’s decision to hear the case is “heartening” and Kealoha Pisciotta stated, “This is good news and recognizes the importance of our case for all of Hawaiʻi.” Both cases may bear on the ways conservation districts islandwide will be treated. CDUPs are essentially variances for construction in conservation districts and can be granted only if a project meets eight criteria, including an absence of substantial adverse impact, preservation of natural beauty, and consistency with conservation district purposes.

"The transfer signals that the Hawai'i Supreme Court, in unanimity, believes that the so-called TMT Conservation District Use Permit deserves the utmost legal scrutiny and priority,” stated Kū Ching."

View court order granting application for transfer to Supreme Court