{"id":10301,"date":"2018-04-02T18:44:04","date_gmt":"2018-04-02T18:44:04","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10301"},"modified":"2019-01-03T23:43:48","modified_gmt":"2019-01-03T23:43:48","slug":"court-mulls-whether-contested-case-should-be-granted-for-tmt-sublease","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10301","title":{"rendered":"Court Mulls Whether Contested Case Should Be Granted for TMT Sublease"},"content":{"rendered":"
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How, if at all, should last year\u2019s contested case proceeding and resulting Conservation District Use Permit (CDUP) for the proposed Thirty Meter Telescope (TMT) influence the lawsuit over the denial of a contested case over the sublease for the facility?<\/p>\n

Last September, after a months-long contested case hearing in Hilo, the majority of the state Board of Land and Natural Resources voted to approve a Conservation District Use Permit for the TMT. Telescope opponents argued, among other things, that its construction would interfere with their right to engage in traditional and customary native Hawaiian practices. Despite the witness testimony and evidence they provided, the board (except for members Keone Downing and Stanley Roehrig) found that the TMT site and \u201cits vicinity were not used for traditional and customary native Hawaiian practices conducted elsewhere on Mauna Kea, such as depositing piko, quarrying rock for adzes, pilgrimages, collecting water from Lake Waiau, or burials. … Some groups perform ceremonies near the summit. The evidence shows that these ceremonies began after the summit access road and first telescopes were built, but, in any case, the TMT will not interfere with them.\u201d Even so, the board included a number of conditions in the CDUP aimed at protecting native Hawaiian rights (including access rights) and the mountain\u2019s cultural resources.<\/p>\n

But did that process and those permit conditions (which are under appeal) absolve the Land Board of any responsibility to grant E. Kalani Flores, a native Hawaiian party to the CDUP contested case, a contested case on the sublease, as well?<\/p>\n

In arguments last month before the Hawai\u2018i Supreme Court, attorneys representing the state and the University of Hawai\u2018i argued that case law has determined that native Hawaiian rights to access lands for traditional and customary purposes endure no matter who owns it, and that being the case, none of Flores\u2019 private, protected interests were being affected by the sublease or in danger of being subject to \u201cerroneous deprivation.\u201d<\/p>\n

Chief Justice Mark Recktenwald asked the state\u2019s attorney Clyde Wadsworth whether that would still be the case if the sublease in some way affected Flores\u2019 ability to access the area. \u201cWe don\u2019t know what TIO\u2019s position is going to be. They may be more restrictive. They may say, \u2018Well, you know, instead of certain days a week, you can only come on once a month,\u2019\u201d Recktenwald said. (TIO stands for the Thirty-Meter-Telescope International Observatory, the legal entity proposing the telescope.)<\/p>\n

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Wadsworth argued that wasn\u2019t the case with this sublease, which explicitly states that it is subject to the rights of native Hawaiians. He added that the university and TIO had established measures to avoid impacts on cultural practices. Those measures, outlined in the CDUP decision and order, include implementing a cultural and natural resource training program for employees, hiring a cultural resource specialist, and preparing an archaeological mitigation plan, among other things.<\/p>\n<\/div>\n<\/div>\n

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\u201cBut that\u2019s all in the other case,\u201d Recktenwald said.<\/p>\n

\u201cYour honors, if they so choose, since that\u2019s a public record, they could take judicial notice\u201d of that case,\u201d Wadsworth replied.<\/p>\n

If the sublease, for some reason, stated that the lessee had the right to exclude anyone from the subleased area, Flores\u2019 contested case hearing request would have to be evaluated in light of whether that provision affected his rights and whether there could possibly be the erroneous depri- vation of those rights, he added.<\/p>\n

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In his rebuttal, Native Hawaiian Legal Corporation attorney David Kaiula Kopper argued that the state could not fulfill its obligations to protect native Hawaiian rights if it refused to be informed before it acts. The Land Board had denied Flores\u2019 petition without holding a hearing and without making any findings, Kopper noted, suggesting that his client had been denied due process.<\/p>\n

\u201cWe actually have no findings as to what extent the CDUP … actually addresses the native Hawaiian rights and practices in the area of the sublease,\u201d he said.<\/p>\n

\u201cIf you were granted a contested case hearing, what would it look like? What would your clients be asserting as the interest that was adversely affected?\u201d asked justice Richard Pollack.<\/p>\n

Kopper cited Flores\u2019 access rights, as well as \u201chis interest in the disposition of ceded lands.\u201d He also suggested that despite the arguments that case law prohibits the infringement of native Hawaiian cultural access rights, the state in this case seemed to be improperly passing off its responsibility to protect native Hawaiian rights to a third party, the sublessee. It is the state\u2019s job to balance the interest of the TMT International Observatory with the rights of native Hawaiians, he said.<\/p>\n

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Aside from Flores\u2019 concerns about the disposition of ceded lands, Recktenwald asked Kopper what specific effects would result from the sublease approval.<\/p>\n

\u201cThe appellants are arguing he\u2019s no worse off or no better off now than he was when it was the University of Hawai\u2018i. … How do you respond to their arguments that, in essence, TIO stepped into the shoes of UH and his interests have not been affected one way or the other?\u201d Recktenwald asked.<\/p>\n

Kopper said it again came down to access, adding that the state needed to hold a contested case because of the risk of erroneous deprivation of Flores\u2019 rights. What\u2019s more, Kopper pointed out that the Land Board appeared to violate its own rules regarding when it can deny a contested case request without holding a hearing.<\/p>\n

\u201c[The rule] sets forth the two, and only two, instances. …The first is when it is clear as a matter of law the request concerns a subject that is not under the adjudicatory jurisdiction of the board. We know that\u2019s not true because the board has jurisdiction over sublease approvals. The second is when it is clear as a matter of law that the petitioner does not have a legal right, duty, or privilege entitling one to a contested case. And that is not true. Based on the board\u2019s allegations, he does have rights to a contested case under Article 12, Section 7, and Article 12, Section 4 [parts of the state constitution regarding Hawaiian affairs], when it comes to the disposition of ceded lands,\u201d Kopper said.<\/p>\n

He added that another reason the CDUP contested case cannot have satisfied Flores\u2019 due process rights is because that case did not conclude until three years after the Land Board approved the sublease.<\/p>\n<\/div>\n

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To this, Pollack expressed his concern with the arguments by both sides that the court look to the CDUP hearing to see what Flores argued. \u201cFor our decision to pivot on what arguments were made in that hearing or whether Mr. Flores participated or not, it seems to me we should be looking at what was the process that was provided. If that process provides the due process to make sure that there\u2019s no adverse effect on native Hawaiian rights, that\u2019s what we look at. We don\u2019t look at what individuals participated or what arguments were made in the hearing,\u201d he said.<\/p>\n

Kopper countered that the court also needed to know what rights were addressed \u201cand we don\u2019t. The state wants to just assume all of his practices were addressed.\u201d Toward the end of the hearing, the state\u2019s Wadsworth was asked whose burden it was to show that the sublease did not affect any of Flores\u2019 interests or erroneously deprive him of his rights.<\/p>\n<\/div>\n

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Wadsworth suggested it was Flores\u2019 burden. \u201cBut even if the court were to decide that was the burden of the state … he can\u2019t show as a matter of law that his private right would be affected by the sublease or that there would be erroneous deprivation,\u201d he said.<\/p>\n

It\u2019s unknown when the court will issue a ruling in this case, or how long the appeal of the CDUP will take. The latter case was still in the opening briefs stage at press time.<\/p>\n

\u2014 Teresa Dawson<\/strong><\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

How, if at all, should last year’s contested case proceeding and resulting Conservation District Use Permit (CDUP) for the proposed Thirty Meter Telescope (TMT) influence the lawsuit over the denial of a contested case over the sublease for the facility? … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10057,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[435],"tags":[],"class_list":["post-10301","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-april-2018"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10301","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10301"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10301\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10057"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10301"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10301"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}