At the Land Board meeting on April 26, a score or more of members of the public waited hours outside a standing-room-only boardroom to have a chance to testify on the proposed sanctions of parties accused of destroying critical habitat for endangered species and clearing land.
Their right to testify would seem to be assured in Hawaiʻi law. Chapter 92 of Hawaiʻi Revised Statutes says that “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 Marconi Point sanctions were included on the board’s agenda. Both DOFAW and the OCCL had prepared lengthy reports on the extensive clearing that had occurred on the property last fall.
The board’s agenda was crowded that day. When it finally came time to hear the DOFAW and OCCL presentations, the staff from those agencies were limited to summarizing their extensive reports, two of which ran to more than 100 pages, and a third that came to 32 pages. The submittals were the product of months of investigation and research.
Yet board chair Dawn Chang sought to hurry along the presentations of Michael Cain, of the OCCL, and Marigold Zoll, of DOFAW. After six minutes of explaining the OCCL charges, Chang told Cain he was “past his time.” Zoll was given a similar limit to present her report on the damage to endangered species.
More than 100 pages of written testimony were submitted, uniformly in support of strong sanctions.
But when it came time for public testimony, there was none. After the staff presentations, Eric Robinson, attorney representing Yue-Sai Kan, said that he would be requesting a contested case.
After deputy AG Danica Swenson informed the board that public testimony could only proceed with the petitioners’ explicit consent — and Robinson said he could not give it — Chang then said she was going to “close this item, … pending compliance with the rules with respect to contested case hearings.”
Chang apologized to the room full of disappointed members of the public who had been waiting hours to testify. “I’m sorry, community members, who have waited so long. No public testimony, because they object. Once there’s a request for a contested case hearing we have to close all comments unless they give us approval. I’m sorry, I’m sorry. I appreciate all of your patience.”
The board’s practice of cutting off testimony once the prospect of a contested case is raised seems to be in direct conflict with Chapter 92.
Lance Collins, an attorney who has researched the issue, noted that when a contested case is requested during an open meeting, “the requester is required to take further action according to the BLNR’s rules to perfect their request, by reducing it to writing within a specific time period in order for the request to be validly considered. If they do not do that, then there will be no further consideration of the request.
“So, until that request is perfected, the BLNR cannot be said to be acting in its quasi-judicial capacity,” with the associated exemptions from Sunshine Law compliance.
“In my view, terminating public testimony before each person who has signed up to testify has done so violates the Sunshine Law.”
The state Office of Information Practices as well as the Attorney General have issued opinions agreeing with Collins.
“Under the Sunshine Law [Chapter 92], boards are required to ‘afford all interested persons an opportunity to present oral testimony on any agenda item,’” the OIP wrote in Opinion 18-06. In Opinion 01-06, the OIP quoted the Attorney General’s Opinion No. 86-5: “an opportunity to present oral or written testimony must be afforded on any agenda item at every meeting of all boards.”
The DLNR was asked to comment on its practice. The agency stated that it needed to consult with its deputy attorney general, who would not be available until May 1.
— Patricia Tummons
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