If the tenor of questioning during oral arguments at last Thursday’s state Supreme Court session on the Thirty Meter Telescope controversy is any indication, TMT supporters shouldn’t expect construction to resume anytime soon on the troubled project.
Justices were unexpectedly tough on state attorneys on the question of why the state Board of Land and Natural Resources gave “preliminary approval” to the University of Hawaii’s permit for TMT even though a public request for a “contested case” hearing had been made. Such hearings are required before a permit can be approved, and the state argues that it didn’t issue final approval until the contested case process had been completed.
The justices didn’t seem to buy it.

“I was a trial judge for a long time, I don’t recall ever making a decision where I decided the case before the trial,” said. Justice Richard Pollack.

Another justice argued that Land Board rules make no provision for a “preliminary approval” process, and Pollack said Land Board rules would not have allowed the board to revoke the preliminary approval if UH had lost the contested case before a hearings officer.

Though other matters in this case are significant — including whether the state is properly managing the conservation district atop Mauna Kea — the due process questions that underlie the preliminary approval of UH’s permit are perhaps the most important. They go to the heart of concerns of some Native Hawaiians that in matters such as these, the deck is consistently, unfairly stacked against them.

TMT may well be legally within its rights to move forward with construction atop the mountain, as Gov. David Ige has said. But if it is determined that the process that afforded them that legal right was fundamentally flawed, that not only would erode support for an astronomically important and worthy scientific project, but confidence in our legal system overall — a possibility that Justice Sabrina McKenna seemed to speak to, eloquently, during the questioning.

“Justice can perform its function in the best way only if it satisfies the appearance of justice,” said McKenna. “Justice must not only be done, but manifestly seen as done.”

Though this case has not been decided, the justice’s questions provide telescope opponents with the comfort that the perception of a flawed process is not limited to them.


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