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Oral Argument Before the Hawaii Supreme Court — Nos. SCOT-17-0000777, SCOT-17-0000811, SCOT-17-0000812

Nos. SCOT-17-0000777, SCOT-17-0000811, SCOT-17-0000812, Thursday,
June 21, 2018, 9 a.m.

IN THE MATTER OF CONTESTED CASE HEARING RE CONSERVATION DISTRICT USE APPLICATION (CDUA) HA-3568 FOR THE THIRTY METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE KA OHE MAUKA, HAMAKUA TMK (3) 4-4-015:009.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for appellants Mauna Kea Anaina Hou, et al.:

Richard Naiwieha Wurdeman

Attorney for appellants Temple of Lono, et al.:

Gary Charles Zamber

Attorneys for appellee TMT International Observatory, LLC:

J. Douglas Ing, Brian A. Kang, Ross T. Shinyama, and Summer H. Kaiawe

Attorneys for appellees Board of Land and Natural Resources, et al.:

Clyde J. Wadsworth, Solicitor General; Kimberly Tsumoto Guidry and Kaliko onalani D. Fernandes, Deputy Solicitors General; William J. Wynhoff, Supervising Deputy Attorney General; and Julie China, Deputy Attorney General

Attorneys for appellee Perpetuating Unique Educational Opportunities, Inc.:

Newton J. Chu, Vaughn G. T. Cook, and Licoln S. T. Ashida

Attorneys for appellee University of Hawai i at Hilo:

Ian L. Sandison, John P. Manaut, and Lindsay N. McAneeley

NOTE: Certificate of Recusal, by Associate Justice Paula A. Nakayama, filed 11/28/17.

NOTE: Order assigning Circuit Court Judge Jeannette H. Castagnetti, in place of Nakayama, J., recused, filed 11/30/17.

NOTE: Order consolidating SCOT-17-0000777, SCOT-17-0000811, and SCOT-17-0000812 for oral argument, filed 05/07/18.

COURT: MER, C.J.; SSM, RWP, and MDW, JJ.; and Circuit Court Judge Castagnetti, in place of Nakayama, J., recused.

Listen to the entire audio recording in mp3 format  ]

Brief Description:

Consolidated for oral argument by counsel are three separate appeals from the Board of Land and Natural Resources’ (“BLNR”) Findings of Fact, Conclusions of Law and Decision and Order, which ordered the issuance of a Conservation District Use Permit (“CDUP”) for the Thirty Meter Telescope (“TMT”) Project atop Maunakea.     

The first appeal (SCOT-17-0000777) is brought by the original appellants represented by attorney Richard Wurdeman, whose previous appeal resulted in a remand to the BLNR for a new contested case hearing.  See Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai i 376, 363 P.3d 224 (2015). In summary, this appeal alleges that the BLNR erred by (1) denying their motion to disqualify (a) hearing officer Riki Amano and (b) BLNR’s and the hearing officer’s counsel; (2) overruling their objections to certain BLNR board members presiding in the case; (3) admitting TMT International Observatory, LLC and Perpetuating Unique Educational Opportunities, Inc. as intervenors; (4) denying their motion to strike the CDUP application; (5) concluding that it fulfilled the requirements of Ka Pa akai O Ka Aina v. Land Use Comm’n, 94 Hawai i 31, 7 P.3d 1068 (2000), and improperly placing the burden of proof upon the appellants to establish native Hawaiian traditional and customary practices; and (6) concluding that the TMT project (a) met the criteria of Hawai i Administrative Rules §§ 13-5-30(c), and (b) did not violate Article XI, Section 1 of the Hawai s24 i Constitution and the public trust doctrine.  

The second and third appeals (SCOT-17-0000811 and SCOT-17-812) are brought by attorney Gary Zamber on behalf of the Temple of Lono and seven individual intervenor-appellants, respectively. (In the latter appeal, one intervenor-appellant now represents himself.) Attorney Zamber will be able to present arguments on procedural and substantive legal issues not presented in the first appeal, such as the alleged violation of appellants’ religious rights.