HONOLULU (CN) – Issuing a building permit for a 30-meter telescope on Mauna Kea in Hawaii without a contested-case hearing denied the due process rights of those opposed to the project, the Hawaii Supreme Court ruled.
The Dec. 2 ruling is another setback for the University of Hawaii at Hilo, which wants to build what will become the world’s most powerful optical telescope, and a victory for protesters who claim the development impacts native Hawaiian culture and sacred land atop the dormant volcano.
Hawaii’s Board of Land and Natural Resources conditionally approved the university’s application to build the $1.4 billion telescope after holding two public hearings in which native Hawaiians called the planned 18-story tower “a desecration.”
One of the board’s conditions required a contested-case hearing, which was held in 2011. But those opposed to the telescope appealed, claiming the board improperly approved the permit before the contested-case hearing – despite making the hearing a condition of its approval.
While attorneys for the state and the university – which leases and manages the land – argued that the permit was approved after extensive public input, the state’s high court found that approval of the project had to come after the contested-case hearing.
“Quite simply, the board put the cart before the horse when it issued the permit before the request for a contested-case hearing was resolved and the hearing was held,” Chief Justice Mark Recktenwald wrote for the court This vacates an earlier circuit court ruling and the university’s construction permit.
While the university and the board maintained that the 2011 decision was preliminary and subject to revision, “the fact remains that the board issued the permit prior to holding the contested case hearing,” Recktenwald wrote.
“This procedure was improper, and was inconsistent with the statutory definition of a contested case as ‘a proceeding in which the legal rights, duties or privileges of specific parties are required by law to be determined after an opportunity for agency hearing,'” the chief justice wrote, citing the statute.
“Such a procedure lacked both the reality and appearance of justice,” he said.
Justice Richard W. Pollack concurred with the 58-page opinion by writing 49 pages of his own, noting the Hawaii Constitution’s specific protections of native Hawaiian rights.
“If customary and traditional Native American practices are to be meaningfully safeguarded, findings on the extent of their exercise, their impairment and the feasibility of their protection are paramount,” he wrote.
The high court ordered a new contested-case hearing and voided the board’s approval of the telescope permit.
“The decision provides another opportunity for people to discuss Mauna Kea’s future,” state Attorney General Doug Chin said in a statement.
Meanwhile, those behind the planned observatory also promised to abide by the high court’s decision.
“We thank the Hawaii Supreme Court for the timely ruling and we respect their decision,” Henry Yang, chairman of the board of directors for the Thirty Meter Telescope International Observatory, said in a statement. “We will follow the process set forth by the state, as we always have. 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.”
Actions from both sides of the project have brought forth a multitude of civil and criminal challenges recently. Earlier this year, the university closed the road leading to the Mauna Kea summit to all but authorized personnel and escorted groups because of a threat to public safety and natural resources.
Observatory managers found restrooms covered in feces and recorded threats of “Kill the haoles, kill the tourists.” At one point 30 protesters were arrested for blocking the road with lava rock and boulders that they were pulling from the sides of the roadway.
In one of the many complaints filed over the road closure and construction, a native Hawaiian religious group likened the 30-meter telescope project to “putting a very large inconspicuous telescope in the courtyard of the Western Wall of Jerusalem” and stated “the defendant has a mandated obligation to protect and preserve native Hawaiian’s rights to access sacred lands.”
Mauna Kea is the most sacred of all the peaks in Hawaii to the native religious group. At the hearing, Kealoha Pisciotta explained the significant of Mauna Kea to native Hawaiians.
“It’s where the heavens and the earth come together, where all life forms originated from,” Pisciotta said. “It is a temple, but not one made by man but for man, so that man could learn the ways of the heavens and the laws of this earth.”
But astronomers have long held that 13,796-foot peak is also one of the best places on earth to view and study the stars thanks to its height, dry environment and stable air flow. Thirteen observatories are already located on Mauna Kea.
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