Tempers Flare as TMT Contested Case Closes Out Third Month of Hearings

posted in: January 2017 | 0

The contested case hearing on a Conservation District Use Application for the Thirty-Meter Telescope continued its slow pace last month, with 11 days of hearings.

On December 13, the University of Hawai`i, which is the applicant for the Conservation District Use Permit (CDUP), concluded its case in chief following the testimony of hydrologist Tom Nance. Nance was the last of a dozen witnesses the university had called since the evidentiary portion of the contested case began on October 20. Next up was the TMT International Observatory, the nonprofit corporation that is proposing to build the controversial telescope near the summit of Mauna Kea.

Despite efforts of retired Judge Riki May Amano, the hearing officer, to set clear boundaries as to what subjects could be raised during the process, many of the TMT opponents continued to attempt to argue the existence of the kingdom of Hawai`i in their cross-examinations of university and TMT witnesses.

In addition, much of the focus of opponents in their questions to witnesses presented so far has had to do with their knowledge of Hawaiian religion and practices that may be associated with it. Many of them argue that the mountain is sacred and any disturbance to the summit area is tantamount to desecration. Some have claimed that the very stones are their ancestors, while others argue that the pu`u (cinder cones) and other natural features of the landscape represent the bodily forms of their gods and goddesses.

There were two other recent developments that have a bearing on the question of whether the TMT will be built in Hawai`i.

First, the state Supreme Court turned down an interlocutory appeal of six petitioners in the contested case who challenged Amano’s decision to impose a 30-minute time limit on each petitioner’s cross-examination. Although Amano said at the time that the limit could be exceeded for good cause – and it has often been – the TMT opponents asked the court to reverse her decision. On December 2, the high court dismissed the appeal, stating it lacked jurisdiction.

Then, on December 15, 3rd Circuit Judge Greg K. Nakamura issued an oral ruling that would seem to remand to the Board of Land and Natural Resources its decision to consent to the University of Hawai`i’s sublease to TMT of land where the telescope is proposed to be built. (The written order had not been released by press time.) One of the petitioners in the TMT case, Eric Kalani Flores, had brought the lawsuit against the BLNR after it did not grant him a contested case over the consent to sublease.


* * *

Hearing-Room Drama, I:

‘A Zombie Proceeding’

On December 19, Ed Stone, executive director of the TMT International Organization (TIO), testified. During cross examination by Lanny Sinkin, representing the Temple of Lono, Stone was asked about the plan to finance decommissioning of the telescope, which Stone had referenced in his testimony but which had not been included in the exhibits offered as part of TIO’s case.

Sinkin asked if Stone had the plan with him.

Stone replied that he did not.

“Do you know if your counsel has a copy here today?” Sinkin asked.

Stone answered that he did not know.

“I’m wondering if I could ask counsel if he has a copy of this DFP,” Sinkin then said, referring to the Decommissioning Funding Plan.

“I have a copy,” replied Douglas Ing, one of the attorneys for the TIO.

“Would you care to share it with the rest of us?” Sinkin asked.

“No,” Ing replied, without elaboration.

Sinkin addressed Amano, complaining that parties to the case “don’t get discovery. They [TIO] get to testify about a document they won’t share with anybody, and we’re just supposed to say thank you very much. There’s something wrong with the process.”

Ing noted that Stone’s testimony had been on file since early October. “In the months that have transpired, no one has made a request,” he stated. “I didn’t know they wanted to make a request. There are dozens of documents that have been referred to – even more than dozens, but I don’t know which documents they’re interested in asking questions about.”

Sinkin responded by making an oral motion, asking Amano to force production of the plan.

Amano characterized Sinkin’s request as “rather untimely,” noting that intervenors had been on notice since the previous week that Stone would be testifying. “Even then,” she said, “had there been a request, I could have done something about it.”

The following morning, the last day of hearings before the holiday break, one after another petitioner lined up to express their concerns about their inability to compel production of documents – not just the decommissioning plan of TIO, but any and all other documents that might be referenced in testimony.

Deborah Ward led them off. “I believe there has been some confusion with regard to the way we conduct our hearing,” she said. “It’s come to my attention that maybe somewhere in the middle of this proceeding the rules have changed and it appears from what happened yesterday with Mr. Sinkin that we could have asked various witnesses for documents that they did not present in their exhibit list or we could have asked the university for those documents but because of the rule on discovery we were under impression that was not possible.  Now we find out we actually should have asked for documents that we thought were missing or we wanted to ask questions about.”

Amano attempted to explain her description of Sinkin’s request for the decommissioning plan as untimely. “My thinking was, if you knew this was going to be coming up, you would have gone to the exhibit list to look for that exhibit,” she said. “So that’s when you should’ve found out there was no such exhibit. Had the request been made last week – yesterday morning, even – we would have had time to do something about that. But this was late in the day. And that’s my basis for thinking that it was untimely.”

Sinkin was next up, informing Amano that the Temple of Lono considered the matter “far more seriously and in a broader context than was raised by Ms. Ward.”

“As far as the temple is concerned,” he said, “the refusal of the hearing officer to direct TIO’s counsel to produce the document during cross examination by the temple is simply one more decision demonstrating the extraordinary lengths the hearing officer will go to in protecting the applicant and the telescope project. When the hearing officer refused to allow the temple to file a motion to  …”

Amano appeared dismayed and interrupted Sinkin.

“Just a minute.”

“Yes, ma’am,” Sinkin responded.

“Do you really mean what you say?

“This is the way I feel,” Sinkin said.

Amano: “So you think that I’ve gone to great lengths to protect the telesope and the telescope project?”

Sinkin: “Absolutely. That’s why I’ve filed two motions to recuse, which have never been addressed. I’ll just make my statement for the record, your honor. I’m not here to obviously argue with you. And I’m sorry — I hope you don’t take this personally.” At that, Sinkin smiled.

A very unsmiling Amano responded: “I do.”

Sinkin continued: “Okay. Well, I can’t help that. When the hearing officer refused to allow the temple to file a motion seeking to dismiss the permit application based on the bigoted and libelous attack on the temple by the university … the temple understood that this would not be a fair and impartial proceeding. The temple now has thirteen or fourteen motions pending that the hearing officer either never took up or never ruled upon, so the temple came to understand that the temple has second-class status as an intervenor in this proceeding.

“Now, on a simple matter of having TIO produce a document about which their witness testified in his direct testimony, the hearing officer has chosen again to be the protector of the permit application. Two of the motions filed by the temple and not addressed are motions requesting this hearing officer to recuse herself based on demonstrated hostility toward the Temple of Lono and bias in favor of the applicant and telescope.

“The temple renews those motions and adds the refusal to order the production of the decommissioning plan as further evidence in support of those motions.

“As far as the temple is concerned, this proceeding is a zombie proceeding. There are so many serious and fundamental errors in the conduct of this proceeding that the permit is already dead.”

Other intervenors queued up to express their overall unhappiness with the proceedings. Kealoha Pisciotta, on behalf of her group Mauna Kea Anaina Hou, joined in the complaints of Sinkin and others and also objected to a perceived slight made the previous day against the Hawaiian kingdom.

“[E]veryone here in Hawai`i, who’s especially born here, is, would be a citizen of the Hawaiian kingdom. I know that the Hawaiian kingdom has been objected to repeatedly here, but I do want to say that as far as treaties go, treaties according to the United States constitution are the highest law of the land. The Hawaiian kingdom in America had treaties, [that] are part of American law and American Constitution, as well. And that’s not opinion, that’s recorded by the Congress repeatedly in the apology bill, in, for example, the native Hawaiian health care improvement act –”

Amano interrupted to ask what point Pisciotta was attempting to make.

“My point is that I think the treaties were objected to and, you know, I don’t think the treaties should be objected to. Because –”

Amano: “The treaties were not objected to.”

“Well, that’s what I heard,” Pisciotta replied. “So, if I’m wrong, that’s fine. That’s fine. But I just wanted to make the record that the treaties between the United States and the Hawaiian kingdom are a matter of public record.”

After everyone had a chance to weigh in on the matter, Amano instructed any motions relating to the production of documents to be filed by December 29, with responses due January 3. They are to be taken up at the start of the hearing on January 5.


* * *

Hearing-Room Drama, II:

The Sublease

On December 16, the morning following Judge Nakamura’s oral ruling appearing to order a contested case hearing on the Land Board’s consent to the sublease between the university and TMT, TMT opponents queued up to ask Amano to stay the contested case over the CDUP. They also argued that the ruling deprived the TMT of any property interest in the proposed construction site, and that, for this reason, the TMT no longer had any justification for participation in the proceeding.

Amano insisted that she could make no decision, one way or another, in the absence of a written order.

Still, the opponents pressed their point. On behalf of the Temple of Lono, Sinkin had already filed a formal motion asking Amano either to dismiss the TMT from the proceedings or to stay the proceedings. Sinkin argued that Nakamura’s order had effectively voided the sublease and, he went on, since the sublease was the basis for TIO’s participation in the contested case, it should be expelled from the proceedings.

Amano reminded Sinkin that in her order admitting parties to the contested case, she had allowed the TIO to participate not on the basis of any property interest, but rather because of the information they could add in helping her come to a recommendation.

Dexter Kaiama, representing KAHEA, also pressed Amano to stay the proceedings, arguing that it would be a waste of time to allow TMT to present its case, calling witnesses that would require the opponents to prepare questions and cross-examine them, if it turned out that the TMT had no valid sublease.

“We don’t even have a written order,” Amano said.

Kaiama went on to challenge the independence of Amano herself, suggesting that she did not write the minute order admitting parties to the contested case on her own.

Amano, who has been slow to anger throughout the contested case, immediately set Kaiama straight on that. “Let me cure you of that curiosity. I put the minute order together, and it reflects the oral order I made,” she said.

Kaiama wasn’t finished, arguing that because the deputy attorney general representing the DLNR before Nakamura was also providing “counsel and advice” to Amano, she “needs to reassess that question which arises about the appearance of independence.”

Clarence Ching seconded Kaiama’s remarks.

“The CDUA application is a separate process from the sublease permit application,” Amano said. “I do not intend to stay this proceeding. I don’t even have a written order!”

* * *

Water Resources

Tom Nance, a hydrologist, was presented by the university on December 13 to discuss what impacts the TMT might have on water sources – a concern that many of the telescope opponents have raised.

As proposed, the telescope facility would transport all wastewater generated on site and truck it down the mountain for treatment at a wastewater facility.

As to any runoff from the hardened surfaces around the telescope structure, Nance said it would flow to the north, away from Lake Waiau. Nor would any runoff from the construction staging area known as the batch plant, much closer to the lake, enter the lake’s watershed, Nance stated under questioning from TMT attorney Douglas Ing.

“So is it physically possible for runoff from either the … TMT observatory site or the batch plant to reach Lake Waiau?” Ing asked.

“It is not physically possible,” Nance replied.

Under cross-examination by the petitioners, Nance was repeatedly questioned about his knowledge not only of underground aquifers, but also about the views held by petitioners on Hawaiian religion, mythology, and sovereignty.

Several challenged Nance about his claim that no runoff would ever make its way to Lake Waiau.

“You wouldn’t really know exactly where the cracks and crevasses and aqueducts and things are under the ground, would you?” petitioner William Freitas said in his turn at cross-examination of Nance.

“That’s correct,” Nance said, “but the realities are that if you’re going to suggest that something spilled at the TMT site could get into Lake Waiau – Lake Waiau is a perched groundwater source. So let’s just take your example. Let’s say something spilled and started migrating wherever, it still can’t get into Lake Waiau. Because Lake Waiau, the bottom is sealed off by an impermeable layer.”

Freitas remained skeptical, going on to suggest that heavy rains, snow melting, earthquakes or other disaster could lead to just such an outcome.

Although the operation of the TMT will not involve the use of mercury at all, the prospect of a mercury spill is a point that has been frequently raised by the opponents.

Freitas questioned Nance on this point, asking if he had ever tested to see if mercury percolated through cinders or solid rock. (Nance answered no.)

While Nance acknowledged that the exact hydrology of Mauna Kea had not been studied extensively, the structure of Hawai`i’s volcanoes had been characterized well enough to give him confidence that the presence of telescopes in the summit area would have no impact on any underground water sources.

Petitioner Pisciotta questioned Nance extensively on this. “In your written direct [testimony], you actually discuss that any discharge at the summit of – I suppose, anything hazardous or contaminant – will be filtered through a thousand feet of porous lava. Is that correct?” she asked.

“Probably multiple thousand of feet,” Nance replied.

“So I’d like to ask you, if you understand that – and you may not – but do you understand that waters are considered sacred to native Hawaiian practitioners?” she asked.

“I’m not qualified to answer that,” Nance said.

“Are you aware that native Hawaiian practitioners consider those waters sacred because they’re associated with different gods and goddesses?” she asked.

“I’m not aware of that,” Nance replied.

She then asked Nance if he’d tested around the observatories for the presence of mercury, jet fuel, washing chemicals, hydraulic fuels, or any release of hazardous materials or sewage. Nance said he hadn’t.

Nance later dismissed a notion Kaiama had raised that the TMT would disturb wind patterns and thereby disrupt the water regime at the summit area.

“I doubt it would be of any significance,” was Nance’s reply.

Harry Fergerstrom jumped directly into the subject of the religious significance he attributes to the water on Mauna Kea.

Fergerstrom: “You’ve heard other cross examiners talk about that Lake Waiau is a sacred site to the Hawaiian people. It is related to one of our gods. Three of the water gods on Mauna Kea, that being Lilinoe, Poliahu, and Waiau. Are you familiar with that?”

After Nance replied that he was not, Fergerstrom lashed out against the proceedings themselves: “I’d like to enter into the record that it is exactly this kind of … abuse of our religious practices that I’m kind of, that we’re trying to identify here. That though you may have very good intentions, desecration is not based on your intentions, it’s based on what is perceived by the public, by us personally, as defined in 711-1107,” a reference to the Hawai`i statute relating to desecration.

Dwight Vicente asked about Nance’s birthplace and whether he or his parents had been naturalized “to the Hawaiian kingdom.” (Nance described himself as a “local haole.”)

Vicente went on to ask about Nance’s work engineering wells and established that this was usually in relation to one or another development.

“Is that development based on the kingdom wanting a development?” Vicente then asked.

“The kingdom of Hawai`i?” Nance replied, puzzled as to the question.

“The Hawaiian kingdom,” Vicente explained.

“No, I’ve never done a well for the Hawaiian kingdom,” he replied.

Cindy Freitas asked Nance if he was “aware of the source of life on Mauna Kea, which consists – that Mauna Kea makes up a large part of the island aquifer and it is believed to be that Poliahu, which is the snow, Lilinoe, which is the mist, and Waiau, which is the lake, are the female waters in that area?”

Nance: “I do not know that.”

— Patricia Tummons

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