At its meeting of April 26, the Board of Land and Natural Resources was considering proposed fines against landowners at Marconi Point who were alleged to have violated state laws relating to the Conservation District and protected species. Dozens of concerned members of the public had shown up to testify, but Land Board chair Dawn Chang would not let them.
Deputy Attorney General Danica Swenson had advised the board that following the request for a contested case by one of the alleged violators, public testimony could proceed only with the explicit consent of the party who would be seeking the contested case.
With at least one of the parties who indicated they would be asking for a contested case objecting to public testimony, Chang refused to allow any public testimony on the matter.
Environment Hawaiʻi asked the state Office of Information Practices (OIP) for an opinion on the Land Board’s shut-down of public testimony on an item that had been publicly noticed on the board’s agenda. We noted that this action “is contrary to what is required under Chapter 92, specifically, Section 92-3… ‘The boards shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The boards shall also afford all interested persons an opportunity to present oral testimony on any agenda item.’”
The OIP’s Robert Shimizu forwarded our letter to Chang on June 3. “BLNR’s response to this appeal is BLNR’s opportunity to provide justification for BLNR’s actions or any additional information that BLNR would like OIP to consider,” he wrote.
Chang responded to the OIP on July 17. In defending the board’s actions on April 26, she invoked the Supreme Court case Mauna Kea Anaina Hou. That case involved the Land Board taking an action – issuing a Conservation District permit – and only holding a contested case hearing on the matter after the permit had been issued.
The situations are hardly analogous, which Chang seems to acknowledge
“Although that case involved the board’s approval of a permit despite pending requests for a contested case on the permit application, the discussion and analysis of the court are instructive in this situation. The court made it clear that the board must not only be impartial and fair, but also appear so,” Chang wrote.
“Given the logic and rationale of the Mauna Kea Anaina Hou case, a cautious approach is warranted, weighing the due process considerations (tending against continuing with public testimony) with the policy considerations of the sunshine law.”
Environment Hawaiʻi is pursuing its appeal with the OIP.
— Patricia Tummons
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