In re Contested Case Hearing re Conservation District Use Application ( 2018 )

** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
30-NOV-2018
03:48 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
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
________________________________________________________________
SCOT-XX-XXXXXXX, SCOT-XX-XXXXXXX, & SCOT-XX-XXXXXXX
APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
(BLNR-CC-16-002 (Agency Appeal))
NOVEMBER 30, 2018
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
AMENDED OPINION OF THE COURT BY MCKENNA, J., IN WHICH
POLLACK, J., JOINS EXCEPT AS TO PART V.C.1
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.
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Appellant Native Hawaiian1 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.
1
The term “Native Hawaiian” refers to one “whose ancestors were natives
of the Hawaiian Islands prior to 1778, without regard to blood quantum,”
while the term “native Hawaiian” refers to one with at least fifty percent
Hawaiian ancestry. Melody Kapilialoha MacKenzie & D. Kapuaʻala Sproat, A
Collective Memory of Injustice: Reclaiming Hawaiʻi’s Crown Lands Trust in
Response to Judge James S. Burns, 39 U. HAW. L. REV. 481, 528 (2017). See also
JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAIʻI? 1 n.1 (2008) (using the term
“Native Hawaiian” to “refer to all persons descended from the Polynesians who
lived in the Hawaiian Islands when Captain James Cook arrived in 1778,” and
distinguishing it from the term “native Hawaiian,” which is defined as a
person with 50 percent or more Hawaiian blood in the Hawaiian Homes
Commission Act, 1920, ch. 42, sec. 201(a)(7), 42 Stat. 108 (1921)).
2
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Wākea (Sky Father) and Papa
(Earth Mother). They consider the Mauna Kea summit area, also
known as Kūkahauʻula (cluster of puʻu 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 puʻu, 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 hoʻokahi (the single navel),
which ensures spiritual and genealogical connections, and the
rights to the regenerative powers of all that is Hawaiʻi. 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 Poliʻahu and
other akua such as Kūkahau, Līlīnoe, 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.
3
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi (“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
4
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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-Hawaiʻi 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 Pōhaku),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 Puʻu
Kea, Puʻu Hauʻoki, and other puʻu 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,
2
The University also manages the Hale Pōhaku mid-level facilities and
the Summit Access Road between Hale Pōhaku and the MKSR, including 400 yards
on either side of the road, but excluding the MKIANAR.
5
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 puʻu were flattened to accommodate observatory
foundations, and some materials removed from the puʻu 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 Hawaiʻi at Hilo (“UHH”). The OMKM is advised by
volunteer residents of the Big Island of the Mauna Kea
Management Board and Kahu Kū 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
6
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Kūkahauʻula and Lake Waiau, (2) to minimize visibility
7
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
from significant cultural areas on the summit and from Waimea,
Honokaʻa and Hilo, (3) to reduce wind shear forces, (4) because
it is not a good wēkiu 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
8
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
from the Mauna Kea Access Road (“Access Way”), upgrades to
existing transformers at the electrical substation near Hale
Pōhaku 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 Hawaiʻi 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 Hawaiʻi at 390-91, 363 P.3d at 238-39. We also
9
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
held that a state agency must perform its functions in a manner
that fulfills the State’s affirmative obligations under the
Hawaiʻi Constitution. Mauna Kea I, 136 Hawaiʻi 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 Hawaiʻi 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
“Amano”), 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”
10
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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
3
Due to the length of the BLNR Decision and Order, many of the specific
FOFs, COLs, and CDUP conditions referenced in this opinion are not quoted.
The entire BLNR Decision and Order is available on-line at
https://perma.cc/H49Z-XN7B.
4
Act 48 of 2016, effective August 1, 2016, added Hawaiʻi Revised Statutes
§ 183C-9 to make final decisions and orders from contested cases concerning
conservation districts directly appealable to this court. 2016 Haw. Sess.
Laws Act 48, §§ 2 & 14 at 76, 82.
5
In SCOT-XX-XXXXXXX, the appellants are Petitioners-Appellants Mauna Kea
Anaina Hou (“MKAH”) and its President Kealoha Pisciotta, Clarence Kukauakahi
Ching, Flores-Case ʻOhana, Deborah J. Ward, Paul K. Neves, and KAHEA: The
Hawaiian Environmental Alliance (collectively the “MKAH Appellants”). The
MKAH Appellants’ previous appeal resulted in our December 2, 2015 opinion in
Mauna Kea I. SCOT-XX-XXXXXXX was filed by Intervenor-Appellant Temple of
Lono (“Appellant Temple of Lono” or “Temple”). SCOT-XX-XXXXXXX was filed by
Intervenors-Appellants Mehana Kihoi, Joseph Kualiʻi Camara, Leinaʻala
Sleightholm, Kalikolehua Kanaele, Tiffnie Kakalia, Brannon Kamahana Kealoha,
Cindy Freitas, William Freitas (“Kihoi Appellants”), and Intervenor-Appellant
Harry Fergerstrom (“Appellant Fergerstrom”). The appellees are the BLNR, the
State of Hawaiʻi Department of Land and Natural Resources (“DLNR”), the State
of Hawaiʻi (the “State”), and Suzanne D. Case (“Case”), in her official
capacity as Chair of the BLNR (usually collectively referred to as the
“BLNR”), and the University of Hawaiʻi at Hilo (“UHH”). Intervenors-appellees
are TMT International Observatory, LLC (“TIO”) and Perpetuating Unique
Educational Opportunities, Inc. (“PUEO”). A fourth appeal, SCOT-XX-XXXXXXX,
filed on October 10, 2017, by Intervenor-Appellant Dwight J. Vicente, was
dismissed on March 15, 2018 based on a failure to file an opening brief after
notice was provided.
11
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 ʻImiloa
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 Paʻakai o Ka ʻĀina
v. Land Use Commission;
2. Whether the BLNR erred in concluding that the
Hawaiʻi 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;
6
Various appellants raise various issues on appeal, some which are
duplicated by other appellants and some of which are asserted by only one
appellant. Appellants raising the various issues are sometimes identified.
12
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi Penal Code;
6. Whether the Hearing Officer should have
excluded challenges to the legal status of the
State of Hawaiʻi and its ownership of Mauna Kea
as well as the existence of the Kingdom of
Hawaiʻi.
C. Public Trust and Land Use Issues
1. Whether the TMT Project violates Article XI,
Section 1 of the Hawaiʻi Constitution and
public trust principles;
2. Whether conditions of Hawaiʻi
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.
13
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
IV. Standards of Review
The standards for reviewing each of the points of error
alleged on appeal are set out in Hawaiʻi 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 Hawaiʻi
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 Hawaiʻi 359, 363, 105 P.3d 236, 240
(2005).
14
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi 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 ʻImiloa 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 ʻImiloa Astronomy Center (“ʻImiloa”). 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 Hawaiʻi Supreme Court Associate Justice
7
Some points of error are addressed in footnotes.
15
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi 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 ʻImiloa, which is a part
of UHH. They pointed out that TIO is listed on the website as a
corporate member of ʻImiloa, and that ʻImiloa 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 . . . ʻImiloa to develop exhibits
that reflect the nationally-recognized natural resources” of the
area.
8
It is unclear how much ʻImiloa received of the over $100,000, but
according to the Final EIS, these amounts were contributed from 2008-10 and
other recipients included the Akamai Intern program, the Waiākea High School
Robotics program, the IfA Elementary School Robotics program, the Journey to
the Universe program, Kona teachers’ workshops, a DOE mentoring program
workshop, and intern employment.
16
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Amano then filed a supplemental disclosure stating she had
been unaware that ʻImiloa was connected to UHH and that it had
not crossed her mind that ʻImiloa was or could be connected to
the instant case. She further stated that her family membership
to ʻImiloa 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 ʻImiloa 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 ʻImiloa, it seemed to them like a
membership-based cultural organization like the Japanese
Cultural Center of Hawaiʻi and the Bishop Museum on Oʻahu.
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 ʻImiloa’s governance. The BLNR noted that in
9
Appellants also argued below and on appeal standards governing an
arbitrator’s duties of disclosure under HRS Chapter 658A, which do not apply
and are not further discussed.
17
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi 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
10
HRCJC Rule 2.11(a)(2)(A) and (C) (2014) provide:
Subject to the rule of necessity, a judge shall
disqualify or recuse himself or herself in any proceeding
in which the judge’s impartiality* might reasonably be
questioned, including but not limited to the following
circumstances:
. . . .
(2) The judge knows* that the judge, the judge’s spouse or
domestic partner,* or a person within the third degree of
relationship* to either of them, or the spouse or domestic
partner* of such a person is:
(A) a party to the proceeding, or an officer,
director, general partner, managing member, or trustee of a
party;
. . . .
(C) a person who has more than a de minimis* interest
that could be substantially affected by the
proceeding. . . .
The starred terms are defined as follows:
*“Impartiality” means “absence of bias or prejudice in
favor of, or against, particular parties or classes of parties,
as well as maintenance of an open mind in considering issues that
come or may come before a judge.” “Knows” means “actual
knowledge of the fact in question. A person’s knowledge may be
inferred from circumstances.” “Third degree of relationship”
“includes the following persons related to the judge by blood or
marriage: great-grandparent, grandparent, parent, uncle, aunt,
brother, sister, child, grandchild, great-grandchild, nephew, and
niece.” “De minimis” in the context of interests pertaining to
disqualification of a judge, means “an insignificant interest
that could not raise a reasonable question regarding the judge’s
impartiality.” “Terminology,” HRCJC.
18
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
ʻImiloa 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
ʻImiloa’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
11
See supra note 10.
19
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
did not know ʻImiloa 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
20
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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.
21
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 Hawaiʻi 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 ʻImiloa was part of UHH or that it
had any connection with the TMT application, that ʻImiloa
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 ʻImiloa’s governance, that the
membership did not show personal and financial support of the
astronomy mission at UHH, and that exposure to ʻImiloa’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
22
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
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 at 372, and that
this presumption is rebutted only by a showing of a
disqualifying interest, either pecuniary or institutional, or
both. See id.The BLNR applied the correct test for impropriety: whether
a reasonable person knowing all the facts would doubt the
impartiality of Amano, or whether the circumstances would cause
a reasonable person to question Amano’s impartiality. We agree
that the circumstances of this case did not rebut the
presumption that Amano would be capable of impartially
performing her duties. Amano’s connection to ʻImiloa was too
attenuated, as her connection was not shown to be anything other
than a membership, no different than a membership of a member of
23
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
the general public. The membership did not represent an unusual
commitment to ʻImiloa, different from what any other member might
have. Membership alone does not lead to a conclusion that a
member supports a mission to build the TMT, even assuming that
this is ʻImiloa’s mission. No disqualifying interest was shown
and the circumstances did not fairly give rise to an appearance
of impropriety and reasonably cast suspicion on her
impartiality. For the reasons given by the BLNR, the bases for
disqualification asserted in the renewed motion for
reconsideration are also without merit. Therefore, there was no
error in the denial of the requests to disqualify the Hearing
Officer.
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.
MKAH Appellants assert that the BLNR erred by denying their
motion to disqualify Deputy Attorneys General Julie China and
William Wynhoff (collectively “the DAGs”), who had represented
the BLNR in the first appeal leading to Mauna Kea I. Appellants
argue these DAGs should have been disqualified based on White v.
Bd. of Educ., 54 Haw. 10, 501 P.2d 358 (1972). They also assert
the DAGs should have been disqualified because they conferred
with UHH and TIO attorneys during the pendency of the appeal in
24
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Mauna Kea I regarding arrests and prosecution of individuals on
Mauna Kea.
In White, a public school teacher requested a hearing due
to a proposal to terminate her employment. 54 Haw. at 11, 501
P.2d at 360. After the hearing officer had prepared proposed
findings of fact and conclusions of law, the deputy attorney
general who had represented the Superintendent of Education in
the adversary hearing against the teacher advised the Board of
Education as decision maker with respect to the hearing
officer’s findings and conclusions. 54 Haw. at 16, 501 P.2d at
363. We held that a deputy attorney general who had acted as
counsel for the Superintendent against the teacher in the
adversary hearing should not have been consulted by the Board in
its decision making capacity. Id.White is distinguishable. With respect to the issues in
this case, the DAGs advised and represented the DLNR, BLNR, and
the Hearing Officer in their adjudicative capacities and not as
adversaries of the Appellants.12 Appellants also assert the DAGs
should also have been disqualified because they conferred with
counsel for UHH and TIO regarding the arrests and prosecution of
12
The Intermediate Court of Appeals made a similar distinction in
Kilakila ʻO Haleakalā v. Bd. of Land & Nat. Res., No. CAAP-13-3065, 2014 WL
5326757 (App. Oct. 17, 2014)(mem.), in affirming the BLNR’s denial of
Kilakila’s motion to disqualify the deputy attorney general who had
represented the BLNR in an adjudicative capacity in both proceedings.
Kilakila, mem. op. at 38–39, 2014 WL 5326757, at *25.
25
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
protesters on Mauna Kea. As argued by the BLNR, however, it is
the DAGs’ duty “to administer and render legal services to . . .
the State departments and offices as the governor may direct.”
State v. Klattenhoff, 71 Hawaiʻi 598, 602, 801 P.2d 548, 550
(1990), abrogated on other grounds by State v. Walton, 133
Hawaiʻi 66, 324 P.3d 876 (2014). It is also their duty to “give
advice and counsel to the heads of departments . . . and other
public officers, in all matters connected with their public
duties, and otherwise aid and assist them in every way requisite
to enable them to perform their duties faithfully.” HRS § 28-4
(1993). The DAGs had a duty to advise the BLNR with respect to
legal issues regarding possible conferral of trespassing charges
to county prosecutors. These legal issues differ from the
issues involved in this appeal as to whether a CDUP should have
been granted.
Therefore, even if the DAGs represented the BLNR in an
adversarial position as to whether to confer trespassing charges
to county prosecutors regarding Mauna Kea protests, the
adversarial representation was not with respect to whether a
CDUP should have been authorized after the remand. Indeed, as
the BLNR points out, if the BLNR had determined that no CDUP
should issue, the DAGs would have been responsible for defending
that decision.
26
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
The DAGs have always been required to assist the BLNR in a
manner to enable the Board to perform its duties faithfully.
Their duty never changed, and they have consistently represented
the interests of the BLNR. This differs from White, in which
the deputy attorney general first represented the
Superintendent, then the BOE, who could have had differing
interests.
For all of these reasons, the BLNR did not err in denying
Appellants’ motion to disqualify based on White.
3. Whether the BLNR erred by overruling objections to the
participation of BLNR members Yuen and Gon in the
contested case hearing after remand.
Appellants argue that the BLNR committed a due process
violation by overruling their objections to the participation of
BLNR members Christopher Yuen (“Yuen”) and Samuel Gon (“Gon”) in
the proceedings after remand. Due process requires
disqualification where “circumstances fairly give rise to an
appearance of impropriety and reasonably cast suspicion on the
adjudicator’s impartiality.” Kilakila ʻO Haleakalā v. Bd. of
Land & Nat. Res., 138 Hawaiʻi 383, 425, 382 P.3d 195, 237 (2016)
(“Kilakila III”) (Pollack, J., dissenting) (citations omitted).
The test for prejudgment in an agency context is “whether a
disinterested observer may conclude that (the agency) has in
some measure adjudged the facts as well as the law . . . in
advance of hearing the matter.” Mauna Kea I, 136 Hawaiʻi at 395,
27
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
363 P.3d 243 (citation omitted). As noted earlier,
administrative adjudicators are, however, entitled to a
“presumption of honesty and integrity.” Sifagaloa, 74 Haw. at
193, 840 P.2d at 372.
a. Yuen’s participation
Soon after the Hearing Officer was appointed, Appellants
filed objections asserting Yuen should be disqualified. By
Minute Order No. 9 dated June 3, 2016, the BLNR overruled these
objections. On appeal, Appellants reassert their arguments
below regarding Yuen’s participation. Appellants point to a
1998 interview of Yuen published online by environment-
hawaii.org in which Yuen made statements regarding Mauna Kea,
which Appellants characterize as “strong and favorable opinions
and positions of future telescope development.” Specifically,
Appellants take issue with the following statements made by Yuen
during the interview:
For all the criticism and the auditors [sic] report —
I just don’t see a lot of harm that’s been done to those
resources [historic sites, archaeological sites, bug
communities, cleanliness of the area, public safety issues,
some culturally significant areas] by the astronomy
facilities being put up there and with all this activity in
the last 20—25 years.
. . . .
The auditor’s report was critical. There were some
delays. The big archaeological study was late, certainly
the arthropod study was delayed. But if you try to
identify what has gone wrong — has something been destroyed
or lost? Again, apart from just the thing that you have
all those domes sticking up there, it’s been done in a
pretty responsible way.
28
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
There are people that don’t like having all those
buildings up there — which is a valid point of view, but
the basic decision was made almost 20 years ago. And,
honestly, I don’t see what difference it would make to have
a few more telescopes up there as long as you site them
properly. It doesn’t make a qualitative change in the
mountaintop if you do that.
The MKAH Appellants focus on two lines to assert Yuen had
prejudged the CDUA: “[H]onestly, I don’t see what difference it
would make to have a few more telescopes up there as long as you
site them properly. It doesn’t make a qualitative change in the
mountaintop if you do that.”
Yuen’s comments, however, also contained criticism of
telescope projects. The quotation above contains his comments
delays in completing studies. He also criticized the manner in
which the Subaru telescope had been constructed, which involved
the grading out of puʻu and potential destruction of bug
habitats. He also stated that Mauna Kea “is a very important,
prominent place” and that individuals who “don’t like having all
those buildings up there” had a “valid point of view.” He
opined that, unfortunately, the State had already irrevocably
changed the landscape nearly twenty years ago when it first
allowed telescopes. He also stated that any future telescope
project would need, at minimum, to be “site[d] . . . properly,”
meet the demands of good stewardship, and leave intact habitat
and archaeological and cultural sites.
29
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Thus, Yuen’s comments, made in 1998, did not indicate he
would approve all future telescope applications. In the context
of the entirety of Yuen’s comments, the BLNR did not err in
ruling that the circumstances did not fairly give rise to an
appearance of impropriety and did not reasonably cast suspicion
on Yuen’s impartiality. See Kilakila III, 138 Hawaiʻi at 425,
382 P.3d at 237 (Pollack, J., dissenting).
Appellants also argue that Yuen should have been
disqualified because he had been a member of the panel that
selected Amano and had voted on Appellants’ motions to
disqualify her. There is no due process violation based on
this assertion.13
Thus, Yuen’s disqualification was not required by due
process, and the BLNR did not err by denying Appellants’ request
to disqualify him.
13
To the extent Appellants also argue a statutory basis for
disqualification, Appellees correctly respond that Yuen was appointed to the
BLNR pursuant to HRS § 171-4(b) (1993 & Supp. 2005), which requires that the
BLNR have at least one member “with a background in conservation and natural
resources.” HRS § 84-14 (1993 & Supp. 2012) then provides:
A person whose position on a board, commission, or
committee is mandated by statute, resolution, or executive
order to have particular qualifications shall only be
prohibited from taking official action that directly and
specifically affects a business or undertaking in which the
person has a substantial financial interest; provided that
the substantial financial interest is related to the
member’s particular qualifications.
(Emphasis added). There was no allegation or evidence that Yuen has a
substantial financial interest in the TMT Project.
30
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
b. Gon’s participation
Appellants first objected to Gon’s participation during
closing arguments before the BLNR. Appellants reiterate their
argument below that Gon should have been disqualified because he
had previously voted and signed off on the original CDUP vacated
by Mauna Kea I. During their appeal of the first CDUP, however,
Appellants represented they were not seeking recusal of any
member of the BLNR. See Mauna Kea I, 136 Hawaiʻi at 398, 363
P.3d at 246. In addition, Mauna Kea I remanded the case for a
second contested case hearing “before the Board or a new hearing
officer,” not a new Board. Mauna Kea I, 136 Hawaiʻi at 399, 363
P.3d at 247. Moreover, there is no legal authority requiring a
Board member to be disqualified because he had approved a
decision that is later vacated and remanded. If such authority
existed, no vacated decision could ever be remanded to the same
board or lower court judge.14
Thus, Gon’s disqualification was not required by due
process, and the BLNR did not err by denying Appellants’ request
to disqualify him.
14
Like Yuen, Gon was appointed to the BLNR as a member with “particular
qualifications,” in Gon’s case pursuant to HRS § 171-4(c) (1993 & Supp. 2014)
as a member “with demonstrated expertise in native Hawaiian traditional and
customary practices.” Like Yuen, Gon is statutorily prohibited from taking
official action only where it “directly and specifically affects a business
or undertaking in which [he] has a substantial financial interest.” HRS §
84-14(a). See supra note 13. There is also no allegation or evidence that
Gon has a substantial financial interest in the TMT Project.
31
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
B. Native Hawaiian Rights Issues
1. Whether the BLNR fulfilled its duties under
Article XII, Section 7 and Ka Paʻakai o Ka ʻĀina v.
Land Use Commission
The protection of Native Hawaiian traditional and customary
rights is enshrined in Article XII, section 7 of the Hawaiʻi
Constitution, which provides as follows:
The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence,
cultural and religious purposes and possessed by ahupuaʻa
tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to
the right of the State to regulate such rights.
These rights of Native Hawaiians who inhabited the Hawaiian
Islands before 1778 are property interests protected by the due
process clause of Article I, section 5 of the Hawaiʻi
Constitution. Flores v. Bd. of Land and Nat. Res., 143 Hawaiʻi
114, 126, 424 P.3d 469, 481 (2018) (citing Mauna Kea I, 136
Hawaiʻi at 390, 363 P.3d at 238).
In Public Access Shoreline Hawaii v. Hawaiʻi Cty. Planning
Comm’n (“PASH”), we reaffirmed the State’s obligation to
protect the reasonable exercise of customary and traditionally
exercised rights of Hawaiians to the extent feasible. 79 Hawaiʻi
425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995). Then in Ka
Paʻakai o Ka ʻĀina v. Land Use Comm’n, we set out an analytical
framework “to help ensure the enforcement of traditional and
customary Native Hawaiian rights while reasonably accommodating
competing private development interests.” 94 Hawaiʻi 31, 35, 7
32
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
P.3d 1068, 1072 (2000). We held that in order to fulfill its
duty to preserve and protect customary and traditional Native
Hawaiian rights to the extent feasible, as required by Article
XII, Section 7 of the Hawaiʻi Constitution, an administrative
agency must, at minimum, make specific findings of fact and
conclusions of law as to the following: (1) the identity and
scope of valued cultural, historical, or natural resources in
the relevant area, including the extent to which traditional and
customary Native Hawaiian rights are exercised in the area; (2)
the extent to which those resources -— including traditional and
customary Native Hawaiian rights —- will be affected or impaired
by the proposed action; and (3) the feasible action, if any, to
be taken by the agency to reasonably protect Native Hawaiian
rights if they are found to exist. Ka Paʻakai, 94 Hawaiʻi at 47,
7 P.3d at 1084. MKAH and Kihoi Appellants assert that the BLNR
failed to meet these obligations.
The Ka Paʻakai analysis is designed to effectuate Article
XII, Section 7 and protect rights traditionally and customarily
exercised by Native Hawaiians for subsistence, cultural and
religious purposes. The first step of the analysis required the
BLNR to make specific findings and conclusions about the
identity and scope of valued cultural, historical, or natural
resources in the relevant area, including the extent to which
traditional and customary Native Hawaiian rights are exercised
33
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
in the area. The BLNR made numerous findings of fact and
conclusions of law in this regard.15
The issues on appeal relate to Native Hawaiian cultural
resources, and we therefore focus our discussion on these
issues. In addition to testimonial evidence, in reaching its
findings, the BLNR had available numerous recent research
studies, plans, and impact assessments documenting cultural
resources on Mauna Kea, including Native Hawaiian traditional
and customary practices.16
In summary, the BLNR found that the majority of Native
Hawaiian cultural practitioners on Mauna Kea conduct their
practices at the summit of Mauna Kea (Puʻu Wēkiu), Lake Waiau,
15
See FOFs 175-225 regarding HAR § 13-5-30(4) on pp. 219-25, 531-567 on
pp. 91 to 98 regarding biologic resources, 568-675 on pp. 98 to 116 regarding
archaeological and historic resources, FOFs 676-839 on pp. 116-55 regarding
cultural resources and practices, FOFs 840-860 on pp. 155-58 regarding visual
and aesthetic issues, FOFs 861-888 on pp. 158-63 regarding hydrology and
water resources, and COLs 365-437 on pp. 244-54.
16
The Kihoi Appellants allege in Point of Error B(2) that the BLNR
erred by stating that Article XII, Section 7 does not protect
contemporary Native Hawaiian cultural practices. The record reflects,
however, that the BLNR appropriately took into account contemporary (as
well as customary and traditional) Native Hawaiian cultural practices,
finding and concluding that none were taking place within the TMT
Project site or its immediate vicinity, aside from the recent
construction of ahu to protest the TMT Project itself, which was not
found to be a reasonable exercise of cultural rights. Further,
although the BLNR defined the “relevant area” in its Ka Paʻakai analysis
as the TMT Observatory site and Access Way, the Board’s findings also
identified and considered the effect of the project upon cultural
practices in the vicinity of the “relevant area” and in other areas of
Mauna Kea, including the summit region, as Ka Paʻakai requires. See 94
Hawaiʻi at 49, 7 P.3d at 1086 (faulting the agency for failing to
address “possible native Hawaiian rights or cultural resources outside
[the area at issue]”).
34
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Puʻu Līlīnoe, or Kūkahauʻula. Cultural practices at Mauna Kea
include solstice and equinox observations on Puʻu Wēkiu, burial
blessings, depositing of piko (umbilical cord) near Lake Waiau
as well as collection of its water for use in healing and ritual
practices, the giving of offerings and prayers at the ahu lele
(sacrificial altar or stand), behind the visitor center adjacent
to Hale Pōhaku, monitoring or observing the adze quarry, or
observing stars, constellations, and the heavens.
The BLNR found no evidence, however, of Native Hawaiian
cultural resources, including traditional and customary
practices, within the TMT Observatory site area and the Access
Way, which it characterized as the relevant area. There was no
physical evidence that the TMT Observatory site was used for
storing piko, iwi (bones of the dead), placenta or other
artifacts. There was no evidence of ahu (shrine or altar), lele
(sacrificial altar), or other historic properties therein.
There was also no evidence of mele (song, anthem, or chant) or
hula being performed in the area. After extensive surveying, no
archaeological or historic sites or burials were found in any of
the TMT Observatory site or Access Way areas.
The BLNR also analyzed Native Hawaiian cultural resources
in the vicinity of the TMT Observatory and the Access Way.
Native Hawaiians had erected ahu in the general vicinity of the
TMT Observatory site. The closest, consisting of a single
35
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
upright stone and several support stones, is 225 feet away,
another is 1300 feet away, and a third is 1600 feet away. The
BLNR concluded that the two ahu built on the Access Way in 2015
as protests against the TMT did not constitute a traditional and
customary right or practice, and in any event did not meet
PASH’s requirement of reasonableness. PASH, 79 Hawaiʻi at 447,
903 P.2d at 1268.
The BLNR conducted a thorough analysis as required by the
first step of the Ka Paʻakai analysis. The BLNR found no Native
Hawaiian cultural resources or traditional or customary
practices within the TMT Observatory site and Access Way areas.
It correctly concluded that the two ahu constructed on the TMT
Access Way in 2015 as protests against TMT are not protected as
Native Hawaiian traditional or customary rights.
The second step of the Ka Paʻakai analysis required the BLNR
to make findings regarding the extent to which cultural
resources -— including traditional and customary Native Hawaiian
rights -— will be affected or impaired by the proposed action.
The BLNR found that the TMT Project will not adversely impact
cultural resources, whether in the relevant area of the TMT
Observatory site and Access Way, or in other areas of Mauna Kea.
If the three ahu in the vicinity of the TMT Observatory site are
within the relevant area, the BLNR found that the TMT would not
affect them. Also, if the summit is considered to be within the
36
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
relevant area, the BLNR found that the TMT Observatory will not
be visible from Lake Waiau, Puʻu Līlīnoe, or Kūkahauʻula, which
are culturally sensitive areas of the summit of Mauna Kea, and
that the TMT would not impact the other cultural practices
discussed above. The BLNR also found that since 2000, cultural
and/or spiritual practices have been occurring while astronomy
facilities have existed, and that those activities would not be
prevented by the TMT Observatory, which would be located 600
feet below the summit ridge.
The third Ka Paʻakai requirement requires findings regarding
the feasible action, if any, to be taken to reasonably protect
Native Hawaiian rights if they are found to exist. Native
Hawaiian rights were not found to have been exercised in the
relevant area, so the third requirement was not required to be
addressed. In any event, the BLNR discussed measures that had
been taken to avoid impact on Native Hawaiian rights and
practices in the Mauna Kea summit area17 and imposed special
conditions to avoid impacts on those practices.18
17
FOF 747 states:
The University and TIO have established measures to avoid and
minimize direct and indirect impacts on cultural practices,
including but not limited to the following:
(1) selecting a site off of the Kūkahauʻula summit and away
from known historic and traditional cultural properties and
cultural resources;
(2) selecting a site that minimizes the impact of the TMT
Project on viewplanes;
(continued. . .)
37
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
The MKAH Appellants also challenge the following two
conditions imposed by the BLNR for issuance of the CDUP,
alleging that they demonstrate that “preservation and protection
of native Hawaiian rights are not being addressed before the
land is reclassified,” as Ka Paʻakai requires, and that the BLNR
(continued. . .)
(3) complying with all applicable provisions of the CMP and
sub-plans;
(4) engaging in direct and regular consultation with Kahu
Kū Mauna, with the broader Hawaiʻi Island community, and
with cultural practitioners on various issues;
(5) establishing an outreach office to engage with the
larger community;
(6) developing and implementing a Cultural and Natural
Resources Training Program for all TMT staff and
construction workers; and
(7) minimizing TMT Observatory operations (up to 4 days per
year) to accommodate cultural activities on culturally
sensitive days of the year.
18
Special Conditions 30, 34, and 36 provide as follows:
30. Should historic remains such as artifacts, burials or
concentration of charcoal be encountered during
construction activities, work shall cease immediately in
the vicinity of the find, and the find shall be protected
from further damage. The contractor shall immediately
contact the State Historic Preservation Division . . .
which will assess the significance of the find and
recommend an appropriate mitigation measure, if necessary;
the Applicant will also notify the Office of Hawaiian
Affairs at the same time;
. . . .
34. Daytime activities at TMT will be minimized on up to
four days per year, as identified by Kahu Kū Mauna;
. . . .
36. UHH shall allow reasonable access to the area
established under Condition 35 for the exercise of any
native Hawaiian traditional and customary practices to the
extent feasible, reasonable, and safe. The allocation of
this area shall be in addition to all other cultural and
access rights of native Hawaiians to other areas of Mauna
Kea as provided by law or by other conditions set forth
herein[.]
38
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
improperly delegated its duty to protect and preserve Native
Hawaiian rights:
35. UHH shall consult with the Kahu Kū Mauna Council and
cultural practitioners to the extent feasible to plan for,
and establish, an appropriate area on Mauna Kea, within the
MKSR, to be used by native Hawaiians for religious and
cultural purposes; provided that this condition shall not
affect the timing of TMT construction or operation.
. . . .
41. Kahu Kū Mauna shall review policies concerning the
construction and retention of personal or group shrines
such as ʻahu, and recommend policies to OMKM and/or the BLNR
as appropriate, within 18 months. . . .
This “improper delegation” argument stems from our holding
in Ka Paʻakai that an agency cannot delegate its duties to a
developer. Ka Paʻakai, 94 Hawaiʻi at 50-51, 7 P.3d at 1087-88.
Again, it was not necessary to address the third Ka Paʻakai
requirement. In addition, although at first blush conditions 35
and 41 may appear to be delegations, they are not; they are
outside and in addition to Ka Paʻakai requirements, and were
imposed to ensure that Native Hawaiian practices in the Mauna
Kea area will continue to be protected.
Thus, the BLNR discharged its Ka Paʻakai duties.
2. Whether the TMT Project violates religious exercise
rights of Native Hawaiians protected by federal
statutes.
Kihoi Appellants assert that the BLNR erred by not
addressing the substantial burden and impact the TMT would have
on their rights under the Free Exercise Clause of the First
Amendment to the United States Constitution. The BLNR Decision
and Order, however, describes each of the Kihoi Appellants, then
39
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
addresses each of their testimonies, their witnesses, and
arguments. The Kihoi Appellants also erroneously assert that
the testimony of Appellant Kanaele was never addressed, as his
testimony was addressed in BLNR Decision and Order FOFs 21, 250,
794, and 886.
Kihoi Appellants also cite to The Religious Freedom
Restoration Act, 42 U.S.C. §§ 2000b et seq. (“RFRA”), which they
allege requires application of a strict scrutiny standard when
determining whether the Free Exercise Clause has been violated.
In State v. Sunderland, 115 Hawaiʻi 396, 403, 168 P.3d 526, 533
(2007), however, we “already [took] note of the fact that the
United States Supreme Court, in [City of Boerne v. Flores, 521
U.S. 507 (1997)], invalidated RFRA insofar as it ‘exceeded the
enumerated powers of Congress and was, therefore,
unconstitutional.’ . . . As a result, RFRA is inoperative as to
the individual states.” Thus, RFRA applies only to the federal
government, and does not apply to the TMT Project. Sunderland,
115 Hawaiʻi at 403 n.9, 168 P.3d at 533 n.9.
Kihoi Appellants also argue that the land use provisions of
the “Religious Land Use and Institutionalized Persons Act of
2000” (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq., protect
individuals, houses of worship, and other religious institutions
from discrimination in zoning and landmarking laws. Kihoi
Appellants did not raise any argument under that statute during
40
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
the contested case proceeding. In any event, as held by the
Ninth Circuit Court of Appeals in Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1077 (9th Cir. 2008), RLUIPA “applies only
to government land-use regulations of private land – such as
zoning laws – not to the government’s management of its own
land.”
Therefore, this point of error is without merit.
3. Whether the Hearing Officer should have allowed
briefing and a hearing on a motion to dismiss based
on a request to disqualify UHH as applicant based on
its alleged hostility toward the traditional Hawaiian
faith.
Appellant Temple of Lono alleges that the Hearing Officer
failed to allow briefing and a hearing on its attempts to have
UHH disqualified as the applicant for the CDUA based on
statements UHH made in a pre-hearing memorandum. The issue
arises out of statements contained in UHH’s August 1, 2016
memorandum in opposition to Appellant Temple of Lono’s motion
before the Hearing Officer seeking summary judgment on two
claims regarding its religious practices, that (1) “the summit
of Mauna a Wākea is a sacred site of special significance in the
traditional Hawaiian faith” and that (2) “the traditional
Hawaiian faith is still practiced.”
The Temple’s opening brief does not quote the allegedly
offending language, but asserts that it is in a section entitled
41
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
“Policy Considerations for Motion,” in which UHH included the
following statements:
The problem with fundamentalism in religion – any religion – is
its intolerance and inability to compromise. Fundamentalist
religion when confronted with a conflict between cooperation and
conformity to doctrine invariably chooses the latter, regardless
of the harm it brings to the society of which it is a part. The
Temple wants a religious servitude over all of Mauna Kea, for the
purpose of advancing its own religious agenda.
The Temple’s religious fundamentalism calls into play the
tension between the establishment clause and the free exercise
clause. The Temple wants full expansion of the free exercise
clause regarding Mauna Kea. . . . In short, the Temple cannot
use this proceeding to obtain a religious servitude over Mauna
Kea, as part of advancing the Temple’s fundamentalist agenda.
Appellant Temple of Lono challenged this language as an ad
hominem19 attack. The Hearing Officer denied various attempts to
have UHH disqualified as the CDUA applicant based on this
language in its memorandum.
UHH argues that the offending language was not an attack on
Appellant Temple of Lono, but rather was a response to the
Temple’s argument that because Mauna Kea is viewed as sacred and
is of special significance to its faith, the TMT Project could
not be constructed there. UHH indicates that while it believes
Mauna Kea could accommodate both the TMT Project and traditional
Native Hawaiian religion, the Temple rejects that sharing of
Mauna Kea. It asserts that the language in question argued that
such an absolutist position amounted to seeking a religious
19
Black’s Law Dictionary 48 (10th ed. 2014) defines “ad hominem” as
“[a]ppealing to personal prejudices rather than to reason; attacking an
opponent’s character, esp. in lieu of a rational response to the opponent’s
stand or statement. . . .”
42
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
servitude over the mountain, which would itself run afoul of the
establishment clauses of both the federal and state
constitutions.
Despite UHH’s reasoning, the tenor of the language in its
memorandum was unnecessary. Neither the Hearing Officer nor the
BLNR were required to disqualify UHH as the CDUA applicant based
on this language, and this argument is without merit.20
4. Whether the Hearing Officer should have excluded
challenges to the legal status of the State of Hawaiʻi
and its ownership of Mauna Kea as well as the
existence of the Kingdom of Hawaiʻi.
Appellant Fergerstrom asserts that the summit of Mauna Kea,
as well as the ahupuaʻa of Kaʻohe in the District of Hāmākua are
lands still held by the Hawaiian Kingdom. He alleges that the
Hearing Officer wrongfully denied him his right to present
expert testimony from Professor Williamson Chang of the
University of Hawaiʻi William S. Richardson School of Law.
Professor Chang proposed to testify that the State of Hawaiʻi
does not exist as a matter of United States Constitutional law
20
Appellant Temple of Lono also argued in Point of Error B(5) that the
Hearing Officer should have allowed briefing and a hearing on a motion to
dismiss based on violation of the desecration statute of the Hawaiʻi Penal
Code, HRS § 711-1107 (2014). The Hearing Officer considered the motion and
properly denied it based on the grounds that: (1) the agency lacked
jurisdiction to adjudicate alleged violations of the Penal Code; and (2) the
Temple failed to carry its summary judgment motion burden. Thus, this point
of error is without merit.
43
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
because annexation through a Joint Resolution of Congress rather
than through a Treaty of Annexation was ineffective.21
The United States Supreme Court’s interpretations of the
United States Constitution are, however, binding throughout the
United States. As pointed out by Professor Jon M. Van Dyke in
his book WHO OWNS THE CROWN LANDS OF HAWAIʻI, at page 212 note 86:
The U.S. Supreme Court gave tacit recognition to the
legitimacy of the annexations of Texas and Hawaiʻi by joint
resolution, when it said in De Lima v. Bidwell, 182 U.S. 1,
196 (1901), that “territory thus acquired [by conquest or
treaty] is acquired as absolutely as if the annexation were
made, as in the case of Texas and Hawaii, by an act of
Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700
(1868), stating that Texas had been properly admitted as a
state in the United States.
In other words, like Hawaiʻi, Texas was also admitted as a state
through a joint resolution of Congress. The United States
Supreme Court has thus indicated that the process by which
Hawai‘i was incorporated into the United States was lawful and
binding, and we are bound by this determination. In addition,
as we stated in State v. Kaulia, “[W]e reaffirm that ‘[w]hatever
may be said regarding the lawfulness’ of its origins, ‘the State
of Hawaiʻi . . . is now a lawful government.’” 128 Hawaiʻi 479,
21
For a historical perspective, see Congress’s Joint Resolution to
Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the
Kingdom of Hawaii signed into law by then-President Bill Clinton on November
23, 1993 as Public Law No. 103–150, 107 Stat. 1510 (1993), quoted in full in
Office of Hawaiian Affairs v. Housing and Community Development Corp. of
Hawaii, 117 Hawaiʻi 174, 183-86, 177 P.3d 884, 893-96 (2008). For additional
Native Hawaiian perspectives, see Volume 39, Number 2 (Summer 2017) of the
University of Hawaiʻi Law Review.
44
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
487, 192 P.3d 377, 385 (2013) (citing State v. Fergerstrom, 106
Hawaiʻi 43, 55, 101 P.3d 652, 664 (App. 2004)).
The BLNR is bound by the United States Supreme Court’s and
this court’s precedents regarding the legal status of the State
of Hawaiʻi. Therefore, the Hearing Officer did not err by
excluding the proposed evidence.
C. Public Trust and Land Use Issues
1. Whether TMT Project violates Article XI, Section
1 of the Hawaiʻi Constitution and public
trust principles.
Article XI, Section 1 Hawaiʻi Constitution provides as
follows:
For the benefit of present and future generations,
the State and its political subdivisions shall conserve and
protect Hawaii’s natural beauty and all natural resources,
including land, water, air, minerals and energy sources, and
shall promote the development and utilization of these resources
in a manner consistent with their conservation and in furtherance
of the self-sufficiency of the State.
All public natural resources are held in trust by the State
for the benefit of the people.
In In re Water use Permit Applications, 94 Hawaiʻi 97, 9
P.3d 409 (2000) (“Waiāhole I”), in ruling that under Article XI,
Sections 1 and 7 and the sovereign reservation, water is a
public trust resource, we stated that “[w]e need not define the
full extent of article XI, section 1’s reference to ‘all public
resources’ at this juncture.” Waiāhole I, 94 Hawaiʻi at 133, 9
P.3d at 445. Since then, “[t]his court has never precisely
demarcated the dimensions of the public trust doctrine as
45
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
incorporated in Article XI, Section 1.” See Mauna Kea I, 136
Hawaiʻi at 404, 363 P.3d at 252 (Pollack, J., concurring).
The plain language of Article XI, Section 1 provides that
all public natural resources, including land, are held in trust
by the State for the benefit of the people. We therefore now
hold that conservation district lands owned by the State,22 such
as the lands in the summit area of Mauna Kea, are public
resources held in trust for the benefit of the people pursuant
to Article XI, Section 1.23 The plain language of Article XI,
Section 1 further requires a balancing between the requirements
of conservation and protection of public natural resources, on
the one hand, and the development and utilization of these
resources on the other in a manner consistent with their
conservation. We have also stated that the balancing must be
“consistent with . . . conservation [of these resources] and in
furtherance of the self-sufficiency of the State.” Waiāhole I,
94 Hawaiʻi at 139, 9 P.3d at 451. We have also stated Article
XI, Section 1, requires the state both to “protect” natural
resources and to promote their “use and development,” consistent
22
HRS § 183C-2 (2011) provides that the “`[c]onservation district’ means
those lands within the various counties of the State bounded by the
conservation district line, as established under provisions of Act 187,
Session Laws of Hawaii 1961, and Act 205, Session Laws of Hawaii 1963, or
future amendments thereto.”
23
Other types of public lands (and whether or how public trust principles
should apply to such lands) are not before us at this time.
46
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
with the conservation of the natural resources. Id. We have
also indicated that any balancing between public and private
purposes must begin with a presumption in favor of public use,
access and enjoyment. Waiāhole I, 94 Hawaiʻi at 142, 9 P.3d at
454.24
24
We note that Appellants only assert a violation of public trust
principles under Article XI, Section 1, and although Appellees raise
arguments based on permissible uses of ceded lands pursuant to Section 5(f)
of the Admission Act of 1959, Appellants have not alleged a violation of the
ceded lands trust. Section 5(f) ceded lands trust purposes are “[1] the
support of the public schools and [2] other public educational institutions,
[3] the betterment of the conditions of native Hawaiians, as defined in the
Hawaiian Homes Commission Act, 1920, as amended, [4] the development of farm
and home ownership on as widespread a basis as possible for the making of
public improvements, and [5] the provision of lands for public use.” Office
of Hawaiian Affairs v. State, 96 Hawaiʻi 388, 390, 31 P.3d 901, 903 (2001).
Ceded lands are also subject to Article XII, Section 4 of the Hawaiʻi
Constitution, which provides that “[t]he lands granted to the State of Hawaii
by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7,
of the State Constitution, excluding therefrom lands defined as ‘available
lands’ by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended,
shall be held by the State as a public trust for native Hawaiians and the
general public.” Article XVI, Section 7 in turn provides that “[a]ny trust
provisions which the Congress shall impose, upon the admission of this State,
in respect of the lands patented to the State by the United States or the
proceeds and income therefrom, shall be complied with by appropriate
legislation. Such legislation shall not diminish or limit the benefits of
native Hawaiians under Section 4 of Article XII.”
The BLNR also cites to Article X, Section 5 of the Hawaiʻi Constitution,
which creates the University and gives it title to all real property conveyed
to it, to “be held in public trust for its purposes, to be administered and
disposed of as provided by law.”
These other constitutional provisions and effectuating legislation are
not at issue in this case, but they may play a part in defining public trust
principles under Article XI, Section 1 with regard to conservation district
lands owned by the State. Therefore, with respect to the Article XI, Section
1 public trust as to conservation lands, we do not wholesale adopt our
precedent setting out public trust principles as applied to the state water
resources trust. See Waiāhole I, 94 Hawaiʻi at 133-44, 9 P.3d at 445-56, and
its progeny. Rather the dimensions of this trust remain to be further
demarcated.
47
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
In our de novo determination of whether these requirements
of Article XI, Section 1 have been met, we consider relevant
findings in the BLNR Decision and Order.25
With respect to the requirements of conservation and
protection of public natural resources, the BLNR’s finding that
the TMT Project will not cause substantial adverse impact to
geologic sites is not challenged. The TMT Project does not
involve the irrevocable transfer of public land to a private
party. The TMT is to be decommissioned at the end of its
anticipated 50 year useful life or at the end of the lease,26
whichever comes first, pursuant to the Decommissioning Plan, and
the land must then be restored. The BLNR also imposed as
conditions of the CDUP various measures that will help protect
the land in the area, such as requiring compliance with all laws
as well as representations made regarding measures designed to
reduce the negative impact of the project, requiring funding of
the re-naturalization of the closed access road on Puʻu Poliʻahu,
25
We do not address Justice Pollack’s suggested analytical framework for
addressing whether an agency is in compliance with its public trust
obligations because, as he states, the BLNR has fulfilled its public trust
obligations in any event. See Section IV of the Opinion of Pollack, J.,
Concurring in Part and Concurring in Judgment.
26
The current General Lease expires on December 31, 2033.
48
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
and permanent decommissioning of three telescopes as soon as
possible and two additional telescopes by December 31, 2033.27
With respect to the development and utilization of the land
consistent with its conservation and in furtherance of the self-
sufficiency of the State, with a presumption in favor of public
use, access, and enjoyment, Appellants point out that in
Waiāhole I, we upheld the exercise of Native Hawaiian
traditional and customary rights as a public trust purpose.
Waiāhole I, 94 Hawaiʻi at 137, 9 P.3d at 449. Appellants assert
that the use by Native Hawaiians of the land proposed to be used
for TMT is a public use while use by TMT users is a private use.
As discussed earlier, however, there was no actual evidence
of use of the TMT Observatory site and Access Way area by Native
Hawaiian practitioners. Furthermore, in general, astronomy and
Native Hawaiian uses on Mauna Kea have co-existed for many years
and the TMT Project will not curtail or restrict Native Hawaiian
uses. In addition, the TMT is an advanced world-class telescope
designed to investigate and answer some of the most fundamental
questions regarding our universe, including the formation of
stars and galaxies after the Big Bang and how the universe
evolved to its present form. Native Hawaiians will also be
included in other direct benefits from the TMT. Use of the land
27
See the additional discussion in Section V(C)(2)(a) below regarding
decommissioning, including funding for decommissioning.
49
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
by TMT will result in a substantial community benefits package,
which has already provided over $2.5 million for grants and
scholarships for STEM education benefitting Hawaiʻi students.
The package also includes an additional commitment to provide $1
million annually for this program. The TMT Project will also
result in a workforce pipeline program that will lead to a pool
of local workers trained in science, engineering, and technical
positions available for employment in well paid occupations.
TIO will pay sublease rent to the University, the first
telescope developer on Mauna Kea to do so, which will be used
for the management of Mauna Kea through the Mauna Kea Special
Management Fund, administered by OMKM. Thus, use of the land by
TMT is consistent with conservation and in furtherance of the
self-sufficiency of the State.
We therefore hold that the TMT comports with Article XI,
Section 1 public trust principles and that the BLNR met its
duties as trustee under the Article XI, Section 1 public land
trust28 through its Decision and Order.29
28
We held in Mauna Kea I that an agency must perform its functions in a
manner that fulfills the State’s affirmative obligations under the Hawaiʻi
constitution. Mauna Kea I, 136 Hawaiʻi at 414, 363 P.3d at 262 (Pollack, J.,
concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part
IV). In addition, “[t]he duties imposed upon the state are the duties of a
trustee and not simply the duties of a good business manager.” Waiāhole I, 94
Hawaiʻi at 143, 9 P.3d at 455 (citation omitted). Therefore, in performing
its duties, the role of an agency is not merely to be a passive actor or a
neutral umpire, and its duties are not fulfilled simply by providing a level
playing field for the parties. Mauna Kea I, 136 Hawaiʻi at 414, 363 P.3d at
(continued. . .)
50
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
2. Whether the conditions of HAR § 13-5-30(c) for
issuance of a CDUP were satisfied.
Pursuant to HAR § 13-5-24(c)(4) (1994), “astronomy
facilities under a management plan approved simultaneously with
the [Board] permit” is a permissible land use in the resource
subzone, within which the MKSR is situated. Before granting a
CDUP for any proposed land use, however, the BLNR must consider
the eight criteria of HAR § 13-5-30(c) in evaluating the merits
of the specific proposed use. HAR § 13-5-30(c) provides:
(c) In evaluating the merits of a proposed land use, the
department or board shall apply the following criteria:
(1) The proposed land use is consistent with the
purpose of the conservation district;
(2) The proposed land use is consistent with the
objectives of the subzone of the land on which the
use will occur;
(3) The proposed land use complies with provisions
and guidelines contained in chapter 205A, HRS,
entitled “Coastal Zone Management”, where applicable;
(4) The proposed land use will not cause substantial
adverse impact to existing natural resources within
the surrounding area, community, or region;
(5) The proposed land use, including buildings,
structures, and facilities, shall be compatible with
(continued. . .)
262 (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J.,
joined as to Part IV.)
29
FOF 360 states that “TIO has already received substantial funds and
will undertake additional fundraising efforts once a decision has been made
as to the project approval.” Although the BLNR addressed funding of
decommissioning after completion, it is unclear whether other than an
agreement from TIO to perform, the BLNR has adequately ensured that buildings
or equipment will not be left behind and the areas used by TMT will be
restored in the event full funding is not obtained for completion of
construction or insufficient funds for decommissioning are available. Its
duties as trustee require that it do so. The BLNR has discretion under
Special Condition 43 to impose “[o]ther terms and conditions” on the CDUP.
Therefore, the BLNR should ensure that the areas used by TMT will be restored
to their natural states at no cost to the State, whether through requiring an
appropriate performance bond or through imposing funding and/or other
requirements.
51
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
the locality and surrounding areas, appropriate to
the physical conditions and capabilities of the
specific parcel or parcels;
(6) The existing physical and environmental aspects
of the land, such as natural beauty and open space
characteristics, will be preserved or improved upon,
whichever is applicable;
(7) Subdivision of land will not be utilized to
increase the intensity of land uses in the
conservation district; and
(8) The proposed land use will not be materially
detrimental to the public health, safety, and
welfare.
The applicant shall have the burden of demonstrating that a
proposed land use is consistent with the above criteria.
The BLNR made extensive FOFs and COLs regarding each of the
eight criteria. See BLNR Decision and Order, pp. 77 to 189, FOF
429-1040, pp. 213-37, COL 121-321. Appellants generally allege
that the BLNR’s findings in this regard are erroneous, but their
generalized assertions relate only to subsections (4) through
(6), as discussed below.
a. HAR § 13-5-30(c)(4)
HAR § 13-5-30(c)(4) prohibits a “proposed land use” if it
will “cause substantial adverse impact to existing natural
resources within the surrounding area, community, or region.”
HAR § 13-5-2 (1994) defines “natural resources” to mean
“resources such as plants, aquatic life and wildlife, cultural,
historic, recreational, geologic, and archeological sites,
52
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
scenic areas, ecologically significant areas, watersheds, and
minerals.”30
The BLNR concluded that the TMT Project will not cause
substantial adverse impacts to existing natural resources within
the surrounding area, community, or region. Appellants agree
with the BLNR’s conclusion that the cumulative effects of
astronomical development and other uses in the summit area of
Mauna Kea, even without the TMT, have already resulted in
substantial, significant and adverse impacts, but challenge the
BLNR’s conclusion that, therefore, the impacts on natural
resources within the Astronomy Precinct of the MKSR would be
substantially the same even in the absence of the TMT Project.
Similar to the Advanced Technology Solar Telescope (“ATST”)
atop Haleakalā, Kilakila III, 138 Hawaiʻi at 402-05, 382 P.3d at
214-17, it is undisputed that even without the TMT, the
30
In Ka Paʻakai, we declined to define “cultural resources” stating,
“‘[c]ultural resources’ is a broad category, of which native Hawaiian rights
is only one subset. In other words, we do not suggest that the statutory
term, ‘cultural resources’ is synonymous with the constitutional term,
customary and traditional native Hawaiian rights.” Ka Paʻakai, 94 Hawaiʻi at
47 n.27, 7 P.3d at 1084 n.27. Although not specifically asserted by
Appellants as a point of error, the BLNR suggested in COL 203 that cultural
practices are not cultural resources protected by HAR § 13-5-30(c)(4),
stating “[u]nder the definition of ‘Natural resource’ in HAR § 13-5-2,
cultural, historical, and archaeological ‘sites’ are ‘natural resources’; but
cultural practices are not necessarily.” However, the DLNR had included
Native Hawaiian “cultural practices” within its assessment of “natural
resources,” despite the University’s incorrect position that “cultural
practices” are not “natural resources.” In addition, the BLNR’s HAR § 13-5-
30(c)(4) analysis contains numerous references to its assessment of the
impact of the TMT Project on cultural practices. See, e.g., COLs 198, 199,
205-10, 212, and 215. Therefore, any error in COL 203 is harmless.
53
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
cumulative effect of astronomical development and other uses in
the summit area of Mauna Kea have resulted in impacts that are
substantial, significant and adverse. We opined in Kilakila
III, however, that the “BLNR does not have license to endlessly
approve permits for construction in conservation districts,
based purely on the rationale that every additional facility is
purely incremental. It cannot be the case that the presence of
one facility necessarily renders all additional facilities as an
‘incremental’ addition.” Kilakila III, 138 Hawaiʻi at 404, 382
P.3d at 216.
As discussed earlier, there was no evidence of use of the
TMT Observatory site and Access Way area for Native Hawaiian
cultural practices. The BLNR asserts that in determining
whether the TMT Project would have a substantial adverse impact
on natural resources within the broader surrounding area,
community, or region, as prohibited by HAR § 13-5-30(c)(4), it
properly considered a host of measures designed to address
environmental and cultural impacts of the TMT Project.31 These
31
In its FOF 522, the BLNR listed a number of measures designed to reduce
or offset the negative impact of the TMT project, including: (1) site
selection and infrastructure design to lessen the visual, cultural and
environmental impact; (2) TMT Access Way design to reduce impact; (3)
implementing a cultural and natural resources training program; (4)
developing educational exhibits; (5) restoring Puʻu Poliʻahu; (6)providing a
sense of place within the TMT facilities; (7) providing financial
contributions to support cultural programs; (8) implementing specific
cultural and community outreach efforts; (9) implementing cultural observance
days; (10) continuing consultation with the State Historic Preservation
Division and Kahu Kū Mauna Council regarding protocols for the relocation of
(continued. . .)
54
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
measures included project level measures, as well as the
University’s commitment to decommissioning the CSO, Hōkū Keʻa,
and the UKIRT telescopes by the time TMT is operational.
Appellants assert that these measures are insufficient and
that, in any event, there is no commitment to restore the
abandoned Poliʻahu Road and to decommission three telescopes. FOF
344 indicates, however, that TIO committed to restore the closed
access road on Puʻu Poliʻahu in accordance with plans already
approved by the DLNR. Also, the University committed to the
decommissioning and restoration of the CSO, Hōkū Keʻa, and the
UKIRT telescopes by the time TMT is operational. Moreover,
Special Conditions 10 and 11 for the CDUP provide:
10. The University will decommission three telescopes
permanently, as soon as reasonably possible, and no new
observatories will be constructed on those sites. This
commitment will be legally binding on the University and
shall be included in any lease renewal or extension
proposed by the University for Mauna Kea;
11. Notwithstanding any lease renewal or extension,
consistent with the Decommissioning Plan, at least two
additional facilities will be permanently decommissioned by
December 31, 2033, including the Very Long Baseline Array
antenna and at least one additional observatory.32
(continued. . .)
the modern shrine (11) working with OMKM to develop and implement a wēkiu bug
habitat restoration study (12) developing and implementing an invasive
species prevention and control program; and (13) continuing consultations
with cultural practitioners.
32
Although Special Condition 11 lacks the language included in Special
Condition 10 specifying that it is a legally binding commitment, we interpret
it and the other conditions included in the BLNR’s Decision and Order to be
similarly binding.
55
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
With respect to the decommissioning commitment and
requirement, the University owns four telescopes on Mauna Kea:
UKIRT, JCMT, Hōkū Keʻa, and the University 2.2-meter Telescope.
The University operates the University 2.2-meter Telescope and
Hōkū Keʻa; UKIRT and JCMT are operated by other organizations.
CSO and Hōkū Keʻa have already submitted their notices of intent
to decommission. The University has also committed to
decommission UKIRT by the time TMT becomes operational. In
addition, Special Condition 11 requires that the Very Long
Baseline Array antenna and at least one additional observatory
be decommissioned by December 31, 2033.
With respect to funding for decommissioning, in January
2010, OMKM promulgated a Decommissioning Plan as a Sub-Plan of
the Mauna Kea Comprehensive Management Plan. The
Decommissioning Plan calls for all new telescopes and existing
telescopes that renegotiate their subleases to develop
decommissioning funding plans to provide assurances of funds to
finance the removal of their facilities and restore sites when
the time to decommission arrives. The CSO decommissioning will
be performed under the Decommissioning Plan. TIO has also
committed to decommissioning the TMT under the Decommissioning
Plan. Its funding plan calls for depositing a million dollars
per year, with adjustments for inflation, commencing upon
observatory operation for the 50-year useful life of the TMT.
56
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
The University is responsible for funding and executing the
decommissioning of its own facilities. Before the transfer of
ownership of the UKIRT and JCMT facilities to itself, the
University secured $2.5 million for each telescope from the
United Kingdom to defray the anticipated costs of
decommissioning those telescopes.
Thus, contrary to Appellants’ assertion, there are
commitments to restore the abandoned Poliʻahu Road and to
decommission three telescopes by the time TMT is operational.
There is also a requirement to decommission two additional
telescopes by December 31, 2033, a commitment to not seek any
additional telescope sites to replace the five telescopes that
will be removed, and a plan for decommissioning other
telescopes, including the TMT.
It was appropriate for the BLNR to consider these measures
in its HAR § 13-5-30(c)(4) analysis. Kilakila III, 138 Hawaiʻi
at 404-05, 382 P.3d at 216-17; Morimoto v. Bd. of Land & Natural
Res., 107 Hawaiʻi 296, 303, 113 P.3d 172, 179 (2005).
The BLNR also recognized that “[t]he incremental nature of
a project’s impacts, standing alone, cannot endlessly justify
development within an existing developed area[,]” but found
that, “in this case, the TMT Project’s compliance with all
applicable rules, regulations, and requirements, the Master
Plan, CMP, sub-plans, and the TMT Management Plan, along with
57
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
the mitigation measures committed to in the TMT Final EIS, CDUA,
and TMT Management Plan, demonstrate that the TMT Project will
not cause substantial adverse impact to the existing natural
resources within the surrounding area, community, or region
under HAR § 13-5-30(c)(4).” Because (1) the TMT will not cause
substantial adverse impact to existing plants, aquatic life and
wildlife, cultural, historic, and archaeological sites,
minerals, recreational sites, geologic sites, scenic areas,
ecologically significant areas, and watersheds, (2) mitigation
measures of restoring the abandoned Poliʻahu Road and
decommissioning five telescopes will be adopted, and (3) other
measures to lessen the impacts of the TMT will be adopted, the
BLNR did not clearly err in concluding that the TMT will not
have a substantial adverse impact to existing natural resources
within the surrounding area, community, or region, as prohibited
by HAR § 13-5-30(c)(4).
b. HAR § 13-5-30(c)(5)
HAR § 13-5-30(c)(5) required the BLNR to evaluate whether
“[t]he proposed land use, including buildings, structures, and
facilities, [is] compatible with the locality and surrounding
areas and appropriate to the physical conditions and
capabilities of the specific parcel or parcels.” Appellants
specifically challenge the BLNR’s conclusion that TMT is
“compatible with the locality and surrounding areas.” In this
58
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
case, the BLNR analyzed the TMT for purposes of HAR § 13-5-
30(c)(5) in the context of the 525-acre Astronomy Precinct of
the MKSR. In Kilakila III, we affirmed the BLNR’s analysis of
the ATST project within the Haleakalā High Altitude Observatory
(“HO”) site, a single, highly developed 18.166-acre area within
a much larger conservation district. Kilakila III, 138 Hawaiʻi
at 405, 382 P.3d at 217. Appellants argue that the area
evaluated for impacts for the ATST on Haleakalā differs
significantly from the 525-acre Mauna Kea Astronomy Precinct,
which encompasses an area including the summit and Northern
Plateau areas of Mauna Kea.
There do not appear to be any clear criteria as to how to
determine what should constitute the appropriate “locality and
surrounding areas.” Nonetheless, total deference to the BLNR’s
decision regarding the area to be evaluated would allow many of
the HAR § 13-5-30(c) criteria to be circumvented through
strategic delineation, and there accordingly must be a sound and
rational basis for defining the relevant locale.
In this case, it is true that Astronomy Precinct is 525
acres, and much larger than the site evaluated in Kilakila III.
Under the MKSR Master Plan, however, astronomy development is
restricted to a defined 150-acre portion of the 525-acre
Astronomy Precinct. The issue raised by Appellants regarding
HAR § 13-5-30(c) is whether “[t]he proposed land use . . . [is]
59
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
compatible with the locality and surrounding areas. . . .” The
BLNR noted that the proposed location of the TMT Project is a
half mile from the summit area, in proximity to the eleven other
previously developed facilities for astronomy within the
Astronomy Project. Therefore, on these facts, we cannot say
that the BLNR erred in concluding that the TMT Project is
“compatible with the locality and surrounding areas.”
c. HAR § 13-5-30(c)(6)
HAR § 13-5-30(c)(6) (1994) provides: “The existing physical
and environmental aspects of the land, such as natural beauty
and open space characteristics, will be preserved or improved
upon, whichever is applicable[.]”
Appellants allege this requirement was not met. The BLNR
points out that, in Kilakila III, we upheld the BLNR’s findings
and conclusions with respect to § 13-5-30(c)(6) on the grounds
that:
BLNR noted that “[t]he ATST will not enhance the natural beauty
or open space characteristics of the HO site.” However, because
“[t]he HO site contains various astronomy facilities, including
support buildings, roads and parking lots[,]” and “the proposed
ATST is similar to existing facilities,” BLNR concluded that
“[t]he ATST will be consistent with and will preserve the
existing physical and environmental aspects of
the land. . . .” Additionally, BLNR considered numerous
mitigation commitments in the CDUA, which were designed to
mitigate impacts on biological resources. . . . Therefore,
similar to its analysis of HAR § 13-5-30(c)(4), BLNR articulated
with “reasonable clarity” why the ATST would preserve the
existing physical and environmental aspects of the land.
They cite to Kilakila III, 138 Hawaiʻi at 407, 382 P.3d at 219.
60
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
The BLNR cites to various measures, including the removal
of telescopes from the summit ridge, which will be taken to
preserve the natural beauty and open space characteristics of
the land. Furthermore, the University formally committed that
this is the last new area of Mauna Kea where a telescope project
would be sought. The BLNR’s findings with respect to HAR § 13-
5-30(c)(6) are not clearly erroneous.
Therefore, Appellants’ allegations based HAR § 13-5-30(c)
are without merit.
D. Other Procedural Issues
1. Whether the original CDUA should have been stricken
and a new CDUA required.
MKAH Appellants argue the Hearing Officer erred when she
denied their motion to strike the CDUA because TIO and TOC are
different corporations. They assert the CDUA “should have been
stricken and a new application submitted” because the CDUA had
been brought by UHH on behalf of TOC, not on behalf of TIO.
The sections of the Hawaiʻi Administrative Rules cited by
the MKAH Appellants do not support their position. HAR § 13-5-
31 (1994) does not explicitly state who may apply for a permit;
rather, it requires the signature of the landowner. HAR § 13-5-
31(a)(5). HAR § 13-5-31(b) then allows “the State of Hawaii or
government entity with management control over the parcel” to
sign as landowner when the CDUA pertains to state or public
61
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
land. The rules do not require the CDUA applicant to submit a
new application after a change in developers.33
Appellants assert they were not given an opportunity to
comment on the actual entity for which the CDUP was ultimately
intended. Appellants had ample opportunity during the contested
case hearing, however, to comment on TIO, challenge its
participation by opposing its admission as a party, and cross-
examine its witnesses.
Therefore, this point of error is without merit.
2. What the nature of the proceeding was below, and
whether there is an appropriate record on appeal.
Appellant Temple of Lono asserts that the manner in which
the proceedings were handled after remand makes it unclear
whether this was a new contested case or a resumption of the
prior contested case. It argues that if the remand was treated
as initiation of a new contested case, then the process had to
provide some means for people to qualify as parties by
requesting a contested case, such as a public hearing, citing to
HAR § 13-1-29 (2009). It further asserts that after remand, the
BLNR stated that the contested case was being “resumed” but also
stated that “no chapter 92 public meeting was required to “start
up” the contested case. It asserts that, after remand, the
33
If a proposed project has changed significantly, however, it appears an
amended application would be required to comport with due process
requirements of adequate notice and an opportunity to be heard on the actual
project.
62
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
proceeding “ended up as a hybrid recognized nowhere in the
rules.”
Appellant Temple of Lono appears to misapprehend the
difference between a “contested case” and a “contested case
hearing.” “‘Contested case’ means 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 (1993 & Supp. 2017). In Mauna Kea I, we
vacated the judgment that followed the first contested case
hearing and remanded the case for a new hearing without
dismissing the contested case itself. 136 Hawaiʻi at 399, 363
P.3d at 247. Thus, in the contested case hearing after remand,
just as in a new trial after remand, a new record on appeal is
created based on admitted evidence.
The Hearing Officer therefore appropriately
included in the record on appeal filings from the contested case
up until the point in time that the CDUA was originally
approved. She then continued the proceeding from that point,
with filings and evidence from the second contested case
hearing. This point of error is therefore without merit.
3. Whether TIO and PUEO should have been admitted as
parties.
MKAH Appellants, Appellant Temple of Lono, and Appellant
Fergerstrom assert the Hearing Officer and the BLNR erred by
63
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
admitting TIO and PUEO as parties to the contested case hearing
after our remand in Mauna Kea I. They assert TIO and PUEO’s
motions to intervene were not timely because they were filed
after our remand, five and a half years after the February 25,
2011 board meeting at which the BLNR approved the CDUA and
ordered that a contested case hearing be held.
As discussed in the previous section, we remanded for a new
“contested case hearing,” and did not require initiation of a
new “contested case.” Admitting interested parties to
participate for the new contested case hearing on remand was
consistent with the due process concerns of Mauna Kea I. See
id. Also, HAR § 13-1-31(a) (2009) requires the decision maker
to determine the parties “within a reasonable time following the
ten-day period following the board meeting.” The “board
meeting” in question is “the board meeting at which the subject
matter of the request is scheduled for board disposition”
identified in HAR § 13-1-29 (2009), which, in this case, was the
February 25, 2011 board meeting.
HAR § 13-1-31(b) and (c) (2009), however, do not support
Appellants’ assertion that TIO and PUEO’s applications were
untimely. Subsection (b) gave the Hearing Officer authority to
admit parties based “upon timely application.” Subsection (c)
gave the Hearing Officer discretion to admit parties “who can
show a substantial interest in the matter” so long as “the
64
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
requestor’s participation [would] substantially assist the board
in its decision making.”
Although PUEO and TIO “were not admitted “at the ‘same
time’ as the request for [the MKAH Appellants] on or about
February 25, 2011 for a contested case hearing,” there was no
abuse of discretion or other error. Although HAR § 13-1-31(d)
(2009) states, “All persons with similar interests seeking to be
admitted as parties shall be considered at the same time so far
as possible[,]” it does not preclude a later addition of
parties.
Thus, the intervention of new parties after remand from
this court was not erroneous.
4. Whether the Hearing Officer’s scheduling of
presentations by the parties violated Appellants’ due
process rights.
This issue arises out of an August 23, 2016 procedural
ruling by the Hearing Officer requiring all parties to
simultaneously submit witness lists, their witnesses’ written
direct testimonies, exhibit lists, and exhibits, at a date to be
set sometime in October 2016. Appellants argue that as the
party seeking the CDUP, UHH had the burden of presenting a case
sufficient to secure the BLNR’s approval of the CDUA, citing to
HAR § 13-1-35(k) (2009), which provides:
The party initiating the proceeding and, in the case of
proceedings on alleged violations of law, the department, shall
have the burden of proof, including the burden of producing
65
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
evidence as well as the burden of persuasion. The quantum of
proof shall be a preponderance of the evidence.
They assert that opponents have no burden of proof and should
not have been required to put on their case simultaneously with
UHH. They further assert that requiring them to prepare their
case without seeing UHH’s case violated their due process
rights.
The Hearing Officer has discretion to determine hearing
procedures pursuant to HAR § 13-1-32(b) and (c) (2009), but it
appears that there was an abuse of that discretion. As
Appellants argue, UHH had the burden, and even if exhibit lists
and exhibits were properly ordered to be simultaneously
submitted, the opponents of granting a permit for construction
of the TMT should not have been required to submit their
testimonies simultaneously with UHH. Despite the Hearing
Officer’s initial deadline, however, Appellants were able to add
new witnesses and exhibits throughout the evidentiary proceeding
well past that deadline, and rebuttal witnesses were allowed
upon a showing of good cause. Moreover, Appellants do not
allege any actual prejudice due to the initial simultaneous
submission requirement. Thus, Appellants were provided their
due process right “to be heard at a meaningful time and in a
66
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
meaningful manner[.]” Sandy Beach Def. Fund v. City Council, 70
Hawaiʻi 361, 378, 773 P.2d 250, 261 (1989) (citations omitted).34
5. Whether the Hearing Officer improperly failed to
provide required rulings and explanations for
thousands of proposed findings of fact.
Appellant Temple of Lono asserts the Hearing Officer failed
to comply with the requirement to provide a ruling on each of
its proposed FOFs. It cites HRS § 91-12 (1993), which provides
as below, with emphases added:
Decisions and orders. Every decision and order adverse
to a party to the proceeding, rendered by an agency in a
contested case, shall be in writing or stated in the record and
shall be accompanied by separate findings of fact and conclusions
of law. If any party to the proceeding has filed proposed
findings of fact, the agency shall incorporate in its decision a
ruling upon each proposed finding so presented. The agency shall
notify the parties to the proceeding by delivering or mailing a
certified copy of the decision and order and accompanying
findings and conclusions within a reasonable time to each party
or to the party’s attorney of record.
The Hearing Officer’s Proposed Findings of Fact,
Conclusions of Law, Decision and Order stated in the
Introduction section:
Any proposed finding of fact submitted by the parties which is
not specifically incorporated is rejected for one or more of the
following reasons:
34
In Point of Error D(5), Appellant Temple of Lono asserts there was
often significant time between the filing of its motions and issuance of
rulings on those motions, and asserts eighteen motions were not decided or
decided late. Of the eighteen motions, all but one were filed after the July
18, 2016 motions deadline, and the Hearing Officer eventually ruled on all
motions. In Point of Error D(6), the Temple alleges that the Hearing Officer
refused to provide “reasoned explanations” for her rulings. The record
indicates that explanations were provided to the Temple for all of the
rulings. Therefore, these points of error lack merit.
67
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
-- They are repetitious or similar to the Hearing Officer’s own
findings of fact or conclusions of law or decision and order,
and/or
-- They are not supported by reliable and/or probative evidence,
and/or
-- They are in whole or in part not supported by and/or are
contrary to the facts or law, and/or
-- They are immaterial, superfluous, and/or irrelevant to the
material facts, issues, and/or law of this case.
Appellant Temple of Lono alleges that without specific
rulings on each proposed finding, a party is left to first
search out which proposed findings the Hearing Officer rejected.
It asserts that the proposing party must engage in pure
speculation as to which of the above possible reasons or
combination of reasons a proposed finding had been rejected, and
that this process does not provide a meaningful opportunity to
file exceptions.
In Mitchell v. BWK Joint Venture, 57 Haw. 535, 540-43, 560
P.2d 1292, 1296-97 (1977), we held that HRS § 91-12 was not
violated when a board rejected wholesale a number of
proposed findings “for the reason that these findings of fact
had been disapproved by the board or were repetitious of
testimony which was already in evidence”. We also stated:
The respondent offered 53 proposed findings, of which the Board
accepted 20. It rejected the remaining proposed findings “because
they are, in whole or in part, contrary to the facts or the law
or because they are immaterial.” Such a statement indicated the
Boardʼs ruling with respect to its adoption or rejection of all
53 of the proposed findings, and we see no objection to
including all 53 rulings in one sentence instead of 53 separate
sentences.
68
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Mitchell, 57 Haw. at 541-42, 560 P.2d at 1296-97(emphasis
added). In Application of Hawaiian Tel. Co., we also stated
that “[i]t is a settled rule in administrative law that a
separate ruling on each proposed finding filed by a party is not
indispensable. . . . All that is required is that the agency
incorporate its findings in its decision.” 54 Haw. 663, 668,
513 P.2d 1376, 1379 (1973) (citation omitted). Also, the ICA
ruled in Outdoor Circle v. Harold K.L. Castle Tr. Estate, that
where an agency “made and incorporated reasonably clear
findings” and “[b]y choosing those, it impliedly rejected all
others,” the agency did not violate HRS § 91-12. 4 Haw. App.
633, 645, 675 P.2d 784, 792 (1983). The ICA also ruled in
Survivors of Timothy Freitas, Dec. v. Pac. Contractors Co., that
HRS § 91-12 does not require “a separate ruling on each proposed
finding”. 1 Haw. App. 77, 84, 613 P.2d 927, 932 (1980). To the
extent the Hearing Officer did not adopt the Temple of Lono’s
proposed findings, they were impliedly rejected on the merits.
Therefore, this point of error is also without merit.35
35
Finally, in Point of Error D(8), Appellant Temple of Lono asserts that
because the new Hearing Officer knew that the BLNR had earlier approved the
permit, there is a question of how the Hearing Officer “would be any less
influenced by the premature approval of the permit than the hearing officer
in the first proceeding.” In Mauna Kea I, however, we ordered that the
permit issued in the first proceeding be vacated and the matter remanded to
the BLNR “so that a contested case hearing can be conducted before [the BLNR]
or a new hearing officer, or for other proceedings consistent with this
opinion.” Mauna Kea I, 136 Hawaiʻi at 381, 399, 363 P.3d at 229, 247. The
Hearing Officer was therefore required to read the court’s opinion, which
details the previous procedural history. If Appellant Temple of Lono’s
(continued. . .)
69
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
VI. Conclusion
Upon our careful review of the issues raised in these
appeals as discussed above, we affirm the BLNR’s September 27,
2017, Decision and Order authorizing issuance of a CDUP for the
TMT.
Richard Naiwieha Wurdeman /s/ Mark E. Recktenwald
for appellants
Mauna Kea Anaina Hou, /s/ Sabrina S. McKenna
Kealoha Pisciotta,
Clarence Kukauakahi /s/ Richard W. Pollack
Ching, Flores-Case ʻOhana,
Deborah J. Ward, Paul K. /s/ Jeannette H. Castagnetti
Neves, and Kahea:
The Hawaiian Environmental
Alliance
Gary Z. Zamber
for intervenor-appellants
Temple of Lono, Mehana
Kihoi, Joseph Kualiʻi Camara,
Leinaʻala Sleightholm,
Kalikolehua Kanaele,
Tiffnie Kakalia, Brannon
Kamahana Kealoha, Cindy
Freitas, and William Freitas
Intervenor-appellant
Harry Fergerstrom, pro se,
on the briefs
(continued. . .)
position was correct, there could never be a new contested hearing after
remand if an agency or hearing officer was aware of the prior ruling that had
been set aside; decisions of judges are also sometimes vacated and remanded
to them for further proceedings consistent with an appellate court’s
decision. Thus, this point of error is also without merit.
70
** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Clyde J. Wadsworth
(William J. Wynhoff, Kimberly
Tsumoto Guidry, Julie China,
and Kalikoʻonalani D. Fernandes
with him on the briefs)
for appellees State of Hawaiʻi,
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 Hawaiʻi 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.
71