Land Board groupies – and we’re guessing there may be five or six of you – may have noticed changes in how the board handles contested cases over the last three or so years.
This quasi-judicial administrative process is initiated when someone asks for a contested case hearing at the public hearing on a given permit application or other issue up for decision by the Board of Land and Natural Resources. If no public hearing is required, the request must be lodged at the board meeting where that issue comes up for decision, in advance of the board’s vote on it. The contested-case request must be followed up by a written petition, submitted within 10 days of the hearing or meeting.
Up until a few years ago, the next steps involved staff at the Department of Land and Natural Resources consulting with a deputy attorney general to develop a recommendation to the board as to whether or not to grant standing to the party requesting the contested case. The board would hear staff’s recommendation at a regular board meeting, held under the state open meetings law (Chapter 92 of Hawai’i Revised Statutes). If the contested case was approved, then the board could either sit en banc to hear the case or it could appoint a hearing officer whose recommendations would then be voted upon by the board. Either way, the hearing would be conducted under a different statute, Chapter 91 of HRS, otherwise known as the Hawai’i Administrative Procedures Act. Unlike meetings held under Chapter 92, those held under Chapter 91 do not need to be publicly announced.
Now, however, the process is treated as a Chapter 91 proceeding from the moment a contested-case request is made. This means that members of the public – and even the Land Board itself, in cases that are handled by a hearing officer – are not able to view the process of determining who shall be given standing and for what reason. According to Sam Lemmo of the DLNR’s Office of Conservation and Coastal Lands, which handles most of the contested cases held by the DLNR, a hearing officer is hired to handle the case from the point the written request for a hearing is received. The hearing officer, and not the Land Board, decides whether the party requesting the contested case has legal standing. If he or she makes that determination, then the case moves forward in accordance with Chapter 91. If standing is denied, then the requester can ask the board to overrule that decision. The entire matter is submerged from public view, including the Land Board’s final vote on the recommendation of the hearing officer.
Sonia Faust, who heads up the Department of Attorney General’s Land and Transportation Division, describes the situation with regard to handling contested cases as very fluid at the moment. The Land Board is not technically required to vote on whether to grant a contested case request, she said; rather, DLNR rules say only that at some point, a determination must be made “that a contested case hearing is required.” The rules are silent with respect to who is empowered to make that determination. In the past, the Land Board has deferred to the attorney general’s office or, as it now does, to the hearing officer.
“We’ve been struggling with this,” Faust said, adding, “We need to revise the rules” for contested cases. In late 2002, draft DLNR rules were published that would have overhauled the contested case process, but they’ve pretty much been shelved after being greeted by howls of public protest, much of it centered on a requirement that people wanting to participate would be charged an admission fee of up to $600, to offset administrative costs.
Another change involves the scope of issues that have been addressed through the contested case process. Fines, which never used to be subject to contested case hearings, are now routinely contested. According to Faust, “this is simply a matter of due process.”
In the past, too, land disposition issues, such as leases, rents, revocable permits and the like, have been off-limits. Recently, however, the Office of Hawaiian Affairs asked for a contested case hearing on resolution of the matter of the use of state land by the Waikoloa resort. As discussed on the facing page, the request was denied.
Alternative Dispute Resolution
Contested cases can drag out for years. And even though they are “quasi-judicial,” some of them are every bit as expensive as litigation and involve small armies of attorneys. The most famous contested case in recent history was probably that held by the Commission on Water Resource Management to decide the fate of water from Waiahole Valley. It lasted for years and cost hundreds of thousands of dollars. More recently, says Lemmo, a contested case over alleged violations of the Conservation District at Pila’a, Kauai, involving actions of James Pflueger, has cost the state more than $100,000.
Over the last decade, Lemmo’s office has been able to resolve relatively small disputes over Conservation District infractions through a process known as HOAPS, for Hearing Officer Administrative Penalty System. The program, which allows for fines and penalties to be imposed administratively rather than brought before the Land Board for decision-making, handles about a dozen cases a year, Lemmo says.
In an effort to streamline the handling of other infractions, this year the Legislature expanded the scope of this approach to include all “natural resource violations,” including violations of rules of the Commission on Water Resource Management, and the divisions of Forestry and Wildlife, State Parks, and Aquatic Resources.
— Patricia Tummons
Volume 15, Number 6 December 2004