As the case involving the challenge to the application to build the Thirty Meter Telescope enters its fifth month of testimony and evidence, some government procedure wonks have raised the question: Are contested cases still appropriate for disputes coming before the Board of Land and Natural Resources?
Through January, there had been 40 days of testimony in addition to about a dozen pre-hearing conferences. Retired Judge Riki May Amano, the hearing officer, has now scheduled dates for further testimony through at least the middle of February.
All the while, the meter is running at a fast clip. Each day, state employees attending the hearing include a deputy attorney general, a staff member from the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands (both based in Honolulu), and five or six officers from the DLNR’s Division of Conservation and Resources Enforcement. In addition, Amano is paid $375 an hour (or $3,000 for an eight-hour day), while the hearing room – the Crown Room of the Naniloa Hotel – costs $781 a day. A back-of-the-envelope calculation by Environment Hawai`i has the total daily costs to the DLNR coming to about $7,000, a figure that was not disputed by a state employee familiar with the expenses.
This does not include costs to the applicant for the permit, the University of Hawai`i. It has hired the law firm of Carlsmith Ball to represent its interests and often has university employees attending the hearing. Nor does it include time spent by staff outside the hearing to support the proceedings.
When the University of Hawai`i, which is applying for the Conservation District Use Permit to build the TMT, and the non-profit corporation TIO that would oversee the construction completed their presentation of witnesses, Amano apparently believed that the process would move along at a quicker pace, since all but one of the remaining parties are opponents of the telescope who have similar interests.
It has not worked out that way. One of Amano’s earliest efforts to push things along came when, in late October, she asked that cross-examinations of witnesses be limited to 30 minutes by each party. That rule, imposed over the objections of many of the TMT opponents, has fallen by the wayside in the intervening months.
Amano also tried to streamline the process by limiting objections to questions posed during cross-examinations to only the party presenting the witness. That practice was adopted early on in the proceeding after several instances when one party would object, another would then object to the objection, and still more would then lodge their objections to the objections.
However, that has meant that during the presentations by witnesses put on by TMT opponents, there have been virtually no meaningful objections and the witnesses, under sympathetic questioning, have, with few exceptions, had free rein to stray far beyond the bounds of their direct testimony.
On January 10, Tim Lui-Kwan, one of the attorneys for the University of Hawai`i, commented on this. “Just seeing how this friendly cross is going,” Lui-Kwan told Amano, “I’m thinking, if we’re not allowed to object – and I respect your ruling, Judge – one of the ways of actually speeding to speed this along is to have cross-examiners ask direct questions rather than leading to open ended narratives of the witnesses. I think it would go a lot faster that way”
Amano then suggested to Dexter Kaiama, representing TMT opponent KaHEA, the Hawaiian Environmental Alliance, that he give some thought to this concern.
“I understand there may be instances” when this occurred, he replied. “And I think Your Honor has already reminded witnesses when they start to go far from the questions asked. That might be one way, Your Honor. And the other way, I’ll try to do a better job of speaking to my clients… I understand the need to try and streamline.”
Another Contested Case?
On January 6, 3rd Circuit Judge Greg K. Nakamura issued his written order in the appeal of one of the TMT opponents, Eric Kalani Flores, of the Board of Land and Natural Resources decision to deny his request for a contested case hearing over the board’s consent to the University of Hawai`i’s sublease of land to the TMT in 2014.
Flores, Nakamura found, “was denied the right to a contested hearing [sic] on the subject Consent to Sublease in violation of his constitutional right to a hearing under Article 12, Section 7 of the Hawai`i State Constitution and Mauna Kea Anaina Hou,” referring to the initial appeal of the TMT permit.
In the past, the Land Board has not granted contested-case hearings over land dispositions (except with regard to Alexander & Baldwin’s request for a long-term water lease and revocable permits allowing the diversion of East Maui streams). A deputy attorney general confirmed to Environment Hawai`i that the state would appeal the ruling.
— Patricia Tummons
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