FULL TEXT: Flores v. Board of Land & Natural Resources scap-17-0000059

  *   *   *   *   *

UH statement on supreme court sublease decision

From UH News, August 8, 2018

The University of Hawaiʻi issued the following statement on the Hawaiʻi State Supreme Court’s decision to uphold the state Board of Land and Natural Resources’ sublease between UH and the Thirty Meter Telescope International Observatory.

“The University of Hawaiʻi is pleased with the State Supreme Court’s unanimous decision in the Kalani Flores vs. Board of Land and Natural Resources matter announced today. It is a significant step forward in what has been a very long and important process, and we eagerly await the court’s decision on the conservation district use permit for the Thirty Meter Telescope. Regardless of what happens, UH stands fully committed to collaborative stewardship that demonstrates Maunakea as an inspiring and harmonious global model for culture, the environment and groundbreaking scientific discovery coming together synergistically for the benefit of all.”

  *   *   *   *   *

SUPREME COURT RULES IN FAVOR OF STATE IN APPEAL RELATING TO THIRTY METER TELESCOPE

News Release from Hawaii Attorney General, August 8, 2018

HONOLULU – Today, the Hawaii Supreme Court ruled unanimously that the state Board of Land and Natural Resources (BLNR) was not required to hold a contested case hearing before consenting to a sublease by the University of Hawaii (UH) to TMT International Observatory (TIO) for the construction of the Thirty Meter Telescope (TMT) on Maunakea.

“We are pleased with the Supreme Court’s decision affirming the actions of UH and BLNR in the first of the TMT-related appeals,” said Attorney General Russell Suzuki.

On December 16, 2016, Hilo circuit court judge Greg Nakamura, now retired, vacated BLNR’s consent to the sublease because no contested case was held. A contested case had been requested by E. Kalani Flores. UH and BLNR appealed Judge Nakamura’s decision, and the appeal was argued before the Hawaii Supreme Court last March.

Overturning the decision, the Court held that the circuit court erred in ruling that BLNR violated Flores’s constitutional rights when it denied his request for a contested case hearing. The Court stated: “[W]e agree with BLNR and the University that BLNR was not required to hold a contested case hearing prior to consenting to the Sublease because such a hearing was not required by statute, administrative rule, or due process under the circumstances of this case.”

The Court noted that Flores already participated in a separate contested case hearing on BLNR’s approval of a conservation district land use permit to UH. In that hearing, Flores was “afforded a full and fair opportunity to express his views and concerns” as to the effect of the TMT’s construction on his Native Hawaiian cultural practices.

In a separate appeal, several parties have asked the Hawaii Supreme Court to overturn BLNR’s approval of the conservation district land use permit for the TMT. That appeal was argued in June and is currently pending before the Hawaii Supreme Court.

  *   *   *   *   *

HTH: Supreme Court rules in favor of state on TMT sublease; no decision yet on land use permit

While the high court justices agreed that Flores’ has a substantial interest, they ruled that he didn’t show he would provide evidence that is materially different from what was presented during the other hearings for the project. Flores had participated in the contested cases for the land use permit.

“Put simply, to mandate (the Board of Land and Natural Resources) to hold a full contested case hearing on whether it should consent to the sublease would require BLNR to bear the duplicative administrative burden of providing procedural protections that would be of no additional value in safeguarding Flores’ interest in engaging in traditional Native Hawaiian cultural practices on (Maunakea),” the ruling states.

The justices also said a hearing is not required by “statute, administrative rule, or due process.”

PBN: Hawaii Supreme Court says contested case not required for TMT sublease

The Hawaii Supreme Court ruled on Wednesday that a contested case hearing is not required for the University of Hawaii’s sublease for the construction of the Thirty Meter Telescope project on the Big Island’s Mauna Kea.

The court’s decision overrules a December 2016 decision by Third Circuit Judge Greg Nakamura that the state Board of Land and Natural Resources should have held a hearing for the 2014 sublease agreement for the six acres of land atop Mauna Kea for use by TMT.

SA: Hawaii Supreme Court rules against Thirty Meter Telescope opponent

For the TMT, today’s 5-0 decision leaves only the question of whether the $1.4 billion project will be issued a conditional use permit allowing it to proceed with construction atop Hawaii’s tallest mountain.

That issue is before the court following an appeal of a state Board of Land and Natural Resources’ approval of that permit following a 44-day contested case hearing. Flores was among the petitioners in that case.