{"id":91,"date":"2014-01-06T21:28:43","date_gmt":"2014-01-06T21:28:43","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=91"},"modified":"2014-01-06T21:28:43","modified_gmt":"2014-01-06T21:28:43","slug":"land-board-approval-before-contested-case-is-issue-in-appeals-of-two-telescope-permits","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=91","title":{"rendered":"Land Board Approval Before Contested Case Is Issue in Appeals of Two Telescope Permits"},"content":{"rendered":"
The Hilo courtroom of Judge Greg K. Nakamura was packed. Mothers with small children, students, and even this reporter were sitting cross-legged on the aisle between the rows of benches. In the seats, enthusiastic supporters of the proposed Thirty-Meter Telescope found themselves pressed in cheek-to-jowl with the passionate opponents. Two sheriff\u2019s deputies stood guard at the entry.<\/div>\n
\nThat was the scene on the morning of December 13, when Nakamura heard opening arguments on briefs submitted by the groups appealing the Board of Land and Natural Resources\u2019 decision to permit construction of the huge telescope in the University of Hawai`i\u2019s science reserve atop Mauna Kea.<\/p>\n

Unlike the contested case hearing on the project, held in 2011, the hearing before Nakamura was brief, with each side \u2013 the appellants, on the one hand, and the University of Hawai`i-Hilo and the Board of Land and Natural Resources, on the other \u2013 allowed 15 minutes to present its case.<\/p>\n

Richard Wurdeman, representing the six groups appealing the permit granted in April of last year, made three points in his allotted time. First, that the Land Board had \u201cgrossly violated\u201d the appellants\u2019 due process when it initially approved the project in 2011 before holding the contested case hearing. \u201cThis was gross error,\u201d he told Nakamura, describing the Land Board\u2019s subsequent approval of the permit after the contested case hearing as \u201ca rubber stamp.\u201d His proposed remedy: vacate the decision and remand it to the Land Board, with the requirement that it conduct a new contested case hearing \u201cbefore a neutral hearing officer.\u201d<\/p>\n

Wurdeman\u2019s second point was that the applicant for the project, the University of Hawai`i-Hilo, had not met its burden to show that the telescope\u2019s construction complied with each criterion set forth in the Land Board\u2019s rules for approval of projects in the Conservation District. The economic benefits that the telescope would bring, which have been frequently been invoked in arguments supporting its construction, do not constitute \u201cproper mitigation,\u201d he said.<\/p>\n

Thirdly, Wurdeman argued that the terms of the permit did not meet the standards set by the state Supreme Court in the\u00a0Ka Pa`akai<\/i>\u00a0case, since responsibility for ensuring cultural practitioners\u2019 rights to exercise their protected activities were delegated to the university. \u201cThey passed the buck to the university \u2026 [which is] improper delegation under\u00a0Ka Pa`akai,\u201d he told the court.<\/p>\n

Arguing the case for UHH was Jay Handlin. \u201cIt is extremely important to identify what is actually being reviewed here,\u201d he reminded Nakamura. The standard for court review is whether a factual statement or a statement of mixed fact and law is \u201cclearly erroneous \u2013 a very high threshold,\u201d he noted.<\/p>\n

Nor were the appellants\u2019 due-process rights violated, he continued. The Department of Land and Natural Resources\u2019 rules state that the contested case hearing must be held after the public hearing on an application. \u201cFrom the practical point of view, agencies deny applications all the time,\u201d he said. \u201cIf the appellants\u2019 view applies, \u2026 you could have a contested case even without the need for it,\u201d he continued. As an example, he cited a hypothetical case where the board, hearing a case involving an alleged violation of its rules, might decide no infraction occurred or might impose only a minimal fine, mooting altogether any need for a contested case.<\/p>\n

Julie China, a deputy attorney general representing the Land Board, called the due-process complaint a \u201cred herring.\u201d A request for a contested case hearing may be made either before or after the board votes, she said. And if there is a contested case, following that, the board \u201creviews everything de novo,\u201d she pointed out.<\/p>\n

The Land Board \u201cis unbiased,\u201d she added. At no point did anyone suggest there was a disqualifying interest on the part of any board member.<\/p>\n

In his rebuttal, Wurdeman raised another point, alleging that the fact that the BLNR changed its administrative rules while the contested case hearing was occurring meant that the CDUP granted to the university had to comply with the old rules, not the new ones. The fact that it was not required to do so \u201cwas error as well,\u201d he told Nakamura.<\/p>\n

In addition to its application, he said, \u201ca management plan must be submitted. At some point, there was a recognition that the plan was insufficient, so the BLNR changed its rules to remedy the error.\u201d<\/p>\n

Handlin, however, argued that the BLNR determined that, \u201cto the extent the requirement was for a comprehensive plan, the Comprehensive Management Plan [for Mauna Kea] met that. Then the BLNR said a site-based plan was needed, and that condition was fulfilled.\u201d<\/p>\n

Throughout the entire contested case hearing, he added, the petitioners \u201cnever said a word about the TMT management plan.\u201d<\/p>\n

China added that the BLNR\u2019s order requires compliance with both plans.<\/p>\n

<\/b><\/p>\n

* * *<\/p>\n

The High Court Rules on Maui Telescope<\/b><\/div>\n

On the same day that attorneys for the University of Hawai`i-Hilo and the Land Board were arguing that a contested-case hearing could be held\u00a0after<\/i>\u00a0the board had voted, two justices of the Hawai`i Supreme Court, disagreed strongly with that position in a minority opinion.<\/p>\n

The opinion, written by Justice Simeon R. Acoba Jr. and joined by Justice Richard W. Pollock, concurred with the majority in upholding a Maui group\u2019s right to appeal a BLNR permit issued for the construction of another telescope \u2013 the Advanced Technology Solar Telescope (ATST) on Haleakala. Acoba and Pollock wrote that the \u201cBLNR\u2019s grant of the permit prior to holding a contested case hearing was improper because, as [Kilakila o Haleakala] alleged, BLNR \u2018put \u2026 the cart before the horse.\u2019\u201d<\/p>\n

Citing constitutional protections of native Hawaiian rights and the public trust doctrine, Acoba wrote, there was no question, in their view, but that \u201ca contested case hearing should have been held prior to the vote\u2026\u201d The BLNR\u2019s \u201cinitial grant of the permit determined the rights of the parties, rendering any subsequent so-called \u2018contested case hearing\u2019 meaningless,\u201d he concluded.<\/p>\n

The group lodging the appeal in this case, Kilakila o Haleakala (KOH), had first asked for a contested case well before the Land Board voted on the permit in December 2010. Its request was denied and the board proceeded to approve the University of Hawai`i\u2019s Conservation District Use Permit to construct the 142-foot-tall facility.<\/p>\n

Represented by Native Hawaiian Legal Corporation attorney David Frankel, KOH sought relief in 1st Circuit Court. It asked Judge Rhonda A. Nishimura to vacate the permit and remand the matter to the Land Board, with instructions to hold a contested case and stay the permit.<\/p>\n

Attorneys for the University of Hawai`i, joined by those for the Land Board, argued, among other things, that the court could only hear appeals of decisions made following a contested case hearing, citing Section 91-14 of\u00a0Hawai`i Revised Statutes.<\/i><\/p>\n

In February 2011, the board voted to hold a contested case, after which Nishimura agreed with the university that the case was moot. Although she admonished the Land Board to stay the permit until the contested case hearing had been completed, the permit remained alive.<\/p>\n

Even as preparations began for the contested case hearing, held later that year, Frankel appealed the lower court\u2019s finding that it lacked jurisdiction. The Intermediate Court of Appeals supported Nishimura\u2019s finding and dismissed the appeal in a ruling issued June 28, 2012. It was this determination that was the subject of the current appeal before the Supreme Court. (Kilakila o Haleakala also has two additional cases pending before the Intermediate Court of Appeals.)<\/p>\n

The first issue the Supreme Court disposed of was the claim of mootness that was argued by the University of Hawai`i. Because the permit was still alive \u2013 and some associated site work has in fact begun \u2013 the appeal is not moot, Associate Justice Paula A. Nakayama wrote in the majority opinion that was signed as well by Chief Justice Mark A. Recktenwald and Justices Sabrina S. McKenna and Pollock.<\/p>\n

\u201cCrucially, BLNR has neither stayed nor revoked the permit, not even when KOH appealed or BLNR granted a contested case hearing on the already-issued permit. Because the permit remains in effect despite BLNR\u2019s failure to hold a contested case hearing before voting to grant the permit, UH can still build on Haleakala and KOH can still seek effective relief against UH. Consequently, we agree with KOH\u2019s position and conclude that this case is not moot.\u201d<\/p>\n

The second issue addressed was whether an appeal could be made to Circuit Court in the absence of a contested case hearing by an agency. On this point as well, the court sided with Kilakila o Haleakala. The BLNR\u2019s \u201cvote to grant the permit in the face of a valid pending request for a contested case hearing\u201d satisfies the statutory requirement of a final agency decision, it found.<\/p>\n

The court went on to find that Kilakila had satisfied all the procedural requirements to ensure its right of appeal and that the group did meet the legal requirements to be granted standing.<\/p>\n

In light of its findings, the court vacated both the ICA and Circuit Court judgments and remanded the case back to the Circuit Court \u201cfor further proceedings consistent with this opinion regarding KOH\u2019s request for a stay or reversal\u201d of the Conservation District Use Permit granted on December 1, 2010.<\/p>\n

What Next?<\/i><\/b>
\nThe Supreme Court remand seems to instruct the lower court to review the case in a manner \u201cconsistent with this opinion regarding KOH\u2019s request for a stay or reversal\u201d of the permit granted more than three years ago.<\/p>\n

But the case is more complicated than the Supreme Court opinion suggests, since the board held a second vote on the permit \u2013 in effect, reaffirming its first one \u2013 in November 2012.<\/p>\n

After the first contested case hearing was conducted in 2011, months passed before the hearing officer, Steven Jacobson, issued his initial proposed findings in February 2012 and a final report in March 2012. Jacobson determined that KOH was not, in the first place, entitled to a contested case hearing and that the CDUP the board had issued for the telescope could stand, with a few additional conditions.<\/p>\n

A few days later, Jacobson claimed that he had been pressured by people within the offices of U.S. Sen. Daniel Inouye and Governor Neil Abercrombie to release his initial report before he was ready to.<\/p>\n

In an effort to remove the hint of any undue influence, the Land Board voted to hold a second contested case hearing on the permit. Hearing officer Lane Ishida issued his report in August 2012, which was accepted by the Land Board in November of that year. Once more, the permit to construct the telescope was approved, and the university announced that it was ready to start work on the $300 million facility.<\/p>\n

KOH once more appealed the BLNR\u2019s approval of the permit \u2013 an appeal that is now before the Intermediate Court of Appeals. Among other things, KOH argues that because the November 2012 permit vote was made after the Land Board had already voted to approve the project nearly two years earlier, the board was prejudiced in favor of the telescope\u2019s construction.<\/p>\n

Following the Supreme Court\u2019s decision on December 13, Frankel said that he was uncertain what would come next. The university\u2019s Michael Maberry, however, who oversees the astronomical installations on Haleakala, told\u00a0Civil Beat<\/i>\u00a0that the permit approved by the Land Board in 2012 allows construction to move forward.<\/p>\n

Separately, KOH has also challenged in court the University of Hawai`i\u2019s failure to prepare an environmental impact statement in connection with its management plan for the science reserve on Haleakala. In yet another legal action stemming from the ATST project, KOH sued the University of Hawai`i over the university\u2019s denial of KOH\u2019s request to review communications between university personnel, on the one hand, and Inouye\u2019s and the governor\u2019s offices, on the other, relating to the ATST. (It prevailed in that case.)<\/p>\n

On December 15, the ATST was renamed the Daniel K. Inouye Solar Telescope.<\/p><\/div>\n

<\/div>\n","protected":false},"excerpt":{"rendered":"

The Hilo courtroom of Judge Greg K. Nakamura was packed. Mothers with small children, students, and even this reporter were sitting cross-legged on the aisle between the rows of benches. In the seats, enthusiastic supporters of the proposed Thirty-Meter Telescope … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9,12],"tags":[7],"class_list":["post-91","post","type-post","status-publish","format-standard","hentry","category-january-2014","category-telescopes","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/91","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=91"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/91\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=91"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=91"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=91"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}