(BIVN) – A special land board hearing on a petition from the Mauna Kea Hui for a declaratory ruling concerning the Thirty Meter Telescope permit was held on Tuesday.

Back in May 2021, the Mauna Kea Hui – comprised of various groups and individuals opposed to the building of the TMT on Maunakea – alleged the observatory project was in non-compliance with a condition of the University of Hawaiʻi at Hilo’s Conservation District Use Permit, granted by the Hawaiʻi Board of Land and Natural Resources in September 2017.

Condition 4 of the permit stipulates “any work done or construction to be done on the land shall be initiated within two (2) years of the approval of such use.” A two-year extension on the deadline for the observatory project to meet the condition was granted by the BLNR chair Suzanne Case in July 2019. That same month, opposition to the observatory project gathered at the base of the Mauna Kea Access Road, leading to a standoff with authorities that resulted in further project delays.

From the May 2021 petition by the Mauna Kea Hui:

By letter dated April 28, 2021, UHH wrote to the Administrator of the Office of Conservation and Coastal Lands (OCCL) to notify him of “initiation of work and/ or construction” for the TMT in compliance with General Condition No. 4. Ching Decl. ¶3; Exh. 03. In support of their assertion that construction had initiated, UHH cited activities taking place between June 20, 2019 and July 16, 2019, prior to the Board Chair’s July 30, 2019 letter granting UHH’s extension request. Exh. 03 at 2. In addition to the June 25, 2019 and July 12, 2019 actions, UHH cited inspections for invasive species on July 15, 2019, a “Kick-Off Meeting” between TMT and its contractors to discuss construction on July 8, 2019, and removal of an ahu on June 20, 2019. Id.

The April 28, 2021 letter posted to the DLNR website has a stamp stating “approved”, signed by Suzanne Case and dated May 4, 2021.

The Mauna Kea Hui says “no construction or work on land was initiated under the plain and ordinary meaning of the terms.”

Just under two years later, in February 2023, the Mauna Kea Hui made a second written request for a land board ruling.

Mauna Kea Hui attorney Richard Naiwieha Wurdeman said during Tuesday’s hearing that according to the rules, “if a time extension request is received after the expiration deadline, which would have been in 2021, it shall be forwarded to the board for review.” Wurdeman added that, “if a request for a time extension is not received within one year after the expiration deadline, then the permit shall be void. So at this point, pursuant to the rules, there’s nothing that UH-Hilo or (TMT International Observatory) can do to revive this.”

Wurdeman was joined by representatives of other parties who filed briefings in response to the motion – The Temple of Lono, Cindy Freitas, and the Flores-Case ʻOhana – who also participated in the Tuesday hearing.

Opposing the Mauna Kea Hui were attorneys for the respondents – the TMT International Observatory LLC, the University of Hawaiʻi at Hilo, and PUEO (Perpetuating Unique Educational Opportunities).

TMT attorneys argued that the site-related work that was done prior to the pause in activity was enough to satisfy the condition. They also argued that the Mauna Kea Hui petition should be denied on “principles of equity and fairness”… “since Petitioners (individually or as members of various organizations) actively participated in the protests and/or coordinated with others engaging in the protests to block access to the TMT Project site.”

“The government authorities on July 16, 2019 made the decision to stand down and not pursue a law enforcement resolution to the protest,” wrote the attorneys for PUEO. “The unclean hands of the protestors should not be rewarded, based on the government’s actions in seeking a peaceful resolution.”

“Its unclean hands for them who may have participated in delaying the construction, to now get the benefit of that”, summarized DLNR chair Dawn Chang during the Tuesday meeting. “Two years (of delay) and I could maybe buy that. But this is six years later. Four years, and there has been nothing else done.”

“You have potential NSF (National Science Foundation) funding,” Chang continued, “which is going to require – I’m assuming – a NEPA (National Environmental Policy Act) compliance.”

“Condition number 4 also says, shall be completed within 12 years of the approval,” Chang noted. “So six years have passed. I know we’re not at year 12. But if you get NSF funding, there are numerous regulatory compliances.”

With the close of the oral arguments, chair Chang said the parties shall submit proposed orders to the Custodian of the Records ten business days after the transcript is prepared. The transcript is anticipated to take at least 30 days to prepare.