It’s been several years since the state Board of Land and Natural Resources would stop public testimony at once and refrain from voting on a matter the instant anyone requested a contested case hearing.
“If the board acted like it used to … it would make everyone’s life easier,” Native Hawaiian Legal Corporation attorney David Kimo Frankel told the state Supreme Court on December 20. That day, the court heard oral arguments on Kilakila `O Haleakala’s appeal of the board’s granting in 2010 of a Conservation District Use Permit for the construction of the Advanced Technology Solar Telescope on the summit of Haleakala.
Justice Simeon Acoba, at least, seemed to agree with Frankel, who represents Kilakila.
“To be frank, it seems unreasonable to decide the merits of an issue before a contested case hearing” is held, he said at one point.
Whether the rest of the court agrees remains to be seen. If it does, the Land Board may have to change the way it conducts itself once it receives requests for a contested case. And the University of Hawai`i’s permit for the $300 million project could be at risk.
In December 2010, the Land Board approved the university’s request for a CDUP to build the 142-foot-high ATST. Kilakila had requested a contested case hearing months earlier, but to no avail.
During that same meeting, Kilakila representatives again requested a contested case. After the board’s vote, Kilakila followed up with the required written petition, which must be filed within 10 days of the board’s meeting.
Within days of filing the petition, Kilakila also filed an appeal in 1st Circuit Court, which, among other things, asked for a contested case hearing.
On February 11, 2011, the Land Board authorized the appointment of a hearing officer to conduct a contested case. Shortly after the board’s decision, the court orally dismissed Kilakila’s appeal on the grounds that it lacked jurisdiction to hear an appeal before the conclusion of a contested case hearing. The court later issued a written decision on March 29.
On April 21, Kilakila appealed the 1st Circuit Court’s ruling.
While Kilakila’s request sat with the Intermediate Court of Appeals, contested case hearing officer Steven Jacobson presided over a contested case hearing in July and August and issued his recommendation to the Land Board last March. But an email he sent to university attorneys inquiring whether or not it was behind what he felt was inappropriate pressure from the offices of then-U.S. Senator Daniel Inouye and Gov. Neil Abercrombie led the Land Board to remove Jacobson from the case and dismiss his recommendations.
Before the Land Board could appoint a new hearing officer, the university announced on April 20 that it would begin construction activities on May 4. After a brief hearing, the Land Board issued an order on May 2 limiting the university’s activities to clearing an old site known as Reber Circle, as well as other unused facilities.
In June, the ICA affirmed the lower court’s decision to dismiss the appeal since the contested case hearing process had not been completed (a decision Kilakila appealed to the Supreme Court). A few months later, Jacobson’s replacement, Lane Ishida, issued his recommendations supporting the issuance of the CDUP.
The Land Board issued its findings of fact, conclusions of law, and decision and order on November 9. The board found that Kilakila’s arguments regarding impacts to biological resources on the mountain were unsupported by the evidence presented. Instead, it found that implementing the terms of the various agreements and plans developed by the university (i.e., the Habitat Conservation Plan, Long Range Development Plan, and Programmatic Agreement) would adequately protect natural and cultural resources.
“The effect on, or impairment of, traditional cultural practices by the astronomical facilities currently located on the … site has, to a degree, already been mitigated by the construction and consecration of the east-facing ahu (shrine),” the decision states, adding that the construction of a third ahu, in addition to the implementation of measures in the university’s various plans, “will reasonably protect the exercise of cultural practices in the [Haleakala Observatory] site and near the ATST Project.”
Days after the board issued its decision, the Hawai`i Supreme Court granted Kilakila’s request for a review of the ICA’s decision.
Attorneys for the Land Board and the university argued that Kilakila’s circuit court appeal was untimely, since it was filed before the Land Board had a chance to decide on Kilakila’s petition for a contested case. What’s more, they argue, the Land Board’s decision following the contested case to grant the CDUP renders Kilakila’s appeal moot.
During oral arguments, Frankel contended that the Land Board’s December 2010 deliberations could be construed as a contested case hearing for the purposes of appeal. The permit affected the constitutional interests — the traditional and customary practices — of his client, he argued.
“The term contested case means different things in different contexts,” he said. There are, of course, the formal contested case hearings that are spelled out in rules and statutes. Yet there are also 40 years of case law showing that citizens have a right to appeal a board’s decision even when no formal contested case hearing has been held, he said.
To Acoba, the most important question was whether the BLNR should have issued a permit before holding a contested case hearing on the claims of Kilakila members that the telescope would negatively impact native Hawaiian traditions and practices.
“What would be the benefit of having a contested case hearing to decide whether a permit should be issued if the permit was already issued?” he asked.
“It becomes a post hoc rationalization of a decision that has already been made,” Frankel replied.
When Acoba posed the same question to state deputy attorney general Linda Chow, she noted that the board’s decision to issue the permit was not final, even though it allowed construction to proceed.
“To say that the board decision was final at the meeting, but the [DLNR’s] rules provide that a written petition to be filed within 10 days after that would either indicate that the decision at the board meeting is not final or that the written petition is a nullity,” she said.
Acoba then asked whether the permit states that the Land Board may rescind it if the outcome of a contested case is a determination that the permit should not have been issued.
“It does not say that,” Chow said.
“So if the hearing takes a year, two years or whatever it takes … it might have taken a long, long time and there’s a valid permit out there that permitted development and construction?” Justice Richard Pollack asked.
“Yes,” Chow said.
Attorney Lisa Munger, representing the university, later added that the permit does state that applicants shall comply with all rules, “including that there would be a contested case.”
Given the university’s attempt to start construction before the conclusion of the contested case, Chief Justice Mark Recktenwald immediately interjected.
“Just so I’m clear, is it your position, Ms. Munger, that once the request for a contested case hearing was approved, the university was precluded or prohibited from commencing with construction? … You said ‘subject to all legal requirements’ and at that point, is it your concession that the university would not be able to proceed?”
Munger said that when the contested case was granted the university knew the permit was subject to the continuing jurisdiction of the Land Board, including the board’s decisions on whether the university could proceed with construction. She later added that a Land Board minute order, issued after the university announced it would start construction, prohibited construction during the contested case proceeding. The board did, however, allow the university to start mitigation.
Munger noted that the minute order concluded that “any activity is done at the university’s sole risk.”
“So that meant they could go forward, it was just at their risk,” Pollack said.
Given that the ATST’s final environmental impact statement identified substantial cultural impacts that could not be mitigated, Acoba asked Munger whether it would have been more reasonable to hold the contested case hearing before the permit was issued.
“Wouldn’t that be the reasonable time, so then you would be able to fashion the permit in order to adjust whatever conditions needed to be adjusted rather than to send out the conditions without the benefit of a contested case hearing and give that to the contractor?” he asked.
“I appreciate that that is one way it could be done,” she replied, but added that, “in fact, it’s quite different from the way it’s done for every other environmental permit — air quality, water quality, solid and hazardous waste.”
One reason for voting on a permit before deciding whether or not to grant a contested case is that “often you will not need a contested case if you know what the conditions are. The conditions matter,” Munger said.
Frankel countered that the state Commission on Water Resource Management and the Land Use Commission conduct contested case hearings before making decisions. (However, this was not the case with the Water Commission’s decision on the interim instream flow standards of several East Maui streams. Also, the LUC is required by statute to conduct contested case hearings on every redistricting petition that comes before it.)
Frankel also took issue with Munger’s statements about the university’s ability to start construction during the contested case hearing.
“I am amazed the university would have the audacity to suggest construction was not going to take place during midst of the contested case hearing. Here’s their letter in the record, April 10, 2012: ‘We are formally notifying the Department of Land and Natural Resources that construction activity will commence on Monday May 14, 2012.’ That was their position. For them to say to you today ‘no, no, no, we can’t do construction … until the contested case hearing is done’ is absurd.”
The evidence that the Land Board’s decision was final is the university’s ability to construct a 142-foot tall building, Frankel concluded. He then asked the Supreme Court to find that the Circuit Court had jurisdiction to hear the appeal and to instruct the circuit court to vacate December 2010 permit.
The Supreme Court had not issued a decision as of press time. Although Kilakila is again appealing the CDUP in 1st Circuit Court, the university has already started construction activities. So far, work has been limited to the December 3 removal of a concrete ring at Reber Circle, and the rearranging of boulders to create a barrier between the ATST site and the east-facing ahu constructed for native Hawaiian cultural practitioners.
— Teresa Dawson
Volume 23, Number 8 February 2013