Board hears arguments over TMT permit

Defining the word “construction” took up a large part of a more than three-hour Tuesday hearing that could determine whether a permit to develop the controversial Thirty Meter Telescope on Mauna Kea is valid.

Four groups opposing the indefinitely stalled project tried to convince the state Board of Land and Natural Resources that a deadline related to commencement of TMT construction hadn’t been met, while three organizations backing the project made counterarguments during the hearing held via Zoom.

The effort to invalidate TMT’s state conservation district use permit is widely seen as an attempt to derail, or at least set back further, the $2.65 billion telescope project on Hawaii island where 33 protesters were arrested in 2019 for blocking an access road to Mauna Kea’s summit in an effort to prevent construction.

Richard Naiwieha Wurdeman, an attorney representing Mauna Kea Hui, led off Tuesday’s oral arguments by urging the board to invalidate the permit on grounds that construction never began by a September 2019 deadline, two years after the permit was issued, based on a plain language meaning of a key word contained in one of 52 permit conditions.

“Clearly there’s been no construction,” he told the board. “Construction is, as we stated in the dictionary definition, the building of something, typically a large structure.”

Another party petitioning the Land Board to decide whether general condition No. 4 in the permit has been violated is Hawaii island resident Cindy Freitas, a Native Hawaiian who has been in the construction business for 16 years.

Freitas told the board that things like excavation work and pouring concrete foundations, among other things, constitute construction and haven’t been done on the TMT site.

“I come from a construction world,” she said.

The two other petitioners contesting the permit’s validity are E. Kalani Flores, a Hawaiian cultural practitioner representing the Flores-Case Ohana, and Lanny Sinkin representing the Temple of Lono.

The telescope project’s developer, TMT International Observatory, contends that the precise wording of condition No. 4 allows for satisfaction by initiating “any work done or construction to be done on the land” in accordance with construction plans signed by the Land Board chair.

Ross Shinyama, an attorney representing TMT International, told the board that such qualifying work done before the 2019 deadline included the project’s construction manager and civil contractor verifying GPS coordinates on the project site, using equipment to locate underground utility lines on or near the site access road, and trying to deliver 18 construction vehicles to the project site only to have them stop short because protesters blocked the access road.

“This effort to mobilize and move the convoy was an extensive effort,” he said. “You don’t do that if you’re faking. What was being done here was a clear intention of construction under condition 4.”

Shinyama also told the board that construction contracts were signed, and contractors were paid for work that included having the construction vehicles stand by for 25 days until it was clear that government officials weren’t going to facilitate passage for the equipment up to the summit amid demonstrators.

Supporting TMT International in its claim were representatives of the University of Hawaii at Hilo, which holds the lease to the site and is the permit holder, and the organization Perpetuating Unique Educational Opportunities.

Views from two sides

The two sides arguing over the permit’s validity also had different views on a decision made by former Land Board Chair Suzanne Case in 2019 granting a two-year extension to meet condition No. 4.

Wurdeman claims that this move by Case, made in response to a request by UH-Hilo Chancellor Bonnie Irwin, shows that UH Hilo conceded that the condition had not been met by the September 2019 deadline.

Shinyama contends that his law firm, Watanabe Ing LLP representing TMT International, had stated as part of the submission to Case that the required work had been initiated by the deadline.

Jesse Souki, an attorney representing UH Hilo, told the Land Board, “Condition 4 is straightforward, and it was fulfilled.”

In 2021, Case declared that condition No. 4 had been satisfied. Mauna Kea Hui shortly thereafter formally challenged that decision, which Wurdeman called arbitrary and capricious. But the petition was never heard by the board during Case’s tenure under then-Gov. David Ige.

Now, under new Land Board Chair Dawn Chang, appointed by Gov. Josh Green in December, the issue is expected to be decided.

At Tuesday’s hearing, most of the board’s nine members mainly asked questions.

One board member, Aimee Barnes, expressed doubt over TMT International’s argument, saying that if a contractor claimed to have begun construction on her home after doing similar work she wouldn’t agree.

“I’m a little perplexed by the idea that you believe that (work) should be something that a reasonable person would believe constitutes the beginning of construction,” she said.

Another board member, Kaiwi Yoon, questioned the focus on initiating construction and not allowing for the broader wording in the condition.

“I agree with you 100% as far as construction, but my hihia or entanglement is the three words that precede that — ‘work done or,’” Yoon told Wurdeman.

The board isn’t likely to make a decision until sometime after all the parties submit written proposals for their versions of desired decision expected within about 40 days.

If the permit is invalidated, TMT International and UH Hilo could be forced to redo a contested-case hearing to acquire a new permit. If the permit is upheld, building the telescope isn’t expected anytime soon.

TMT International is seeking funding from the National Science Foundation for the project, which nearly doubled from a previously estimated $1.4 billion cost. Having a federal government entity participate would require a new environmental review process that is in an early stage and will include assessing impacts on historical, cultural and archaeological resources.

Because of this, Shinyama told the Land Board that TMT International would likely seek an extension to another part of condition No. 4 requiring that the “work done or construction to be done on the land” be completed within 12 years of the permit issuance.