On July 26, retired Circuit Court Judge Riki May Amano, acting as the hearing officer presiding over a contested case challenge to the proposed Thirty Meter Telescope project near the summit of Mauna Kea, recommended the Board of Land and Natural Resources approve a permit for the controversial project to proceed.

Amano’s findings wrapped up the latest phase in the long-running legal, political, and cultural battle over the future of the latest and largest telescope on the 13,796-foot peak. Mauna Kea is one of the world’s premier locations for astronomy, as well as a significant location in Hawaiian mythological, cultural and religious traditions.

The findings come down heavily in favor of approval of the TMT, and appear to make it much more difficult for opponents to succeed in blocking the project.

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Proponents say building the TMT will keep Hawaii at or near the center of astronomical research, further enhancing the state’s reputation and Hawaii Island’s economy, while opponents say construction of the telescope will desecrate an area held sacred by Hawaiians.

Just two years ago, hundreds of protesters blocked construction crews and equipment from reaching the TMT site and dozens were arrested, drawing international news coverage.

Mauna Fatigue?

But two years is a long time for an issue to stay in the news. Amano’s findings and recommendations seemed to elicit little more than a yawn from local mainstream media. Both the Honolulu Star-Advertiser, the state’s largest newspaper, and Honolulu Civil Beat, the largest local independent online news source, relied on an Associated Press account of the findings when then were initially released, although the newspaper added more details in the days that followed.

The paucity of news coverage probably reflects an informed judgment that public interest in the outcome of this long-running struggle is waning. This latest contested case began in early 2016 with months of legal wrangling and pre-hearing motions, followed by 44 days of evidentiary hearings that began Oct. 20, 2016, and ended March 2, 2017.

And this hearing was, in large part, a repeat of an earlier contested case hearing held in 2011. The resulting decision by the land board to approve the telescope project was subsequently overturned by the Hawaii Supreme Court on procedural grounds in December 2015.

Cory Lum/Civil Beat

And the arguments actually go back more than a decade, when development of the astronomy district at the top of Mauna Kea began to draw increased scrutiny. No wonder people are getting tired of it.

So politically, waning public interest makes the position of TMT opponents more difficult. And a case decided by the Hawaii Supreme Court late last year has made their legal challenge much less tenable.

Kilakila ‘O Haleakala vs. Board of Land and Natural Resources was also a challenge to a conservation district use permit for a new solar telescope on Maui’s Haleakala. Opponents there made many of the same arguments being made regarding Mauna Kea. For example, opponents in both cases say the scale of the planned telescopes is inconsistent with requirements of the conservation districts where they are located.

However, the court held that since state law allows astronomy facilities on conservation lands, and does not set limits on size or other characteristics, the land board did not exceed its authority in approving the permit.

It’s a legal precedent that now weighs heavily on the TMT case.

The Replay

In large part, Amano’s findings track those of the hearing officer in the earlier contested case, Honolulu attorney Paul Aoki. However, it appears that the University of Hawaii and TMT International Observatory, the nonprofit organization created to design, build and operate the Thirty Meter Telescope, made good use of the replay to focus and strengthen their presentation the second time around.

The findings note in some detail the measures implemented to mitigate or minimize the impact of the proposed telescope. They detail consultations, especially with Native Hawaiian community organizations, during the development of a plan for managing cultural resources, and for providing public access for those seeking to enter the astronomy zone to exercise their rights to engage in customary and traditional practices, protected by the Hawaii State Constitution.

Thirty Meter Telescope

A decommissioning plan, adopted in 2010, lays out a framework for the eventual decommissioning and dismantling of the telescopes on Mauna Kea as they age past their useful lives. Even the TMT planning now includes eventual decommissioning, including a plan for funding the process, according to Amano’s findings of fact. Funding for educational and employment opportunities also add to the benefits of the TMT.

These and other mitigation measures “go beyond addressing the impact of the TMT project in a vacuum,” Amano found. “They will substantially mitigate existing area adverse impacts of the astronomy sites on Mauna Kea as a whole and therefore on claimed impacts to native Hawaiian traditional and customary rights.”

While a 1998 audit had been highly critical of the university’s management of Mauna Kea, a 2014 audit found “an improved and more comprehensive framework that coordinates the agencies’ efforts to manage and protect Mauna Kea while balancing the competing interests of culture, conservation, scientific research, and recreation.”

TMT opponents attempted to challenge this rosy picture, and criticized what they said was a lack of consultation with Hawaiian groups during the long planning process. However, in several instances, Amano cited documents showing the individuals making the criticisms had in fact been interviewed or had submitted testimony during earlier parts of the process, including during the environmental impact study for the TMT. Several others, according to Amano’s findings, acknowledged during cross-examination they had not read all of the documents and were not familiar with all of the efforts made to consult with the community.

In one pointed finding, Amano noted that while opponents are now criticizing a lack of consultation, several of them “have actively boycotted the University’s ongoing consultation efforts.” For example, Amano’s findings refer to public open houses offered by the University of Hawaii in 2015 to discuss plans for another environmental impact statement for the new master ground lease, but at least six of the parties opposed to the project “actively called for a boycott of the process.”

‘Mauna Kea Is Sacred’

Amano appears to have taken care to acknowledge testimony offered by a number of witnesses explaining why Mauna Kea is considered to be sacred by many Hawaiians. One section of Amano’s report lists each of the witnesses who presented testimony about the beliefs of Hawaiians, describing the role of Mauna Kea in mythology.

“It is the belief of Hawaiian people that the summit of Mauna Kea touches the sky in a unique and important way, as a piko by which connections to the ancestors are made known to them, as, too, is their collective knowledge,” one witness testified.

However, Amano cited both state and federal court decisions holding that “belief in an area’s religious sacredness does not make development of that area an unconstitutional infringement of religion, and does not give the believer a legal right to stop the development.”

Cory Lum/Civil Beat

She soundly rejected the view of many Native Hawaiian opponents “that their beliefs should give them veto power over any proposed land use on Mauna Kea.”

Her conclusion is simple: “The law does not support that view.”

Further, although Amano ruled opponents “have not demonstrated a need to conduct or participate in religious ceremonies on the proposed TMT Project site; they have not identified practices that will be substantially interfered with; and the BLNR’s approval of the TMT Project will not threaten practitioners with sanctions if they engage in religiously motivated conduct.”

In one of the most pointed findings, Amano noted that “telescopes and related infrastructure” have been on Mauna Kea for the entire adult lives of project opponents, and yet they “have continued to exercise their religious practices in the presence of these facilities.”

And Amano cited a 1987 Hawaii Supreme Court case involving opposition to geothermal development, which concluded that to “invalidate the Board’s actions based on the mere assertion of harm to religious practices would contravene the fundamental purpose of preventing the state from fostering support of one religion over another …”

Not Such A Big Deal?

The Mauna Kea Science Reserve consists of 11,288 acres of conservation land, but the “astronomy precinct,” where astronomical facilities are allowed, consists of 525 acres, or less than 5 percent of the total. And the TMT site, some 5.5 acres, would be just more than 1 percent of that already limited astronomy precinct.

“Implemented in accordance with its plans, the TMT Project will not consume significant natural resources; will not pollute; will not harm species of concern, or the environment generally; will not prevent contemporary, customary, historical and traditional cultural practices; will not impede recreational uses; and will not threaten the public health, safety, or welfare,” Amano found.

It seems to me Amano presented a strong case in her findings and recommendations. It will make it much more difficult for TMT opponents to gain much legal traction for their arguments going forward, and that will be a bitter pill for many to swallow.