No permit for TMT on Mauna Kea

SOURCE: Jonathan Jay (jjkauai@gmail.com)
SUBHEAD: The permit allowing the Thirty Meter Telescope on Mauna Kea has been thrown out by the Hawaii Supreme Court.


By Staff on 2 December 2015 for Big Island Video News -
(http://www.bigislandvideonews.com/2015/12/02/tmt-permit-for-mauna-kea-vacated-by-hawaii-supreme-court/)


Image above: Page of the Hawaii Supreme Court's judgement against the Thirty Meter Telescope proposed on Mauna Kea From original article.

The permit allowing the Thirty Meter Telescope to be built and operated on Mauna Kea has been thrown out by the Hawaii Supreme Court.

In the conclusion of a 58 page opinion written by Chief Justice Mark E. Recktenwald, the court vacated the lower circuit court’s “May 5, 2014 Decision and Order Affirming Board of Land and Natural Resources, State of Hawaii’s Findings of Fact, Conclusions of Law and Decision and Order Granting Conservation District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science Reserve Dated April 12, 2013, and final judgment thereon.”

The Supreme Court remanded the matter to the circuit court “to further remand to BLNR for proceedings consistent with this opinion, so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.”

As many predicted after hearing the court’s questions during the oral arguments presented on August 27 (video below), the court found that the Board of Land and Natural Resources “acted improperly when it issued the permit prior to holding a contested case hearing.” The court says BLNR’s February 25, 2011 approval violated Hawaii’s constitutional guarantee of due process.

The appellants who contested the permit and appealed the land board decision – Mauna Kea Anaina Hou, Clarence Kukauakahi Ching, Flores-Case Ohana, Deborah J. Ward, Paul K. Neves, And Kahea: The Hawaiian Environmental Alliance – were represented in court by attorney Richard Naiwieha Wurdeman.

On its Facebook page, the Thirty Meter Telescope wrote that “this is not a judgement against TMT, but rather against the State’s process in granting the permits. We’ll have an official statement for you shortly.”

Associate Justice Richard W. Pollack wrote this concurring opinion, which was joined by Associate Justice Michael D. Wilson:

V. Conclusion

This case illustrates the interweaving nature of the various provisions of our constitution. When rights as integral as the exercise of Native Hawaiian customs and traditions are implicated by a proposed action, our constitution provides several safeguards that combine to preserve those rights.

In this case, the Board was asked to grant a permit to UH for the construction of an astronomical observatory on the summit of Mauna Kea, an area sacred to Native Hawaiians. Because the project could infringe upon the constitutional right of Native Hawaiians to exercise their customs and traditions, the guarantees of Article XII, Section 7, the public trust obligations of the State under Article XI, Section 7, and the due process protections encompassed by Article I, Section 5 were all triggered to constitutionally safeguard the continued practice of Native Hawaiian customs and traditions.

Under the foregoing constitutional provisions and the precedents of this court, the Board’s obligations were to protect Native Hawaiian customs and traditions to the extent feasible, to effectuate the values of the public trust, and to provide a procedure befitting the compelling interests at stake. To perform these obligations, the Board was required to decide UH’s application pursuant to a decision-making process that incorporates the rights, values, and duties embodied by the constitutional provisions involved. Instead, the Board failed to conduct a contested case hearing before deciding the merits of UH’s application and summarily granted the requested permit without duly accounting for the constitutional rights and values implicated. The Board acted in contravention of the protections of Native Hawaiian customs and traditions provided by Article XII, Section 7; Article XI, Section 7; and Article I, Section 5. Accordingly, as a matter of constitutional law, the permit issued by the Board must be invalidated.

Video above: TMT Case - Due process argued at Hawaii Supreme Court. From (https://youtu.be/-EC1daUFjmQ).


Video above:TMT Case -  Cumulative Conservation District impacts of TMT. From (https://youtu.be/m7s6dwHI_eU).

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Eight arrested on Mauna Kea

SUBHEAD: TMT protesters arrested on Mauna Kea while attempting to stop construction atop mountain considered sacred.

By AP Staff on 9 September 2015 for the Guardian -
(http://www.theguardian.com/us-news/2015/sep/09/eight-arrested-hawaii-protests-thirty-meter-telescope)


Image above:  The base camp for protesters of the Thirty Meter Telescope project occupies a site near the summit of Mauna Kea on Hawaii’s Big Island. Photograph by Caleb Jones-AP. From original article.

Seven women and one man were arrested early on Wednesday in the latest round of arrests in the ongoing battle against building a giant telescope atop a mountain many native Hawaiians consider sacred.

The state department of land and natural resources said 20 of its officers arrested the protesters on Mauna Kea at about 1am. They were enforcing an emergency rule created to stop people from camping on Mauna Kea.

The land board approved the rule in July, which restricts access to the mountain during certain nighttime hours and prohibits certain camping gear. It was prompted by protesters’ around-the-clock presence to prevent construction of the Thirty Meter Telescope (TMT).

Protesters say officers hauled them away while they were praying. In video footage provided by the state, officers are seen walking toward a group of people huddled in a circle and chanting. A man’s voice is heard saying: “Eh, they’re praying you guys, they’re praying.”

The footage shows officers putting plastic handcuffs on women and putting them into the back of a vehicle. “Why do I have to have my hands behind my back,” a woman asked. “Because you’ll be placed in restraints, ma’am,” an officer responded.

The emergency rule, in place for 120 days, is intended to make the mountain safe for protesters, visitors and workers of the 13 telescopes already on the mountain, the state said.

Attorney general Doug Chin told the land board that even though camping is already prohibited on the mountain, a targeted rule is necessary because of bad behavior by some protesters – ranging from putting boulders in the road to threats and harassment – created unsafe conditions.

The nonprofit company building the Thirty Meter Telescope hasn’t indicated when there will be another attempt to resume construction. Workers weren’t able reach the site during two previous attempts when they were blocked by hundreds of protesters, including dozens who were arrested.

This was the fourth time telescope opponents have been arrested on the mountain.

University of Hawaii law school professor Williamson Chang has filed a lawsuit seeking to repeal the rule, arguing it prevents telescope opponents from legally exercising their rights to peacefully protest.

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