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In re Contested Case Hearing Re Conservation District Use Application

Supreme Court of Hawaii

November 30, 2018

IN THE MATTER OF CONTESTED CASE HEARING RE CONSERVATION DISTRICT USE APPLICATION (CDUA) HA-3568 FOR THE THIRTY METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE, KAʻOHE MAUKA, HĀMĀKUA, HAWAIʻI, TMK (3) 404015:009

          APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES (BLNR-CC-16-002 (Agency Appeal))

          Richard Naiwieha Wurdeman for appellants Mauna Kea Anaina Hou, Kealoha Pisciotta, Clarence Kukauakahi Ching, Flores-Case 'ohana, Deborah J. Ward, Paul K. Neves, and Kahea: The Hawaiian Environmental Alliance, Gary Z. Zamber for intervenor-appellants Temple of Lono, Mehana Kihoi, Joseph Kuali'i Camara, Leina'ala Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha, Cindy Freitas, and William Freitas, Intervenor-appellant Harry Fergerstrom, pro se, on the briefs.

          Clyde J. Wadsworth (William J. Wynhoff, Kimberly Tsumoto Guidry, Julie China, and Kaliko'onalani D. Fernandes with him on the briefs) for appellees State of Hawai'i, Board of Land and Natural Resources, and Chairperson Suzanne D. Case.

          John P. Manaut, Ian L. Sandison, Joyce W.Y. Tam-Sugiyama and Lindsay N. McAneeley for appellee University of Hawai'i at Hilo.

          Ross T. Shinyama and J. Douglas Ing (Brian A. Kang and Summer H. Kaiawe with them on the briefs) for intervenor-appellee TMT International Observatory LLC.

          Lincoln S.T. Ashida and Newton J. Chu (Vaughn G.T. Cook with them on the briefs) for intervenor-appellee Perpetuating Unique Educational Opportunities, Inc.

          RECKTENWALD, C.J., MCKENNA, J., and CIRCUIT JUDGE CASTAGNETTI IN PLACE OF NAKAYAMA, J., RECUSED, WITH POLLACK, J., CONCURRING IN PART, WITH WHOM WILSON, J., JOINS AS TO PARTS I-III, AND WILSON, J., DISSENTING

          MCKENNA, J., IN WHICH POLLACK, J., JOINS EXCEPT AS TO PART V.C.I

          AMENDED OPINION

         I. Introduction

         These appeals were filed from a September 27, 2017 decision of the Board of Land and Natural Resources ("BLNR") authorizing issuance of a Conservation District Use Permit for the Thirty Meter Telescope ("TMT") near the summit of Mauna Kea.

         Appellant Native Hawaiian[1] cultural practitioners believe that Mauna Kea, as a sacred manifestation of their ancestry, should be honored in its natural state and is desecrated by development of astronomy facilities near its summit. In contrast, Appellees submit that telescope use is an allowed and appropriate use of the summit area, that various measures are being taken to reduce the impact of the TMT, and that Mauna Kea can also be honored through the advancement of scientific knowledge that TMT would provide.

         In this opinion, we address whether the BLNR properly applied the law in analyzing whether a permit should be issued for the TMT. Upon careful consideration of the written submissions, the applicable law, and the oral arguments, and for the reasons explained below, we now affirm the BLNR's decision authorizing issuance of a Conservation District Use Permit ("CDUP") for the TMT.

         II. Factual and Procedural Background A. The Mauna Kea Summit

         Some Native Hawaiians, including some of the appellants, consider Mauna Kea, which rises to an elevation of 13, 796 feet above sea level, to be an ancestor, a living family member and progenitor of Hawaiians, born of Wakea (Sky Father) and Papa (Earth Mother). They consider the Mauna Kea summit area, also known as Kukahau'ula (cluster of pu'u or cinder cones), to be a wahi pana (storied place) and wao akua (the place where gods reside), the realm of ancestral akua (gods, goddesses, deities) believed to take earthly form as the pu'u, the waters of Lake Waiau, and other significant landscape features. The summit of Mauna Kea is thought to touch the sky in an unique and important way, as a piko (navel) by which connections to the ancestors are made known to them, or as the piko ho'okahi (the single navel), which ensures spiritual and genealogical connections, and the rights to the regenerative powers of all that is Hawai'i. The large number of shrines on Mauna Kea indicate that there was a pattern of pilgrimage, "a walk upward and backward in time to cosmological origins," to worship the snow goddess Poli'ahu and other akua such as Kukahau, Lilinoe, and Waiau. As discussed later, various Native Hawaiian traditional and customary practices are derived from these beliefs, which have also led to related contemporary cultural practices.

         Before Western contact, the summit area was considered kapu (taboo) to all but the highest chiefs and priests, and unavailable to the general public. Archaeological research also indicates that from as early as 1100 A.D., and continuing through the 1700s up until the time of Western contact, Native Hawaiians mined extremely high quality, dense, blue-black basalt in a 4, 800 acre adze quarry on the southern slopes of Mauna Kea concentrated between 11, 500 and 12, 400 square feet above sea level to produce tools to cut trees, shape canoes, and carve other smaller items.

         B. Development of Modern Astronomy on Mauna Kea Summit

         After statehood, in 1968, the BLNR entered into a General Lease with the University of Hawai'i ("University") for the Mauna Kea Science Reserve ("MKSR"); the General Lease is scheduled to terminate on December 31, 2033. The MKSR totals 11, 288 acres, consisting of a 10, 763-acre cultural and natural preserve and a 525-acre Astronomy Precinct, and includes almost all of the 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 ("MKIANAR").

         The General Lease allows the University to use the MKSR as a scientific complex and reserve. The University began operating the first observatory on Mauna Kea in 1968. Thereafter, the following additional astronomical observatories became operational in the summit region of the MKSR: the University 2.2-meter Telescope (1970), the United Kingdom Infrared Telescope ("UKIRT")(1979)(now owned by the University), the NASA Infrared Telescope Facility (operated by the University) (1979), the Canada-France-Hawai'i Telescope (1979); (5) the California Institute of Technology ("Caltech") Submillimeter Observatory ("CSO")(1986), the James Clerk Maxwell Telescope ("JCMT")(1986)(now owned by the University), the Very Long Baseline Array (1992), the W. M. Keck Observatory, first phase (1992) and second phase (1996), the Subaru Observatory ("Subaru")(1999), the Gemini North Observatory (1999), and the Submillimeter Array (2002). The 4.6 mile segment of Mauna Kea Access Road just past the Onizuka Center for International Astronomy (also known as Hale P6haku), [2] located at the 9, 200 foot level of Mauna Kea, is unpaved until just above 11, 600 feet, where it then extends near to the summit and loops along the Pu'u Kea, Pu'u Hau'oki, and other pu'u to reach existing observatories through paved or unpaved driveways. The roads have also increased access to the summit area of Mauna Kea for at least some Native Hawaiian cultural practitioners.

         Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, archaeological, and historic resources in the MKSR. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain pu'u were flattened to accommodate observatory foundations, and some materials removed from the pu'u were pushed over their sides, creating steeper slopes more susceptible to disturbance.

         In response to significant criticism raised in a 1998 audit, the University's Board of Regents ("BOR") adopted the MKSR Master Plan ("Master Plan") in 2000, which updated management guidelines for the areas of Mauna Kea managed by the University, including the MKSR. The Master Plan established the Office of Mauna Kea Management ("OMKM"), housed in the University of Hawai'i at Hilo ("UHH") . The OMKM is advised by volunteer residents of the Big Island of the Mauna Kea Management Board and Kahu Ku Mauna (Guardians of the Mountain) to effectuate the Master Plan's goals of (1) protecting cultural, natural, educational/scientific, and recreational resources; (2) preserving and protecting the cultural and natural landscape; (3) preserving and managing cultural resources and practices for future generations; (4) defining areas for use of cultural, natural and recreational resources; (5) protecting the right to exercise traditional cultural practices; (6) allowing for sustainable, integrated planning and management; and (7) protecting and enhancing astronomy research.

         The Master Plan identifies five types of astronomy development and their locations within the 525-acre Astronomy Precinct area of the MKSR, described as Areas A through F, for redevelopment or expansion of existing observatory facilities. These locations include Area E, intended for development of a next generation large telescope, such as the TMT.

         After preparation of the Master Plan, a Comprehensive Management Plan was also finalized in April of 2009. Various sub-plans were also prepared, including a Cultural Resources Management Plan and a Decommissioning Plan for the decommissioning of existing telescopes.

         C. The TMT

         In 2003, Caltech and the University of California formed the TMT Corporation, a California non-profit public benefit corporation, for the purpose of fostering astronomy through building a thirty meter telescope. In 2008, the TMT Corporation, in consultation with the University, began assessing the development of the TMT in Area E, on the northwest slope of Mauna Kea, below the summit ridge. This location was selected for a next generation large telescope (1) due to its significant distance from historical and cultural sites, including Kukahau'ula and Lake Waiau, (2) to minimize visibility from significant cultural areas on the summit and from Waimea, Honoka'a and Hilo, (3) to reduce wind shear forces, (4) because it is not a good wekiu bug habitat, and (5) to minimize its potential to obscure astronomical observations by existing observatories. On May 23, 2009, a draft Environmental Impact Statement ("EIS") for the TMT was published; some of the Appellants submitted comments before issuance of the May 8, 2010 Final EIS.

         TMT International Observatory, LLC ("TIO") was formed on May 6, 2014 as a nonprofit organization comprised of the Regents of the University of California, Caltech, the National Institutes of Natural Sciences of Japan, the National Astronomical Observatories of the Chinese Academy of Sciences, the Department of Science and Technology of India, and the National Research Council of Canada, and succeeded TMT Corporation as owner of the TMT project. TIO was formed so that the voting power and telescope observing time could vary amongst its members proportionate to their respective contributions to the TMT Project.

         The TMT would be the first optical/infrared observatory of its size to integrate adaptive optics, which corrects for image distortion caused by the atmosphere, into its design. The proposed TMT project actually consists of four components, the TMT observatory within Area E ("TMT Observatory"), an access way from the Mauna Kea Access Road ("Access Way"), upgrades to existing transformers at the electrical substation near Hale P6haku in the mid-level of Mauna Kea, and a headquarters in Hilo. With respect to construction of the TMT Observatory, the observatory dome, support building, and the area disturbed during construction would be about five acres ("the TMT Observatory site"). The issues on appeal in this case focus on the proposed TMT Observatory and Access Way.

         The ground surface of the proposed TMT Observatory is 600 feet below the summit ridge. The proposed TMT Observatory would have a total height of roughly 180 feet above that ground surface, with an exterior radius of 108 feet and a dome shutter 102.5 feet in diameter.

         Conservation District Use Application ("CDUA") HA-3568 for the TMT was originally submitted on September 2, 2010. The BLNR initially granted a CDUP on April 12, 2013. In our December 2, 2015 opinion in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai'i 376, 363 P.3d 224 (2015) ("Mauna Kea I"), we vacated the Circuit Court of the Third Circuit's May 5, 2014 order affirming the BLNR's issuance of the first CDUP. We held that the BLNR's approval of a CDUP before conducting a contested case hearing violated the due process rights of parties with standing to assert Native Hawaiian traditional and customary rights. Mauna Kea I, 136 Hawai'i at 390-91, 363 P.3d at 238-39. We also held that a state agency must perform its functions in a manner that fulfills the State's affirmative obligations under the Hawai'i Constitution. Mauna Kea I, 136 Hawai'i at 414, 363 P.3d at 262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part IV). We therefore ordered a remand to the BLNR for a contested case hearing before the Board or a new hearing officer. Mauna Kea I, 136 Hawai'i at 399, 363 P.3d at 247.

         On remand, the BLNR appointed a hearing officer, retired Third Circuit judge Riki May Amano ("Hearing Officer" or "Mano"), who conducted a contested case hearing over forty-four days, on the following dates in 2016 and 2017: October 20, 24-27, and 31; November 2 and 15-16; December 1-2, 5-6, 8, 12-13, 16, and 19- 20; January 3-5, 9-12, 19, 23-26, and 30-31; February 13-16, 21-23, and 27-28; and March 1-2. The Hearing Officer issued her "Proposed Findings of Fact, Conclusions of Law, and Decision and Order" on July 26, 2017.

         After submission of exceptions to the proposed decision and responses to the exceptions and oral arguments, on September 27, 2017, the BLNR issued its 271-page Findings of Fact, Conclusions of Law and Decision and Order ("BLNR Decision and Order") containing 1070 Findings of Fact ("FOF" singular or "FOFs" plural) and 512 Conclusions of Law ("COL" singular or "COLs" plural).[3]

         Five of seven board members, BLNR Chairperson Case and members James A. Gomes, Thomas H. Oi, Samuel "Ohu" Gon III, and Christopher Yuen signed the BLNR Decision and Order to indicate agreement. Members Stanley H. Roehrig and Keith "Keone" Downing signed with the notation "I do not concur[.]"

         Pursuant to Act 48 of 2016, [4] direct appeals were filed to this court.[5]

         III. Points of Error on Appeal

         The great majority of the BLNR's FOFs and COLs are not challenged on appeal. The points of error that are alleged on appeal by the various Appellants are categorized and summarized as follows:[6]

         A. Disqualification Issues

         1. Whether the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the 'Imiloa Astronomy Center;

         2. Whether the BLNR erred by refusing to disqualify Deputy Attorneys General who had advised the BLNR in Mauna Kea I from continuing to advise the Hearing Officer and the BLNR in the contested case hearing after remand;

         3. Whether the BLNR erred by overruling objections to the participation of BLNR members Yuen and Gon in the contested case hearing after remand.

         B. Native Hawaiian Rights Issues

         1. Whether the BLNR fulfilled its duties under Article XII, Section 7 and Ka Pa'akai o Ka 'Aina v. Land Use Commission;

         2. Whether the BLNR erred in concluding that the Hawai'i Constitution does not protect contemporary native Hawaiian cultural practices;

         3. Whether the TMT Project violates religious exercise rights of Native Hawaiians protected by federal statutes;

         4. Whether the Hearing Officer should have allowed briefing and a hearing on a motion to disqualify UHH as applicant based on its alleged hostility toward the traditional Hawaiian faith;

         5. Whether the Hearing Officer should have allowed briefing and a hearing on a motion to dismiss based on violation of the desecration statute of the Hawai'i Penal Code;

         6. Whether the Hearing Officer should have excluded challenges to the legal status of the State of Hawai'i and its ownership of Mauna Kea as well as the existence of the Kingdom of Hawai'i.

         C. Public Trust and Land Use Issues

         1. Whether the TMT Project violates Article XI, Section 1 of the Hawai'i Constitution and public trust principles;

         2. Whether conditions of Hawai'i Administrative Rules ("HAR") § 13-5-30(c) (1994) for issuance of a CDUP were satisfied.

         D. Other Procedural Issues

         1. Whether the original CDUA should have been stricken and a new CDUA required;

         2. What the nature of the proceeding was below, and whether there is an appropriate record on appeal;

         3. Whether TIO and PUEO should have been admitted as parties;

         4. Whether the Hearing Officer's scheduling of presentations by the parties violated Appellants' due process rights;

         5. Whether the Hearing Officer improperly failed to issue final orders in a timely fashion;

         6. Whether the Hearing Officer improperly failed to provide reasoned explanations for her orders;

         7. Whether the Hearing Officer improperly failed to provide required rulings and explanations for thousands of proposed findings of fact;

         8. Whether the entire proceeding was not legitimate.

         IV. Standards of Review

         The standards for reviewing each of the points of error alleged on appeal are set out in Hawai'i Revised Statutes ("HRS") § 91-14(g) (2012 & Supp. 2016), "Judicial review of contested cases," which provides as follows:

(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3)Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

         Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6). Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawai'i 16, 24-25, 211 P.3d 74, 82-83 (2009).

         Pursuant to HRS § 91-14(g), an agency's conclusions of law are reviewed de novo. United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106 Hawai'i 359, 363, 105 P.3d 236, 240 (2005) .

         An agency's exercise of discretion will not be overturned unless arbitrary, or capricious, or characterized by a clearly unwarranted exercise of discretion. Paul's Elec. Serv. Inc. v. Befitel, 104 Hawai'i 412, 417, 91 P.3d 494, 499 (2004) (citing HRS § 91-14(g)(6)).

         In the next section, we analyze each point of error based on the applicable standard of appellate review.[7] We provide additional factual and procedural background information as appropriate.

         V. Discussion of Points of Error on Appeal

         A. Disqualification Issues

         1. Whether the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the 'Imiloa Astronomy Center

         a. Background

         Appellants assert that the BLNR erred by refusing to disqualify Amano as the Hearing Officer based on her family membership in the 'Imiloa Astronomy Center ("'Imiloa"). After our remand in Mauna Kea I, the BLNR delegated the conduct of the contested case hearing to a hearing officer, pursuant to HAR § 13-1-32(b) (2009), and through the procurement process of HRS § 103D-304 (2012). The BLNR appointed a committee of three, consisting of retired Hawai'i Supreme Court Associate Justice James E. Duffy, Jr., Deputy Attorney General Stella Kam, and BLNR Member Christopher Yuen, to evaluate hearing officer applicants. The BLNR issued Minute Order No. 1, attaching Amano's disclosure statement as Exhibit 1 and setting a deadline for any objections to her appointment.

         Appellants objected to Amano's selection, citing Mauna Kea I_, 136 Hawai'i at 389, 363 P.3d at 237 ("[J]ustice can perform its high function in the best way only if it satisfies the appearance of justice." (quoting Sifagaloa v. Bd. of Trs. of the Emps. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992)) (emphasis omitted). They argued Amano could not be impartial because she was a dues paying member of 'Imiloa, which is a part of UHH. They pointed out that TIO is listed on the website as a corporate member of 'Imiloa, and that 'Imiloa had benefited and would benefit from the TMT Project, as it was among the recipients of over $100, 000 in contributions to outreach activities already made by TIO, [8] and, as stated in the Final EIS, the TMT Project "will work with . . . 'Imiloa to develop exhibits that reflect the nationally-recognized natural resources" of the area.

         Amano then filed a supplemental disclosure stating she had been unaware that 'Imiloa was connected to UHH and that it had not crossed her mind that 'Imiloa was or could be connected to the instant case. She further stated that her family membership to 'Imiloa had been active since April 2008 with annual dues of $85, and it was set to expire and would not be renewed. She indicated she had visited 'Imiloa five to six times since 2008 and had used the 10% restaurant and gift shop discount an average of three times per year. She also stated that when she and her husband joined 'Imiloa, it seemed to them like a membership-based cultural organization like the Japanese Cultural Center of Hawai'i and the Bishop Museum on O'ahu.

         Appellants filed supplemental objections additionally arguing that the membership reflected Amano's personal and financial support of the astronomy mission of UHH, which includes development of the TMT Project. Appellants asserted that, at minimum, an appearance of a conflict or an appearance of impropriety existed, requiring disqualification.[9]

         In Minute Order No. 4, the BLNR denied the objections, ruling that the membership does not confer a right to participate in'Imiloa's governance. The BLNR noted that in accordance with Sussel v. City & Cty. of Honolulu Civil Serv. Comm'n, 71 Haw. 101, 108, 784 P.2d 867, 871 (1989), administrative adjudicators are disqualified for an "appearance of impropriety," which is similar to the standard for the disqualification of judges. The BLNR noted that Hawai'i Revised Code of Judicial Conduct ("HRCJC") Rule 2.11(a) (2014) requires disqualification of a judge if "the judge's impartiality might reasonably be questioned."[10] The BLNR reasoned that even if 'Imiloa was classified as a party based on its affiliation with UHH, the Hearing Officer's family membership did not create the fiduciary or managerial relationship between an adjudicator and party precluded by HRCJC Rule 2.11(a)(2)(A). The BLNR opined that no reasonable person would infer that the possible benefits from the membership would cause Amano not to be impartial. The BLNR concluded that the membership was a "de minimis" interest under HRCJC Rule 2.11(a) (2) (C)[11] that did not rise to the level of an "appearance of impropriety." The BNLR characterized Amano's membership as akin to a museum membership, not a membership in an advocacy group.

         The BLNR also concluded that the membership "does not remotely resemble the prejudgment found objectionable in . . . [Mauna Kea I]" where the BLNR had voted on the merits of the CDUA before holding the contested case hearing. It ruled that Amano's membership did not show personal and financial support of the astronomy mission at UHH. It also ruled that exposure to 'Imiloa's exhibits about astronomy on Mauna Kea did not imply prejudgment, and that the Hearing Officer's entitlement to a "presumption of honesty and integrity" remained intact. The BLNR also accepted Amano's representation and found that Amano did not know 'Imiloa was part of UHH or that it had any connection with the CDUA.

         The BLNR also discussed whether it should exercise its discretion to replace the Hearing Officer despite a lack of grounds for disqualification. It declined to do so because Amano had been selected as the most qualified applicant by the committee.

         Appellants filed a motion for reconsideration. Both UHH and TIO responded that the motion should be denied on the merits, but to preemptively eliminate any basis for further delays and appeals, they requested that an alternative hearing officer be appointed. The BLNR denied the motion, stating it would be nearly impossible to find a hearing officer who subjectively appears fair to every possible person interested in the TMT Project. The BLNR also noted that the Appellants had not objected to Amano's disclosed involvement in mediating employment disputes involving UHH, which arguably demonstrated more substantive connections to UHH.

         Appellants later filed a renewed motion to disqualify, asserting Amano should be disqualified because Amano (1) had not ruled on Appellants' motions to disqualify the BLNR's and the Hearing Officer's counsel and to strike the CDUA and/or for summary judgment, (2) allegedly disregarded cultural protocol in accessing Mauna Kea during the site visit, (3) was escorted to the restroom by armed and uniformed DLNR Enforcement ("DOCARE") officers who stood guard at hearings, showing her fear of the parties, (4) had allegedly ridden in a vehicle with a UHH employee for the site visit, (5) had a connection to Deputy Attorney General Harvey Henderson, and (6) did not require UHH to disclose witness statements, exhibits, and position statements before the Appellants' deadlines.

         The renewed motion was also denied by the BLNR. With respect to the new arguments, the BLNR ruled: (1) the lack of a ruling on two motions, out of more than fifty filed by the parties, did not evidence an appearance of impropriety; (2) not following Appellants' proposed site visit route also did not evidence an appearance of impropriety; (3) the presence of DOCARE officers did not evidence bias, as the officers protect the safety of everyone present; (4) Amano had been driven on the site visit by a DOCARE officer, not a UHH employee; (5) Amano's connection with Henderson did not evidence bias, as her connection was limited to having attended law school with his wife, who was also a member of the Board of Governors of Maximum Legal Services Corporation, for which Amano served as Executive Director; and (6) there was no evidence of bias based on Amano's setting of deadlines.

         b. Analysis

         On appeal, the parties repeat the arguments they made below. Preliminarily, Appellants' additional argument, that UHH and TIO should be judicially estopped from arguing that the BLNR did not err in denying disqualification, lacks merit. The issue on appeal is whether Amano should have been disqualified. Judicial estoppel prohibits parties from taking inconsistent positions. Lee v. Puamana Cmty. Ass'n, 109 Hawai'i 561, 575-76, 128 P.3d 874, 888-89 (2006). UHH and TIO have consistently argued that there was no basis for disqualification; thus, judicial estoppel does not apply.

         Turning to the merits, we review the alleged due process violation de novo, but we are bound by relevant factual findings made by the BLNR unless they are clearly erroneous. The BLNR found that Amano did not know 'Imiloa was part of UHH or that it had any connection with the TMT application, that 'Imiloa membership is akin to a museum membership and is not a membership in an advocacy group, that the membership does not confer a right to participate in'Imiloa's governance, that the membership did not show personal and financial support of the astronomy mission at UHH, and that exposure to 'Imiloa's exhibits about astronomy on Mauna Kea did not imply prejudgment. These findings are not clearly erroneous. The BLNR also ruled that no reasonable person would infer that the possible benefits from the membership would cause Amano not to be impartial. These rulings of law are not wrong.

         With respect to the applicable law, the BLNR properly concluded that "an administrative adjudicator should [not] be allowed to sit with impunity in a case where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on [the adjudicator's] impartiality." Sussel, 71 Haw. at 109, 784 P.2d at 871 (citation omitted), and that administrative adjudicators are held to the same standard as judges. The BLNR also concluded that, like judges, administrators serving as adjudicators are presumed to be unbiased. Sifagaloa, 74 Haw. at 192, 840 P.2d ...


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