//Hearing Update 1/11/17 – Public Trust Doctrine

1/11/17 – Public Trust Doctrine

Much of today’s hearing focused on the “public trust doctrine,” a part of the Hawaii State Constitution that requires the State of Hawaii to hold public resources like Maunakea in trust for the benefit of the people.

How the state land board interprets this issue could be key on how it decides on this contested case and whether a Conservation District Use Permit (CDUP) would be approved to allow construction of TMT on Maunakea.

Some TMT opponents have argued that the public trust doctrine applies to the TMT project. But TMT witness David Callies, a law professor at the University of Hawaii School of Law, testified last month that the public trust doctrine does not apply to the project. He said that the public trust doctrine “does not require pristine and absolute preservation,” but “instead, the public trust doctrine requires a balancing process between protection and conservation of public trust resources on one hand, and the development and utilization of these resources on the other.”

Callies also felt that the proposed land use for the TMT project would be considered public or quasi-public because it would result in benefits to the public in the form of educational research and economic opportunities. He also testified that the public trust doctrine does not apply to the TMT project since the doctrine traditionally deals with water resources.

Attorney David Frankel testified today on behalf of TMT opponents. Frankel, who previously worked for the Native Hawaiian Legal Corporation, claimed Callies’ argument was flawed, saying that the public doctrine also involves land, air and energy resources.

This led to a lengthy back-and-forth cross-examination today between Frankel and TMT legal counsel Douglas Ing. Ing had Frankel explain several cases in which Frankel or his prior firm represented parties on those same arguments and lost on appeal.

To those watching the proceedings on NaLeo TV, it was a legal discussion that may not interest many in the general public. But it is one in which attorneys on both sides make their case with hearings officer Riki May Amano, as she decides on a recommendation to the state land board regarding the TMT issue.

Contested case party B. Pualani Case took the stand in the afternoon to testify on Hawaiian cultural issues.

The last hearing for this week is scheduled for tomorrow.


What’s in a name? When it’s a Hawaiian name or word, it is of much importance.

At the end of Tuesday’s hearing, some of the TMT opponents involved in the contested case hearing said they would not acknowledge the pro-TMT Native Hawaiian group PUEO (Perpetuating Unique Educational Opportunities) by its acronym because of the sacredness of the native Hawaiian owl.

Instead, some parties said they would address the group by the spelling of its letters, P-U-E-O. The PUEO group had joined the contested case hearings to push their argument for more STEM education and job opportunities for Native Hawaiians.

That led PUEO president Keahi Warfield to speak out at the beginning of Wednesday’s hearing about the issue.

Warfield, who also is a party in the contested case hearings, stressed for respect among the Hawaiian groups despite their differing views on the Thirty Meter Telescope.

“If some opponents wish to call our organization P-U-E-O, do we address the KAHEA organization by spelling out their name as well?,” Warfield asked.

It appeared that by the end of Warfield’s comments, several of the parties had relented out of mutual respect and would address the PUEO group by its name during the proceedings.