The Thirty Meter Telescope contested case hearing continued its no wake-dead slow progress into uncharted waters last month. While retired judge Riki May Amano was nominally at the helm, it was the band of protesters who seemed to have control of the throttle.
With time appearing to be on their side, the dozen or so opponents of the TMT who remain engaged in the drawn-out proceeding put on their cases in chief. After testimony ends – Amano has expressed hope this phase will wrap up in March – all the parties will be given several weeks to draft proposed findings of fact, conclusions of law, and decision and order. Drawing from them, Amano will draft her own recommended FOF, COL, D&O, to guide the Board of Land and Natural Resources’ decision to approve or deny of the Conservation District Use Permit needed before the telescope can be built at a site near the summit of Mauna Kea.
Should the board approve the permit, that action will almost certainly be challenged in court. Thanks to a law enacted in 2016, the appeal can be taken up at once by the state Supreme Court, bypassing the Circuit Court and Intermediate Court of Appeals.
The TMT International Observatory Corporation (TIO), which has been raising funds and planning the $1.4 billion facility for more than a decade, has indicated it needs a green light to build in Hawai`i by early 2018. Otherwise, it will give up on Hawai`i and seek to build the telescope elsewhere, with the Canary Islands now being identified as Plan B.
Among Amano’s earliest decisions was whom to admit as parties to the contested case. By the time the testimony began in October, the number stood at around 24 (depending on who is counted: for example, Kealoha Pisciotta represents Mauna Kea Anaina Hou, one of the parties, but she also says she individually has been admitted as a party, though others dispute this). Some have withdrawn formally. Some have withdrawn for all practical purposes, having failed to make an appearance for months.
About a dozen parties opposed to the TMT were still engaged when, in January, Amano set the schedule for presentation of witnesses for the remainder of the proceedings, asking that four a day be produced.
That schedule has proven to be wildly optimistic, thanks in no small part to a decision Amano made early on to allow objections to questioning to be lodged only by the presenting party. Although she has repeatedly admonished those parties to rein in the questioning whenever it strayed from the witness’s direct testimony, they have rarely done so. Instead, the witnesses, often encouraged by leading questions, have engaged in narrative testimony, providing extended exegetical responses. Discussion has occasionally veered toward personal traumas, transforming the hearing into a something akin to a therapy session, with tears all around: Pisciotta’s battle with Mauna Kea rangers over the placement of a family stone on the mountain; Mehana Kihoi’s life-defining moment of being arrested, in the presence of her daughter, while in pule [prayer] with other wahine [women] during the course of a vigil; Hank Fergerstrom’s encounter with Marines during an effort to worship at Mokapu, site of the Marine Corps base in Kaneohe.
The adversarial questions from attorneys for the University of Hawai`i, which is the applicant for the permit, and for the TMT take up limited time relative to the questions of the petitioners. Under the direction of Lincoln Ashida, the attorneys for the only Hawaiian group in the proceedings to favor telescope construction – PUEO, or Perpetuating Unique Educational Opportunities – have been far gentler in their cross-examinations of witnesses.
Among the other things to fall by the wayside has been courtroom decorum. A gallery packed with supporters of the protesters now regularly applauds as witnesses for the protesters conclude their time on the stand.
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The objective for many of the protesters as they present their cases in chief has been to demonstrate that the telescope would interfere with their traditional cultural practices at or near the summit of Mauna Kea and that this runs counter to the eighth of eight identified criteria that the Land Board is to apply when evaluating the propriety and suitability of a proposed use Conservation District land.
Those criteria are identified in the Department of Land and Natural Resources’ administrative rules. Criterion 8 states, “The proposed land use will not be materially detrimental to the public health, safety, and welfare.” The telescope opponents have argued that the TMT will pose a threat to public health and safety (by polluting the groundwater, among other things), but most of all, by jeopardizing the welfare of Hawaiians inasmuch as its very existence will be an affront to their culture and religion.
One of the witnesses who addressed this was Gregory Johnson, a professor of religious studies from the University of Colorado at Boulder called as a witness by William Freitas. As part of his scholarly research, Johnson had been on the mountain during protests in 2014 and 2015 and had struck up a sort of friendship with Freitas, a stone mason and one of the protesters participating in the contested case.
Johnson was also an observer when Freitas spearheaded the construction of two ahu, or stone shrines, built in 2015 in the center of the road leading to the proposed TMT site.
Johnson said that he was convinced of the sincerity of the people he saw protesting, and because of this, the environmental impact statement and all other relevant documents made part of the Conservation District Use Application should be rewritten.
“The ahu constructed … now stand as material focal points of living Hawaiian tradition and also as dense symbols of Mauna Kea’s sacredness to members of the native Hawaiian community,” Johnson stated.
“My opinion is that the altars constructed on the TMT site … are expressions of living Hawaiian tradition and deserve protection as such.” They are, he added, “sincere religious belief at a moment of crisis.”
“Based on my understanding of the facts, the hearing officer and BLNR appear to be faced with a choice: either disregard the ahu … and thus allow the EIS and CDUA to stand mute with reference to them, or acknowledge the ahu as significant expressions of traditions… relevant to this proceeding.” In the latter case, he said, the “demands of due process” require rewriting of the EIS and the Conservation District application.
Another witness brought to address the potential health impacts that Hawaiians would suffer if the TMT were built was Maile Taualii, a professor of public health at the University of Hawai`i. Taualii described her research that, she said, showed real physical harm to cultural practitioners when their sacred spaces are desecrated, even after all other factors (poverty, education, and the like) are removed from consideration.
Deborah Ward asked her how, specifically, the TMT would be detrimental to health. “Those who are practitioners … will feel and have reported feeling ill health effects as a result of the building of the telescope,” Taualii replied.
Petitioner Pua Case, who has testified that she receives instruction from the spiritual world, asked Taualii if she was aware “of near-death experiences reported by patients, including children, following cardiac arrest, coma, or other life-threatening experiences?”
After Taualii responded that yes, she was, Case pressed further: “Are you aware of reports of out-of-body experiences, white light, meeting deceased persons, spiritual beings,” and so forth?
Again, Taualii responded that she was aware of these.
Case asked: “Would you agree that, generally speaking, health care providers do not fully understand near death experiences?”
“I would say allopathic medicine, a term I prefer over western medicine,” Taualii answered, “does not provide for an explanation of spiritual health as well as physical explanations associated with near-death experiences.”
Case asked if Taualii had seen research into the subject of Hawaiian spirituality. No, Taualii said.
Then Case asked her if, in her experience, she knew “of individuals who reported receiving instructions from their ancestors or the spiritual realm for responsibility of protecting sacred spaces.”
“Absolutely,” Taualii replied. Under further questioning, she identified health outcomes that might devolve onto an individual who had received such instruction but was unable to carry it out.
“There are grave health effects when one is not able to respond to their responsibilities and I could look at from a perspective of pure science,” Taualii said. “The physical manifestation of guilt, of pain and anguish of loss of connection can result in poor health outcomes, stress in the body, and that can cause many health impacts. And that’s just the physical. We could do a blood study, we could measure someone’s physical manifestation, but that’s not nearly as harmful as some of the mental ramifications. Talk about depression, we have huge depression problems in the Hawaiian community. And associated with depression, high suicide rates – substance abuse is a way people handle depression. There’s a lot of downstream effects of not being able to address those issues.
“I’m a scientist and I draw models that connect one thing to another. I could draw you a model that shows how not being able to fulfill one’s personal responsiblility, through a dream, through an elder, through generational knowledge passed down … can cause physical health effects. Downstream effects of those initial effects of not being able to practice that kuleana.”
Kihoi, who sees Mauna Kea as a place of personal healing, asked Taualii what the effects of TMT construction would be on someone who, like her, has already been traumatized by domestic violence and by her arrest while protesting on the mountain. Taualii solemly suggested that death was a possible outcome:
“I believe that words have mana, so I would rather not direct it specifically at you. I know that there are grave effects from statements made by people who are no longer with us today, who have stated, ‘over my body they will build the telescope,’ who have left us. I don’t wish any ill harm on any of us who are connected to places, but our health is in grave danger if those places are not available to us. Our health is directly connected to them and the health of those places and if they are not healthy it will have grave effects on our health.”
Research done by Taualii that she said confirmed the intergenerational trauma of loss of sacred sites has not yet been published – a result, she said, of the slow peer-review process.
Lincoln Ashida, attorney for PUEO, questioned Taualii – who now asked that she be addressed as “Doctor” – on her use of the term desecration, establishing that she was not using it in a legal sense. He then proceeded to ask her about particular aspects of her research as related to the TMT.
“Would you agree in any type of research that the collection of data is important?”
“And that can come from a variety of sources?”
“You oppose the building of the TMT telescope, is that correct?”
Taualii did not want to answer, replying instead: “Can I ask how that’s related to the first question about the collection of data?”
“Well, that’s my question, and I’m asking whether you oppose it or not?” Ashida said.
Taualii asked Amano whether she had to answer, and Amano directed her to do so.
“Yes,” she finally replied.
“Going back to my question regarding data, are you aware of any native Hawaiians who support the building of the TMT telescope?”
After some hemming and hawing, she replied that they had not made themselves known to her.
“My question is not do you know them personally but are you aware there are native Hawaiians who support the building of the TMT?”
“Am I aware of it? I’m a scientist, so I need to understand the question better. Are you asking me to quantify my awareness of these people?”
“No, I’m just asking if you’re aware or not.”
“How are you aware?”
“I’m sure television, newspapers, general public information. Like I said, I’m not sure I understand your question.”
“Through your research is it safe to say you’ve spoken to people who oppose the construction of the TMT telescope?”
Taualii replied that she had.
“And through that same research, did you speak to any people who conversely support the building of the TMT telescope?” Ashida then asked.
“That wasn’t the intention of the research,” was Taualii’s answer.
“The intention of my question is to ask if you had spoken to any persons who supported the TMT?”
“You asked earlier if data is collected, and it’s important. My research is done in a way that is scientifically – “
At this point, she was interrupted by Amano. “Dr. Taualii, you need to listen to the question,” Amano said, instructing her to respond to the question.
Taualii then said her “research intention” was not to interview Hawaiians who might support the TMT.”
Ashida then gave her a copy of a report on a scientific poll of Hawaiians on the Big Island.
“I draw your attention to the second page, specifically the item that I’ve highlighted for you. … The poll found that support for TMT is split among native Hawaiians and part Hawaiians on Big Island: 46 percent support, 45 percent opposed. Were you aware of these numbers?” Ashida asked.
“Not till now.”
The hard questions for Taualii continued during cross examination by the attorneys for the University of Hawai`i and the TMT – Pete Manaut and Ross Shinyama, respectively.
Manaut elicited the statement from Taualii that she had originally requested to be a party to the contested case, but that her time “would not allow it.”
Taualii then stated that she had been opposed to the TMT “since we were made aware” of it.
Was your opposition to the project formed before you started doing research? Manaut asked.
The research questions, Taualii answered, “were formed after my decision not to support – never to support” the TMT.
‘Changed Frequency of Consciousness’
Another star witness for the protesters was Manulani Aluli Meyer, director of indigenous education at the University of Hawai`i-West O`ahu, who declared that she was giving her testimony “through the trilogy of what is now known as holographic epistemology within indigenous scholarship and philosophy.”
Referring to herself in the first-person plural, Meyer described how “now we go throughout the world and talk about a process of knowledge called holographic epistemology. It is synergistic with the post quantum reality world of science that is now coming to the fore. It is synergistic with the ideas that are deconstructing capitalistic priorities and our thought processes.”
The hologram, she stated, was a metaphor for “ancient systems around the world that are still in progress, in evolution of consciousness. Physical, mental, and spiritual reality exists on the planet. The physical, predictable empirical world. Mental is our thinking, subjective side. And then the spiritual side. The spiritual side is the quantum.”
One after another of the petitioners cross examining her seemed puzzled, yet made no secret of their respect for her position and accomplishments.
There’s now a “changed frequency of consciousness,” she stated. “A heightened awareness of what aloha really means. Kapu in this instance means reverence. Reverence for aloha.”
She was describing, she said, a world post-science: “The advancement of physics has gone into the super small… We’re now in post-quantum. The idea of love would have a more beneficial impact to the movement, this aloha `aina movement, than any form of anger or resistance.”
The pules (prayers) of the protesters have had real impact, she said. “That’s our science. And science is now walking toward indigenous scholars, walking toward indigenous sensibilities because we can make sense of things in a multiple dimensional way that actually bares its truth through time. It’s very difficult for mundane trained scientists to understand that idea, but, yeah, hang around the post-quantum-physics scientists and they’re now recognizing 11 dimensions in the universe. Uncle Leroy Littlebear said he had to collapse the 21 dimensions of the Blackfoot people just so that the quantum scientists could understand.”
Aluli’s testimony invoked shamans, educators and philosophers – everyone from the Dalai Lama to Gandhi to an obscure Hawaiian mystic, Hale Makua; from Paulo Freire to Martin Heidegger.
“Our science is a type of profundity that goes beyond mundane understanding,” she said.
“Paulo Freire said conflict is the midwife of consciousness. Heidegger said the purpose of conflict is unity. Conflict for me, is actually, I say to my students, my job is to put you in a place of discomfort … so that you can grow. So I believe conflict is actually a very vital ingredient for our own evolution.”
When it came to the specifics of the Conservation District Use Application that is at the heart of the contested case, Meyer was dismissive. Petitioner Hank Fergerstrom attempted to get her take on the eight criteria the Land Board is to consider in deciding whether to grant the permit.
Meyer said she had no knowledge of them, but also she did not need to know them. When Fergerstrom attempted to present her with a copy of the Land Board’s rules, she waved him away.
“I don’t know the document you’re referring to as far as the subzoning. But what happens with clashing cosmologies, Hank, is that no matter what you read to me, it will be a clash. … What continues in life is the thing that does not cost money. … What capitalism teaches me is that those who will stop getting paid for their duties, jobs and their own excellence will stop fighting for their truth. And so that’s why our continuity – you can read me anything you want to and it’s still going to be a statement of polemics, so that’s what I have to say for any more reading. Clashing cosmology is happening here, that’s obvious.”
In response to petitioner Tiffnie Kakalia’s question about whether another telescope on the “wao akua” (realm of the gods) was consistent with the University of Hawai`i’s statements elsewhere on indigenous education, Meyer referred to her job as indigenous education coordinator.
“Is the application that the university is seeking in alignment with that philosophy?” Meyer said, paraphrasing Kakalia’s question. “Absolutely not. … That’s my job to keep saying, it’s not, it’s not. And to be effective in my job, I have to say why. That’s the harder part. …
“That’s my life’s work. Why building another telescope is not appropriate for these times. Get the knowledge from different ways. We know there are different knowledge ways to get information about stars. Explore that. As a professor in a university setting that values science, especially now that STEM is rolling into the world now… You know, it’s a huge movement. I’m not swayed by that. I believe there are technologies that are yet to be fulfilled in our world of indigenous understanding. … So no, it’s not extending indigeneity.”
— Patricia Tummons