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Haleakala v. Board of Land and Natural Resources

Supreme Court of Hawaii

October 6, 2016

KILAKILA 'O HALEAKALA, Petitioner/Appellant-Appellant,
v.
BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND NATURAL RESOURCES, SUZANNE CASE, [1] in her official capacity as Chairperson of the Board of Land and Natural Resources, and UNIVERSITY OF HAWAI'I, Respondents/Appellees-Appellees.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0003065; CIV. NO. 12-1-3070)

          David Kimo Frankel and Sharla Ann Manley for petitioner Kilakila 'O Haleakalâ

          Linda L.W. Chow for respondents Board of Land and Natural Resources, Department of Land and Natural Resources, and Suzanne Case, in her official capacity as Chairperson of the Board of Land and Natural Resources

          Lisa Woods Munger, Lisa A. Bail, Kimberly A. Vossman, and Christine A. Terada for respondent University of Hawai'i

          RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ., WITH McKENNA, J., CONCURRING SEPARATELY, AND POLLACK, J., DISSENTING SEPARATELY, WITH WHOM WILSON, J., JOINS IN PART, AND WILSON, J., DISSENTING SEPARATELY

          OPINION

          RECKTENWALD, C.J.

         This case concerns a conservation district use permit for construction of the Advanced Technology Solar Telescope (ATST) on the island of Maui, in an area at the summit of Haleakal that was set aside for astronomical observatories in 1961. Haleakal is a site of great cultural and spiritual importance to the Native Hawaiian community. It also bears scientific significance for astronomical studies, and is a popular visitor destination.

         The Board of Land and Natural Resources (Board or BLNR) granted a permit for the University of Hawai'i (UH) to construct the ATST.[2] Kilakila 'O Haleakal (Kilakila), an organization "dedicated to the protection of the sacredness of Haleakal[, ]" challenged BLNR's approval of the permit to construct the ATST. Kilakila appealed to the Circuit Court of the First Circuit and the Intermediate Court of Appeals, and both courts affirmed BLNR's decision.

         This court granted certiorari review. We conclude that the permit approval process was not procedurally flawed by prejudgment because BLNR's initial permit was voided. Nor was it flawed by impermissible ex parte communication because BLNR removed the original hearing officer after he communicated with a party, and the BLNR Chairperson's meeting with non-parties did not address the merits of the permit approval process. We further conclude that BLNR validly determined that the ATST met the applicable permit criteria and was consistent with the purposes of the conservation district.

         Accordingly, we conclude that BLNR properly granted the permit and affirm the ICA's judgment.

         I. Background

         A. Haleakal, the Haleakala High Altitude Observatory, and the Proposed Advanced Technology Solar Telescope

         The summit of Haleakal has important cultural significance to Native Hawaiians. Cultural assessments performed for the ATST determined that the Haleakal summit is one of the most sacred sites on Maui, and the Haleakal Crater is known as "where the gods live." The summit was traditionally used by Native Hawaiians as a place for religious ceremonies, for prayer to the gods, to connect to ancestors, and to bury the dead. Native Hawaiians continue to engage in some of these practices at the summit.

         The Haleakal summit consists of three volcanic cones, and all are partially developed. One volcanic cone includes facilities belonging to the County of Maui, the State of Hawai'i, and the federal government. The second cone houses Haleakal National Park's popular visitor outlook. In 1961, Hawai'i Governor William Quinn set aside 18.166 acres on the third volcanic cone, Pu'u Kolekole, as the site of the Haleakal High Altitude Observatory (HO). Since this designation by Governor Quinn, the site has been used for astronomical observatories and is the only site at Haleakal used for these purposes. The HO currently consists of eight research facilities "for advanced studies of astronomy and atmospheric sciences" owned by UH and managed by the UH Institute of Astronomy (UHIfA).

         The HO is located in a conservation district, as categorized by the State Land Use Commission. Land within a conservation district is divided into subzones. See HAR § 13-5-10 (1994). The HO is in a "general subzone, " which seeks to "designate open space where specific conservation uses may not be defined, but where urban use would be premature." HAR § 13-5-14(a) (1994). Several types of land use are permitted in the general subzone, including astronomical facilities. See HAR § 13-5-24 (1994) (listing "[a]stronomy facilities under an approved management plan" as one of the allowable uses in a resource subzone); HAR § 13-5-25 (1994) (stating that "[i]n addition to the land uses identified [for general subzones], all identified land uses . . . for the protective, limited, and resource subzones also apply to the general subzone, unless otherwise noted").

         Over the past two decades, the proposed ATST was developed through the work of the Association of Universities for Research in Astronomy, the National Solar Observatory, and the National Science Foundation. Astronomers and other scientists determined that there was a world-wide need for a telescope capable of taking high-resolution images of the sun to study its solar magnetic fields and its relation to solar energy, sunspots, and flares. No current or planned ground-based or space-based telescope in the world has this capability. The ATST would consist of an 142.7-feet tall telescope observatory structure, a support and operations building, a utility building, a parking lot, a wastewater treatment plant, and modifications to an existing observatory. In 2004, after studying 72 potential sites, Haleakal was chosen as the best site for the ATST because it met or exceeded all requirements.

         B. Application for Conservation District Use Permit

         The ATST requires a conservation district use permit (CDUP) because the HO is located in a conservation district. On March 1, 2010, UHIfA submitted a conservation district use application (CDUA) to BLNR pursuant to HAR § 13-5-31(a)[3] and HAR § 13-5-39(a)[4]. The CDUA provided a range of detailed information about the ATST, including a final environmental impact statement (FEIS) and a management plan (MP).

         1. Final environmental impact statement

         The FEIS[5] was completed in July 2009 and addressed the environmental impacts associated with the construction and operation of the proposed ATST Project.[6] The impacts were "analyzed under three alternatives, two action alternatives located within HO: the Mees Alternative (the Preferred Alternative) and the Reber Circle Alternative, and a No-Action Alternative."

         The FEIS analyzed the environmental impacts from the ATST in the following categories: (1) land use and existing activities, (2) cultural, historic, and archeological resources, (3) biological resources, (4) topography, geology, and soils, (5) visual resources and view planes, (6) visitor use and experience, (7) water resources, (8) hazardous materials and solid waste, (9) infrastructure and utilities, (10) noise, (11) climatology and air quality, (12) socioeconomics and environmental justice, (13) public services and facilities, and (14) natural hazards.[7]

         Most relevant to this appeal are the FEIS's conclusions about the impacts on cultural and visual resources from the construction and operation of the ATST. Regarding the cultural resources category, the FEIS determined:

Construction and operation of the proposed ATST Project at either the Preferred Mees or Reber Circle sites would result in major, adverse, short- and long-term, direct impacts on the traditional cultural resources within the ROI [Region of Influence[8]. No indirect impacts are expected. Mitigation measures would be implemented; however, those measures would not reduce the impact intensity: impacts would remain major, adverse, long-term and direct.

         In addition, the FEIS found that "under the No-Action Alternative, there would continue to be major, adverse, long-term, direct impacts to traditional cultural resources."

         In the visual resources and view planes category, the FEIS analyzed the impacts from two general viewpoint areas: (1) land within Haleakal National Park and (2) various areas on the island of Maui, where the current HO facilities are visible. The FEIS determined that from either the preferred Mees site or the Reber Circle site, the direct impact on visual resources within the Park would be moderate, adverse, and long-term:

No mitigation would adequately reduce this impact. The new structure would be visible to the point of co-dominance with other nearby structures. It would intensify the already developed appearance in its immediate surroundings, and would also appear to increase slightly the amount of horizontal space occupied by structures in views from within the Park. The new structure would not substantially alter the existing visual character visible in any view.

         Further, the FEIS concluded that from outside the Park, the impact of building the ATST at either the Mees site or the Reber Circle site "would result in minor, adverse and long-term impact to visual resources[, ]" and therefore "[n]o mitigation would be necessary."

         The FEIS also analyzed each category for cumulative impacts, defined as "impacts from past, present, and reasonably foreseeable future actions within the ROI . . . combined with the potential impacts from the proposed ATST Project." In the cultural resources category, the FEIS found that the cumulative impacts would be major, adverse, and long-term at either site and that implementation of mitigation measures would not reduce these impacts. In the visual resources category, the FEIS found that the cumulative impacts would be major, adverse, and long-term from areas within the Haleakal National Park, and negligible, adverse, and long-term from other areas on Maui.

         2. Management plan

         UHIfA submitted a draft MP with its CDUA on March 1, 2010, and submitted the final MP to BLNR on June 8, 2010.[9] The MP "is the governing document used for existing and future development at HO." It "specifies the design and environmental criteria that would be followed when implementing development, and presents strategies for managing, monitoring, and protecting the various natural and cultural resources[.]"

         The Executive Summary section of the MP summarized the strategies offered by UHIfA to protect cultural, historic, and archeological resources:

Monitoring strategies are presented to ensure the protection of cultural, historic, and archeological resources through policies, practices, and procedures developed in consultation with Native Hawaiian practitioners, agencies, interested individuals, and the Maui community, to ensure that historic preservation concerns are met. Monitoring strategies are also presented to prevent introduction of alien invasive species (AIS), to protect endangered species, and to educate all workers and contractors as to the potential impacts of construction and operations on the cultural and biological resources. Monitoring for construction practices to protect all resources at the site is described. Finally, the MP imposes certain design criteria on new facilities to minimize inappropriate design elements within the natural environment at the summit.

         A final environmental assessment (FEA) was completed on October 25, 2010. The FEA examined the anticipated impacts from the MP's implementation. The purpose of the FEA was to "inform the relevant state agencies and the public of the likely environmental consequences of the MP on ongoing and future actions at HO in support of astronomical research." The FEA concluded that the MP would "either have beneficial, less than significant, or no impacts on the environment."[10]

         C. BLNR Administrative Proceedings

         BLNR's review and ultimate approval of UHIfA's application involved a series of events which are relevant to this appeal. As set forth below, these included BLNR's grant of a permit, Kilakila's appeal of that permit, a contested case hearing, ex parte communications involving the hearing officer, BLNR's dismissal of that hearing officer and appointment of a new hearing officer, Kilakila's motions for disclosure of any additional ex parte communications, the new hearing officer's recommendation to BLNR, and BLNR's grant of a second permit.

         1. BLNR approval of the first ATST permit: CDUP MA-3542

         On November 22, 2010, BLNR held its first public hearing on the ATST's MP and CDUA. On December 1, 2010, BLNR approved the MP and granted CDUP MA-3542 during its regular board meeting. CDUP MA-3542 permitted the construction of the ATST, subject to several conditions. Kilakila made three requests for a contested case hearing[11] prior to and immediately after BLNR's approval, and BLNR took no action on the requests. Kilakila subsequently appealed to the circuit court, arguing that BLNR erred in denying Kilakila's request for a contested case hearing and in granting CDUP MA-3542.[12] See Kilakila I, 131 Hawai'i at 207, 317 P.3d at 41.

         2. Contested case hearing

         While the appeal of CDUP MA-3542 was pending, BLNR granted Kilakila's request for a contested case hearing, and on February 11, 2011, Steven Jacobson was appointed as the hearing officer.

         On June 2, 2011, Kilakila filed a motion to disqualify deputy attorneys general Linda Chow and Julie China from advising Jacobson or BLNR at the contested case hearing. Kilakila asserted that Chow and China could not serve as counsel for BLNR because "[t]hey have filed documents in circuit court arguing that the BLNR could legally grant a conservation district use permit for the [ATST]." On June 28, 2011, Jacobson denied Kilakila's motion because he would not be relying on advice from Chow or China in making his recommendation to BLNR. Jacobson dismissed the motion without prejudice so that Kilakila could renew its motion after Jacobson issued his recommendation to BLNR.

         The contested case hearing was held over four days, from July 18-20 and on August 26, 2011. On February 23, 2012, Jacobson issued his proposed findings of fact, conclusions of law, and decision and order, recommending approval of the permit.

         On March 2, 2012, Kilakila renewed its motion, this time to BLNR, to disqualify Chow and China. Kilakila argued that Chow and China have "appeared as adversaries to [Kilakila] at hearings regarding the conservation district use application." On March 12, 2012, Jacobson issued his final findings of fact, conclusions of law, and decision and order, which recommended that BLNR approve the permit to construct the ATST. On March 16, 2012, BLNR denied Kilakila's March 2, 2012 motion, noting that while Chow and China appeared as counsel for BLNR in a prior circuit court proceeding, "the appearance by the deputy attorneys general as counsel for the Board in that circuit court proceeding does not disqualify the deputy attorneys general from advising the Board in this administrative proceeding."

         3. Minute Order No. 14 regarding ex parte communication

         On March 19, 2012, BLNR filed Minute Order No. 14 "RE: EX PARTE COMMUNICATION[.]" The order explained to the parties that BLNR had been notified that Jacobson sent an email to UHIfA's counsel on March 15, 2012. In the email, which was attached to the order, Jacobson stated that he had received "inappropriate ex parte pressure and activity by U.S. Senator [Daniel] Inouye's and the Governor's offices" which "essentially required" him to submit an incomplete report and recommendation to BLNR. Jacobson had contacted "appropriate ethical offices" and was informed that disclosures were not required where:

(1) neither UHIfA nor its counsel had anything to do with what the Senator's and Governor's offices were doing, (2) the Board and courts disregard the interim [proposed] report and recommendations and consider only the final report and recommendations (to the extent they consider them at all), and (3) Kilakila is not prejudiced by being shortchanged in time to respond to the final report and rec ommendations.

         The email from Jacobson concluded with a question to UHIfA's counsel as to "whether any of you had anything to do with what the Senator's and Governor's offices were doing."

         BLNR's order noted that the email between Jacobson and UHIfA's counsel "was an unpermitted ex parte communication[, ]" which "call[ed] into question the Hearing Officer's impartiality" in relation to his report and recommendation to BLNR. BLNR stated that it was considering the following actions in response to the ex parte communication:

1. Striking the Report and Final and Amended Report from the record;
2. Discharging the Hearing Officer, Steven Jacobson, as the hearing officer in this case; and
3. Retaining a new hearing officer to review the record of the proceedings in this case and to issue a new hearing officer's report and proposed findings of fact, conclusions of law, and decision and order. The new hearing officer would be authorized to conduct additional fact finding as necessary.

         BLNR scheduled a hearing and invited the parties to file comments or objections to the proposed actions.

         On March 20, 2012, Jacobson filed a response to BLNR's order, describing what he characterized as the pressure placed on him by the Governor's office to release his recommendation and to consult deputy attorney general Chow:

In this file, while preparing my report and recommended decision, considerable ex parte pressure was placed upon me to simply spit out a recommended decision quickly, so that the Board would have something before it, to approve. That pressure included requiring me to make daily reports to both the Health Department and the Board's Chair as to how soon I contemplated finishing, what else I thought I needed to do, why I thought I had to do it, etc.
The pressure included a "suggestion" that Deputy General Chow be given a role in completing the decision.
I was advised that the pressure was generated by a staffer in U.S. Senator Inouye's office, and applied through the Governor's office. I was not asked to recommend a particular result, although the result Senator Inouye's office wanted from the Board was clear. I did not see any evidence that anyone else (i.e., anyone in State Government), wanted any particular result, and the Board's Chair, in particular, made clear that all he wanted to know was when this matter could be put on the Board's calendar.
My initial [proposed] report and recommended decision herein were filed as a result of "or else" pressure. The only way the pressure affected my initial [proposed] report and recommended decision was that they were incomplete. I made no substantive changes in light of comments by Ms. Chow.
I then completed my final report and recommendations. In completing them, the only effect of the previous pressure upon me (which had been withdrawn) was that I very carefully went through everything UHIfA submitted, again, to be sure that I hadn't missed something that those favoring the ATST Project might be hoping that I would miss.
Again, nothing substantive was changed due to anything said by Ms. Chow. The final report and recommendations are entirely mine.

         UH responded to Minute Order No. 14 by "urg[ing]" BLNR to review the record and issue a decision without appointing a new hearing officer. In the alternative, UH requested that: "(1) the additional fact finding should be limited to a site visit; and (2) the new Hearing Officer should be required to respond to the Board within a reasonable time frame." Kilakila also responded, requesting the appointment of a new hearing officer as well as disclosures of "any communications tending to show that external pressure was applied to affect the outcome of [the] proceeding."

         4. Minute Order No. 15 discharging hearing officer Jacobson

         On March 29, 2012, following a hearing on the issue of the ex parte communications, BLNR filed Minute Order No. 15, which discharged Jacobson and authorized the appointment of a new hearing officer "to avoid even the appearance of impropriety." BLNR concluded that the email from Jacobson to UHIfA's counsel was "an unpermitted ex parte communication in violation of Hawai'i Administrative Rules (HAR) § 13-1-37."[13] BLNR also struck Jacobson's recommendation from the record and authorized the new hearing officer to make a ruling regarding Kilakila's standing, issue a new recommendation within sixty days of appointment, schedule a site visit with the parties, hold additional evidentiary hearings as necessary, and consider a supplemental environmental assessment dated February 10, 2012.

         5. Kilakila's motion for disclosure

         On March 30, 2012, Kilakila filed a motion for disclosure of BLNR's communications regarding the ATST. Kilakila's motion sought:

[T]o have each member of the BLNR disclose any and all communication (written, electronic and oral) that mentioned or related to the University's proposed Advanced Technology Solar Telescope except for (a) communications between board members; (b) communications between any board member and the Board's counsel; (c) any board meeting when the ATST was a subject matter of the agenda.

         The request included "any and all communication with Senator Inouye or his staff, the Governor or his staff, politicians, union leaders and members and construction industry representatives that mentioned or related to the [ATST]."

         In support of the motion, Kilakila cited hearing officer Jacobson's statements regarding the ex parte communications, as well as testimony from a former superintendent of Haleakal National Park who also noted pressures from Senator Inouye's office regarding the ATST:

While serving as superintendent, I was well aware of Senator Inouye's displeasure with my statements/comments against the construction of the ATST. His staff assistant, James Chang placed heavy pressure on me to mute objections that the National Park Service had regarding the impacts of the ATST. For example, in a meeting with Mr. Chang, he strongly encouraged me to go along with the construction of the ATST project. When I stated it was my job to guard against such extreme impacts to this majestic national park, he indicated that he would go to the Secretary of the Interior to override my objections.

         UH opposed Kilakila's motion, arguing that the request was a "fishing expedition" with no factual or legal basis. In reply, Kilakila asserted that it was aware of at least one ex parte communication between a member of BLNR and the Governor's office. Kilakila attached emails obtained pursuant to a records request from the Governor's office, which provided evidence of a meeting on March 21, 2012 between the Governor's office, the Attorney General's office, Senator Inouye's office, and BLNR Chairperson William Aila to discuss the ATST. These include a March 21, 2012 email between Bruce Coppa, the Governor's chief of staff, and another staff member. The staff member informs Coppa, "Jennifer [Sabas, Senator Inouye's chief of staff, ] requested a meeting today at 3 p.m. to discuss the telescope, hearings officer and funding issue. AG will be coming in and Chair Aila is pending."

         6. Minute Order No. 23 partially granting Kilakila's motion for disclosure

         On June 24, 2012, BLNR issued Minute Order No. 23 granting Kilakila's motion only "with regard to the meeting held on March 21, 2012[.]" BLNR informed Kilakila and UHIfA that a meeting occurred on March 21, 2012, in which Aila participated. BLNR noted that "[d]uring the meeting the sole topic of discussion was when the recommended decision in this contested case would be issued by the hearing officer, Steven Jacobson." BLNR concluded that no further action was warranted:

Inasmuch as no party was present during the meeting, there was no ex parte communication with the hearing officer or any member of the Board. Even if a party were present, the discussion . . . comes within the purview of Hawai'i Administrative Rule (HAR) § 13-1-37 as a permitted communication related to requests for information with respect to the procedural status of a proceeding. No further action is required regarding this communication.

BLNR noted that Kilakila failed to "provide a time frame or context for the requested disclosures" and thus its "motion may encompass communications that occurred long before this matter was the subject of a contested case." BLNR further noted that Kilakila failed to show any communications beyond what was allowed under HAR § 13-1-37 and that its motion was "based, at most, upon mere speculation." Finally, BLNR concluded that it had not "acted in any manner other than as an impartial adjudicator" and that any prejudice to Kilakila had been rectified by the discharge and replacement of hearing officer Jacobson.

         7. Kilakila's motion to reconsider Minute Order No. 23

         On June 8, 2012, Kilakila filed a motion to reconsider Minute Order No. 23. Kilakila alleged that the "sole topic" of the March 21, 2012 meeting could not have been the timing of the release of Jacobson's recommendation because Jacobson had already issued his initial and final decisions at this point. Kilakila also requested communications between any member of BLNR and "anyone else" that related to the ATST:

[F]or the sake of appellate court review, this Board should respond definitively as to whether or not there were any communications (oral, written or electronic) between any member of the Board and anyone else that mentioned or related to the University's proposed Advanced Technology Solar Telescope with anyone (except for (a) communications between board members; (b) communications between any board member and the Board's counsel; (c) any board member when the ATST was a subject matter on the agenda) from the time that Kilakila 'O Haleakal requested a contested case hearing.

         On July 13, 2012, BLNR granted Kilakila's motion in part, amending Minute Order No. 23: "During the meeting, the sole topic of discussion was when the final decision in the contested case would be issued, in light of Minute Order No. 14 [regarding Jacobson's ex parte communication], filed on March 19, 2012."

         8. Hearing officer Ishida's recommendation

         On July 16, 2012, the new hearing officer, Lane Ishida, filed a report, proposed findings of fact and conclusions of law, decision, and order, which recommended that BLNR grant the CDUP, subject to several conditions. To support her recommendation, Ishida made several findings, including that the ATST was consistent with the purposes of the conservation district and general subzone, would not cause substantial adverse impact to existing natural resources, and would not be materially detrimental to public health, safety, and welfare.

         9. Kilakila's second motion to reconsider Minute Order No. 23

         On September 27, 2012, Kilakila filed a second motion to reconsider Minute Order No. 23. Kilakila attached additional documents obtained from UH pursuant to a records request. Most relevant to this appeal are six email communications, which are summarized as follows:

 January 30, 2012: Mike Maberry (UHIfA), emailed Jennifer Sabas, Senator Inouye's chief of staff, regarding the ATST. Maberry stated that he knew that Sabas had already spoken with Aila, "but as previously mentioned, Steve Jacobsen [sic] doesn't work for Aila he works for Fuddy. Would it be possible for you or someone to talk with Fuddy to see if it could be clarified that Steve's work priority is to complete the Finding of Facts, Conclusions of Law and Recommendation in the ATST Contested Case?"
 January 30, 2012: In response to Maberry's email, Sabas emailed Bruce Coppa, the Governor's chief of staff, stating: "can you reach out to loretta fuddy who apparently the hearing officer is on contract with rather than dlnr--uh and my feds are getting really really nervous about losing the money for the atst."
 January 30, 2012: Coppa responded to Sabas, stating: "I will speak with Loretta. I also spoke with Bill and ...

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