Stage Is Set for Contested Case 2.0 For TMT Conservation District Permit

posted in: October 2016 | 0

unknownThe contested case hearing over the Thirty Meter Telescope is gearing up. It is set to begin in Hilo on October 11.

But the sparring has already begun, and if the number of documents filed with the Department of Land and Natural Resources and the number of potential witnesses to be called are any measure of the discord to come, hearing officer Riki May Amano, a retired judge, will have her hands full keeping order in this forum.

The Thirty Meter Telescope (TMT) is proposed to be built near the summit of Mauna Kea, but before construction can start, it needs to have a Conservation District Use Permit granted by the state Board of Land and Natural Resources. In 2010, the University of Hawai`i-Hilo applied for the CDUP. The BLNR voted to approve the permit, but at the same time ordered a contested case hearing be held.

That first hearing was conducted in 2011. In early 2013, the Land Board approved the hearing officer’s findings of fact, voting in effect to ratify the earlier decision it had made. Opponents challenged the procedure in court, arguing that by holding the contested case after the board had already voted to approve the permit for the telescope, their rights to due process had been violated.

Late last year, the state Supreme Court agreed with the protesters, ordering the Land Board to begin the contested case process anew and refrain from voting on the permit until after the hearing had run its course.

On the eve of the second contested case hearing, here is how things stood.

The Hearing Officer

On March 31, Land Board chair Suzanne Case announced the appointment of Amano as hearing officer – a decision that was challenged by the six parties who petitioned for the contested case hearing the first time around: Mauna Kea Anaina Hou and Kealoha Pisciotta; Clarence Kukaukahi Ching; the Flores-Case Ohana; Deborah Ward; Paul K. Neves; and KaHEA: The Hawaiian-Environmental Alliance. (For convenience, these will be known as the original petitioners.)

These petitioners, represented by attorney Richard Naiwieha Wurdeman, claimed that Case lacked the authority to make the appointment and that Amano’s  conduct would be prejudiced by her membership in the `Imiloa Astronomy Centre at the $85-a-year “family” level. (Wurdeman noted that the TMT was itself a member of `Imiloa, at the corporate level.) This affiliation, he argued, was sufficient to disqualify her.

The Land Board disagreed. In Minute Order 4, issued May 6, it explained its reasons for not dismissing Amano.

First, the board noted, “a ‘family membership’ does not confer any right to participate in `Imiloa’s governance or decision-making, in contrast to organizations where members may vote for a board of directors or other officers. A ‘family membership’ in `Imiloa means only that the member has prepaid the admission for two people and five children and receives some discounts at the restaurant and gift shop.”

The board also considered whether in an “exercise of discretion,” it should replace Amano “even though no legal grounds exist for disqualification. The board declines to do so.”

That same day, Wurdeman repeated his clients’ objections to the way in which Amano was selected, by a committee that included BLNR member Chris Yuen. He argued that Yuen should have been disqualified on the basis of statements made in a 1998 interview he gave to Environment Hawai`i, in which, Wurdeman said, Yuen appeared to be prejudiced in favor of telescope development.

(Wurdeman and his clients also protested the DLNR’s posting of documents related to the contested case on a website devoted to the topic:

http://dlnr.hawaii.gov/faqs/mauna-kea-faq/. “How did this web page come about and why a Mauna Kea specific web page? Was it discussed and approved in a hearing of any kind? Who authorized it? Who rendered the opinions and through what process? ….”)

A week later, Wurdeman filed a formal motion for a reconsideration of the board’s decision to stick by its selection of Amano as hearing officer.

In early June, the board denied the motion. Among other things, the minute order announcing the denial addressed the claim that Yuen was prejudiced against the petitioners as a result of statements made in 1998. “In his written response to petitioners’ objections,” the minute order states, “Member Yuen considers whether he should recuse himself despite the lack of legal grounds to do so and states: ‘I think that the policy for board members is similar to that for judges: there is a duty to serve when you are not legally disqualified, just as there is a duty to disqualify yourself when good cause exists. … To disqualify one’s self because a party to a contested case thinks that comments the member has expressed in some point in the past imply a predisposition on a particular application means that individuals who, for example, have expressed strong opinions on the need to preserve coastal open space should not vote on a CDUA for a house on the shoreline if the applicant objects. Board members should not be selected for the absence of opinions: they have to know how to review facts and decide particular cases on their merits given the legal criteria.’”

The minute order offered further discussion on the petitioners’ argument (joined by both the University of Hawai`i and TMT) that the selection of Amano might not survive review in any legal appeal of a future board decision: “The board is concerned that taken to its logical extreme ensuring a contested case process that subjectively ‘appears to be fair’ to every possible person who takes an interest in the TMT project would likely necessitate not only the disqualification of Judge Amano but of every potential hearing officer who otherwise possessed the acumen to hear this case. No qualified hearing officer candidate is likely to satisfy all spectators and remove all fears of reversal. The board will not go down this rabbit hole.”

The Parties

Generally, Amano took a liberal approach to allowing interested parties to intervene, approving more than two dozen individuals, associations, or institutions to participate in the contested case proceedings.

Among the parties admitted is the TMT International Observatory, LLC, the organization that is seeking to build the telescope and to which the University of Hawai`i, in 2014, issued the sublease of land where the TMT is to be built. In the first contested case hearing, the TMT organization – which at that time was calling itself the TMT Observatory Corporation – did not participate, although it did have counsel that observed the proceedings closely.  The original petitioners have objected to the TMT’s participation.

Eleven individuals who had submitted a timely application to intervene in the contested case were not granted standing. In Minute Order 13, issued July 21, Amano dismissed their applications, citing the fact that they were not physically present at a June 17 pre-hearing conference nor had they appealed their dismissal within the time allowed for appeals.

Almost all the parties seeking admission to the contested case, including those dismissed, indicated their opposition to construction of the TMT.

Apart from the TMT itself, the only intervenor that has taken a stance in favor of the TMT’s construction is a group calling itself PUEO, short for Perpetuating Unique Educational Opportunities, Inc. As described in its petition for standing, PUEO’s purposes “include furthering ‘educational opportunities for the children of Hawai`i in the fields of science, technology, engineering, and mathematics.’ Its board members and beneficiaries include native Hawaiians that reside in the Keaukaha-Pana`ewa Hawaiian Homesteads located in Hilo, Hawai`i. PUEO’s board members include native Hawaiians who seek knowledge and understanding and exercise customary and traditional native Hawaiian rights on Mauna Kea.”

The original petitioners have objected strenuously to PUEO’s admission as an intervenor. In a memorandum opposing Amano’s decision to admit PUEO, the original petitioners’ attorney, Wurdeman, claims that PUEO was formed for the sole purpose of intervening in the case.

“[G]iven the timing of its formation, the P.U.E.O., Inc., was obviously formed solely to try and participate in the contested case hearing and the Petitioners submit that such an attempt is clearly improper,” Wurdeman wrote. He went on to recite the chronology of the group’s origin:

“On March 31, 2016, the BLNR appointed … Amano … as the hearing officer in the instant proceeding. According to the Articles of Incorporation of P.U.E.O., Inc., … Richard Ha, Jr., incorporator, signed the Articles of Incorporation on the very same day. … According to the state Department of Commerce and Consumer Affairs (DCCA) records, P.U.E.O. was registered with the DCCA on April 12, 2016.”

Wurdeman disparaged the claimed interests of the PUEO’s leaders in protecting traditional practices on Mauna Kea. “As for the assertions made by the four individuals, who apparently are directors of the newly formed P.U.E.O., Inc., Richard Ha, Jr., doesn’t even claim to be a cultural practitioner. … As for the other three individuals, they seem to assert improved access to the Mauna as a result of telescope development, in general, for any of their asserted cultural practices related to the Mauna. The comparisons they make are essentially pre-development of the summit road access versus access post-development of the summit road. This has nothing to do with the proposed addition of another telescope on the Mauna and thus, even their individual claims are irrelevant to the instant case. …. The assertions and implications in their declarations that telescope development on the Mauna is somehow a recognized cultural and traditional practice firmly rooted in custom and tradition … is completely nonsensical, unfounded, and absurd.”

The effort to discredit PUEO did not stop there. In its list of witnesses to be called, the original petitioners included Stanley Roehrig, who would be asked to testify about “conflict of interest and voting on issues with P.U.E.O., Inc., representatives.”

Wurdeman and other parties to the case have pointed out a close relationship between PUEO’s president, Shadd Keahi Warfield, and board member Roehrig. Roehrig was instrumental in establishing another non-profit, Keaukaha One Youth Development Corporation, which Warfield now leads as its president. That group uses as its base of operation a home in Keaukaha owned by Roehrig. Wurdeman claimed that the group rents the house from Roehrig, but Warfield says the group pays no rent.

In a pre-conference hearing in late August, Amano rejected – for now – the state’s efforts to have Amano issue a protective order that would keep Roehrig, Land Board chair Case, and Gov. David Ige from being called as witnesses by the petitioners. Amano noted that the usual way of handling challenges to witnesses in cases such as this is to hear them later in the proceedings. “I’m aware the Supreme Court [remanded the permit] because of failure to follow the process,” Amano was reported by the Hawai`i Tribune-Herald as saying. “For that reason, I’m reluctant to support anything out of process. It’s just not worth it.”

Dwight J. Vicente, one of the parties admitted to the contested case, voiced his support for Wurdeman’s efforts to have Ige testify. In an August 11 filing wherein he indicated his opposition to the state’s request for the protective order, Vicente recited his reasons for claiming that the state of Hawai`i does not exist. On this basis, he argued that Ige, Case, and Roehrig enjoy no special treatment: “David Y. Ige is a Japanese national, which gives him no rights in this Kingdom and its affairs. He has no, immunity, Quo Warranto, who made him governor? The office he claims, is a fraud. Suzanne Case and Stanley Roehrig, are also, not nationals of this Kingdom, which also gives them no rights in this Kingdom and its affairs (including their claim to immunity).”

Kingdoms Come

Vicente’s claims are by no means unusual among the TMT opponents.

Kalikolehua Kanaele, in petitioning for admission as an intervenor, stated: “I as a Native Hawaiian (where Native Hawaiian is used it also means Kanaka Maoli, Hawaiian Subject, and National of the Kingdom of Hawai`i) … participate here in pursuit of Justice and also under duress as I … do not recognize the jurisdiction of the United States of American or it alleges occupation or lording over Hawai`i or over our Kingdom.”

Perhaps the most extreme example is that of the purported Kingdom of Hawai`i. On June 22, Lanny Sinkin filed on its behalf a “notice of absence of necessary and indispensable parties” with the DLNR.

Sinkin says that his pleading “is a limited appearance solely to provide notice to the hearing officer of the missing necessary and indispensable parties and provide the hearing officer with sufficient evidence to conclude that, given the absence of these parties, the hearing officer lacks jurisdiction and must sua sponte dismiss the case.” Attached to Sinkin’s pleading is a declaration from the king, Ali`i Nui Mo`i Edmund Keli`i Silva, Jr.

Among other things, Silva claims that, “at the request of an elder descended from the last House of Nobles of the Kingdom of Hawai`i, I agreed to assume the position of Ali`i Nui Mo`i (High Chief/King) within a restored Hawaiian Kingdom Government twelve years ago.” One of his first acts, he goes on to say, “was to affirm the Kingdom’s independence from the United States.”

The lands of the restored kingdom include the lands where the TMT is proposed to be built, he says, making his participation in the hearing necessary. (Neither Silva nor the Kingdom of Hawai`i applied to be an intervenor in the case.)

In reply, J. Douglas Ing, one of the attorneys for the TMT, writes, “The purported Kingdom of Hawai`i and its claimed king (collectively, “the Kingdom”) is not a necessary and indispensable party to this contested case because it does not exist.” (Ing also takes a swipe at Sinkin, noting in a footnote that “neither the Kingdom nor Mr. Sinkin provide any evidence that Mr. Sinkin is properly representing the Kingdom under [Hawai`i Administrative Rule] § 13-1-10(a),” which states that a person can appear on their own behalf, a partner can represent a partnership, an officer or director of a corporation can represent the corporation, or an officer or employee of an agency can represent the agency in any proceeding before the Land Board or its hearing officer. Otherwise, representation is limited to licensed Hawai`i lawyers. “Mr. Sinkin is not a licensed Hawai`i lawyer and therefore cannot represent the Kingdom …. Mr. Sinkin’s appearance before this Hearings Officer on purported behalf of the Kingdom is therefore in violation of HAR § 13-1-10. Mr. Sinkin’s cavalier attitude towards the applicable administrative rules should not be tolerated by this Hearings Officer and the Notice should be dismissed on this basis alone.”)

Ing cites a federal case brought by David Keanu Sai on behalf of a different Kingdom of Hawai`i against then-Secretary of State Hillary Clinton, in which the Circuit Court of the District of Columbia opined that, it has “long [been] recognized that the determination of sovereignty over a territory is fundamentally a political question beyond the jurisdiction of the courts.” (In another footnote, Ing points out that “the Kingdom that filed the Notice is different than the Kingdom of Hawai`i that Mr. Sai claimed to be the regent of… Indeed, a quick Google search reveals at least four different websites claiming to be the Kingdom of Hawai`i.”

Sai himself appears on the list of witnesses submitted by Chase Michael Kaho`okahi Kanuha. According to a website Sai maintains, hawaiiankingdom.org, he is the acting minister of interior and chairman of the council of regency for the Hawaiian kingdom. Sai may be best known for his involvement in a company called Perfect Title, which sold fraudulent deeds to hundreds of Hawaiian homeowners facing foreclosure. Sai and Perfect Title claimed that since the overthrow of the Hawaiian monarchy, all land transfers were invalid if they were subject to pre-existing claims. Sai was sentenced to five years’ probation in 1999 after a jury in state Circuit Court found him guilty of attempted theft for his part in the scheme.

Religious Claims

In addition to presenting claims on behalf of the Kingdom of Hawai`i (one of them, in any case), Sinkin also is representing the Temple of Lono and its leader, Tahuna Frank Kamehameha Tamealoha Anuumealani Nobriga.

On June 20, Sinkin filed a motion for partial summary judgment, asking the hearing officer to acknowledge “that the peak of Mauna Kea (Mauna a Wakea) is especially sacred to the traditional Hawaiian faith and that the traditional Hawaiian faith still exists.”

“Mr. Nobriga is a kahuna and a teacher of the ancient faith,” Sinkin continued. “He is recognized as such by such luminaries as Judge Samuel King who wrote: ‘Frank Nobriga is an active force behind the Temple of Lono movement which began in 1971. Their purpose is to maintain a spiritual land bank, with five temples throughout the islands. … The Temple of Lono is rediscovering the elements of ancient Hawaiian religion, including a four-god concept.’”

The university objected. In responding to Sinkin’s motion, UHH attorney Ian Sandison stated that any acknowledgement by the hearing officer that the mountain is a sacred site “would violate the establishment clause of both the U.S. and Hawai`i Constitutions. It would require the hearing officer to recognize a religious servitude over that small land area of Mauna Kea proposed for the TMT project.”

“It is irrelevant to this proceeding,” Sandison argued, “whether ‘the traditional Hawaiian faith is still practiced,’ unless ‘the traditional Hawaiian faith’ also was actually ‘practiced’ on the Mauna Kea summit or within the TMT site. … [T]he Temple has not even shown that it held or conducted any religious ceremonies within the summit’s astronomy precincts. Therefore, there can be no burden on the religious ceremonies, and, in turn, no viable claim under the free exercise [of religion] clause.”

Sandison laid out the university’s strategy in dealing with any effort by TMT opponents to use religious exercise claims as a means of halting telescope construction: “The Temple will try to use this proceeding to galvanize a religious movement. Indeed, the Temple states that religion will be an essential part of this proceeding: ‘[I]ssues related to Traditional Hawaiian Faith are going to be an essential part of the contested case…’ The hearing officer should not allow such diversions from the stated criteria to obtain a permit. … The hearing officer should not allow this proceeding to become a platform for the Temple to advance its religious agenda.”

Setting Limits

In July, PUEO filed a motion to delineate the issues that it argued should properly be before the hearing officer in making her recommendation to the Land Board as to whether or not it should grant the Conservation District permit allowing the telescope to be built. The TMT and UHH joined in support of the motion, while the original petitioners, the Temple of Lono, and intervenor Harry Fergerstrom filed motions in opposition, with intervenor Mehana Kihoi joining the original petitioners’ opposition.

At a prehearing conference on August 29, Amano asked PUEO to draft a minute order granting its motion.

In its proposed minute order, PUEO offered five topics that would be fair game for arguing in the contested case:

  • First, whether the proposed use complies with the eight criteria for Conservation District use set out in the DLNR’s rules;
  • Second, whether it is consistent with Article XII, Section 7 of the state Constitution, which affords protection for traditional and customary practices of Native Hawaiians, “subject to the right of the state to regulate such rights”;
  • Third, is the proposed use consistent with the state Supreme Court decision in Ka Pa`akai o Ka `Aina, which sets out a three-part analytical framework that state agencies must use when deciding issues that could have an impact on Native Hawaiian traditional and customary practices;
  • Fourth, is the use consistent with Chapter 183 of Hawai`i Revised Statutes, which relates to Conservation District uses;
  • Finally, “does the public trust doctrine apply to the proposed land use and, if it does, is the proposed land use consistent” with it?

In addition, PUEO set forth three issues that would not be allowed to be raised in the contested case hearing:

“1. The sovereignty of the Kingdom of Hawai`i or any other issues relating to the purported existence of the Kingdom of Hawai`i.

“2. Challenges to the legal status of the state of Hawai`i.

“3. Challenges to the state’s ownership of and title to the lands comprising the summit area of Mauna Kea.”

Such issues, PUEO stated, “present non-justiciable political questions that are outside the subject matter jurisdiction of this hearings officer and are therefore not issues for this contested case hearing.”

No decision on PUEO’s proposed minute order had been issued by press time.

 

* * *

TMT Sublease Remanded

To BLNR

One of the arguments put forward by the TMT International Observatory in support of its participation in the contested case over the Conservation District Use Permit for the telescope it proposes to build is the fact that, as holder of a sublease of land on Mauna Kea, it has a property interest in the outcome.

The sublease was approved by the Land Board in June 2014, over the objections of Kalani Flores, one of the original petitioners. At the meeting in which the sublease was granted, Flores requested a contested case hearing. In keeping with the board’s past practice, which has held that land dispositions are generally not subject to contested case hearings, the board denied the request.

Flores appealed to 3rd Circuit Court. Judge Greg K. Nakamura issued his ruling in the case last April. He did not vacate the Land Board’s award of the sublease, but did order a remand, in light of the Supreme Court’s decision last December.

Flores, Nakamura wrote, “asked that this court take judicial notice of the opinion in Mauna Kea Anaina Hou and vacate the board’s action in consenting to the sublease. This is not appropriate, because it requires consideration of an adjudicative fact, the vacating of the TMT CDUP, which the board has not addressed.”

He went on to note that Flores’ request “is the functional equivalent of a request that the fact that the TMT CDUP has been vacated be presented to the board. This fact is material because the sublease and consent are premised upon the existence of the TMT CDUP.”

Nakamura ordered a remand for the purpose of presenting the Mauna Kea Anaina Hou opinion to the board “for appropriate action.”

“When reviewing the new evidence,” he continued, “the board may consider the following questions:

“a) Since the TMT CDUP does not exist and its existence was a premise for the Board’s grant of the consent to the sublease, should the consent be withdrawn pending further proceedings in regard to the TMT CDUP application process?

“b) If the board takes the position that the consent to the sublease should remain in place because of the assumption that the board will grant the TMT CDUP in the future, would this not run afoul of the ‘cart before the horse’ due process concern established in the Mauna Kea Anaina Hou opinion?

“c) Since the existence of the TMT CDUP is such an integral part of the  board’s consent to the sublease, should parties who have standing in the TMT CDUP application process similarly have standing in regard to the consent to sublease application process?”

“d) In Mauna Kea Anaina Hou, Justices Pollack, Wilson, and McKenna concurred in the following proposition: An agency is not merely a passive actor or neutral umpire. It has an affirmative duty to fulfill the state’s constitutional obligations. How is the board going to fulfill this affirmative duty in the absence of a contested case hearing and the grant of standing to an individual who seeks to have the state fulfill its constitutional obligations?”

On June 28, BLNR chair Suzanne Case ordered Flores and the attorneys for the University of Hawai`i-Hilo to submit briefs on the remand order by July 29. “The briefs may discuss any substantive or procedural issue relating to the board’s consent” to the sublease.

The DLNR’s public information office was asked when the remand might be scheduled for the Land Board’s reconsideration. No response had come by press time.

 

* * *

Human Remains Placed

On TMT Access Road

The entire Mauna Kea summit and the proposed site for the TMT have been thoroughly surveyed for possible human burials, which, if found, can bring any ongoing construction work to a standstill until a means of addressing the burials is determined by the burial council established for the island where the work is being done.

Archaeological surveys done for the TMT’s environmental impact statement indicate that the site selected for the telescope, some 800 feet below the summit in an area called the northwestern plateau, is more than a mile away from the closest possible burial.

Still, in recent weeks, opponents of the telescope have claimed that Hawaiian burials are present close to the TMT site.

On August 17, Harry Fergerstrom stated in comments on a proposed site visit, “I am able to speak of the sacredness of the northwestern plateau and it’s [sic] light connection that spans the island chain. I can speak of several burials at the site as well as speak on water caves (s).”

A couple of weeks later, on September 2, Fergerstrom elaborated on the claim, stating: “This is a notice of Family Burial Claim under the proposed TMT site. This information was sent to me (9-2-2016) by my cousin Michael Lee. This brings into this case [Hawai`i Revised Statutes] 6E, State Historic Preservation/Burial Counsel [sic] protocols. … As you are familiar, family burials are a sensitive issue and certain amount of discretionary information about exact location must be followed according to protocols established by State Historic Preservation/Hawai`i Island Burial Counsel.” A “Burial Registration Form” accompanying Fergerstrom’s statement indicated that the burial site was “on the access road to the TMT.”

Meanwhile, Hawaiian activist Palikapu Dedman told the Hawai`i Tribune-Herald that he had placed bones of an ancestor on an ahu, or stone shrine, on the TMT access road. The ahu was erected during the summer-long TMT protests last year. Dedman reportedly said that he first placed bones there in September 2015. After finding that they were no longer at the site, he placed additional bones there again last month, he was quoted as saying.

The online news site Civil Beat shed more light on the subject. According to an article it first published on September 16, in July, the DLNR received a request for information on any enforcement action it may have undertaken in regards to the disinterment of human remains from a site not on Mauna Kea and the reinterment of those remains on the proposed site for construction of the TMT.  “My understanding,” the unidentified requester wrote, “is that this attempt was stopped, some individuals who were not suspects were questioned, and that no charges have been filed against any single person.”

The DLNR denied the request in its entirety, citing the exemption provided in the state’s Uniform Information Practices Act for information that would frustrate a government function.

— Patricia Tummons

Leave a Reply