TMT Contested Case Decision

I have to admit I was worried that the decision could go against the TMT project.

It did not.

Retired Judge Riki May Amano
Retired Judge Riki May Amano presides over the TMT contested case hearing
Earlier today hearing officer Judge Ricky May Amano recommended that the TMT project be granted a Conservation District Use Permit or CDUP.

The decision is nearly three hundred pages long, none of us has had a chance to do more than skim some of the more interesting sections. Indeed most of us opened the document and skipped straight to page 260 to read the Recommended Decision and Order first.

TMT Rendering
An overhead view of the proposed Thirty Meter Telescope, credit TMT Observatory Corporation
What I have read appears to be a straightforward reading of the law involving land use. Yes, it is a conservation district, that means that there shall be sufficient management of the project, but does not mean that the project cannot proceed.

We have yet to see the outrage from TMT project opponents. I expect it will be shortly forthcoming and quite vehement.

Where do we go from here? As I understand it the next step is for the DLNR board to vote on the acceptance of the hearing officer’s recommendation and reissue the permit. Of course the next thing to happen after that is the inevitable court challenge. This will go straight to the state supreme court as recent legislation set that as the path for land use cases, skipping the lower courts.

TMT Takes Step Towards Construction after Approval by the Board of Land and Natural Resources

Thirty Meter Telescope press release

Friday marked another important step forward for the future of astronomical discovery and economic opportunity on Hawaii Island. The Hawaiian Board of Land and Natural Resources (BLNR) announced that it has granted a permit to the Thirty Meter Telescope (TMT) project to build and operate the next-generation observatory near the summit of Mauna Kea.

TMT Rendering
An overhead view of the proposed Thirty Meter Telescope, credit TMT Observatory Corporation
With this approval, the BLNR has recognized TMT’s goal of responsible development and environmental stewardship of Mauna Kea in close partnership with local interests. The carefully considered conditions in the permit help ensure the protection of sensitive environments in Hawaii.

“Over the last several years, the TMT project has welcomed the support it has received from all sectors of the Hawaiian community, from education to cultural to business to labor,” said Sandra Dawson, TMT’s Manager of Hawaii Community Affairs. “We look forward to beginning construction and becoming a neighbor of the outstanding observatories on Mauna Kea.”

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TMT Receives Final Approval

By now you should have heard… The approval made national and international news. The Hawai’i state Board of Land and Natural Resources (BLNR) has granted final approval to the Conservation District Use Permit. This marks the end of the contested case hearing, essentially the final legal hurdle for construction of the Thirty Meter Telescope.

TMT Rendering
An overhead view of the proposed Thirty Meter Telescope, credit TMT Observatory Corporation
This occurs after years of moving through the approval process including dozens of hearings, public meetings, lawsuits, and more. This should be the last major legal challenge that the project will face. If everything goes to plan construction should break ground about this time next year. In the meantime a number of other processes may start, including geotechnical work and local staffing.

It is in reading the decision that you can learn much about the process. The news articles rarely cover anything beyond superficial details. The legal documents cover the arguments against building TMT atop Mauna Kea in great detail. The decision just published includes a legal response to all of the issues raised including references to each applicable statute and precedents.

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TMT Permit Approved

The Conservation District Use Permit (CDUP) for the Thirty Meter Telescope has been granted. The Hearing Officer’s report is published and available for reading. And it is interesting reading! Quite oddly I do enjoy reading these legal documents, I have learned much about the summit through the various documents like this.

TMT Rendering
An overhead view of the proposed Thirty Meter Telescope, credit TMT Observatory Corporation
The takeaway is that the petitioners in the contested case failed to prove their claims. Indeed, much of the report is quite critical to a number of claims made by the petitioners.

There are numerous claims that seem quite odd to anyone familiar with the summit, claims that were easily disproved during the investigative process. An “extensive fencing network”? What fences? Anyone who has visited the summit knows that there are no fences around the observatories at the summit. There are some small enclosures necessary to keep people safe around storage tanks and such. Well below the summit the VLBA antenna is enclosed for safety reasons, as is an electrical substation at Hale Pohaku.

49. Petitioners contend that a purported “subdivision” of land among the various existing observatories is evidenced by an “extensive fencing network.” Exhibit A-202 at 22. As was plain during the site visit, there is no “fencing network,” much less an “extensive” one, in the summit region of Mauna Kea.

Claims that the TMT would negatively impact the waters of Lake Waiau? The TMT is not located anywhere near the lake’s watershed. The petitioners engaged in legal mudslinging, throwing as many claims as possible at the case to see what would stick, a legal tactic I dislike immensely. Making such unfounded claims merely serves to discredit the petitioners, distracting the conversation away from the real issues involved in sharing the summit region.

466. Considering all of the evidence, including but not limited to the testimonies of Drs. Liu and Kauanui, and giving such evidence due weight, Petitioners have not offered reliable, probative, substantial, or credible evidence, scientific or otherwise, to suggest that the Project will be harmful to the health, safety, and welfare of native Hawaiians or anyone else.

There are reasonable cultural objections to the use of the mountain for astronomy. These are what must be addressed in this process. Can use of the summit be shared among the various parties? The report clearly comes to the conclusion that we can share the summit and that the presence of the new telescope can be minimized through proper measures.

101. Petitioners did not offer reliable, probative, substantial, and credible evidence, whether from expert or lay witnesses, that would support the conclusion that the TMT Project would cause substantial adverse impact to plants, aquatic life and wildlife, cultural, historic, and archaeological sites, minerals, recreational sites, geologic sites, scenic areas, ecologically significant areas, or watersheds.

There is a list of conditions, which seem quite reasonable… The staff must receive cultural and environmental education on the special nature of the summit of Mauna Kea. We do this at Keck, something I usually find quite interesting. They must use a completely enclosed waste water system. There must be an invasive species plan. Conditions around the construction site must be monitored, including arthropod populations, during construction and for two years afterwards. There is an extensive list that goes on from here…

e. The proposed land use, including buildings, structures, and
facilities, will be compatible with the locality and surrounding areas, appropriate
to the physical conditions and capabilities of the specific parcel or parcels

Will this be the end of the legal process? No. There is an additional hearing for the petitioners to take place before the Hearings Officer so that both sides may review the findings. It is also likely that at least one lawsuit will be filed in reaction to issuance of the CDUP. Unless there is some new legal issue these are unlikely to progress very far. The process so far has been quite exhaustive, any further legal action would simply be a rehashing of what we have already heard.