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SCAP-14-0000873

IN THE SUPREME COURT OF THE STATE OF HAWAI I Electronically Filed


MAUNA KEA ANAINA HOU;
CLARENCE KUKAUAKAHI CHING;
FLORES-CASE `OHANA; DEBORAH J
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit
corporation,
Petitioners-Appellants-Appellants,
VS.

BOARD OF LAND AND NATURAL


RESOURCES, STATE OF HAWAII;
DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII; WILLIAM J. AILA, Jr., in his
official capacity as Chair of the Board of
Land and Natural Resources and Director
of the Department of Land and Natural
Resources; and the UNIVERSITY OF
HAWAII AT HILO,
Respondents-Appellees-Appellees

CIVIL NO. 13-1-0349


(Agency Appeal)

Supreme Court
SCAP-14-0000873
16-NOV-2015
10:08 PM

APPEAL FROM:
1) FINAL JUDGMENT FILED ON
MAY 5, 2014
2) DECISION AND ORDER
AFFIRMING BOARD OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION AND ORDER GRANTING
CONSERVATION DISTRICT USE
PERMIT FOR THE THIRTY METER
TELESCOPE AT THE MAUNA KEA
SCIENCE RESERVE DATED APRIL
12, 2013, FILED ON MAY 5, 2014
THIRD CIRCUIT COURT
HONORABLE GREG K. NAKAMURA
Judge

PETITIONERS-APPLLEANTS-APPELLANTS' EMERGENCY MOTION


FOR STAY UPON APPEAL
MEMORADUM IN SUPPORT OF MOTION
DECLARATION OF RICHARD NAIWIEHA WURDEMAN
APPENDICES "A"-"B"
and
CERTIFICATE OF SERVICE

RICHARD NAIWIEHA WURDEMAN 6015-0


Attorney at Law, A Law Corporation
333 Queen Street, Suite 604
Honolulu, Hawaii 96813
Telephone: (808) 536-0633
Facsimile: (808) 536-0634
e-mail: rnwurdeman@mwlaw.com
Attorney for Appellants-Appellants
MAUNA KEA ANAINA HOU and KEALOHA
PIS CI OTTA; CLARENCE KUKAUAKAHI
CHING; FLORES-CASE OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA: THE
HAWAIIAN ENVIRONMENTAL ALLIANCE,
a domestic non-profit corporation

SCAP-14-0000873
IN THE SUPREME COURT OF THE STATE OF HAWAF I
MAUNA KEA ANAINA HOU;
CLARENCE KUKAUAKAHI CHING;
FLORES-CASE `OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit
corporation,
Petitioners-Appellants-Appellants,
VS.

BOARD OF LAND AND NATURAL


RESOURCES, STATE OF HAWAII;
DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII; WILLIAM J. AILA, Jr., in his
official capacity as Chair of the Board of
Land and Natural Resources and Director
of the Department of Land and Natural
Resources; and the UNIVERSITY OF
HAWAII AT HILO,
Respondents-Appellees-Appellees

CIVIL NO. 13-1-0349


(Agency Appeal)
APPEAL FROM:
1) FINAL JUDGMENT FILED ON
MAY 5, 2014
2) DECISION AND ORDER
AFFIRMING BOARD OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION AND ORDER GRANTING
CONSERVATION DISTRICT USE
PERMIT FOR THE THIRTY METER
TELESCOPE AT THE MALTNA KEA
SCIENCE RESERVE DATED APRIL
12, 2013, FILED ON MAY 5, 2014
THIRD CIRCUIT COURT
HONORABLE GREG K. NAKAMURA
Judge

PETITIONERS-APPLLEANTS-APPELLANTS' EMERGENCY MOTION


FOR STAY UPON APPEAL
COMES NOW PETITIONERS-APPELLANTS-APPELLANTS MAUNA KEA
ANAINA HOU AND KEALOHA PISCIOTTA, CLARENCE KUKAUAKAHI CHING,
FLORES-CASE OHANA, DEBORAH J. WARD'S, PAUL K. NEVES, AND KAHEA: THE
HAWAIIAN ENVIRONMENTAL ALLIANCE (hereinafter also referred to as "Petitioners" or
"Mauna Kea Anaina Hou") by and through undersigned counsel, and respectfully moves this
Honorable Court for a stay of the effectiveness of the Conservation District Use Permit and the
Decision and Order of the Board of Land and Natural Resources, dated April 12, 2013 (and
Order and Decision of February 25-2011 of issuance of CDUP and approval of CDUA HA-

3568), and of the Decision and Order Affirming Board of Land and Natural Resources, State of
Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Granting Conservation
District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science Reserve Dated
April 13, 2013 and the Final Judgment of the Circuit Court of the Third Circuit, both of which
were entered on May 5, 2014, without bond, pending a decision on the appeal of this matter.
The Notice of Appeal was filed in the above-entitled case on June 3, 2014. On May 10,
2015, after submission of all of the briefs by the parties in the instant case, Petitioners filed their
Application for Transfer to the Supreme Court of the State of Hawar i. Respondent-AppelleeAppellee University of Hawaii at Hilo strenuously objected to the Petitioner's Application for
Transfer in its opposition filed on May 15, 2015. On June 5, 2015, this Honorable Court entered
its Order Granting Application for Transfer and, on June 19, 2015, the Supreme Court Clerk
issued the Notice of Setting for Oral Argument in the case. Oral argument was set for Thursday,
August 27, 2015 at 8:45 a.m, with each side being allowed forty-five minutes for argument.
Following oral arguments and almost three months having passed since oral arguments
were held before this Honorable Court, TMT International Observatory, just last week and while
the Decision of this Honorable Court is still pending after extensive arguments before this
Honorable Court on August 27, 2015, inexplicably announced that it was all of a sudden going to
resume construction this month. See Appendix "A" attached hereto. In fact, in a news
announcement today, that commencement of construction activities at Mauna Kea is planned for
Wednesday of this week, November 18, 2015. See Appendix "B" attached hereto. Interestingly,
Henry Yang, Chairman of the TMT International Observatory Board of Governors, was quoted
in the news release last week saying that TMT was moving forward with construction plans at
Mauna Kea "while respectfully awaiting the Supreme Court's decision." See Appendix "A."
This Honorable Court has not yet entered its decision and TMT is doing anything but being
respectful to this Honorable Court with its decision at this point to go forward with construction
when a decision has not yet been rendered. Further, TMT has no respect, nor conscience to the
Conservation District and Mauna Kea, and, of tremendous significance, no respect, nor
conscience to the public safety of the large number of protectors, who will undoubtedly be
responding to the TMT announcement, law enforcement personnel, and others, in a potential
faceoff on Wednesday, because of TMT's blatant disregard for the legal process and the major
decision that is still pending before this Honorable Court. It is because of this blatant disregard
2

and disrespect of the legal process by TMT, and this Court's decision that is still pending
following the oral argument that was held on August 27, 2015, that this Emergency Motion for a
stay is being brought.
While TMT Observatory International Corporation is not a party to the instant case,
despite the Petitioners arguments in their opposition to the motion to file an amicus brief that was
filed by the Regents of the University of California and the California Institute of Technology
about the real party in interest in these proceedings, and cannot be enjoined from moving
forward with construction, the effectiveness of the Conservation District Use Permit that was
obtained by the University of Hawaii at Hilo on TMT's behalf, then Petitioner's respectfully
submit, can be suspended and stayed as well as the orders and judgments referenced above,
rendering any construction by TMT, without an effective and a suspended CDUP, illegal.
This Emergency Motion for a stay is made pursuant to Rule 62 of the Hawai`i Rules of
Civil Procedure ("HRCP"), Rules 8, 26(d), and 27 of the Hawaii Rules of Appellate Procedure
("HRAP"), Hawai'i Revised Statutes ("HRS") 641-3, the attached memorandum in support of
motion, the declaration of Richard Naiwieha Wurdeman, and Appendices "A" and "B" attached
hereto, and the records and files in the instant case.
DATED: Honolulu, Hawai'i, November 16, 2015.

/s/ RICHARD NAIWIEHA WURDEMAN


RICHARD NAIWIEHA WURDEMAN
Attorney for Petitioners-Appellants-Appellants
MAUNA KEA ANAINA HOU and KEALOHA
PISCIOTTA; CLARENCE KUKAUAKAHI
CHING; FLORES-CASE OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit corporation

SCAP-14-0000873
IN THE SUPREME COURT OF THE STATE OF HAWAII
MAUNA KEA ANAINA HOU;
CLARENCE KUKAUAKAHI CHING;
FLORES-CASE `OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit
corporation,
Petitioners-Appellants-Appellants,
VS.

BOARD OF LAND AND NATURAL


RESOURCES, STATE OF HAWAII;
DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII; WILLIAM J. AILA, Jr., in his
official capacity as Chair of the Board of
Land and Natural Resources and Director
of the Department of Land and Natural
Resources; and the UNIVERSITY OF
HAWAII AT HILO,
Respondents-Appellees-Appellees.

CIVIL NO. 13-1-0349


(Agency Appeal)
APPEAL FROM:
1) FINAL JUDGMENT FILED ON
MAY 5, 2014
2) DECISION AND ORDER
AFFIRMING BOARD OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION AND ORDER GRANTING
CONSERVATION DISTRICT USE
PERMIT FOR THE THIRTY METER
TELESCOPE AT THE MAUNA KEA
SCIENCE RESERVE DATED APRIL
12, 2013, FILED ON MAY 5, 2014
THIRD CIRCUIT COURT
HONORABLE GREG K. NAKAMURA
Judge

MEMORANDUM IN SUPPORT OF MOTION


I.

BACKGROUND
COMES NOW PETITIONERS-APPELLANTS-APPELLANTS MAUNA KEA

ANAINA HOU AND KEALOHA PISCIOTTA, CLARENCE KUKAUAKAHI CHING,


FLORES-CASE OHANA, DEBORAH J. WARD'S, PAUL K. NEVES, AND KAHEA: THE
HAWAIIAN ENVIRONMENTAL ALLIANCE (hereinafter also referred to as "Petitioners" or
"Mauna Kea Anaina Hou") by and through undersigned counsel, and respectfully moves this
Honorable Court for a stay of the effectiveness of the Conservation District Use Permit and the
Decision and Order of the Board of Land and Natural Resources, dated April 12, 2013 (and

Order and Decision of February 25-2011 of issuance of CDUP and approval of CDUA HA3568), and of the Decision and Order Affirming Board of Land and Natural Resources, State of
Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Granting Conservation
District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science Reserve Dated
April 13, 2013 and the Final Judgment of the Circuit Court of the Third Circuit, both of which
were entered on May 5, 2014, without bond, pending a decision on the appeal of this matter.
The Notice of Appeal was filed in the above-entitled case on June 3, 2014. On May 10,
2015, after submission of all of the briefs by the parties in the instant case, Petitioners filed their
Application for Transfer to the Supreme Court of the State of Hawan Respondent-AppelleeAppellee University of Hawaii at Hilo strenuously objected to the Petitioner's Application for
Transfer in its opposition filed on May 15, 2015. On June 5, 2015, this Honorable Court entered
its Order Granting Application for Transfer and, on June 19, 2015, the Supreme Court Clerk
issued the Notice of Setting for Oral Argument in the case. Oral argument was set for Thursday,
August 27, 2015 at 8:45 a.m. with each side being allowed forty-five minutes for argument.
The Opening Brief and also the Application for Transfer to the Supreme Court of the
State of Hawaii, presented the following Points of Error:
The Circuit Court reversibly erred when it entered its Decision and Order Affirming
Board of Land and Natural Resources, State of Hawaii's Finding of Fact, Conclusions of Law
and Decision and Order Granting Conservation District Use Permit for the Thirty Meter
Telescope at the Mauna Kea Science Reserve Dated April 12, 2013, filed on May 5, 2014 (May
5, 2014 Decision and Order") ROA 40, V.5 at 32-44; ROA 40, V.5 at 33-45; and Final
Judgment, May 5, 2014, ROA 40, V.5 at 30-32.
1.

The circuit court erred and was wrong when it affirmed the Board of Land and

Natural Resources' approval of the Conservation District Use Application prior to it holding a
contested case hearing that was in violation of Appellants' right to due process and was in
violation of the BLNR's duties under the State Constitution, H.R.S. Chapter 183C and 205 and
the Hawaii Administrative Rules involving procedure as well as management and use of
conservation district lands. The question presented to the circuit court was "[w]hether the Board
of Land and Natural Resources' approval of the Conservation District Use Application prior to
holding a contested case hearing violated due process and its duties under the State Constitution,
H.R.S. Chapters 183C, 205, 205 and the Hawaii Administrative Rules involving procedure as
2

well as management and use of conservation district lands?" ROA 34, V.2 at 30. The circuit
court was clearly erroneous and wrong and had reversibly erred when it found:
A.6. In this case, the preliminary grant of the CDUP did not have such a legal
consequence that a contested case hearing was required prior to this action being taken.
The BLNR contemplated and did actually afford a contested case hearing prior to the
entry of a final decision and order. Moreover, Appellants were not prejudiced during the
pendency of the contested case hearing because construction under the CDUP was
prohibited.
12. For all of the reasons stated herein, the Court finds that Kilakila does not apply to the
BLNR's February 25, 2011 vote, and that reversal of the Decision and Order under the
standards set forth under HRS 91-14(g) is not warranted.
See May 5, 2014 Decision and Order, Appendix "B," filed with Opening Brief on Appeal on
January 14, 2015. ROA 40, V.5 at 41-42. Appellants set forth their arguments as to why the
BLNR was clearly erroneous and wrong. See ROA 34, V.5 at 35-37; ROA 36, V.3 at 182-187;
see also Transcript of Proceedings of December 13, 2013 ("12/13/2013 TR") at 2, 4-9, 20-23, 26
(a copy of these selective pages of the transcripts were filed on January 14, 2015, along with
Appellants-Appellants' Opening Brief on Appeal, as Appendix "F") and February 20, 2014
("2/20/14 TR") at 5-8, 16-18 (a copy of these selective pages of the transcripts were filed on
January 14, 2015, along with Appellants-Appellants' Opening Brief on Appeal, as Appendix
"G"), respectively.
2.

The approval of the Conservation District Use Permit for the TMT project was

inconsistent with the purposes of the conservation district, was contrary to the criterion of H.A.R.
Section 13-5-30(c), and was not supported by the substantial evidence and the circuit court erred
and was wrong when it affirmed BLNR's approval of UHH's CDUA. The question presented to
the circuit court was: "[w]hether the approval of the Conservation District Use Permit for the
TMT project was inconsistent with the purposes of the conservation district, was contrary to
criterion of H.A.R. Sect. 13-5-30(c), and was not supported by the substantial evidence?" ROA
34, V.2 at 30. The circuit court was clearly erroneous and wrong and had reversibly erred when
it found:
B.2. The clear inference from Appellants' arguments is that Appellants' premise is that
the use of conservation district land for astronomy facilities inherently violates the eight
criteria identified in HAR 13-5-30(c). However, HRS 13-5-24(c) makes clear that
astronomy facilities under an approved management plan are appropriate in the Resource
subzone, which is where the Project is to be located. Accordingly, the Court finds that
3

Appellants' premise that use of conservation district land for astronomy facilities
inherently violates Section 13-5-30(c) lacks merit.
3,
As stated in their Opening Brief (at 11-27), Appellants have asserted that "the
Reliable Probative and Substantial Evidence Does Not Support a Decision that" each of
the eight criteria in Section 13-5-30(c) is satisfied. In other words, Appellants have
challenged the BLNR's findings on the eight criteria as being clearly erroneous. Having
reviewed the record on appeal and the BLNR's FOF and COL, the Court finds that the
BLNR's findings are amply supported by the reliable, probative, and substantial
evidence, and are not clearly erroneous; the Court further finds that Appellants'
challenges to the BLNR'S FOF and COL with respect to the eight criteria are unfounded
and that reversal of the Decision and Order under the standards set forth under HRS 9114(g) is not warranted.
See May 5, 2014 Decision and Order, Appendix "B," filed with the Opening Brief on Appeal on
January 14, 2015. ROA 40, V.5 at 43. Appellants set forth their arguments as to why the BLNR
was clearly erroneous and wrong. See ROA 34, V.5 at 37-57; see also Transcript of Proceedings
of December 13, 2013 ("12/13/2013 TR") at 2, 4-9, 20-23, 26 (a copy of these selective pages of
the transcripts were filed on January 14, 2015, along with Appellants-Appellants' Opening Brief
on Appeal, as Appendix "F").
3.

The circuit court erred and was wrong when it found that the CDUP was subject

to a sufficient management plan. The question presented to the circuit court was: "[w]hether the
TMT project can be approved without an approved valid management plan?" ROA 34, V.2 at
30. The circuit court was clearly erroneous and wrong and had reversibly erred when it found:
D.1. HAR 13-5-24(c) R-3 (D-1)(2011) allows for a land use of lajstronomy facilities
under a management plan approved simultaneously with the permit."
2. Under HAR 13-5-2 (2011), a "management plan" is defined as a "project or site
based plan to protect and conserve natural and cultural resources." The Court finds that
HAR 13-5-2 does not require that the "management plan" be a comprehensive plan," as
argued by Appellants.
3.
The TMT Management Plan not only relates to the Project, but also incorporates
components of the Mauna Kea Comprehensive Management Plan and its four subplans.
The Court finds that the TMT Management Plan and the plans that it incorporates are
clearly sufficient for the TMT Project.
4.
Having reviewed the record on appeal and the BLNR's FOF and COL relating to
the TMT Management Plan, the Court finds the reversal of the Decision and Order is not
warranted under the standards set forth under HRS 91-14(g),

See May 5, 2014 Decision and Order, Appendix "B," filed with Opening Brief on Appeal on
January 14, 2015. ROA 40, V.5 at 44-45. Appellants set forth their arguments as to why the
BLNR was clearly erroneous and wrong. See ROA 34, V.5 at 61-62; see also Transcript of
Proceedings of December 13, 2013 ("12/13/2013 TR") at 2, 4-9, 20-23, 26 (a copy of these
selective pages of the transcripts were filed on January 14, 2015, along with AppellantsAppellants' Opening Brief on Appeal, as Appendix "F").
4. The circuit court erred and was wrong when it found that the Board of Land and
Natural Resources failed to meet its legal and constitutional obligations under Ka Pa'akai o
Ka'aina v. Land Use Commission. The question presented to the circuit court was: "[w]hether
the Board of Land and Natural Resources failed to meet its legal and constitutional obligations
under Ka Pa'akai o Ka'aina v. Land Use Commission?" ROA 34, V.2 at 30. The circuit court
was clearly erroneous and wrong and had reversibly erred when it found:
C.1. In the contested case hearing, at Appellants' request, the parties stipulated that
Appellants Neves, Ching Flores, Case, and Pisciotta would be recognized as expert
witnesses on their cultural practices regarding Mauna Kea. Appellants now argue that
this stipulation somehow resulted in their providing insufficient evidence of traditional
and customary native Hawaiian cultural practices. Having reviewed the record on appeal
and the BLNR's FOF and COL's, the Court finds that Appellants were afforded the full
opportunity to provide their written direct testimonies prior to the stipulation, and were
also afforded an opportunity to provide oral summaries of their testimonies after the
stipulation. Appellants also appear to argue that it was assumed, based on the stipulation,
that certain expert opinion testimony would be deemed conclusive. However, clearly, the
presentation of expert opinion testimony is not conclusive; as with any testimony, the
factfinder may accept or reject it. See Miyarnoto v. Lurn, 104 Hawai'i 1, 16, 84 P.3d 509,
524 (2004). The Court, therefore, rejects Appellants' arguments.
2. Having reviewed the record on appeal and the BLNR's FOF and COL relating to
native Hawaiian cultural practices relating to native Hawaiian customary and traditional
practices were not clearly erroneous, and that reversal of the Decision and Order is not
warranted under the standards set forth under HRS 91-14(g).
See May 5, 2014 Decision and Order, Appendix "B," filed with Oepning Brief on Appeal, on
January 14, 2015. ROA 40, V.5 at 43-44. Appellants set forth their arguments as to why the
BLNR was clearly erroneous and wrong. See ROA 34, V.5 at 57-61; see also Transcript of
Proceedings of December 13, 2013 ("12/13/2013 TR") at 2, 4-9, 20-23, 26 (a copy of these
selective pages of the transcripts were filed on January 14, 2015, along with AppellantsAppellants' Opening Brief on Appeal, as Appendix "F").

Following oral arguments and almost three months having passed since oral arguments were held before this Honorable Court, TMT International Observatory, just last week and while
the Decision of this Honorable Court is still pending after extensive arguments before this
Honorable Court on August 27, 2015, inexplicably announced that it was all of a sudden going to
resume construction this month. See Appendix "A" attached hereto. In fact, in a news
announcement today, that commencement of construction activities at Mauna Kea is planned for
Wednesday of this week, November 18, 2015. See Appendix "B" attached hereto. Interestingly,
Henry Yang, Chairman of the TMT International Observatory Board of Governors, was quoted
in the news release last week saying that TMT was moving forward with construction plans at
Mauna Kea "while respectfully awaiting the Supreme Court's decision."

See Appendix "A."

This Honorable Court has not yet entered its decision and TMT is doing anything but being
respectful to this Honorable Court with its decision at this point to go forward with construction
when a decision has not yet been rendered. Further, TMT has no respect, nor conscience to the
Conservation District and Mauna Kea, and, of tremendous significance, no respect, nor
conscience to the public safety of the large number of protectors, who will undoubtedly be
responding to the TMT announcement, law enforcement personnel, and others, in a potential
faceoff on Wednesday, because of TMT's blatant disregard for the legal process and the major
decision that is still pending before this Honorable Court. It is because of this blatant disregard
and disrespect of the legal process by TMT, and this Court's decision that is still pending
following the oral argument that was held on August 27, 2015, that this Emergency Motion for a
stay is being brought.
While TMT Observatory International Corporation is not a party to the instant case,
despite the Petitioners arguments in their opposition to the motion to file an amicus brief that was
filed by the Regents of the University of California and the California Institute of Technology
about the real party in interest in these proceedings, and cannot be enjoined from moving
forward with construction, the effectiveness of the Conservation District Use Permit that was
obtained by the University of Hawaii at Hilo on TMT's behalf, then Petitioner's respectfully
submit, can be suspended and stayed as well as the orders and judgments referenced above,
rendering any construction by TMT, without an effective and a suspended CDUP, illegal.

II. DISCUSSION.
Hawaii Rules of Appellate Proceudre ("HRAP") Rule 8(a), provides, in pertinent part, as
follows:
(a) Motions for stay, supersedeas bond or injunction in the appellate courts. A motion
for stay of the judgment or order in a civil appeal, or for approval of a supersedeas bond,
or for an order suspending, modifying, restoring, or gratning an injunction during the
pendency of an appeal shall ordinarily made in the first instance to the court or agency
appealed from.
A motion for such relief on appeal may be made to the appellate court before which the
appeal is pending or to a judge thereof, but, if the appeal is from a court, the motion shall
show that application to the court appealed from for the relief sought is not practicable, or
that the court appealed from has denied an application, or has failed to afford the relief
applicant requested, with the reasons given by the court appealed from for its action. The
motion shall also show the reasons for the relief requested and the facts relied, and, if the
facts are subject to dispute, the motion shall be supported by affidavits, declarations, or
other sworn statements or copies thereof. With the motion shall be filed such copies of
parts of the record as are relevant. Notice of the motion shall be given to all parties. The
motion shall be filed with the appellate clerk and should ordinarliy be considered by the
appellate clerk, but in exceptional cases where such proceudre would be impracticable
due to the requirements of time, the application may be made to and considered by a
single judge or justice of the court...
(Emphasis added).
In the instant case, a stay in construction was in place by the Board of Land and Natural
Resources between February 25, 2011 and the BLNR's Findings of Fact, Conclusions of Law
and Decision and Order, filed on April 12, 2013. And while a stay was not requested of the trial
court in the Third Circuit Court, as the Petitioners submit it is not now and was not practicable,
previously, given the Third Ciruit's ruling from which the Petitioners have appealed, and given
the status of the proceedings, i.e. almost three (3) months after oral argument has been held
before this Honorable Court. Given the inexplicable announcement of the TMT International
Observatory Corporation only last week about commencing construction, despite the decision of
this Honorable Court still pending following oral arguments on August 27, 2015 in this case;
given the total disregard by TMT at this point in observing the legal process and of its total
disrespect of this Honorable Court, the Petitioners would respectfully submit, while the deicison
of this Court is still pending; given the safety and welfare of Native Hawaiian protectors and law
enforcement personnel who are bound to be involved in a big faceoff on Wednesday, November
7

18, 2015 on Mauna Kea; and given the ireeperable harm that would also be casused through consturcution on the sacred Mauna a Wakea and of the Conservation District; the Petitioners
respectfully request an emergency stay of the effectiveness of the Conservation District Use
Permit and the Decision and Order of the Board of Land and Natural Resources, dated April 12,
2013 (and Order and Decision of February 25-2011 of issuance of CDUP and approval of CDUA
HA-3568), and of the Decision and Order Affirming Board of Land and Natural Resources, State
of Hawaii's Findings of Fact, Conclusions of Law and Decision and Order Granting
Conservation District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science
Reserve Dated April 13, 2013 and the Final Judgment of the Circuit Court of the Third Circuit,
both of which were entered on May 5, 2014, without bond, pending a decision on the appeal of
this matter.
While TMT Observatory International Corporation is not a party to the instant case,
despite the Petitioners arguments in their opposition to the motion to file an amicus brief that was
filed by the Regents of the University of California and the California Institute of Technology
about the real party in interest in these proceedings, and cannot be enjoined from moving
forward with construction, the effectiveness of the Conservation District Use Permit that was
obtained by the University of Hawaii at Hilo on TMT's behalf, then Petitioner's respectfully
submit, can be suspended and stayed as well as the orders and judgments referenced above,
rendering any construction by TMT, without an effective and a suspended CDUP, illegal.
Please note also that this Honorable Court has the "inherent discretion and power" to
waive the bond requirement. See Shanghai Inv. Co., Inc. v. Alteka Co., Ltd., 92 Haw. 482, 503,
993 P.2d 516, 537 (2000) overruled on other grounds; Blair v. Ing, 96 Haw. 327, 336, 31 P.3d
184, 193 (2001). And, a stay of construction is not the issue, in any event, as TMT, a non-party,
is moving forward with construction and not the University of Hawaii at Hilo. The stay of the
effectiveness of and the suspension of the Conservation District Use Permit and a stay of the
decisions, orders, and judgments below as discussed herein, however, would make any
movement of construction on Mauna Kea, as announced by TMT, illegal.

III.

CONCLUSION.

The Peititoners respoctfully request that an emergency stay be granted as respectfully


requested herein and that this Honorable Court grant any other relief that it may deem just and
proper under the cirucmstances.
DATED: Honolulu, Hawaii, November 16, 2015.

/s/ RICHARD NAIWIEHA WURDEMAN


RICHARD NAIWIEHA WURDEMAN
Attorney for Petitioners-Appellants-Appellants
MAUNA KEA ANAINA HOU and KEALOHA
PISCIOTTA; CLARENCE KUKAUAKAHI
CHING; FLORES-CASE OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit corporation

SCAP-14-0000873
IN THE SUPREME COURT OF THE STATE OF HAWAII
MAUNA KEA ANAINA HOU;
CLARENCE KUKAUAKAHI CHING;
FLORES-CASE `OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit
corporation,
Petitioners-Appellants-Appellants,
V S.

BOARD OF LAND AND NATURAL


RESOURCES, STATE OF HAWAII;
DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII; WILLIAM J. AILA, Jr., in his
official capacity as Chair of the Board of
Land and Natural Resources and Director
of the Department of Land and Natural
Resources; and the UNIVERSITY OF
HAWAII AT HILO,
Respondents-Appellees-Appellees,

CIVIL NO. 13-1-0349


(Agency Appeal)
APPEAL FROM:
1) FINAL JUDGMENT FILED ON
MAY 5, 2014
2) DECISION AND ORDER
AFFIRMING BOARD OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION AND ORDER GRANTING
CONSERVATION DISTRICT USE
PERMIT FOR THE THIRTY METER
TELESCOPE AT THE MAUNA KEA
SCIENCE RESERVE DATED APRIL
12, 2013, FILED ON MAY 5, 2014
THIRD CIRCUIT COURT
HONORABLE GREG K. NAKAMURA
Judge

DECLARATION OF RICHARD NAIWIEHA WURDEMAN

I, RICHARD NAIWIEHA WURDEMAN, do declare as follows:


1.

I am an attorney licensed to practice before this Honorable Court and I am

counsel for the Petitioners-Appellants-Appellants MAUNA KEA ANAINA HOU AND


KEALOHA PISCIOTTA, CLARENCE KUKAUAKAHI CHING, FLORES-CASE OHANA, DEBORAH
J. WARD'S, PAUL K. NEVES, AND KAHEA: THE HAWAIIAN ENVIRONMENTAL ALLIANCE

(hereinafter also referred to as "Petitioners" or "Mauna Kea Anaina Hou") in the aboveentitled case.
2.

That on August 27, 2015, oral arguments were held before this Honorable

Court in the instant case after this Court had granted, on June 5, 2015, the Petitioners'
Application for Transfer of this case to the Supreme Court.
3.

That in a news article, posted on the website of the Honolulu Star Advertiser,

on November 11, 2015, the TMT International Observatory Board of Directors announced
that it was going forward with construction of TMT on Mauna Kea. See Appendix "A" which
is a true and correct copy of the said article that was posted on the Star Advertiser website,
for which the Petitioners ask this Court to take judicial notice for purposes of the instant
Emergency Motion for Stay upon appeal.
4.

That according to a news story of November 16, 2015 that was aired on

Hawaii News Now, law enforcement sources confirmed with Hawaii News Now that
construction crews for the Thirty Meter Telescope project will return to Mauna Kea
Wednesday [November 18, 2015] morning. See Appendix "B" which is a true and correct
copy of a positing of the story from the Hawaii News Now website, for which the
Petitioners ask this Honorable Court to take judicial notice for purposes of the instant
Emergency Motion for Stay upon appeal.
5.

I, RICHARD NAIWIEHA WURDEMAN, do declare under penalty of law that

the foregoing is true and correct to the best of my knowledge and belief.
DATED: Honolulu, Hawaii, November 16, 2015.
/s/ RICHARD NAIWIEHA WURDEMAN
RICHARD NAIWIEHA WURDEMAN

APPENDIX "A"

TMT work to resume on Mauna Kea

StarAdvertiser.com

TMT work to resume on Mauna Kea


The state promises safe passage for crews, while protesters vow to block construction
By Timothy Hurley
POSTED: 1:30 a.m. HST, Nov 11, 2015
A day after releasing a poll showing support from a majority of Hawaii residents, the
developers of the stalled Thirty Meter Telescope on Tuesday announced that construction
would begin later this month on the initial stages of the $1.4 billion project.
No specific date was disclosed, but Henry Yang, chairman of the TMT International
Observatory Board of Directors, said a small crew would travel to the summit of Mauna Kea to
conduct "site preparation activities, starting with equipment maintenance and repairs."
Meanwhile, those who have campaigned against the next-generation telescope vowed to
block work crews as they did on at least two other occasions over the last six months.
"We're standing strong," protest leader Lanakila Mangauil declared. "Our mountain stands
strong for us, so we're standing strong for her."
A statewide poll commissioned by the TMT in October found that 88 percent of Hawaii
residents agree science and Hawaiian culture should be able to coexist on the mountain, and
62 percent support moving ahead with construction, among other things.
Scott lshikawa, TMT spokesman, said the poll was not necessarily the catalyst for Tuesday's
announcement, but it did demonstrate widespread public support beyond Hawaii's business
community, which already has been expressing vocal support for months.
lshikawa said TMT's global partners have been busy over the last half-year manufacturing
parts for the observatory, billed as the most powerful optical telescope in the world, capable of
seeing more than 13 billion light-years away.
In addition, the state has offered assurances that workers will receive safe passage to the
work site near Mauna Kea's northern plateau.
"The TMT felt it was time to move forward with the project," he said.
Gov. David Ige, who is traveling in Japan, said in a statement that the state "is committed and
prepared to enforce the law" and to "keep people safe."
Asked about specific enforcement plans, lge spokeswoman Jodi Leong said that falls within
the jurisdiction of the state Department of Land and Natural Resources, and the department
has consistently said it will not comment on its enforcement or security plans.

Two months ago the Mauna Kea "protectors" ended their 24-hour vigil at the 9,200-foot level
near the Mauna Kea Visitor Information Station after reaching an agreement with the state
that was touted as enhancing safety on the mountain.
Under terms of the agreement, the protesters agreed to leave the mountain during the night
as long as the state agreed to notify the protesters when the TMT plans to resume
construction.
Mangauil said he was notified of TMT's plans Tuesday morning by DLNR Deputy Director
Kekoa Kaluhiwa.
Also under the agreement, the protesters are expecting to meet with state and county officials
to discuss a set of engagement ground rules that would be in effect during any protest. The
meeting and rules are aimed at promoting public safety, Mangauil said.
How safety is supposed to be maintained if push comes to shove remains unclear, however.
Logistics aside, Mangauil said he and others are extremely disappointed that TMT decided to
move forward before the Hawaii State Supreme Court rules on the Mauna Kea Hui lawsuit
challenging the project.
During oral arguments in August, justices grilled state attorneys and narrowed in on the issue
of due process, leading some to speculate the court might throw a wrench into the project and
require TMT to reapply for its Conservation District Use Permit. That could end up setting
back the project a couple of years or more.
Kealoha Pisciotta, Mauna Kea Hui leader, said any grading TMT work crews do now at the
summit is irreparable.
"They are putting the people and supporters of Mauna Kea and all of the law enforcement at
risk," Pisciotta said, predicting that the action will create a greater chance of clashes between
protesters and law enforcement.
Meanwhile, DLNR issued a news release Tuesday describing Mauna Kea as a "multiple-use
area" that will also see hunting and research activities during November.
"Our goal is to ensure that people on the mountain conduct themselves responsibly and with
respect for other users. As local workers prepare to begin work at the TMT site, we want to
remind people of other simultaneous activities that may be occurring on the mountain," Board
of Land and Natural Resources Chairwoman Suzanne Case said in the news release.
lshikawa said the specific TMT construction timetable remains up in the air for now. How
winter weather affects the project also is uncertain, he said.
"We will be assessing our work schedule, with the initial work being the maintenance of our
construction vehicles, which have been sitting and inoperable since April," he said.
In his statement, Yang, chancellor of the University of California, Santa Barbara, said TMT's

partners remain committed to the Hawaii project despite the delay.


"In California, Canada, China, Japan and India, work is being conducted to develop and build
various components for the observatory, and we look forward to the day when it will come
together," he said.
Attempts by TMT to launch construction were halted in April and July after protesters blocked
work crews. Authorities arrested 42 people during the unsuccessful attempts to reach the
summit.
Ishikawa said that despite the six-month delay, the project remains on target to become
operational in 2024.
"We are deeply committed to respectful stewardship of the mountain and to the vision that
integrates science and culture in Hawaii and enriches the educational opportunities and local
economy," Yang said. "We will continue to follow the state's laws, procedures and processes,
as we have done for more than eight years, while respectfully awaiting the Supreme Court's
decision."
Copyright (c) Honolulu Star-Advertiser

APPENDIX "B"

TMT construction crews to return to Mauna


Kea on Wednesday
Posted: Nov 16,2015 8:42 AM HSTUpciated: Nov 16,20158:42 AM HST
By Mlleka Lincoln
CONNECTI

Kea protesters (file image)

of the Thirty Meter Telescope

MAUNA KEA, HAWAII (HawaiiNewsNow) -

Law enforcement sources confirm with Hawaii News Now that construction crews for the
Thirty Meter Telescope project will return to Mauna Kea Wednesday morning.
Last week, TMT officials announced they planned to return to the mountain to work on
equipment that has sat idle for the last seven months when crews were blocked from
reaching the construction site by more than 750 people who gathered in protest of the project
on grounds that it desecrates a sacred Native Hawaiian place.
TMT officials have repeatedly said there were no plans to return to Mauna Kea without the
state's assurance of unobstructed, consistent and safe access -- though, its unclear at this
time what that entails.
Aloha Aina advocates, several of whom spent months living on Mauna Kea in prayer and
vigil, say they are prepared to take the necessary steps to protect what they believe is a
sacred Native Hawaiian site.
More details as they develop on Hawaii News Now.
Copyright 2015 Hawaii News Now. All rights reserved.

SCAP-14-0000873
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MAUNA KEA ANAINA HOU;
CLARENCE KUKAUAKAHI CHING;
FLORES-CASE OHANA; DEBORAH J.
WARD; PAUL K. NEVES; and KAHEA:
THE HAWAIIAN ENVIRONMENTAL
ALLIANCE, a domestic non-profit
corporation,
Petitioners-Appellants-Appellants,
VS.

BOARD OF LAND AND NATURAL


RESOURCES, STATE OF HAWAII;
DEPARTMENT OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII; WILLIAM J. AILA, Jr., in his
official capacity as Chair of the Board of
Land and Natural Resources and Director
of the Department of Land and Natural
Resources; and the UNIVERSITY OF
HAWAII AT HILO,
Respondents-Appellees-Appellees

CIVIL NO. 13-1-0349


(Agency Appeal)
APPEAL FROM:
1) FINAL JUDGMENT FILED ON
MAY 5, 2014
2) DECISION AND ORDER
AFFIRMING BOARD OF LAND AND
NATURAL RESOURCES, STATE OF
HAWAII'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION AND ORDER GRANTING
CONSERVATION DISTRICT USE
PERMIT FOR THE THIRTY METER
TELESCOPE AT THE MAUNA KEA
SCIENCE RESERVE DATED APRIL
12, 2013, FILED ON MAY 5, 2014
THIRD CIRCUIT COURT
HONORABLE GREG K. NAKAMURA
Judge

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, a true and
correct copy of the foregoing document was served on the following VIA JEFS:
Ian L. Sandison, Esq.
Jay S. Handlin, Esq.
Timothy Lui-Kwan, Esq.
Carlsmith Ball, LLP
1001 Bishop Street, Suite 2100
Honolulu, HI 96813
Attorneys for Respondent-Appellee-Appellee University of Hawaii at Hilo

Julie H. China, Esq.


William J. Wynhoff, Esq.
Department of the Attorney General
State of Hawaii
465 S. King Street, Room 300
Honolulu, HI 96813
Attorneys for Appellees Board of Land and Natural Resources, Department of
Land and Natural Resources, and Suzanne Case, in her official capacity
DATED: Honolulu, Hawaii, November 16, 2015.

/s/ Richard Naiwieha Wurdeman


RICHARD NAIWIEHA WURDEMAN
Attorney
for
Petitioners-AppellantsAppellants
MAUNA KEA ANAINA HOU and
KEALOHA PISCIOTTA; CLARENCE
KUKAUAKAHI CHING; FLORES-CASE
OHANA; DEBORAH J. WARD; PAUL K.
NEVES; and KAHEA: THE HAWAIIAN
ENVIRONMENTAL ALLIANCE, a
domestic non-profit corporation