MAUNA KEA ANAINA HOU; CLARENCE KUKAUAKAHI CHING; FLORES-CASE 'OHANA; DEBORAH J. WARD; PAUL K. NEVES; and KAHEA: THE HAWAIIAN ENVIRONMENTAL ALLIANCE, a domestic non-profit corporation, Appellants-Appellants,
BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; SUZANNE D. CASE, in her official capacity as Chair of the Board of Land and Natural Resources and Director of the Department of Land and Natural Resources; and UNIVERSITY OF HAWAI'I AT HILO, Appellees-Appellees
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. CAAP-14-0000873; CIV. NO. 13-1-0349.
Richard Naiwieha Wurdeman, for appellants.
Ian L. Sandison, Timothy J. Lui-Kwan, John P. Manaut, and Arsima A. Muller, for appellee University of Hawai#i at Hilo.
Douglas S. Chin, William J. Wynhoff, and Julie H. China, for appellees BLNR, DLNR, and Suzanne D. Case, in her official capacity as Chairperson of the Board.
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., CONCURRING SEPARATELY, WITH WHOM WILSON, J., JOINS, AND WITH WHOM McKENNA, J., JOINS AS TO PART IV. CONCURRING OPINION BY POLLACK, J., IN WHICH WILSON, J., JOINS, AND IN WHICH McKENNA, J., JOINS AS TO PART IV.
[136 Hawai'i 379] Mark E. Recktenwald, C.J.
This case requires us to determine whether the procedure followed by the Board of Land and Natural Resources (Board or BLNR) in issuing a permit to construct an observatory in a conservation district comported with due process.
Specifically, the University of Hawai'i at Hilo (UHH) applied for approval from the Board to construct the Thirty Meter Telescope (TMT) on Mauna Kea on the island of Hawai'i. The Board held two public hearings on the application, at which more than 80 people spoke. Proponents asserted that the " next generation" large telescope would facilitate
[136 Hawai'i 380] cutting-edge scientific research that could not be conducted as effectively anywhere else. Opponents included Native Hawaiians who stated that the summit area was sacred in Native Hawaiian culture and that the construction of the eighteen-and-one-half-story high observatory would be a desecration.
The Board scheduled UHH's application for action at a public board meeting in February 2011. Various opponents of the application spoke at the meeting and requested that the Board delay action on the permit until it could conduct a contested case hearing, at which evidence concerning the application could be presented under oath and subject to cross-examination.
Despite those objections, the Board voted to approve the permit at the meeting, subject to a number of conditions. It also took two further steps that are relevant here. First, acting on its own motion, it directed that a contested case hearing be conducted. Second, it included a condition in the permit that no construction could be undertaken until the contested case hearing was resolved.
Subsequently, the Chair of the Board appointed a hearing officer to conduct the hearing, which took place over the course of seven days in 2011. In 2012, the hearing officer recommended that the permit be approved, subject to essentially the same conditions as originally imposed by the Board. The Board adopted that recommendation in 2013, and the Circuit Court of the Third Circuit affirmed the Board's action. Appellants, who oppose the issuance of the permit and who include several of the people who requested that the Board not act on the application until after the contested case hearing was held, appealed to this court.
The question we must answer is whether the approval of the permit before the contested case hearing was held violated the Hawai'i Constitution's guarantee of due process, which provides that, " No person shall be deprived of life, liberty or property without due process of law . . . ." Haw. Const. art. I, § 5. We hold that it did.
A " fair trial in a fair tribunal is a basic requirement of due process." Sifagaloa v. Bd. of Tr. of Emp. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). While the specifics of that guarantee can vary depending on the circumstances, in the instant case the Appellants were entitled to a contested case hearing and had unequivocally requested one before the Board voted on the permit at its February 2011 meeting. A contested case hearing is similar in many respects to a trial before a judge: the parties have the right to present evidence, testimony is taken under oath, and witnesses are subject to cross-examination. It provides a high level of procedural fairness and protections to ensure that decisions are made based on a factual record that is developed through a rigorous adversarial process.
By voting on the permit before the contested case hearing was held, the Board denied the Appellants their due process right to be heard at " a meaningful time and in a meaningful manner." Sandy Beach Def. Fund v. City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). The Board was on record in support of the project, and the permit itself was issued before evidence was taken and subject to adversarial testing before a neutral hearing officer. While UHH and the Board argue that the February 2011 decision was " preliminary" and subject to revision, the fact remains that the Board issued the permit prior to holding the contested case hearing. This procedure was improper, and was inconsistent with the statutory definition of a contested case as " 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." HRS § 91-1(5) (emphasis added).
Such a procedure lacked both the reality and appearance of justice. As this court noted in Sifagaloa:
The Supreme Court teaches us . . . that justice can " perform its high function in the best way [only if it satisfies] the 'appearance of justice.'" For in a popular government, " 'justice must not only be done but must manifestly be seen to be done . . . .'"
[136 Hawai'i 381] 74 Haw. at 189-90, 840 P.2d at 371 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954), and Murchison, 349 U.S. at 136).
The process followed by the Board here did not meet these standards. Quite simply, the Board put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand. We therefore vacate the judgment of the circuit court and the permit issued by the Board, and remand 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.
A. BLNR proceedings
1. Conservation District Use Application and Permit
On September 2, 2010, UHH submitted to the Department of Land and Natural Resources a Conservation District Use Application (CDUA) for the TMT. UHH submitted the application on behalf of TMT Observatory Corporation, a private non-profit corporation, which proposed the TMT in partnership with the University of California, the California Institute of Technology, and the Association of Canadian Universities for Research in Astronomy; the National Astronomical Observatory of Japan was noted to be a " collaborator and potential partner," and the National Astronomical Observatories of the Chinese Academy of Sciences and India's Department of Science and Technology were noted to be " observers and potential partners."
The application proposed an astronomy observatory and ancillary facilities and access roads on a site of roughly five acres on the upper slopes of Mauna Kea. The proposed site was within the astronomy precinct of the Mauna Kea Science Reserve, which is within the Conservation District Resource subzone. The CDUA stated that as of mid-2010, thirteen astronomical facilities were operational on Mauna Kea. It explained that observatories were attracted to Mauna Kea " principally because of the superb viewing conditions that its high-altitude/mid-oceanic location provides," and noted the " intellectual and physical support infrastructure that has developed around the [astronomy] complex." The CDUA added that these factors " have helped Hawai'i become one of the most important centers for astronomical research in the world."
The proposed observatory consisted of a telescope thirty meters in diameter, attached instruments to record data, an enclosing dome, an attached building to house support and maintenance facilities, and parking. The CDUA also proposed a TMT Access Way, consisting of an improved road and underground utilities improvements to connect the TMT with other existing roads and utilities, and temporary use of an existing four-acre staging area for materials during construction. The CDUA also proposed to upgrade existing underground electrical wiring, electrical transformers, and related equipment within a nearby substation.
On December 2 and 3, 2010, BLNR held public hearings on the CDUA in Hilo and Kailua-Kona, respectively. Approximately 200 individuals attended the hearings, 84 of whom testified, and a number of individuals and groups provided written comments before and after these hearings. A range of opinions were expressed in support of and against the CDUA, and at least 6 individuals or groups requested a contested case hearing verbally, in writing, or both.
In the weeks that followed, Samuel Lemmo, Administrator of the Office of Conservation
[136 Hawai'i 382] and Coastal Lands, and Michael Cain, Staff Planner for the Office of Conservation and Coastal Lands, completed a staff report for BLNR that summarized the CDUA and public comments, including the requests for a contested case hearing, and recommended that BLNR approve the CDUA and issue a Conservation District Use Permit (CDUP). The staff report also recommended twenty-one conditions for the permit. Other than noting that requests for a contested case hearing had been received, Lemmo and Cain did not at that time recommend that BLNR hold a contested case hearing.
On February 17, 2011, BLNR advised UHH, Mauna Kea Anaina Hou, Deborah Ward (Chairperson of Sierra Club, Hawai'i Chapter), Miwa Tamanaha (Executive Director of KAHEA), Fred D. Stone, and Clarence Kukauakahi Ching that BLNR would " consider" the application at its regularly-scheduled meeting on February 25, 2011, and would also consider
a request for decision-making by the Board (a) on its own motion hold [sic] a contested case hearing or grant requests by Mauna Kea Anaina Hou, Fred Stone, KAHEA Environmental Alliance, Kukauakahi (Clarence Ching), and Sierra Club for a contested case hearing, and (b) appoint a hearings officer and delegate to the Chairperson the authority to select said hearings officer to conduct all hearings for one (1) contested case hearing.
On February 25, 2011, BLNR's Chair began BLNR's regularly-scheduled public board meeting by asking members of the public to limit their testimonies to no more than five minutes each.
Lemmo then gave a presentation explaining the recommendation for approval of the application and issuance of a permit. A summary of that presentation, as reflected in the meeting minutes, spans nearly five pages single-spaced. He verbally supplemented the staff report with several additional recommended conditions, including the condition that: " If a contested case proceeding is initiated no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed."
After Lemmo spoke, forty-one individuals testified either for or against the application, which included several more requests for a contested case hearing and objections to BLNR issuing a permit before holding a contested case hearing. For example, Marti Townsend, Program Director of KAHEA: The Hawaiian Environmental Alliance (KAHEA), testified to her belief that before a contested case hearing was held, BLNR could only " defer or deny" issuance of a permit:
She referred to written testimony she submitted earlier pointing out a diagram that explains how the contested case process is supposed to work. There is no arrow from the Board making the decision to contested case decision and back and that's because the contested case hearing process is not a motion for reconsideration. It's not saying hey Board you made a mistake and you need to consider this information and re-vote. It's a process for you to collect information because in these kinds of meetings we only have five minutes to speak we don't get to cross examine witnesses. The actual facts don't get to you, at least not in the way that it should so you can make an informed decision. Today your only options for decision making are to defer the permit until the completion of the contested case or to deny the permit.
Clarence Kukauakahi Ching stated that " BLNR is not ready to grant an unconditional CDUP at this time and shouldn't be. A conditional CDUP might work in the interim."
Kealoha Pisciotta, President of Mauna Kea Anaina Hou, explained to BLNR:
[W]e've asked for a contested case hearing . . . . The procedural problem here is that a contested case hearing has to go before a permit approval. . . . [T]he reason is because contested case hearings is [sic] to make sure citizens like us that don't have standing don't have to go into court. The contested case hearing is a process whereby you're allowed to present facts and information to the decision makers (the Board) via the hearing process so you can make an informed decision. But, if
[136 Hawai'i 383] you make your decision before like if it is approved today then you grant the contested case hearing. [sic] There is no point . . . . What I am asking you guys is to consider that we don't put process " B" before process " A" ? It is equivalent to a Judge ruling before he has the evidence so I don't know why it's gone on like this, but we've had this problem before. . . .
Jonathan Osorio, a University of Hawai'i at Mânoa Professor of Hawaiian Studies and board member of KAHEA, also objected to issuing a permit before a contested case hearing. Professor Osorio explained that although he was not a religious practitioner, he was deeply concerned as a historian of how telescopes have " proliferated" on Mauna Kea, and was also concerned by what he believed was an insufficient amount of revenues received from this type of project. Professor Osorio compared BLNR to konohiki and ali'i, who were faced with decisions to allocate resources, including " how they were used to develop." He cautioned:
You have a difficult decision to make here. It may very well be that what we need to do is look at this and give a contested case hearing a chance to present more information, more facts and more people having access to give these kinds of testimonies before you can make a decision. We definitely do not believe that you should make a decision today.
BLNR member Robert Pacheco asked Lemmo to respond to these comments that a contested case hearing must occur before BLNR decided. Lemmo responded:
[W]e have old rules Chapter 13-1, Rules of Practice and Procedure which have a section on the conduct of the contested case hearings. Under these old rules which are no longer in effect and have been replaced, an entity could ask for a contested case hearing at the required public hearing for the project which occurred long before this came before this body. The practice had developed of having a contested case when somebody asked for a contested case at the public hearing for the CDUP which is long before a decision is made. The rules were changed about five or six years ago which essentially seemed to now allow the Board to make a decision even with a pending request for a contested case hearing before you. Should a contested case hearing be required or held after that you go through that process and it would come back to you (the Board) again and you would rule on that.
BLNR then voted unanimously to approve the application and issue a permit. BLNR adopted the conditions recommended in the staff report and the additional conditions that Lemmo recommended at the meeting, including the condition that, " If a contested case proceeding is initiated, no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed."
Pisciotta then asked whether, in the event a contested case hearing occurred and the hearing officer disagreed with issuance of the permit, BLNR would " rescind the permit that they just approved[,]" and questioned how BLNR would prevent construction. BLNR minutes reflect the following response:
Chair Aila said that with regards to the [construction] one of the conditions of the CDUP that they just approved is that no construction can begin until the contested case hearing is adjudicated. Mr. Lemmo said final decision making has been made. Chair Aila said there are no bulldozers up there. There is a difference of opinion on how those rules are applied. Ms. Pisciotta agreed which will be figured out by the court. Still the purpose is to allow the decision makers to make an informed decision and you can't make an informed decision unless you have all the information at hand that is why we are suppose [sic] to have contested hearings before we have decision making because a contested case hearing is not a motion for reconsideration. Member Pacheco said this body makes
[136 Hawai'i 384] decisions all the time that can go into contested case hearing and comes back to us right away.
Subsequently, at this same meeting, BLNR voted unanimously to hold a contested case hearing.
A few days later, in correspondence dated March 3, 2011, regarding " Conservation District Use Permit (CDUP) HA-3568," BLNR formally advised UHH that " on February 25, 2011, the Board of Land and Natural Resources approved Conservation District Use Permit (CDUP) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve," subject to conditions. BLNR included the same conditions that were approved at the February 25, 2011 meeting.
Pertinent conditions included:
5. Before proceeding with any work authorized by the Board, the applicant shall submit four copies of the construction and grading plans and specifications to the Chairperson or his authorized representative for approval for consistency with the conditions of the permit and the declarations set forth in the permit application. Three of the copies will be returned to the applicant. Plan approval by the Chairperson does not constitute approval required from other agencies;
6. All representations relative to mitigation set forth in the Environmental Impact Statement and Conservation District Use Application are incorporated as conditions of the permit;
7. All mitigation measures and management actions contained in the Historic Preservation Mitigation Plan, Construction Plan, Historical & Archaeological Site Plan, Maintenance Plan, and Anthropod Monitoring Plan, are incorporated as conditions of this permit; . . .
9. The TMT Management Plan is approved, including all specific management actions articulated in the TMT Management Plan including, Cultural Resources Management, Natural Resources Management, Education & Outreach, Astronomical Resources, Permitting and Enforcement, Infrastructure and Maintenance, Construction Guidelines, Site Recycling, Decommissioning, Demolition & Restoration, Future Land Uses, and Monitoring, Evaluation & Updates. These management actions and their associated mitigation measures are incorporated as conditions of this permit;
10. The following additional conditions shall be implemented by OMKM and TMT:
. . .
o Working with OMKM to develop and implement a habitat restoration study;
. . .
o Providing $1 million annually, adjusted for inflation, for " Community Benefits Package" which will commence with construction and continue through the term of the sublease. The package will be administered via The Hawai'i Island New Knowledge (THINK) Fund Board of Advisors; and
o Partnering with other institutions to implement a Workforce Pipeline Program, headed by at least one full-time position through the Community Outreach office, to prepare local residents for jobs in science, engineering, and technical fields;
. . .
o The applicant will present a plan for handling recreational parking during construction to the OCCL for review and approval prior to beginning construction;
. . .
o The Archaeological Monitoring Plan will be submitted to the State Historic Preservation Division for review and approval prior to the onset of construction;
. . .
15. The applicant understands and agrees that this permit does not convey any vested rights or exclusive privilege;
16. In issuing this permit, the Department and Board have relied on the information and data that the applicant has provided in connection with this permit application. If, subsequent to the issuance of this permit, such information and data prove to be false, incomplete or inaccurate, this permit may be modified, suspended or revoked, in whole or in part, and/or the Department may, in addition, institute appropriate legal proceedings;
[136 Hawai'i 385] 20. No construction work shall be initiated until the applicant demonstrates compliance with all preconstruction conditions and mitigation measures outlined in this report. Once this condition has been satisfied, the Department will issue notice to proceed with construction;
21. If a contested case proceeding is initiated, no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed;
. . .
25. Failure to comply with any of these conditions shall render this Conservation District Use Permit null and void.
This correspondence further asked UHH to acknowledge receipt of " this approval," and advised that BLNR had decided to hold a contested case hearing.
2. Contested Case Hearing
Beginning in August 2011, a hearing officer appointed by BLNR's Chair presided over a contested case hearing, during which voluminous written direct testimony was admitted, and twenty-six witnesses, under oath, testified and were crossexamined. The following is a brief summary of the issues raised by the evidence and arguments presented.
Perry White, the principal author of UHH's application, testified that in crafting the application, he relied upon the final environmental impact statement (FEIS) that had been approved by the Governor in 2010 and the Mauna Kea Comprehensive Management Plan and its four sub-plans, the Natural Resources Management Plan, the Cultural Resources Management Plan, the Decommissioning Plan, and the Public Access Plan. White further testified to the reasons he believed that TMT satisfied HAR § 13-5-30(c), which contains criteria for BLNR's approval of a permit, and in particular, how he believed that the TMT project would not cause " substantial adverse impact." White also testified regarding future decommissioning of Mauna Kea observatories, including TMT.
Dr. Gary Sanders, the TMT Project Manager, testified that TMT's design was developed in consultation with the Office of Mauna Kea Management. He testified extensively regarding measures intended to mitigate the impact of TMT, including a reflective exterior dome that fit tightly around the telescope to minimize visual impact. Dr. Sanders also testified that TMT was designed for a service lifetime of fifty years, while acknowledging that UH's lease of the land from the State expired in 2033. Dr. Sanders also responded to questions regarding whether TMT would cause a permanent alteration or disturbance to the natural landscape at the TMT site, acknowledging that " there will likely be some permanent alteration."
James Hayes, of an engineering firm contracted to prepare the FEIS, testified regarding the anticipated visual impact, level of " cumulative impact" in light of existing telescopes on Mauna Kea, and several mitigation measures incorporated in the design of TMT. More specifically, Hayes testified
[136 Hawai'i 386] that TMT would add only a " limited increment to the level of cumulative impact that currently exists on Mauna Kea, but it will not tip the balance of any assessed impact from a level that is currently less than significant to a significant level." Indeed, the FEIS stated, " From a cumulative perspective, the impact of past and present actions on cultural, archaeological, and historic resources is substantial, significant, and adverse; these impacts would continue to be substantial, significant, and adverse with . . . [TMT] and other reasonably foreseeable actions." Hayes further testified that placing TMT on a recycled telescope site was considered but ultimately deemed " not feasible."
Wallace Ishibashi, Jr., a member of the Kealoha Poli'ahu family, a lineage traditionally recognized as descendants of Poli'ahu, a snow goddess of Mauna Kea, testified that upon asking Poli'ahu whether TMT was " compatible with the sacred landscape," he was informed that " it was okay." Ishibashi further testified in writing that due to his experience learning from navigator Nainoa Thompson and from his grandfather about the stars and the moon and the importance of the study of the heavens to ancient Hawaiians, he supported the TMT because he believed that it would help his grandchildren " learn more about ourselves, our God, and what's out there beyond the stars that we can see with only our eyes." He compared TMT's advanced search for knowledge and understanding to a search for the aumakua or ancestral origins of the universe, and expressed disagreement with those who " oppose[d] things like the TMT on Mauna Kea just because it's a modern thing, as Hawaiians have always been a creative and adaptive people."
Kealoha Pisciotta explained in her opening statement that in Native Hawaiian cosmology, Mauna Kea is an origins place. " [I]t's where the heaven and the earth come together, where all life forms originated from. . . . It is a temple, but one not made by man but for man, so that man could learn the ways of the heavens and the laws of this earth, which mean how do we live with each other; how do we live in relationship to the earth; how do we live in relationship to the heaven."
Dr. J. Kehaulani Kauanui, a Professor of Anthropology and American Studies at Wesleyan University, testified that telescope development on Mauna Kea had " proliferate[d]" beyond levels anticipated in the general lease from the State and the 1983 Master Plan for Mauna Kea. Professor Kauanui added that TMT constituted 21st century colonialism, and that observatories on Mauna Kea " literally supplant our indigenous temple of worship," and are a " desecration."
Marti Townsend, Program Director of KAHEA: The Hawaiian Environmental Alliance, testified that TMT would negatively affect the viewplanes of cultural practitioners, and that telescopes on Mauna Kea negatively affected cultural practices and the environment. Townsend further testified that the mitigation measures proposed did not address " substantial adverse impacts" identified in the FEIS and CDUA because the majority of the measures were only indirect, speculative, and beneficial to " particular groups."
In closing, Appellants and UHH presented arguments, among other things, regarding whether Appellants' due process rights had been violated. Pisciotta argued:
I have to note here that in this case BLNR approved the TMT CDUA prior to conducting a contested case hearing, which we believe violated our due process rights, potentially shifting the burden of proof, and thereby forcing us to have to change BLNR's mind, rather than BLNR listening with an open mind to hear all evidence.
UHH responded as follows:
Let me start with the claim that somehow the Applicant has relied on the approval of the CDUA for the CDUP for the permit in February. Again, we never relied on that. In fact, we agreed__ we accepted the condition where there would be no action taken on it. In fact, we never raised that as an issue in terms of certain things that we accepted.
And we didn't shift__ the burden of proof did not shift. The University agreed and has continued to agree to accept the burden of proof of the eight criteria for ...