The Hawaii Supreme Court dropped a bombshell last week when it voided the permit for construction of the long-planned but increasingly controversial Thirty Meter Telescope project at the summit of Mauna Kea. The court’s ruling sent the project back to the Board of Land and Natural Resources for replay of its 2011 contested case hearing, “or for other proceedings consistent with this opinion.”

A closer look at the ruling is necessary in order to understand what the court’s ruling means going forward, both for the TMT itself and for the legal standing of the movement for Native Hawaiian rights that fueled much of the opposition to the planned telescope.

Courtesy TMT International Observatory

The court’s majority opinion, written by Chief Justice Mark Recktenwald, sidestepped the hardest legal issues and stayed instead on firm procedural grounds.

The court held simply that the Board of Land and Natural Resources failed to provide the constitutionally and statutorily protected right to due process when it approved a conditional use permit for the TMT, and then immediately voted to require a contested case hearing as requested by project opponents, putting the hearing after the permit decision.

Although the BLNR put conditions on the permit that prevented any construction from proceeding until the contested case process was finished, the court ruled that this simply wasn’t enough to comply with the law.

“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,” the court said in its ruling. “Such a procedure lacked both the reality and appearance of justice.”

All five Supreme Court justices agreed that due process rights had been violated, although they came to that conclusion in two different ways.

Cory Lum/Civil Beat

Honolulu lawyer and legal blogger Robert Thomas said this part of the decision wasn’t even a close call.

“We don’t make decisions and only then have the fair trial. It’s true in court as well as in quasi-judicial agencies like the BLNR,” Thomas wrote after the decision was handed down.

Although the ruling did not kill the TMT, it does mean the telescope project will remain in limbo until another contested case hearing can be conducted.

How long will that take? If past experience is any guide, it could take at least a couple of years. The first time around, the land board voted on Feb. 25, 2011 to go forward with a contested case. The hearing itself began on Aug. 15, 2011 and wrapped up on Sept. 30, 2011, with all the testimony presented during seven hearing days over that six-week period.

The hearing officer’s findings were filed more than a year later, on Nov. 30, 2012, and the land board eventually made its ruling to approve the permit on April 12, 2013, more than two years after setting the contested case in motion. During that time, there were also court challenges and appeals on related issues, as can likely be expected the second time around as well. So the delay introduced by the court’s ruling will undoubtedly be substantial, but likely not long enough to be fatal to the project.

Legal Issues Not Addressed

Opponents had raised a laundry list of additional legal issues, including whether the mandatory criteria for building in a conservation district had been met, whether the Mauna Kea management plan is legally adequate, and whether the land board met its constitutional obligation to protect and preserve traditional and customary Native Hawaiian rights.

The court’s decision dismissed those in a brief footnote, saying that it didn’t need to address the additional issues because it disposed of the case with its more straightforward due process ruling.

But the protest movement was built on the highly emotional issues of the proclaimed sacredness of Mauna Kea, the belief that this should necessarily trump other considerations rather than be subject to a balancing of interests, and the belief that Hawaiian sovereignty provides a shield to wield against political and judicial authorities.

And if you hoped to find anything in this decision to support such views, you would likely come away disappointed.

Cory Lum/Civil Beat

A concurring opinion by Justice Richard Pollack, joined by Justice Michael Wilson, signals their support for the string of legal cases upholding Native rights since 1978, when the protection of customary and traditional Hawaiian rights was written into the state constitution. But their effort failed to attract the needed majority and ended up short of their goal.

A 1982 case held that “lawful occupants of an ahupuaʻa may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupuaʻa to gather those items enumerated in the statute.” The court held that the modern property rights of the landowners had to yield to traditional Hawaiian gathering rights, at least on undeveloped land.

Ten years later, the Supreme Court extended this ruling to protect customary rights beyond “lawful occupants of an ahupuaʻa” to include residents of adjoining lands. And a case decided in 2000 held the state and its agencies have an “affirmative duty” to protect customary and traditional Native Hawaiian rights by, at a minimum, determining the extent to which traditional rights were exercised in an area to be impacted by an agency’s actions, the extent to which those practices would be impacted, and to determine the feasibility of steps to mitigate the impacts to “reasonably” protect Native rights.

The Supreme Court left open the key question of whether or not the process adequately protected Hawaiian rights.

It’s a very concise and informative summary of how the law has developed in this area, but in the end it falls short of breaking any new ground, and eventually simply reinforces the importance of the due process issue, where all five justices agreed. Traditional Hawaiian rights, as other rights, can’t be protected if evidence of how they are affected is gathered and assessed after an agency’s decision has already been made, or even has the appearance of being made.

In the end, the Supreme Court left open the key question of whether or not the contested case process adequately protected Hawaiian rights by mitigating potential impacts, or whether proper consideration of Native rights in this case would require the permit application to be turned down.

Many of the cases referred to in the decision revolved around an agency’s failure to compile an evidentiary record to prove that it properly took into account the questions of traditional and customary Hawaiian rights. In the Mauna Kea case, though, the contested case process resulted in a voluminous record. Its major problem, at least as articulated by the court so far, was that it was legally preempted by the land board’s initial decision to grant a conditional permit even before the contested case process began.

If the contested case hearing and decision-making had taken place in the proper sequence, would its findings have been sufficient to support granting the permit for the TMT? On this, the court didn’t offer a clue, although there were many opportunities and invitations to do so.

Whether that in itself is a clue to how the court might rule when the case comes back to it for a ruling on more substantive matters, as it most likely will, remains to be seen. The same five justices are likely to still be sitting on the court when the matter returns to them. So stay tuned.