A lawyer representing the Office of Hawaiian Affairs has accused Board of Land and Natural Resources member Libert Landgraf of ex parte communication concerning the contested case being heard over the Conservation District application of Haseko (Ewa), Inc., to blast a marina along the leeward O`ahu coast, just east of Barber’s Point Naval Air Station.
In a letter to Keith Ahue, Land Board Chairman, dated November 18, 1994, the lawyer, Sheryl L. Nicholson, related an incident that occurred as she and her husband were dining in a Honolulu restaurant just a few hours after she had submitted proposed findings of fact and conclusions of law in the contested case proceeding. “We were shown to a table for two within feet of a table at which Libert Landgraf and his guest were sitting. We exchanged greetings. After dinner, Mr. Landgraf stood up with his guest and at some point came to our table alone. For several minutes, Mr. Landgraf spoke to me, unsolicited, about the Ewa Marina contested case proceeding. He indicated something to the effect that although he probably shouldn’t be saying so, he didn’t think we had anything to worry about, that it was unfortunate that our time had been wasted (although it was enjoyable for him), and that our real fight would lie with the Water Commission. He also explained the background to some of the questions he asked at the hearing, had made a comment about the testimony of the three ladies (witnesses) we (actually Haseko) had brought to testify…. He urged me to study up for the Water Commission proceeding, and commented to the effect that we had nothing to worry about from ‘us’ (which I took to mean the Board), and that our real battle would lie with the Water Commission….
“It did not occur to me until just after leaving the restaurant that Mr. Landgraf had mistaken me for an attorney for Haseko. No other interpretation of his comments would make any sense…
“I have no reason to believe that Mr. Landgraf’s comments were intended as anything but a well-meaning gesture toward their intended recipient. That in itself, however, is troubling, and underscores the inappropriateness of ex parte communications… More critically, those comments lend themselves to being interpreted as suggesting that Mr. Landgraf and, perhaps, the board, had predetermined the outcome of this proceeding in Haseko’s favor, and may otherwise have been biased in favor of Haseko.
“However they may be interpreted, those comments give OHA and the other respondents good grounds to seek the disqualification of Mr. Landgraf and perhaps the entire Board, and to request a new hearing before an impartial fact-finder. At the very least… by giving an appearance of impropriety, the comments seriously undermine the integrity of the administrative process that OHA and the other respondents just participated in…
Nicholson concluded her letter with a request that “the Board forbear from acting on Haseko’s CDUA until this matter has been appropriately disposed of.”
By press time, Ahue had not responded to Nicholson. However, a schedule for the contested case proceedings prepared in late November by Linnel Nishioka, a deputy attorney general assigned to the Land Board, calls for oral arguments on a proposed findings of fact, conclusions of law and decision and order to be held December 15, 1994, from 2 to 3:30 p.m. in the Land Board conference room of the Kalanimoku Building (1151 Punchbowl Street, Honolulu). A final board vote is scheduled to occur at the board’s regular December meetings. Contested case hearings are open to the public.
Volume 5, Number 6 December 1994