Mauna Kea

Please head to the DOCUMENTS LIBRARY for filings in Contested Case HA-16-02

 

Contested Cases

Question: What is a contested case hearing?

Answer: A contested case is “a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” Hawaii Revised Statutes (HRS) § 91-1(5).

 

Question: What triggers a contested case hearing?

Answer: A contested case is required by law if a statute or rule governing the activity in question mandates a hearing prior to the administrative agency’s decision-making, or if a hearing is mandated by constitutional due process. A contested case may be required by due process if the person or agency seeking a contested case possesses a property interest, as that interest is defined by the State Constitution.

With respect to the application to build the Thirty-Meter Telescope (TMT), there is a contested case because certain parties who were deemed eligible, pursuant to law, to request a contested case hearing, made that request with respect to the 2011 TMT decision by the Board of Land and Natural Resources (BLNR). The contested case hearing is proceeding now because both the Supreme Court and the Circuit Court remanded to the BLNR with directions to conduct a contested case hearing before the BLNR or a new hearing officer.

 

Question: Who gets a contested case hearing?

Answer: Any interested person or government agency that is entitled to a contested case by law may petition for and receive a contested case hearing.

 

Question: Who can take part in a contested case hearing?

Answer: The applicant and all persons or government agencies admitted as parties may take part in the contested case hearing. Hawaii Administrative Rule (HAR) § 13-1-31.

 

Question: Are contested case hearings open to the public?

Answer: There is no requirement that a contested case hearing be open to the public. It has not yet been determined whether this particular contested case hearing will be open to the public.

 

Question: What role does the public have in a contested case hearing?

Answer: As noted above, while contested case hearings are not required to be open to the public, they may be. When a contested case hearing is open to the public, then – similar to a trial held in court – the public may observe the contested case hearing, but they do not participate in it.

 

Question: What kind of qualifications does a hearing officer need?

Answer: The qualifications for the TMT contested case hearing officer include the following: (1) being an attorney licensed to practice law in the State of Hawaiʻi and in good standing; (2) being able to serve with strict impartiality and having no conflicts of interest or appearance of conflict; (3) being available to devote a substantial amount of time in the next six to twelve months; and (4) being willing to accept the prevailing charge rate relevant to the professional service as a hearing officer, as determined by the Department of Land and Natural Resources (DLNR). Other desirable qualifications include civil litigation experience, practice in administrative law and process, familiarity with government proceedings and procedures, and knowledge of the statutes and rules administered by the DLNR.

 

Question: What role does the hearing officer play in a contested case hearing?

Answer: The BLNR may delegate the conduct of the contested case hearing to a hearing officer, and has done so for the TMT contested case hearing. Without limiting the hearing officer’s powers, the hearing officer may rule on motions, receive testimony and evidence, and issue a report and recommended findings of fact and conclusions of law and decision to the BLNR.

 

Question: What is the difference between “sunshine law” and “contested case law”?

Answer: The regular, twice-a-month, meetings of the BLNR held pursuant to HRS chapter 92 are conducted in a manner commonly referred to as the sunshine law, providing notice, public meetings, and opportunity for public testimony. A contested case hearing is a quasi-judicial proceeding similar to a court proceeding, which is held pursuant to HRS chapter 91. Chapter 92 explicitly provides that the sunshine law does not apply to contested case hearings. HRS § 92-6.

 

The Board and the Chair

Question: What role does the BLNR play in a contested case hearing?

Answer: Like a judge in a court, the BLNR is the tribunal in the contested case. The law specifically authorizes the BLNR to delegate conduct of the contested case to a hearing officer. The BLNR did so in the TMT contested case. That means the BLNR will render a decision after receiving the hearing officer’s report and recommendations and personally considering the whole record or such portions thereof as may be cited by the parties.

 

Question: What role does the BLNR Chairperson play in a contested case

hearing?

Answer: Now that the contested case has been delegated to a hearing officer, the chairperson generally speaking has the same role as the other BLNR members.

 

Telescopes on Mauna Kea

Question: What is the history of telescopes on Mauna Kea?

Answer: In 1968, the State of Hawai‘i, through the BLNR, entered into a lease with the University of Hawai‘i (UH) for the Mauna Kea Science Reserve (MKSR), which is comprised of 11,288 acres of land. The MKSR covers all land on Mauna Kea above the 12,000 foot elevation, except for certain portions that lie within the Mauna Kea Ice Age Natural Area Reserve. Within the MKSR is a 525 acre Astronomy Precinct. The following observatories are located within the Astronomy Precinct: the UH 2.2-Meter Observatory; the United Kingdom Infrared Telescope; the NASA Infrared Telescope Facility; the Canada-France- Hawai‘i Telescope; the Caltech Submillimeter Observatory; the James Clark Maxwell Telescope; the Very Long Baseline Array telescope; the W. M. Keck Observatory; the Subaru Observatory; the Gemini North Observatory; and the Submillimeter Array telescopes. In addition to the MKSR, the lands managed by the UH include the Hale Pohaku mid-level facilities, and the Summit Access Road between Hale Pohaku and the MKSR.

 

Question: What is the history of the TMT?

Answer: In 2008, in consultation with the University of Hawai‘i at Hilo (UHH), TMT International Observatory LLC (TMT-International) began exploring the possibility of locating an observatory at the Astronomy Precinct. The conservation district use permit application for the TMT observatory project filed by the UHH in 2010 includes: a 30-meter telescope, instruments, dome, attached building, and parking; an access way with underground utilities; upgrades to electrical transformers at a substation located near Hale Pohaku; and a facility in Hilo that will manage activities at and support operation of the TMT observatory. The footprint of the TMT observatory dome, associated areas, and the area to be disturbed during construction was anticipated to be roughly five acres.

 

The Supreme Court decision

Question: What did the Supreme Court rule with respect to TMT and Mauna Kea?

Answer: The Supreme Court ruled that if a contested case is required by law, due process requires a meaningful opportunity, both in reality and in appearance, to be heard before a decision is made. Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 136 Hawai‘i 376, 363 P.3d 224 (2015).

 

Question: What are the results and impacts of that ruling?

Answer: The Supreme Court remanded the TMT permit application to the circuit court to further remand to the BLNR for a contested case hearing before the BLNR or a new hearing officer, or for other proceedings consistent with the opinion. On February 22, 2016, the Third Circuit Court – mirroring the Supreme Court’s language – remanded this matter to the BLNR.

 

Question: Is there going to be a contested case hearing on the remand?

Answer: Yes. There will be a contested case hearing on the remand.

 

Question: Who actually applied for the permit?

Answer: The UHH is the applicant for the TMT conservation district use permit.

 

 

Contested Case on TMT and Mauna Kea

Question: Why was a hearing officer only recently selected even though the Supreme Court case was decided in December 2015?

Answer: As detailed in the BLNR’s Minute Order No. 2, the Supreme Court ruled on December 2, 2015, and “remanded to the circuit court to further remand to BLNR for proceedings consistent with this opinion, so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.” The Circuit Court issued its order on February 22, 2016, remanding the matter to the BLNR so that a contested case hearing could be conducted before the BLNR or a new hearing officer, or for other proceedings consistent with the Supreme Court’s opinion.

The BLNR met on February 26, 2016, as part of, and to discharge its adjudicatory function governed by HRS § 91-9. The BLNR delegated the conduct of the contested case hearing to a hearing officer, pursuant to HAR § 13-1-32(b), and confirmed that the Chairperson was authorized to engage the services of a hearing officer pursuant to law.

 

Question: Is the BLNR concerned about fast-tracking this permit so that the developers don’t move the telescope project somewhere else?

Answer: No. the BLNR is committed to a process that is efficient, fair, and provides an ample opportunity for the parties to be heard.

 

Question: Did the BLNR decide to delegate the conduct of the contested case hearing to a hearing officer?

Answer: Yes. The BLNR delegated the conduct of the contested case hearing to a hearing officer and confirmed that the chairperson was authorized to engage the services of a hearing officer pursuant to law.

 

Question: How was the hearing officer selected?

Answer: The hearing officer was selected pursuant to HRS § 103D-304, which requires the DLNR to assemble and vet a list of applicants. Pursuant to this statute, (1) the list was reviewed by a selection committee, which ranked three candidates; and (2) the BLNR Chairperson then negotiated a contract with the first ranked person. If the BLNR Chairperson had been unable to successfully negotiate a contract with the first ranked person, then she would have attempted to negotiate a contract with the next ranked person. In this case, Chairperson Case was able to successfully negotiate a contract with Judge Amano as the first ranked applicant of the selection committee.

The selection committee consisted of: James Duffy, Associate Justice of the Hawaii Supreme Court (Ret.); Stella Kam, Deputy Attorney General; and Christopher Yuen, Member of the BLNR.

Question: Who was selected as hearing officer to hear the contested case?

Answer: Retired Circuit Court Judge Riki May Amano was selected as the hearing officer.

 

Question: What are Judge Amano’s qualifications and background?

Answer: Judge Amano served as a judge in the district and circuit courts of the Third Judicial Circuit, State of Hawai‘i from February 1992 until her retirement in April 2003. She completed her undergraduate education with a BA degree in Political Science and obtained her Juris Doctor degree from the William S. Richardson School of Law, UH. Prior to her appointment to the bench, Judge Amano was a deputy attorney general assigned to the Department of Land & Natural Resources, the Department of Transportation and the Department of Labor and Industrial Relations; and in private practice from 1981 until 1991.

 

Question: Who were the other applicants and how were the applicants ranked by the selection committee?

Answer: The names of qualified persons and the rankings cannot be made public at this time. The process allows for an objection period that could result in the removal of Judge Amano and the need to negotiate with the second or third ranked applicant. That information will be released as soon as possible.

 

Question: What are the terms of the contract with Judge Amano?

Answer: A redacted copy of the contract is available upon request. An unredacted version will be released as soon as possible.

 

Question: What has to happen before the hearing officer can start work?

Answer: Comments and objections have been submitted to Judge Amano’s selection. Her selection has been challenged by petitioners. Those objections need to be resolved as a first step to starting the process.

 

Question: Where will the contested case be heard?

Answer: The contested case hearing will be held on the Island of Hawai‘i.

 

Question: What is the timeline and schedule for the contested case hearing?

Answer: Minute Order No. 1 informing the parties of the selection of a hearing officer for the contested case hearing was issued on March 31, 2016. The parties were directed to submit comments and objections to the selection by April 15, 2016, and petitioners did so.

After the hearing officer process is finalized, it is anticipated that the parties will file motions, briefs, and submit written testimony prior to the commencement of the contested case hearing. The hearing officer will then hear testimony and receive evidence in the contested case. Following this, the parties will have another opportunity to file proposed findings of fact and conclusions of law, and the hearing officer will issue a report and recommended findings of fact, conclusions of law and decision to the BLNR. The parties will have an opportunity to file their exceptions, argue their case before the BLNR, and finally, the BLNR will render its decision.

 

Question: Who sets that schedule?

Answer: The hearing officer will set the schedule for the contested case hearing. After the hearing officer submits a report and recommendations, the BLNR will set deadlines for the filing of exceptions and oral argument.

 

Question: Can the contested case hearing be recorded or video-taped?

Answer: Consideration of requests to record or video-tape the contested case hearing by the media and members of the public is discretionary and will be addressed by the hearing officer.

 

Question: Will there be a transcript of the proceedings of the contested case hearing?

Answer: Yes. The contested case hearing will be transcribed by a court reporter procured by the DLNR.

 

Question: What happens after the contested case hearing is over?

Answer: After the BLNR issues its final decision and order, the parties will again have a right to seek judicial review under HRS § 91-14.