Land Board Approval Before Contested Case Is Issue in Appeals of Two Telescope Permits

posted in: January 2014, Telescopes | 0
The Hilo courtroom of Judge Greg K. Nakamura was packed. Mothers with small children, students, and even this reporter were sitting cross-legged on the aisle between the rows of benches. In the seats, enthusiastic supporters of the proposed Thirty-Meter Telescope found themselves pressed in cheek-to-jowl with the passionate opponents. Two sheriff’s deputies stood guard at the entry.
That was the scene on the morning of December 13, when Nakamura heard opening arguments on briefs submitted by the groups appealing the Board of Land and Natural Resources’ decision to permit construction of the huge telescope in the University of Hawai`i’s science reserve atop Mauna Kea.

Unlike the contested case hearing on the project, held in 2011, the hearing before Nakamura was brief, with each side – the appellants, on the one hand, and the University of Hawai`i-Hilo and the Board of Land and Natural Resources, on the other – allowed 15 minutes to present its case.

Richard Wurdeman, representing the six groups appealing the permit granted in April of last year, made three points in his allotted time. First, that the Land Board had “grossly violated” the appellants’ due process when it initially approved the project in 2011 before holding the contested case hearing. “This was gross error,” he told Nakamura, describing the Land Board’s subsequent approval of the permit after the contested case hearing as “a rubber stamp.” His proposed remedy: vacate the decision and remand it to the Land Board, with the requirement that it conduct a new contested case hearing “before a neutral hearing officer.”

Wurdeman’s second point was that the applicant for the project, the University of Hawai`i-Hilo, had not met its burden to show that the telescope’s construction complied with each criterion set forth in the Land Board’s rules for approval of projects in the Conservation District. The economic benefits that the telescope would bring, which have been frequently been invoked in arguments supporting its construction, do not constitute “proper mitigation,” he said.

Thirdly, Wurdeman argued that the terms of the permit did not meet the standards set by the state Supreme Court in the Ka Pa`akai case, since responsibility for ensuring cultural practitioners’ rights to exercise their protected activities were delegated to the university. “They passed the buck to the university … [which is] improper delegation under Ka Pa`akai,” he told the court.

Arguing the case for UHH was Jay Handlin. “It is extremely important to identify what is actually being reviewed here,” he reminded Nakamura. The standard for court review is whether a factual statement or a statement of mixed fact and law is “clearly erroneous – a very high threshold,” he noted.

Nor were the appellants’ due-process rights violated, he continued. The Department of Land and Natural Resources’ rules state that the contested case hearing must be held after the public hearing on an application. “From the practical point of view, agencies deny applications all the time,” he said. “If the appellants’ view applies, … you could have a contested case even without the need for it,” he continued. As an example, he cited a hypothetical case where the board, hearing a case involving an alleged violation of its rules, might decide no infraction occurred or might impose only a minimal fine, mooting altogether any need for a contested case.

Julie China, a deputy attorney general representing the Land Board, called the due-process complaint a “red herring.” A request for a contested case hearing may be made either before or after the board votes, she said. And if there is a contested case, following that, the board “reviews everything de novo,” she pointed out.

The Land Board “is unbiased,” she added. At no point did anyone suggest there was a disqualifying interest on the part of any board member.

In his rebuttal, Wurdeman raised another point, alleging that the fact that the BLNR changed its administrative rules while the contested case hearing was occurring meant that the CDUP granted to the university had to comply with the old rules, not the new ones. The fact that it was not required to do so “was error as well,” he told Nakamura.

In addition to its application, he said, “a management plan must be submitted. At some point, there was a recognition that the plan was insufficient, so the BLNR changed its rules to remedy the error.”

Handlin, however, argued that the BLNR determined that, “to the extent the requirement was for a comprehensive plan, the Comprehensive Management Plan [for Mauna Kea] met that. Then the BLNR said a site-based plan was needed, and that condition was fulfilled.”

Throughout the entire contested case hearing, he added, the petitioners “never said a word about the TMT management plan.”

China added that the BLNR’s order requires compliance with both plans.

* * *

The High Court Rules on Maui Telescope

On the same day that attorneys for the University of Hawai`i-Hilo and the Land Board were arguing that a contested-case hearing could be held after the board had voted, two justices of the Hawai`i Supreme Court, disagreed strongly with that position in a minority opinion.

The opinion, written by Justice Simeon R. Acoba Jr. and joined by Justice Richard W. Pollock, concurred with the majority in upholding a Maui group’s right to appeal a BLNR permit issued for the construction of another telescope – the Advanced Technology Solar Telescope (ATST) on Haleakala. Acoba and Pollock wrote that the “BLNR’s grant of the permit prior to holding a contested case hearing was improper because, as [Kilakila o Haleakala] alleged, BLNR ‘put … the cart before the horse.’”

Citing constitutional protections of native Hawaiian rights and the public trust doctrine, Acoba wrote, there was no question, in their view, but that “a contested case hearing should have been held prior to the vote…” The BLNR’s “initial grant of the permit determined the rights of the parties, rendering any subsequent so-called ‘contested case hearing’ meaningless,” he concluded.

The group lodging the appeal in this case, Kilakila o Haleakala (KOH), had first asked for a contested case well before the Land Board voted on the permit in December 2010. Its request was denied and the board proceeded to approve the University of Hawai`i’s Conservation District Use Permit to construct the 142-foot-tall facility.

Represented by Native Hawaiian Legal Corporation attorney David Frankel, KOH sought relief in 1st Circuit Court. It asked Judge Rhonda A. Nishimura to vacate the permit and remand the matter to the Land Board, with instructions to hold a contested case and stay the permit.

Attorneys for the University of Hawai`i, joined by those for the Land Board, argued, among other things, that the court could only hear appeals of decisions made following a contested case hearing, citing Section 91-14 of Hawai`i Revised Statutes.

In February 2011, the board voted to hold a contested case, after which Nishimura agreed with the university that the case was moot. Although she admonished the Land Board to stay the permit until the contested case hearing had been completed, the permit remained alive.

Even as preparations began for the contested case hearing, held later that year, Frankel appealed the lower court’s finding that it lacked jurisdiction. The Intermediate Court of Appeals supported Nishimura’s finding and dismissed the appeal in a ruling issued June 28, 2012. It was this determination that was the subject of the current appeal before the Supreme Court. (Kilakila o Haleakala also has two additional cases pending before the Intermediate Court of Appeals.)

The first issue the Supreme Court disposed of was the claim of mootness that was argued by the University of Hawai`i. Because the permit was still alive – and some associated site work has in fact begun – the appeal is not moot, Associate Justice Paula A. Nakayama wrote in the majority opinion that was signed as well by Chief Justice Mark A. Recktenwald and Justices Sabrina S. McKenna and Pollock.

“Crucially, BLNR has neither stayed nor revoked the permit, not even when KOH appealed or BLNR granted a contested case hearing on the already-issued permit. Because the permit remains in effect despite BLNR’s failure to hold a contested case hearing before voting to grant the permit, UH can still build on Haleakala and KOH can still seek effective relief against UH. Consequently, we agree with KOH’s position and conclude that this case is not moot.”

The second issue addressed was whether an appeal could be made to Circuit Court in the absence of a contested case hearing by an agency. On this point as well, the court sided with Kilakila o Haleakala. The BLNR’s “vote to grant the permit in the face of a valid pending request for a contested case hearing” satisfies the statutory requirement of a final agency decision, it found.

The court went on to find that Kilakila had satisfied all the procedural requirements to ensure its right of appeal and that the group did meet the legal requirements to be granted standing.

In light of its findings, the court vacated both the ICA and Circuit Court judgments and remanded the case back to the Circuit Court “for further proceedings consistent with this opinion regarding KOH’s request for a stay or reversal” of the Conservation District Use Permit granted on December 1, 2010.

What Next?
The Supreme Court remand seems to instruct the lower court to review the case in a manner “consistent with this opinion regarding KOH’s request for a stay or reversal” of the permit granted more than three years ago.

But the case is more complicated than the Supreme Court opinion suggests, since the board held a second vote on the permit – in effect, reaffirming its first one – in November 2012.

After the first contested case hearing was conducted in 2011, months passed before the hearing officer, Steven Jacobson, issued his initial proposed findings in February 2012 and a final report in March 2012. Jacobson determined that KOH was not, in the first place, entitled to a contested case hearing and that the CDUP the board had issued for the telescope could stand, with a few additional conditions.

A few days later, Jacobson claimed that he had been pressured by people within the offices of U.S. Sen. Daniel Inouye and Governor Neil Abercrombie to release his initial report before he was ready to.

In an effort to remove the hint of any undue influence, the Land Board voted to hold a second contested case hearing on the permit. Hearing officer Lane Ishida issued his report in August 2012, which was accepted by the Land Board in November of that year. Once more, the permit to construct the telescope was approved, and the university announced that it was ready to start work on the $300 million facility.

KOH once more appealed the BLNR’s approval of the permit – an appeal that is now before the Intermediate Court of Appeals. Among other things, KOH argues that because the November 2012 permit vote was made after the Land Board had already voted to approve the project nearly two years earlier, the board was prejudiced in favor of the telescope’s construction.

Following the Supreme Court’s decision on December 13, Frankel said that he was uncertain what would come next. The university’s Michael Maberry, however, who oversees the astronomical installations on Haleakala, told Civil Beat that the permit approved by the Land Board in 2012 allows construction to move forward.

Separately, KOH has also challenged in court the University of Hawai`i’s failure to prepare an environmental impact statement in connection with its management plan for the science reserve on Haleakala. In yet another legal action stemming from the ATST project, KOH sued the University of Hawai`i over the university’s denial of KOH’s request to review communications between university personnel, on the one hand, and Inouye’s and the governor’s offices, on the other, relating to the ATST. (It prevailed in that case.)

On December 15, the ATST was renamed the Daniel K. Inouye Solar Telescope.

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