Slow Going in TMT Contested Case; Hearings to Continue into New Year

posted in: December 2016 | 0

The evidentiary hearing in the second contested case over the application to build the Thirty Meter Telescope on Mauna Kea began October 20 in the Willie K Crown Room of the Hilo Naniloa Hotel.

The nightclub setting for the quasi-judicial proceedings is by no means the most unusual aspect of this go-round. Twenty-three parties plus the applicant, University of Hawai‘i-Hilo, have been ad- mitted to the contested case, presided over by retired Judge Riki May Amano. Almost all the intervenors have views of the legal context framing the contested case that seem either to border on outright contempt or fully embrace it.

Several contend that the state of Hawai‘i has no authority to determine whether the telescope should be built on what they regard as sacred land. Many base this argument on the belief that the kingdom of Hawai‘i is still the rightful governing authority. Some claim that over and above the summit being the dwelling place of the gods or the actual bodies of their deities, the rocks themselves are their kupuna (elders or ancestors) or ‘ohana (family).

An order setting forth the scope of the hearing disallowed any arguments about the legitimacy of the state government, the existence of the Hawaiian kingdom, or the state’s ownership of the site proposed for the TMT. Despite this, in cross-examinations conducted to date, many opponents have persisted in raising these very issues. In addi- tion, many have included on their proposed list of witnesses parties whose testimony concerns those issues.

Facing off against the opponents, their animistic beliefs, and their unorthodox reading of modern Hawaiian history are the University of Hawai‘i-Hilo, which has oversight over the summit area, and the TMT International Organization, whose plans call for developing a cutting-edge, billion-dollar observatory. A recently incorporated non-profit group called PUEO, for Perpetuating Unique Educational Opportunities, is the only other intervenor in the proceedings that favors the telescope’s construction.

The contrasting views have frequently led to exchanges between witnesses and those cross-examining them that may best be described as bizarre. At times this results from the fact that many of the telescope

opponents are representing themselves pro se — something they point out at every opportunity — and are learning the hearing protocol on the fly. (See the accompanying article for several verbatim examples of exchanges.)

The Thirty-Minute Rule

In general, Judge Amano has allowed the parties broad leeway to question the university’s witnesses. On October 31, however, she announced that beginning with the next day’s hearing she would limit cross-examination to 30 minutes for each party. The decision came after the protracted questioning of Günther Hasinger, director of the University of Hawai‘i Institute for Astronomy, during the previous hearing, on October 27. One party alone — Brannon Kamahana Kealoha — questioned Hasinger for 115 minutes. Altogether, Hasinger was on the witness stand nearly 10 hours.

“I looked at everyone’s direct examination and cross-examination over the last five hearing days with witnesses,” Amano said in announcing her decision. “I know exactly how much time everyone took. I observed the questions and preparation. I believe that limiting the cross examinations to 30 minutes is going to help us focus and to be prepared.”

She added, however, that exceptions would be made, “if there’s good cause shown.”

Most of the parties stated their objection to the limit, but Amano was firm, citing as her authority Hawai‘i Administrative Rules Chapter 13-1-32, governing the conduct of the Department of Land and Natural Resources’ contested case hearings.

Among those complaining the longest was Kealoha, who, after arriving late, proceeded to argue with Amano for 15 minutes. “My due process has been sabotaged,” he stated. “When that German national” — Hasinger —“was accommodated to my tab, that’s why I’m late, and then you schedule this motion. I’m shaking because, it’s personal. When are you going to accommodate the pro se? I want to let you know that that 12-hour hearing — I have a medical condition. It’s a sleep disorder…. You ultimatum me and then, since you already told me you’re just going to list it and you’re not going to accommodate my pro se stance.”

Although Amano did indeed allow cross- examiners to exceed the half-hour time limit on the next hearing day and subsequent ones, on November 7, the group of opponents who challenged the TMT in the first contested-case hearing (and who are also participating in this remanded hearing) filed an interlocutory appeal with the state Supreme Court.

The Interlocutory Appeal

Amano’s 30-minute rule was just one of four orders that were the subject of the appeal. The other rulings that the petitioners sought to have overturned were contained in three minute orders issued by the Board of Land and Natural Resources: No. 37 (denying the petitioners’ motion to strike the original Conservation District Use Ap- plication); No. 38 (denying the petitioners’ motion to disqualify the deputy attorneys general assisting in the conduct of the hearing); and No. 39 (denying several motions to disqualify the hearing officer).

Apart from the content of the appeal, it is noteworthy for at least two other reasons. It appears to be the first appeal filed under a new law, Act 48, minted this last legislative session, that provides for expedited appeals to the Hawai‘i Supreme Court of grievances arising from contested case hearings “of significant statewide importance.”

The Supreme Court has yet to adopt any rules to implement Act 48. Just what effect this appeal will have on the ongoing contested case is unclear, but, according to one attorney reached by Environment Hawai‘i, unless the petitioners ask for a stay and one is granted, the appeal itself is unlikely to derail the contested case. Even if a stay is requested, said the attorney (who asked not to be identified), the high court is unlikely to grant one. The court, he continued is generally reluctant to intervene with ongoing evidentiary proceedings, such as the TMT contested case.

Then there is the matter of the attorney representing the appellants in the Supreme Court filing: Richard Naiwieha Wurdeman. Wurdeman had represented the original petitioners in the successful ap- peal of the first contested case. He had also represented them at the start of proceedings in the current contested case. However, on October 10, just days before the start of the evidentiary hearings, Wurdeman informed the parties that he would no longer be able to represent them, citing scheduling conflicts. On October 17, before the scheduled start of the evidentiary portion of the contested case, Amano asked each of the petitioners affected by Wurdeman’s withdrawal whether they were ready to proceed, and all agreed that they were. Since then, KaHEA has been the sole petitioner among Wurdeman’s former clients to obtain legal counsel for purposes of the contested case, retaining Yuklin Aluli and Dexter Kaiama to represent its interests. In a footnote to the Supreme Court appeal, Wurdeman states: “Unless further notices of appearance of counsel are otherwise made, counsel has been retained by the appellants solely for purposes of the instant appeal.”

The Motions to Disqualify

Practically since the day Amano was appointed by the Land Board to conduct the hearings, her appointment has been challenged, both as to her fitness and as to the procedures used to select her. And no sooner are the challenges dealt with than motions for reconsideration and joinders in those motions are filed. The online documents library website that records filings in the contested case (dlnr.hawaii. gov/mk/documents-library/) lists dozens of motions and joinders filed by one or another of the petitioners or intervenors seeking to disqualify Amano. The first was lodged by Wurdeman on April 15. When that was denied, a request for reconsideration was made on May 13.

Others filing motions for Amano’s disqualification over the next several months include Dwight Vicente (joined in by the Temple of Lono) and Harry Fergerstrom (joined in by Kalikolehua Kanaele and Richard DeLeon; DeLeon has since withdrawn as a participant in the hearing).

On August 26, the Land Board issued Minute Order 17, setting forth once more its reasons for denying motions for Amano’s disqualification.

But on October 10, the parties represented by Wurdeman filed yet another motion to disqualify Amano, joined in by a number of other parties. As before, the challenge was dismissed in the Land Board’s Minute Order 39, filed on October 28. This is now one of the subjects of the interlocu- tory appeal to the Supreme Court.

The Board of Land and Natural Resources and the University of Hawai‘i have both filed objections to Wurdeman’s appeal.

The BLNR attorneys, led by Julie China and William Wynhoff, argue that intervention by the court at this stage would lead to “piecemeal litigation at the expense of an or- derly underlying proceeding.” They urged the court to dismiss the appeal and “dispose of this motion as soon as possible.”

Attorneys for the university made similar arguments. “The limitations on appellate jurisdiction are intended to avoid the inefficiencies of piecemeal litigation and the premature review of issues before the development of a complete record. Allowing this appeal to proceed would run directly afoul of these purposes,” wrote attorneys Ian Sandison, Tim Lui-Kwan, and John Manaut. They also suggested that the court might consider appointment of a master to oversee the proceedings, as allowed by the statute governing contested cases.

As Environment Hawai‘i went to press, the Supreme Court had yet to address Wurdeman’s appeal.

The Temple of Lono

The list of motions to disqualify Amano mentioned in the Supreme Court appeal does not include the “Quo warranto demand of jurisdiction” submitted by Brannon Kealoha on July 18 or 25 — both dates provided on his signature line — and resubmitted in expanded form on August 8 as “MOTION invoking Quo Warranto, respectfully, a demand of jurisdiction; declaratory judgment on a constitutional issue/violation.” This was rejected in Minute Order No. 30 of October 10.

Nor does it include a challenge raised by the Temple of Lono on September 17, which claimed that Amano had not allowed it to respond to “a sweeping ad hominem attack” made on it by the attorneys for the university. “There was no opportunity for the Temple to bring the full implications of the attack to the attention of the hearing officer by means of a motion because the deadline for filing pre-hearing motions had passed,” Sinkin wrote. Amano did not allow Sinkin to make an untimely filing in rebuttal, and this, Sinkin argued, was “a clear abuse of discretion.”

On November 14, Sinkin appealed to the Supreme Court, claiming that the Temple of Lono’s due process rights had been systematically violated by the BLNR and the hearing officer’s refusal “to permit the Temple to raise the question: Has the applicant demonstrated a hostility toward the Traditional Hawaiian Faith that disqualifies the Applicant from receiving the permit requested” and by “refusing, without explanation, to take up numerous motions filed by the Temple.”

Of the 400-plus documents — motions, requests, joinders, rebuttals, minute orders, and other papers that defy easy categoriza- tion — that have been submitted to or by the hearing officer in the contested case, 45 were filed by Sinkin, who makes frequent requests of Amano for orders addressing his numerous filings.

— Patricia Tummons

 

The TMT Permit Application in 200 Words

The original Conservation District Use Application for the construction of the Thirty Meter Telescope (TMT) was submitted to the Board of Land and Natural Resources in 2010. The Land Board awarded the permit, but at the same time ordered that a contested-case hearing be held before construction could begin.

The hearing was held in 2011 and in 2012 the hearing officer made his recommendation to the Land Board that the permit be granted. In 2013, the Land Board agreed and the permit was issued.

The six parties to the contested case challenged the permit in court and late last year, the state Supreme Court found that the Land Board had erred when it voted to approve the permit before conducting the contested case. The matter was remanded to the Land Board.

In February, the board appointed retired Judge Riki May Amano to conduct the hearings. In addition to the six original petitioners – Mauna Kea Anaina Hou, Clarence Ching; the Flores-Case ‘Ohana, Deborah Ward, Paul Neves, and KaHEA: the Hawaiian Environmental Alliance — 17 parties have been admitted to the proceeding as intervenors.

The first evidentiary hearing was held October 20. The hearing is scheduled to continue well into the new year.

 

For Further Reading

Environment Hawai‘i reported extensively on the previous contested case over the TMT application for a Conservation District Use Permit. All are available at http://www.environment- hawaii.org:

• “Native Hawaiian Beliefs, Practices Are Argued in TMT Contested Case,” January 2012;
• “Claims of TMT Foes are Denied,” January 2013;

• “BLNR Gives Final Approval to Permit to Thirty Meter Telescope,” May 2013;
• “Land Board Approval Before Contested Case Is Issue in Appeals of Two Telescope Permits,” January 2014;

• “Groups Appeal Ruling on Thirty Meter Telescope,” July 2014.

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