How, if at all, should last year’s contested case proceeding and resulting Conservation District Use Permit (CDUP) for the proposed Thirty Meter Telescope (TMT) influence the lawsuit over the denial of a contested case over the sublease for the facility?
Last September, after a months-long contested case hearing in Hilo, the majority of the state Board of Land and Natural Resources voted to approve a Conservation District Use Permit for the TMT. Telescope opponents argued, among other things, that its construction would interfere with their right to engage in traditional and customary native Hawaiian practices. Despite the witness testimony and evidence they provided, the board (except for members Keone Downing and Stanley Roehrig) found that the TMT site and “its vicinity were not used for traditional and customary native Hawaiian practices conducted elsewhere on Mauna Kea, such as depositing piko, quarrying rock for adzes, pilgrimages, collecting water from Lake Waiau, or burials. … Some groups perform ceremonies near the summit. The evidence shows that these ceremonies began after the summit access road and first telescopes were built, but, in any case, the TMT will not interfere with them.” Even so, the board included a number of conditions in the CDUP aimed at protecting native Hawaiian rights (including access rights) and the mountain’s cultural resources.
But did that process and those permit conditions (which are under appeal) absolve the Land Board of any responsibility to grant E. Kalani Flores, a native Hawaiian party to the CDUP contested case, a contested case on the sublease, as well?
In arguments last month before the Hawai‘i Supreme Court, attorneys representing the state and the University of Hawai‘i argued that case law has determined that native Hawaiian rights to access lands for traditional and customary purposes endure no matter who owns it, and that being the case, none of Flores’ private, protected interests were being affected by the sublease or in danger of being subject to “erroneous deprivation.”
Chief Justice Mark Recktenwald asked the state’s attorney Clyde Wadsworth whether that would still be the case if the sublease in some way affected Flores’ ability to access the area. “We don’t know what TIO’s position is going to be. They may be more restrictive. They may say, ‘Well, you know, instead of certain days a week, you can only come on once a month,’” Recktenwald said. (TIO stands for the Thirty-Meter-Telescope International Observatory, the legal entity proposing the telescope.)
Wadsworth argued that wasn’t the case with this sublease, which explicitly states that it is subject to the rights of native Hawaiians. He added that the university and TIO had established measures to avoid impacts on cultural practices. Those measures, outlined in the CDUP decision and order, include implementing a cultural and natural resource training program for employees, hiring a cultural resource specialist, and preparing an archaeological mitigation plan, among other things.
“But that’s all in the other case,” Recktenwald said.
“Your honors, if they so choose, since that’s a public record, they could take judicial notice” of that case,” Wadsworth replied.
If the sublease, for some reason, stated that the lessee had the right to exclude anyone from the subleased area, Flores’ contested case hearing request would have to be evaluated in light of whether that provision affected his rights and whether there could possibly be the erroneous depri- vation of those rights, he added.
In his rebuttal, Native Hawaiian Legal Corporation attorney David Kaiula Kopper argued that the state could not fulfill its obligations to protect native Hawaiian rights if it refused to be informed before it acts. The Land Board had denied Flores’ petition without holding a hearing and without making any findings, Kopper noted, suggesting that his client had been denied due process.
“We actually have no findings as to what extent the CDUP … actually addresses the native Hawaiian rights and practices in the area of the sublease,” he said.
“If you were granted a contested case hearing, what would it look like? What would your clients be asserting as the interest that was adversely affected?” asked justice Richard Pollack.
Kopper cited Flores’ access rights, as well as “his interest in the disposition of ceded lands.” He also suggested that despite the arguments that case law prohibits the infringement of native Hawaiian cultural access rights, the state in this case seemed to be improperly passing off its responsibility to protect native Hawaiian rights to a third party, the sublessee. It is the state’s job to balance the interest of the TMT International Observatory with the rights of native Hawaiians, he said.
Aside from Flores’ concerns about the disposition of ceded lands, Recktenwald asked Kopper what specific effects would result from the sublease approval.
“The appellants are arguing he’s no worse off or no better off now than he was when it was the University of Hawai‘i. … How do you respond to their arguments that, in essence, TIO stepped into the shoes of UH and his interests have not been affected one way or the other?” Recktenwald asked.
Kopper said it again came down to access, adding that the state needed to hold a contested case because of the risk of erroneous deprivation of Flores’ rights. What’s more, Kopper pointed out that the Land Board appeared to violate its own rules regarding when it can deny a contested case request without holding a hearing.
“[The rule] sets forth the two, and only two, instances. …The first is when it is clear as a matter of law the request concerns a subject that is not under the adjudicatory jurisdiction of the board. We know that’s not true because the board has jurisdiction over sublease approvals. The second is when it is clear as a matter of law that the petitioner does not have a legal right, duty, or privilege entitling one to a contested case. And that is not true. Based on the board’s allegations, he does have rights to a contested case under Article 12, Section 7, and Article 12, Section 4 [parts of the state constitution regarding Hawaiian affairs], when it comes to the disposition of ceded lands,” Kopper said.
He added that another reason the CDUP contested case cannot have satisfied Flores’ due process rights is because that case did not conclude until three years after the Land Board approved the sublease.
To this, Pollack expressed his concern with the arguments by both sides that the court look to the CDUP hearing to see what Flores argued. “For our decision to pivot on what arguments were made in that hearing or whether Mr. Flores participated or not, it seems to me we should be looking at what was the process that was provided. If that process provides the due process to make sure that there’s no adverse effect on native Hawaiian rights, that’s what we look at. We don’t look at what individuals participated or what arguments were made in the hearing,” he said.
Kopper countered that the court also needed to know what rights were addressed “and we don’t. The state wants to just assume all of his practices were addressed.” Toward the end of the hearing, the state’s Wadsworth was asked whose burden it was to show that the sublease did not affect any of Flores’ interests or erroneously deprive him of his rights.
Wadsworth suggested it was Flores’ burden. “But even if the court were to decide that was the burden of the state … he can’t show as a matter of law that his private right would be affected by the sublease or that there would be erroneous deprivation,” he said.
It’s unknown when the court will issue a ruling in this case, or how long the appeal of the CDUP will take. The latter case was still in the opening briefs stage at press time.
— Teresa Dawson