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.<\/p>\n
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 \u2013 Amano has expressed hope this phase will wrap up in March \u2013 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\u2019 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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
Winnowing<\/i><\/b><\/p>\n
Among Amano\u2019s 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 Some have withdrawn formally. Some have withdrawn for all practical purposes, having failed to make an appearance for months.<\/p>\n
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.<\/p>\n
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\u2019s 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\u2019s battle with Mauna Kea rangers over the placement of a family stone on the mountain; Mehana Kihoi\u2019s 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\u2019s encounter with Marines during an effort to worship at Mokapu, site of the Marine Corps base in Kaneohe.<\/p>\n
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 \u2013 PUEO, or Perpetuating Unique Educational Opportunities \u2013 have been far gentler in their cross-examinations of witnesses.<\/p>\n
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.<\/p>\n
<\/p>\n
* * *<\/b><\/p>\n
Cultural Practices<\/b><\/p>\n
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.<\/p>\n
Those criteria are identified in the Department of Land and Natural Resources\u2019 administrative rules. Criterion 8 states, \u201cThe proposed land use will not be materially detrimental to the public health, safety, and welfare.\u201d 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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
\u201cThe ahu constructed \u2026 now stand as material focal points of living Hawaiian tradition and also as dense symbols of Mauna Kea\u2019s sacredness to members of the native Hawaiian community,\u201d Johnson stated.<\/p>\n
\u201cMy opinion is that the altars constructed on the TMT site \u2026 are expressions of living Hawaiian tradition and deserve protection as such.\u201d They are, he added, \u201csincere religious belief at a moment of crisis.\u201d<\/p>\n
\u201cBased on my understanding of the facts, the hearing officer and BLNR appear to be faced with a choice: either disregard the ahu \u2026 and thus allow the EIS and CDUA to stand mute with reference to them, or acknowledge the ahu as significant expressions of traditions\u2026 relevant to this proceeding.\u201d In the latter case, he said, the \u201cdemands of due process\u201d require rewriting of the EIS and the Conservation District application.<\/p>\n
Historical Trauma<\/i><\/b><\/p>\n
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.<\/p>\n
Deborah Ward asked her how, specifically, the TMT would be detrimental to health. \u201cThose who are practitioners \u2026 will feel and have reported feeling ill health effects as a result of the building of the telescope,\u201d Taualii replied.<\/p>\n
Petitioner Pua Case, who has testified that she receives instruction from the spiritual world, asked Taualii if she was aware \u201cof near-death experiences reported by patients, including children, following cardiac arrest, coma, or other life-threatening experiences?\u201d<\/p>\n
After Taualii responded that yes, she was, Case pressed further: \u201cAre you aware of reports of out-of-body experiences, white light, meeting deceased persons, spiritual beings,\u201d and so forth?<\/p>\n
Again, Taualii responded that she was aware of these.<\/p>\n
Case asked: \u201cWould you agree that, generally speaking, health care providers do not fully understand near death experiences?\u201d<\/p>\n
\u201cI would say allopathic medicine, a term I prefer over western medicine,\u201d Taualii answered, \u201cdoes not provide for an explanation of spiritual health as well as physical explanations associated with near-death experiences.\u201d<\/p>\n
Case asked if Taualii had seen research into the subject of Hawaiian spirituality. No, Taualii said.<\/p>\n
Then Case asked her if, in her experience, she knew \u201cof individuals who reported receiving instructions from their ancestors or the spiritual realm for responsibility of protecting sacred spaces.\u201d<\/p>\n
\u201cAbsolutely,\u201d 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.<\/p>\n
\u201cThere 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,\u201d Taualii said. \u201cThe 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\u2019s just the physical.\u00a0 We could do a blood study, we could measure someone\u2019s physical manifestation, but that\u2019s 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 \u2013 substance abuse is a way people handle depression. There\u2019s a lot of downstream effects of not being able to address those issues.<\/p>\n
\u201cI\u2019m 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\u2019s personal responsiblility, through a dream, through an elder, through generational knowledge passed down \u2026 can cause physical health effects. Downstream effects of those initial effects of not being able to practice that kuleana.\u201d<\/p>\n
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:<\/p>\n
\u201cI 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, \u2018over my body they will build the telescope,\u2019 who have left us. I don\u2019t 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.\u201d<\/p>\n
Research done by Taualii that she said confirmed the intergenerational trauma of loss of sacred sites has not yet been published \u2013 a result, she said, of the slow peer-review process.<\/p>\n
Lincoln Ashida, attorney for PUEO, questioned Taualii \u2013 who now asked that she be addressed as \u201cDoctor\u201d \u2013 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.<\/p>\n
\u201cWould you agree in any type of research that the collection of data is important?\u201d<\/p>\n
\u201cYes.\u201d<\/p>\n
\u201cAnd that can come from a variety of sources?\u201d<\/p>\n
\u201cYes.\u201d<\/p>\n
\u201cYou oppose the building of the TMT telescope, is that correct?\u201d<\/p>\n
Taualii did not want to answer, replying instead: \u201cCan I ask how that\u2019s related to the first question about the collection of data?\u201d<\/p>\n
\u201cWell, that\u2019s my question, and I\u2019m asking whether you oppose it or not?\u201d Ashida said.<\/p>\n
Taualii asked Amano whether she had to answer, and Amano directed her to do so.<\/p>\n
\u201cYes,\u201d she finally replied.<\/p>\n
\u201cGoing back to my question regarding data, are you aware of any native Hawaiians who support the building of the TMT telescope?\u201d<\/p>\n
After some hemming and hawing, she replied that they had not made themselves known to her.<\/p>\n
\u201cMy question is not do you know them personally but are you aware there are native Hawaiians who support the building of the TMT?\u201d<\/p>\n
\u201cAm I aware of it? I\u2019m a scientist, so I need to understand the question better. Are you asking me to quantify my awareness of these people?\u201d<\/p>\n
\u201cNo, I\u2019m just asking if you\u2019re aware or not.\u201d<\/p>\n
\u201cYeah.\u201d<\/p>\n
\u201cHow are you aware?\u201d<\/p>\n
\u201cI\u2019m sure television, newspapers, general public information. Like I said, I\u2019m not sure I understand your question.\u201d<\/p>\n
\u201cThrough your research is it safe to say you\u2019ve spoken to people who oppose the construction of the TMT telescope?\u201d<\/p>\n
Taualii replied that she had.<\/p>\n
\u201cAnd through that same research, did you speak to any people who conversely support the building of the TMT telescope?\u201d Ashida then asked.<\/p>\n
\u201cThat wasn\u2019t the intention of the research,\u201d was Taualii\u2019s answer.<\/p>\n
\u201cThe intention of my question is to ask if you had spoken to any persons who supported the TMT?\u201d<\/p>\n
\u201cYou asked earlier if data is collected, and it\u2019s important. My research is done in a way that is scientifically \u2013 \u201c<\/p>\n
At this point, she was interrupted by Amano. \u201cDr. Taualii, you need to listen to the question,\u201d Amano said, instructing her to respond to the question.<\/p>\n
Taualii then said her \u201cresearch intention\u201d was not to interview Hawaiians who might support the TMT.\u201d<\/p>\n
Ashida then gave her a copy of a report on a scientific poll of Hawaiians on the Big Island.<\/p>\n
\u201cI draw your attention to the second page, specifically the item that I\u2019ve highlighted for you. \u2026 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?\u201d Ashida asked.<\/p>\n
\u201cNot till now.\u201d<\/p>\n
The hard questions for Taualii continued during cross examination by the attorneys for the University of Hawai`i and the TMT \u2013 Pete Manaut and Ross Shinyama, respectively.<\/p>\n
Manaut elicited the statement from Taualii that she had originally requested to be a party to the contested case, but that her time \u201cwould not allow it.\u201d<\/p>\n
Taualii then stated that she had been opposed to the TMT \u201csince we were made aware\u201d of it.<\/p>\n
Was your opposition to the project formed before you started doing research? Manaut asked.<\/p>\n
The research questions, Taualii answered, \u201cwere formed after my decision not to support \u2013 never to support\u201d the TMT.<\/p>\n
\u2018Changed Frequency of Consciousness\u2019<\/i><\/b><\/p>\n
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 \u201cthrough the trilogy of what is now known as holographic epistemology within indigenous scholarship and philosophy.\u201d<\/p>\n
Referring to herself in the first-person plural, Meyer described how \u201cnow 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.\u201d<\/p>\n
The hologram, she stated, was a metaphor for \u201cancient 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.\u201d<\/p>\n
<\/b>One after another of the petitioners cross examining her seemed puzzled, yet made no secret of their respect for her position and accomplishments.<\/p>\n
There\u2019s now a \u201cchanged frequency of consciousness,\u201d she stated. \u201cA heightened awareness of what aloha really means. Kapu in this instance means reverence. Reverence for aloha.\u201d<\/p>\n
She was describing, she said, a world post-science: \u201cThe advancement of physics has gone into the super small\u2026 We\u2019re 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.\u201d<\/p>\n
The pules (prayers) of the protesters have had real impact, she said. \u201cThat\u2019s 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\u2019s very difficult for mundane trained scientists to understand that idea, but, yeah, hang around the post-quantum-physics scientists and they\u2019re 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.\u201d<\/p>\n
Aluli\u2019s testimony invoked shamans, educators and philosophers \u2013 everyone from the Dalai Lama to Gandhi to an obscure Hawaiian mystic, Hale Makua; from Paulo Freire to Martin Heidegger.<\/p>\n
\u201cOur science is a type of profundity that goes beyond mundane understanding,\u201d she said.<\/p>\n
\u201cPaulo 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 \u2026 so that you can grow. So I believe conflict is actually a very vital ingredient for our own evolution.\u201d<\/p>\n
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.<\/p>\n
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\u2019s rules, she waved him away.<\/p>\n
\u201cI don\u2019t know the document you\u2019re 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. \u2026 What continues in life is the thing that does not cost money. \u2026 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\u2019s why our continuity \u2013 you can read me anything you want to and it\u2019s still going to be a statement of polemics, so that\u2019s what I have to say for any more reading. Clashing cosmology is happening here, that\u2019s obvious.\u201d<\/p>\n
In response to petitioner Tiffnie Kakalia\u2019s question about whether another telescope on the \u201cwao akua\u201d (realm of the gods) was consistent with the University of Hawai`i\u2019s statements elsewhere on indigenous education, Meyer referred to her job as indigenous education coordinator.<\/p>\n
\u201cIs the application that the university is seeking in alignment with that philosophy?\u201d Meyer said, paraphrasing Kakalia\u2019s question. \u201cAbsolutely not. \u2026 That\u2019s my job to keep saying, it\u2019s not, it\u2019s not. And to be effective in my job, I have to say why. That\u2019s the harder part. \u2026<\/p>\n
\u201cThat\u2019s my life\u2019s work. Why<\/i> 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\u2026 You know, it\u2019s a huge movement. I\u2019m not swayed by that. I believe there are technologies that are yet to be fulfilled in our world of indigenous understanding. \u2026 So no, it\u2019s not extending indigeneity.\u201d<\/p>\n
— Patricia Tummons<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":"
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