Kilakila 'O Haleakala v. Board of Land and Natural Resources. ( 2016 )

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Electronically Filed
Supreme Court
SCWC-13-0003065
06-OCT-2016
09:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
KILAKILA #O HALEAKALÂ, Petitioner/Appellant-Appellant,
vs.
BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND
NATURAL RESOURCES, SUZANNE CASE,1 in her official capacity as
Chairperson of the Board of Land and Natural Resources, and
UNIVERSITY OF HAWAI#I,
Respondents/Appellees-Appellees.
SCWC-13-0003065
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0003065; CIV. NO. 12-1-3070)
OCTOBER 6, 2016
RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.,
WITH McKENNA, J., CONCURRING SEPARATELY, AND
POLLACK, J., DISSENTING SEPARATELY, WITH WHOM WILSON, J.,
JOINS IN PART, AND WILSON, J., DISSENTING SEPARATELY
1
State of Hawai#i Board of Land and Natural Resources (BLNR)
chairperson Suzanne Case was automatically substituted as a respondent/
appellee-appellee in place of former BLNR chairperson William J. Aila, Jr.,
who was sued in his official capacity. Hawai#i Rules of Appellate Procedure
(HRAP) Rule 43(c)(1) (2010).
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OPINION OF THE COURT BY RECKTENWALD, C.J.
This case concerns a conservation district use permit
for construction of the Advanced Technology Solar Telescope
(ATST) on the island of Maui, in an area at the summit of
Haleakalâ that was set aside for astronomical observatories in
1961. Haleakalâ is a site of great cultural and spiritual
importance to the Native Hawaiian community. It also bears
scientific significance for astronomical studies, and is a
popular visitor destination.
The Board of Land and Natural Resources (Board or BLNR)
granted a permit for the University of Hawai#i (UH) to construct
the ATST.2 Kilakila #O Haleakalâ (Kilakila), an organization
“dedicated to the protection of the sacredness of Haleakalâ[,]”
challenged BLNR’s approval of the permit to construct the ATST.
Kilakila appealed to the Circuit Court of the First Circuit and
the Intermediate Court of Appeals, and both courts affirmed
BLNR’s decision.
This court granted certiorari review. We conclude that
the permit approval process was not procedurally flawed by
prejudgment because BLNR’s initial permit was voided. Nor was it
flawed by impermissible ex parte communication because BLNR
2
The ATST has been the subject of much litigation, including
Kilakila #O Haleakalâ v. Bd. of Land & Nat. Res., 131 Hawai#i 193, 317 P.3d 27
(2013) (Kilakila I), Kilakila #O Haleakalâ v. Univ. of Hawai#i, 134 Hawai#i 86,
332 P.3d 688 (App. 2014), cert. granted, SCWC-13-0000182 (Sept. 12, 2014),
which we are deciding today, and the case at bar.
2
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removed the original hearing officer after he communicated with a
party, and the BLNR Chairperson’s meeting with non-parties did
not address the merits of the permit approval process. We
further conclude that BLNR validly determined that the ATST met
the applicable permit criteria and was consistent with the
purposes of the conservation district.
Accordingly, we conclude that BLNR properly granted the
permit and affirm the ICA’s judgment.
I. Background
A. Haleakalâ, the Haleakalâ High Altitude Observatory, and the
Proposed Advanced Technology Solar Telescope
The summit of Haleakalâ has important cultural
significance to Native Hawaiians. Cultural assessments performed
for the ATST determined that the Haleakalâ summit is one of the
most sacred sites on Maui, and the Haleakalâ Crater is known as
“where the gods live.” The summit was traditionally used by
Native Hawaiians as a place for religious ceremonies, for prayer
to the gods, to connect to ancestors, and to bury the dead.
Native Hawaiians continue to engage in some of these practices at
the summit.
The Haleakalâ summit consists of three volcanic cones,
and all are partially developed. One volcanic cone includes
facilities belonging to the County of Maui, the State of Hawai#i,
and the federal government. The second cone houses Haleakalâ
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National Park’s popular visitor outlook. In 1961, Hawai#i
Governor William Quinn set aside 18.166 acres on the third
volcanic cone, Pu#u Kolekole, as the site of the Haleakalâ High
Altitude Observatory (HO). Since this designation by Governor
Quinn, the site has been used for astronomical observatories and
is the only site at Haleakalâ used for these purposes. The HO
currently consists of eight research facilities “for advanced
studies of astronomy and atmospheric sciences” owned by UH and
managed by the UH Institute of Astronomy (UHIfA).
The HO is located in a conservation district, as
categorized by the State Land Use Commission. Land within a
conservation district is divided into subzones. See HAR § 13-5-
10 (1994). The HO is in a “general subzone,” which seeks to
“designate open space where specific conservation uses may not be
defined, but where urban use would be premature.” HAR § 13-5-
14(a) (1994). Several types of land use are permitted in the
general subzone, including astronomical facilities. See HAR
§ 13-5-24 (1994) (listing “[a]stronomy facilities under an
approved management plan” as one of the allowable uses in a
resource subzone); HAR § 13-5-25 (1994) (stating that “[i]n
addition to the land uses identified [for general subzones], all
identified land uses . . . for the protective, limited, and
resource subzones also apply to the general subzone, unless
otherwise noted”).
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Over the past two decades, the proposed ATST was
developed through the work of the Association of Universities for
Research in Astronomy, the National Solar Observatory, and the
National Science Foundation. Astronomers and other scientists
determined that there was a world-wide need for a telescope
capable of taking high-resolution images of the sun to study its
solar magnetic fields and its relation to solar energy, sunspots,
and flares. No current or planned ground-based or space-based
telescope in the world has this capability. The ATST would
consist of an 142.7-feet tall telescope observatory structure, a
support and operations building, a utility building, a parking
lot, a wastewater treatment plant, and modifications to an
existing observatory. In 2004, after studying 72 potential
sites, Haleakalâ was chosen as the best site for the ATST because
it met or exceeded all requirements.
B. Application for Conservation District Use Permit
The ATST requires a conservation district use permit
(CDUP) because the HO is located in a conservation district. On
March 1, 2010, UHIfA submitted a conservation district use
application (CDUA) to BLNR pursuant to HAR § 13-5-31(a)3 and HAR
3
HAR § 13-5-31(a) (1994) details the requirements for a permit
application:
(1) A draft or final environmental assessment, draft
or final environmental impact statement, or proof of
an exemption or request for an exemption from the
chapter 343, HRS, process, as applicable;
(continued...)
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§ 13-5-39(a)4. The CDUA provided a range of detailed information
about the ATST, including a final environmental impact statement
(FEIS) and a management plan (MP).
1. Final environmental impact statement
The FEIS5 was completed in July 2009 and addressed the
environmental impacts associated with the construction and
operation of the proposed ATST Project.6 The impacts were
3
(...continued)
(2) Associated plans such as location map, site plan,
floor plan, elevations, and landscaping plans drawn to
scale;
(3) The proposed land use shall address their
relationship with county general plans and development
plans;
(4) Any other information as determined by the
department;
(5) Signature of the landowner;
(6) Applicable fees;
(7) A minimum of twenty copies (only one original copy
required for site plan approvals) of the application
and all attachments.
4
HAR § 13-5-39(a) (1994) states, “Where required, management plans
shall be submitted with the board permit application[.]” A management plan
was required for the ATST because the site is located in a general subzone.
See HAR §§ 13-5-24,-25.
5
An environmental impact statement is “an informational document
. . . which discloses the environmental effects of a proposed action, effects
of a proposed action on the economic welfare, social welfare, and cultural
practices of the community and State, effects of the economic activities
arising out of the proposed action, measures proposed to minimize adverse
effects, and alternatives to the action and their environmental effects.” HRS
§ 343-2 (Supp. 2008).
6
The FEIS was completed in accordance with several environmental
laws: (1) the Federal National Environmental Policy Act (NEPA) Title 42,
U.S.C. § 4321 and 40 CFR Parts 1500-1508, (2) Hawai#i Environmental Policy Act
(HEPA) HRS § 343 and HAR § 11-200, and (3) BLNR’s requirement for an EIS to
obtain a CDUP under HAR § 13-5-31(a)(1). The National Science Foundation was
(continued...)
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“analyzed under three alternatives, two action alternatives
located within HO: the Mees Alternative (the Preferred
Alternative) and the Reber Circle Alternative, and a No-Action
Alternative.”
The FEIS analyzed the environmental impacts from the
ATST in the following categories: (1) land use and existing
activities, (2) cultural, historic, and archeological resources,
(3) biological resources, (4) topography, geology, and soils, (5)
visual resources and view planes, (6) visitor use and experience,
(7) water resources, (8) hazardous materials and solid waste, (9)
infrastructure and utilities, (10) noise, (11) climatology and
air quality, (12) socioeconomics and environmental justice, (13)
public services and facilities, and (14) natural hazards.7
Most relevant to this appeal are the FEIS’s conclusions
about the impacts on cultural and visual resources from the
construction and operation of the ATST. Regarding the cultural
resources category, the FEIS determined:
Construction and operation of the proposed ATST
Project at either the Preferred Mees or Reber Circle
sites would result in major, adverse, short- and
long-term, direct impacts on the traditional cultural
6
(...continued)
the lead agency responsible for completing the FEIS, and will be funding the
construction of the ATST.
7
The FEIS reported the impacts in each category in several ways.
The impacts were described as direct, indirect, or cumulative, and categorized
as negligible, minor, moderate, or major. The FEIS also determined whether
the impacts were long-term or short-term in duration. Lastly, the FEIS
considered whether mitigation measures would reduce the duration, intensity,
or scale of the impacts.
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resources within the ROI [Region of Influence8]. No
indirect impacts are expected. Mitigation measures
would be implemented; however, those measures would
not reduce the impact intensity: impacts would remain
major, adverse, long-term and direct.
In addition, the FEIS found that “under the No-Action
Alternative, there would continue to be major, adverse,
long-term, direct impacts to traditional cultural resources.”
In the visual resources and view planes category, the
FEIS analyzed the impacts from two general viewpoint areas: (1)
land within Haleakalâ National Park and (2) various areas on the
island of Maui, where the current HO facilities are visible. The
FEIS determined that from either the preferred Mees site or the
Reber Circle site, the direct impact on visual resources within
the Park would be moderate, adverse, and long-term:
No mitigation would adequately reduce this impact.
The new structure would be visible to the point of
co-dominance with other nearby structures. It would
intensify the already developed appearance in its
immediate surroundings, and would also appear to
increase slightly the amount of horizontal space
occupied by structures in views from within the Park.
The new structure would not substantially alter the
existing visual character visible in any view.
Further, the FEIS concluded that from outside the Park,
the impact of building the ATST at either the Mees site or the
Reber Circle site “would result in minor, adverse and long-term
impact to visual resources[,]” and therefore “[n]o mitigation
would be necessary.”
8
“Region of Influence” refers to the HO site and surrounding areas,
including Haleakalâ National Park.
8
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The FEIS also analyzed each category for cumulative
impacts, defined as “impacts from past, present, and reasonably
foreseeable future actions within the ROI . . . combined with the
potential impacts from the proposed ATST Project.” In the
cultural resources category, the FEIS found that the cumulative
impacts would be major, adverse, and long-term at either site and
that implementation of mitigation measures would not reduce these
impacts. In the visual resources category, the FEIS found that
the cumulative impacts would be major, adverse, and long-term
from areas within the Haleakalâ National Park, and negligible,
adverse, and long-term from other areas on Maui.
2. Management plan
UHIfA submitted a draft MP with its CDUA on March 1,
2010, and submitted the final MP to BLNR on June 8, 2010.9 The
MP “is the governing document used for existing and future
development at HO.” It “specifies the design and environmental
criteria that would be followed when implementing development,
and presents strategies for managing, monitoring, and protecting
the various natural and cultural resources[.]”
The Executive Summary section of the MP summarized the
strategies offered by UHIfA to protect cultural, historic, and
9
The MP was meant to supersede and replace the management planning
policies and practices in UHIfA’s Long Range Development Plan (LRDP) from
January 2005. The LRDP described the general conditions at the HO site, the
principles behind the current and future scientific projects that UH planned
at the HO site, and the planning process to protect the Haleakalâ summit.
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archeological resources:
Monitoring strategies are presented to ensure the
protection of cultural, historic, and archeological
resources through policies, practices, and procedures
developed in consultation with Native Hawaiian
practitioners, agencies, interested individuals, and
the Maui community, to ensure that historic
preservation concerns are met. Monitoring strategies
are also presented to prevent introduction of alien
invasive species (AIS), to protect endangered species,
and to educate all workers and contractors as to the
potential impacts of construction and operations on
the cultural and biological resources. Monitoring for
construction practices to protect all resources at the
site is described. Finally, the MP imposes certain
design criteria on new facilities to minimize
inappropriate design elements within the natural
environment at the summit.
A final environmental assessment (FEA) was completed on
October 25, 2010. The FEA examined the anticipated impacts from
the MP’s implementation. The purpose of the FEA was to “inform
the relevant state agencies and the public of the likely
environmental consequences of the MP on ongoing and future
actions at HO in support of astronomical research.” The FEA
concluded that the MP would “either have beneficial, less than
significant, or no impacts on the environment.”10
C. BLNR Administrative Proceedings
BLNR’s review and ultimate approval of UHIfA’s
application involved a series of events which are relevant to
this appeal. As set forth below, these included BLNR’s grant of
a permit, Kilakila’s appeal of that permit, a contested case
10
The sufficiency of the FEA was challenged on appeal to this court
in Kilakila #O Haleakalâ v. Univ. of Hawai#i, 134 Hawai#i 86, 332 P.3d 688
(App. 2014), cert. granted, SCWC-13-0000182 (Sept. 12, 2014).
10
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hearing, ex parte communications involving the hearing officer,
BLNR’s dismissal of that hearing officer and appointment of a new
hearing officer, Kilakila’s motions for disclosure of any
additional ex parte communications, the new hearing officer’s
recommendation to BLNR, and BLNR’s grant of a second permit.
1. BLNR approval of the first ATST permit: CDUP MA-3542
On November 22, 2010, BLNR held its first public
hearing on the ATST’s MP and CDUA. On December 1, 2010, BLNR
approved the MP and granted CDUP MA-3542 during its regular board
meeting. CDUP MA-3542 permitted the construction of the ATST,
subject to several conditions. Kilakila made three requests for
a contested case hearing11 prior to and immediately after BLNR’s
approval, and BLNR took no action on the requests. Kilakila
subsequently appealed to the circuit court, arguing that BLNR
erred in denying Kilakila’s request for a contested case hearing
11
A contested case hearing is a quasi-judicial administrative
hearing conducted pursuant to HAR § 13-1-28 (2009), which states:
(a) When required by law, the board shall hold a
contested case hearing upon its own motion or on a
written petition of any government agency or any
interested person.
(b) The contested case hearing shall be held after any
public hearing which by law is required to be held on
the same subject matter.
(c) Any procedure in a contested case may be modified
or waived by stipulations of the parties.
11
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and in granting CDUP MA-3542.12 See Kilakila I, 131 Hawai#i at
207, 317 P.3d at 41.
2. Contested case hearing
While the appeal of CDUP MA-3542 was pending, BLNR
granted Kilakila’s request for a contested case hearing, and on
February 11, 2011, Steven Jacobson was appointed as the hearing
officer.
On June 2, 2011, Kilakila filed a motion to disqualify
deputy attorneys general Linda Chow and Julie China from advising
Jacobson or BLNR at the contested case hearing. Kilakila
asserted that Chow and China could not serve as counsel for BLNR
because “[t]hey have filed documents in circuit court arguing
that the BLNR could legally grant a conservation district use
permit for the [ATST].” On June 28, 2011, Jacobson denied
Kilakila’s motion because he would not be relying on advice from
Chow or China in making his recommendation to BLNR. Jacobson
dismissed the motion without prejudice so that Kilakila could
renew its motion after Jacobson issued his recommendation to
BLNR.
The contested case hearing was held over four days,
12
That appeal ultimately resulted in this court’s decision in
Kilakila I, in which we held that the circuit court had jurisdiction over the
appeal pursuant to HRS § 91–14 and that Kilakila’s request for a contested
case hearing should have been granted prior to BLNR’s approval of the permit.
131 Hawai#i at 205-06, 317 P.3d at 39-40. We remanded to the circuit court
regarding Kilakila’s request for stay or reversal of CDUP MA-3542. Id. at
206, 317 P.3d at 40. The parties then stipulated to void CDUP MA-3542, which
ended the appeal.
12
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from July 18-20 and on August 26, 2011. On February 23, 2012,
Jacobson issued his proposed findings of fact, conclusions of
law, and decision and order, recommending approval of the permit.
On March 2, 2012, Kilakila renewed its motion, this
time to BLNR, to disqualify Chow and China. Kilakila argued that
Chow and China have “appeared as adversaries to [Kilakila] at
hearings regarding the conservation district use application.”
On March 12, 2012, Jacobson issued his final findings of fact,
conclusions of law, and decision and order, which recommended
that BLNR approve the permit to construct the ATST. On March 16,
2012, BLNR denied Kilakila’s March 2, 2012 motion, noting that
while Chow and China appeared as counsel for BLNR in a prior
circuit court proceeding, “the appearance by the deputy attorneys
general as counsel for the Board in that circuit court proceeding
does not disqualify the deputy attorneys general from advising
the Board in this administrative proceeding.”
3. Minute Order No. 14 regarding ex parte communication
On March 19, 2012, BLNR filed Minute Order No. 14 “RE:
EX PARTE COMMUNICATION[.]” The order explained to the parties
that BLNR had been notified that Jacobson sent an email to
UHIfA’s counsel on March 15, 2012. In the email, which was
attached to the order, Jacobson stated that he had received
“inappropriate ex parte pressure and activity by US Senator
[Daniel] Inouye’s and the Governor’s offices” which “essentially
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required” him to submit an incomplete report and recommendation
to BLNR. Jacobson had contacted “appropriate ethical offices”
and was informed that disclosures were not required where:
(1) neither UHIfA nor its counsel had anything to do
with what the Senator’s and Governor’s offices were
doing, (2) the Board and courts disregard the interim
[proposed] report and recommendations and consider
only the final report and recommendations (to the
extent they consider them at all), and (3) Kilakila is
not prejudiced by being shortchanged in time to
respond to the final report and recommendations.
The email from Jacobson concluded with a question to
UHIfA’s counsel as to “whether any of you had anything to do with
what the Senator’s and Governor’s offices were doing.”
BLNR’s order noted that the email between Jacobson and
UHIfA’s counsel “was an unpermitted ex parte communication[,]”
which “call[ed] into question the Hearing Officer’s impartiality”
in relation to his report and recommendation to BLNR. BLNR
stated that it was considering the following actions in response
to the ex parte communication:
1. Striking the Report and Final and Amended Report
from the record;
2. Discharging the Hearing Officer, Steven Jacobson, as the
hearing officer in this case; and
3. Retaining a new hearing officer to review the
record of the proceedings in this case and to issue a
new hearing officer’s report and proposed findings of
fact, conclusions of law, and decision and order. The
new hearing officer would be authorized to conduct
additional fact finding as necessary.
BLNR scheduled a hearing and invited the parties to
file comments or objections to the proposed actions.
On March 20, 2012, Jacobson filed a response to BLNR’s
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order, describing what he characterized as the pressure placed on
him by the Governor’s office to release his recommendation and to
consult deputy attorney general Chow:
In this file, while preparing my report and
recommended decision, considerable ex parte pressure
was placed upon me to simply spit out a recommended
decision quickly, so that the Board would have
something before it, to approve. That pressure
included requiring me to make daily reports to both
the Health Department and the Board’s Chair as to how
soon I contemplated finishing, what else I thought I
needed to do, why I thought I had to do it, etc.
The pressure included a “suggestion” that Deputy
General Chow be given a role in completing the
decision.
I was advised that the pressure was generated by
a staffer in US Senator Inouye’s office, and applied
through the Governor’s office. I was not asked to
recommend a particular result, although the result
Senator Inouye’s office wanted from the Board was
clear. I did not see any evidence that anyone else
(i.e., anyone in State Government), wanted any
particular result, and the Board’s Chair, in
particular, made clear that all he wanted to know was
when this matter could be put on the Board’s calendar.
My initial [proposed] report and recommended
decision herein were filed as a result of “or else”
pressure. The only way the pressure affected my
initial [proposed] report and recommended decision was
that they were incomplete. I made no substantive
changes in light of comments by Ms. Chow.
I then completed my final report and
recommendations. In completing them, the only effect
of the previous pressure upon me (which had been
withdrawn) was that I very carefully went through
everything UHIfA submitted, again, to be sure that I
hadn’t missed something that those favoring the ATST
Project might be hoping that I would miss.
Again, nothing substantive was changed due to
anything said by Ms. Chow. The final report and
recommendations are entirely mine.
UH responded to Minute Order No. 14 by “urg[ing]” BLNR
to review the record and issue a decision without appointing a
new hearing officer. In the alternative, UH requested that:
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“(1) the additional fact finding should be limited to a site
visit; and (2) the new Hearing Officer should be required to
respond to the Board within a reasonable time frame.” Kilakila
also responded, requesting the appointment of a new hearing
officer as well as disclosures of “any communications tending to
show that external pressure was applied to affect the outcome of
[the] proceeding.”
4. Minute Order No. 15 discharging hearing officer
Jacobson
On March 29, 2012, following a hearing on the issue of
the ex parte communications, BLNR filed Minute Order No. 15,
which discharged Jacobson and authorized the appointment of a new
hearing officer “to avoid even the appearance of impropriety.”
BLNR concluded that the email from Jacobson to UHIfA’s counsel
was “an unpermitted ex parte communication in violation of
Hawai#i Administrative Rules (HAR) § 13-1-37.”13 BLNR also struck
13
HAR § 13-1-37 (2009) provides:
(a) No party or person petitioning to be a party in a
contested case, nor the party’s or such person’s to a
proceeding before the board nor their employees,
representatives or agents shall make an unauthorized
ex parte communication either oral or written
concerning the contested case to the presiding officer
or any member of the board who will be a participant
in the decision-making process.
(b) The following classes of ex parte communications
are permitted:
(1) Those which relate solely to matters which a
board member is authorized by the board to dispose of
on ex parte basis.
(continued...)
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Jacobson’s recommendation from the record and authorized the new
hearing officer to make a ruling regarding Kilakila’s standing,
issue a new recommendation within sixty days of appointment,
schedule a site visit with the parties, hold additional
evidentiary hearings as necessary, and consider a supplemental
environmental assessment dated February 10, 2012.
5. Kilakila’s motion for disclosure
On March 30, 2012, Kilakila filed a motion for
disclosure of BLNR’s communications regarding the ATST.
Kilakila’s motion sought:
[T]o have each member of the BLNR disclose any and all
communication (written, electronic and oral) that
mentioned or related to the University’s proposed
Advanced Technology Solar Telescope except for (a)
communications between board members; (b)
communications between any board member and the
Board’s counsel; (c) any board meeting when the ATST
was a subject matter of the agenda.
The request included “any and all communication with
Senator Inouye or his staff, the Governor or his staff,
politicians, union leaders and members and construction industry
representatives that mentioned or related to the [ATST].”
In support of the motion, Kilakila cited hearing
officer Jacobson’s statements regarding the ex parte
13
(...continued)
(2) Requests for information with respect to the
procedural status of a proceeding.
(3) Those which all parties to the proceeding
agree or which the board has formally ruled may be
made on an ex parte basis.
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communications, as well as testimony from a former superintendent
of Haleakalâ National Park who also noted pressures from Senator
Inouye’s office regarding the ATST:
While serving as superintendent, I was well
aware of Senator Inouye’s displeasure with my
statements/comments against the construction of the
ATST. His staff assistant, James Chang placed heavy
pressure on me to mute objections that the National
Park Service had regarding the impacts of the ATST.
For example, in a meeting with Mr. Chang, he strongly
encouraged me to go along with the construction of the
ATST project. When I stated it was my job to guard
against such extreme impacts to this majestic national
park, he indicated that he would go to the Secretary
of the Interior to override my objections.
UH opposed Kilakila’s motion, arguing that the request
was a “fishing expedition” with no factual or legal basis. In
reply, Kilakila asserted that it was aware of at least one ex
parte communication between a member of BLNR and the Governor’s
office. Kilakila attached emails obtained pursuant to a records
request from the Governor’s office, which provided evidence of a
meeting on March 21, 2012 between the Governor’s office, the
Attorney General’s office, Senator Inouye’s office, and BLNR
Chairperson William Aila to discuss the ATST. These include a
March 21, 2012 email between Bruce Coppa, the Governor’s chief of
staff, and another staff member. The staff member informs Coppa,
“Jennifer [Sabas, Senator Inouye’s chief of staff,] requested a
meeting today at 3 p.m. to discuss the telescope, hearings
officer and funding issue. AG will be coming in and Chair Aila
is pending.”
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6. Minute Order No. 23 partially granting Kilakila’s
motion for disclosure
On June 24, 2012, BLNR issued Minute Order No. 23
granting Kilakila’s motion only “with regard to the meeting held
on March 21, 2012[.]” BLNR informed Kilakila and UHIfA that a
meeting occurred on March 21, 2012, in which Aila participated.
BLNR noted that “[d]uring the meeting the sole topic of
discussion was when the recommended decision in this contested
case would be issued by the hearing officer, Steven Jacobson.”
BLNR concluded that no further action was warranted:
Inasmuch as no party was present during the meeting,
there was no ex parte communication with the hearing
officer or any member of the Board. Even if a party
were present, the discussion . . . comes within the
purview of Hawai#i Administrative Rule (HAR) § 13-1-37
as a permitted communication related to requests for
information with respect to the procedural status of a
proceeding. No further action is required regarding
this communication.
BLNR noted that Kilakila failed to “provide a time
frame or context for the requested disclosures” and thus its
“motion may encompass communications that occurred long before
this matter was the subject of a contested case.” BLNR further
noted that Kilakila failed to show any communications beyond what
was allowed under HAR § 13-1-37 and that its motion was “based,
at most, upon mere speculation.” Finally, BLNR concluded that it
had not “acted in any manner other than as an impartial
adjudicator” and that any prejudice to Kilakila had been
rectified by the discharge and replacement of hearing officer
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Jacobson.
7. Kilakila’s motion to reconsider Minute Order No. 23
On June 8, 2012, Kilakila filed a motion to reconsider
Minute Order No. 23. Kilakila alleged that the “sole topic” of
the March 21, 2012 meeting could not have been the timing of the
release of Jacobson’s recommendation because Jacobson had already
issued his initial and final decisions at this point. Kilakila
also requested communications between any member of BLNR and
“anyone else” that related to the ATST:
[F]or the sake of appellate court review, this Board
should respond definitively as to whether or not there
were any communications (oral, written or electronic)
between any member of the Board and anyone else that
mentioned or related to the University’s proposed
Advanced Technology Solar Telescope with anyone
(except for (a) communications between board members;
(b) communications between any board member and the
Board’s counsel; (c) any board member when the ATST
was a subject matter on the agenda) from the time that
Kilakila #O Haleakalâ requested a contested case
hearing.
On July 13, 2012, BLNR granted Kilakila’s motion in
part, amending Minute Order No. 23: “During the meeting, the
sole topic of discussion was when the final decision in the
contested case would be issued, in light of Minute Order No. 14
[regarding Jacobson’s ex parte communication], filed on March 19,
2012.”
8. Hearing officer Ishida’s recommendation
On July 16, 2012, the new hearing officer, Lane Ishida,
filed a report, proposed findings of fact and conclusions of law,
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decision, and order, which recommended that BLNR grant the CDUP,
subject to several conditions. To support her recommendation,
Ishida made several findings, including that the ATST was
consistent with the purposes of the conservation district and
general subzone, would not cause substantial adverse impact to
existing natural resources, and would not be materially
detrimental to public health, safety, and welfare.
9. Kilakila’s second motion to reconsider Minute Order No.
23
On September 27, 2012, Kilakila filed a second motion
to reconsider Minute Order No. 23. Kilakila attached additional
documents obtained from UH pursuant to a records request. Most
relevant to this appeal are six email communications, which are
summarized as follows:
• January 30, 2012: Mike Maberry (UHIfA), emailed
Jennifer Sabas, Senator Inouye’s chief of staff,
regarding the ATST. Maberry stated that he knew
that Sabas had already spoken with Aila, “but as
previously mentioned, Steve Jacobsen [sic] doesn’t
work for Aila he works for Fuddy. Would it be
possible for you or someone to talk with Fuddy to
see if it could be clarified that Steve’s work
priority is to complete the Finding of Facts,
Conclusions of Law and Recommendation in the ATST
Contested Case?”
• January 30, 2012: In response to Maberry’s email,
Sabas emailed Bruce Coppa, the Governor’s chief of
staff, stating: “can you reach out to loretta
fuddy who apparently the hearing officer is on
contract with rather than dlnr––uh and my feds are
getting really really nervous about losing the
money for the atst.”
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• January 30, 2012: Coppa responded to Sabas,
stating: “I will speak with Loretta. I also spoke
with Bill and asked to please help[.]”
• January 31, 2012: Sabas responded to Coppa
noting, “Thanks. This will be bad if we lose it.”
• January 31, 2012: Maberry emailed Sabas regarding
a potential meeting between the Governor’s office,
Senator Inouye’s office, and BLNR regarding the
ATST. Maberry noted that UH could not meet with
BLNR until after BLNR acted on the hearing
officer’s recommendation “or it could jeopardize
the Contested Case.”
• January 31, 2012: Sabas responded to Maberry
regarding his inability to attend the proposed
ATST meeting and noted that she could “carry the
message and [could] also carry the uh message.”
Kilakila contended that these documents demonstrated
that “the applicant has acted in bad faith; immense political
pressure has been applied in this case that is even greater than
prior documents had revealed; and Williams Aila Jr. has received
more ex parte communication than has been previously revealed.”
Kilakila then sought the following disclosure:
At a minimum, the BLNR must disclose information about
Bruce Coppa’s ex parte communication with William
Aila, Jr. and Jennifer Sabas’ ex parte communication
with William Aila, Jr. . . . If, in any of the ex
parte communications, anyone communicated to any
member of the Board the reasons that a decision needed
to be expedited, this should be disclosed to Kilakila
#O Haleakalâ.
On November 9, 2012, BLNR issued an order denying
Kilakila’s second motion to reconsider Minute Order No. 23. BLNR
noted that Kilakila “fails to show that any unpermitted ex parte
communications occurred between the former hearing officer or any
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Board members and one of the parties in this case that would be a
basis to reconsider this Board’s prior Order No. 23.”
10. BLNR’s approval of the second ATST permit: CDUP MA-11-
04
On November 9, 2012, BLNR issued its findings of fact,
conclusions of law, decision and order approving a second permit
for the ATST, CDUP MA-11-04. BLNR made findings of facts
concerning the parties to the contested case hearing, the
procedural background of the permit application, the ATST project
description, the Section 106 consultation14, the FEIS, and the
anticipated benefits of the ATST. BLNR then made conclusions of
law under HAR § 13-5-30(c)(1)-(8) (1994), which provides the
criteria for “evaluating the merits of a proposed land use” and
granting a CDUP:
(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
14
In its order, BLNR explains, “Section 106 of the [National
Historical Preservation Act] requires federal agencies to take into account
the impacts of the agencies’ undertakings on historic properties and to afford
the Advisory Council on Historic Preservation . . . a reasonable opportunity
to comment on such undertakings.”
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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
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.
“Based upon the evidence and testimony presented in
this case,” BLNR concluded that the ATST satisfied each of the
eight criteria, UH “met its overall burden of proof[,]” and a
CDUP for ATST was approved, subject to twenty conditions.
D. Circuit Court Proceedings
Kilakila appealed BLNR’s decision to the Circuit Court
of the First Circuit.15 On July 11, 2013, after holding oral
argument and reviewing the parties’ briefings, the circuit court
issued its Order affirming BLNR’s decision to grant CDUP MA-11-
04. The circuit court filed its Final Judgment on August 20,
2013.
15
The Honorable Rhonda A. Nishimura presided.
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E. ICA Proceedings
Kilakila appealed to the Intermediate Court of
Appeals.16 The ICA rejected each of Kilakila’s points of error
in its October 17, 2014 Memorandum Opinion, which affirmed the
circuit court’s judgment and BLNR’s decision. The ICA’s Judgment
on Appeal was filed on November 13, 2014. Kilakila timely
applied for writ of certiorari on December 1, 2014.
II. Standards of Review
Appellate court review of a circuit court’s review of
an administrative decision is a secondary appeal. “The standard
of review is one in which this court must determine whether the
circuit court was right or wrong in its decision, applying the
standards set forth in HRS § 91-14(g) (1993) to the agency’s
16
Kilakila contended that the circuit court erred because:
(1) the Board’s approval did not comply with Hawai#i
Administrative Rules (HAR) § 13-5-3(c) (1994);
(2) the Board erred by considering economic factors;
(3) the Board erred by weighing the lack of
alternatives against the Solar Telescope’s adverse
impacts,
(4) the correct entity did not apply for the
conservation district use permit (CDUP),
(5) the Solar Telescope is inconsistent with the June
8, 2010 Management Plan (Management Plan) prepared by
the University of Hawai#i Institute for Astromony
(UIA),
(7)[sic] the Board violated Kilakila’s procedural due
process rights; and
(8)[sic] the Board acted pursuant to unauthorized
procedure.
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decision.” Save Diamond Head Waters LLC. v. Hans Hedemann Surf,
Inc., 121 Hawai#i 16, 24, 211 P.3d 74, 82 (2009) (citing Citizens
Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai#i 184,
193, 159 P.3d 143, 153 (2007); Korean Buddhist Dae Won Sa Temple
of Hawai#i v. Sullivan, 87 Hawai#i 217, 229, 953 P.2d 1315, 1327
(1998)).
HRS § 91-14(g), “Judicial review of contested cases,”
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; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(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
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(6).” Save Diamond Head Waters, 121 Hawai#i at 24-25, 211 P.3d
at 82-83 (quoting Paul v. Dep’t of Transp., 115 Hawai#i 416, 426,
168 P.3d 546, 556 (2007)) (internal brackets omitted).
“Pursuant to HRS § 91-14(g), an agency’s conclusions of
law are reviewed de novo.” United Pub. Workers, AFSCME, Local
646, AFL-CIO v. Hanneman, 106 Hawai#i 359, 363, 105 P.3d 236, 240
(2005) (internal quotation marks and citation omitted). “A
conclusion of law that presents mixed questions of fact and law
is reviewed under the clearly erroneous standard because the
conclusion is dependent upon the facts and circumstances of the
particular case.” Save Diamond Head Waters, 121 Hawai#i at 25,
211 P.3d at 83 (quoting Del Monte Fresh Produce (Hawai#i), Inc.
v. Int’l Longshore and Warehouse Union, Local 142, AFL-CIO, 112
Hawai#i 489, 499, 146 P.3d 1066, 1076 (2006)).
An agency’s interpretation of its own rules is
generally entitled to deference unless “plainly erroneous or
inconsistent with the underlying legislative purpose.” Panado v.
Bd. of Trs., Emps.’ Ret. Sys., 134 Hawai#i 1, 11, 332 P.3d 144,
154 (2014). An agency’s exercise of discretion “will not be
overturned unless ‘arbitrary, or capricious, or characterized by
. . . [a] clearly unwarranted exercise of discretion.’” Paul’s
Elec. Serv. Inc. v. Befitel, 104 Hawai#i 412, 498-99, 91 P.3d
494, 416-17 (2004) (citing HRS § 91-14(g)(6)).
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III. Discussion
Kilakila’s application for writ of certiorari raises
several issues,17 many of which overlap or were raised without
17
Kilakila’s application raised the following thirteen points of
error:
1. Did the ICA err in affirming the Circuit Court’s
affirmation of the BLNR’s decision? More
specifically, the questions presented include:
2. Did the ICA err when it held that an agency can
use decisionmaking criteria that are not identified in
its own rules––despite this Court’s rulings in Aluli
v. Lewin, 73 Haw. 56, 61, 828 P.2d 802, 805 (1992),
Mahuiki v. Planning Comm’n, 65 Haw. 506, 519-20, 654
P.2d 874, 882-83 (1982), Ainoa v. Unemployment
Compensation Appeals Div., 62 Haw. 286, 614 P.2d 380
(1980), and Aguiar v. Hawai#i Hous. Auth., 55 Haw.
478, 522 P.2d 1255 (1974)?
3. In determining whether the ATST project is
consistent with the purposes of the land use law and
the conservation district, did the ICA err by (a)
confusing an “as applied” challenge with a “facial”
challenge; (b) failing to employ this Court’s analysis
in Neighborhood Bd. No. 24 (Waianae Coast) v. State
Land Use Comm’n, 64 Haw. 265, 639 P.2d 1097 (1982);
and (c) refusing to consider whether the proposed ATST
project itself “frustrates the state land use law’s
basic objectives,” Curtis v. Board of Appeals, 90
Hawai#i 384, 396, 978 P.2d 822, 834 (1999)?
4. Should the courts take a close look at the record
in cases affecting the environment?
5. Did the ICA err in concluding that the ATST
project would not have substantial impacts when (a)
the applicant repeatedly admitted that the impacts
would be substantial; (b) the BLNR and the ICA failed
to point to any evidence that the impacts to cultural
resources would not be substantial, as required by In
re Kauai Elec. Div., 60 Haw. 166, 184, 590 P.2d 524,
537 (1978); (c) there was no evidence that the
mitigation measures would reduce the intensity of the
impacts to less than substantial; and (d) the BLNR
relied on the final environmental impact statement
(FEIS) to reach certain conclusions, but without any
explanation ignored other portions of the FEIS?
6. Did the ICA err by relying on grounds not “invoked
by the agency,” In re Water Use Permit Applications,
(continued...)
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any supporting argument. See HRAP 40.1(d) (applications for writ
of certiorari shall contain a “short and concise statement of the
questions presented” and a “brief argument with supporting
authorities”). Therefore, we address the following questions,
which we consider controlling and dispositive:
(1) Did the ICA err in concluding that the permit
approval process was not procedurally flawed,
specifically that BLNR did not prejudge CDUP MA-11-04
and was not improperly influenced by ex parte
communications?
(2) Did the ICA err in concluding that BLNR’s findings
(...continued)
94 Hawai#i 97, 163, 9 P.3d 409, 475 (2000)?
7. Did the ICA err in interpreting HAR §
13-5-30(c)(6) in a manner that excludes consideration
of natural beauty and open space characteristics?
8. Did the ICA err in assuming that the lease of a
portion of land does not subdivide it despite the
plethora of law to the contrary?
9. Did the ICA err in holding that the ATST project
is consistent with a valid management plan?
10. Did the BLNR prejudge the issue by granting the
CDUP before the contested case was held and then
authorizing some construction activities to proceed
pursuant to that permit prior to completion of the
post hoc contested case hearing?
11. Did the ICA err in relying on HRS § 171-6(20) to
justify the BLNR’s conduct pursuant to HRS chapter
183C when chapter 183C is not part of HRS chapter 171?
12. Was the BLNR’s post hoc contested case hearing
tainted by political pressure, ex parte communication,
the refusal to fully and timely disclose the extent of
ex parte communication, the dual role of the deputy
attorney general as adversary and advisor to the
tribunal, and the arbitrary deletion of key findings
by the hearing officer?
13. Did the ICA err in holding that the applicant was
authorized to apply for the permit?
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under HAR § 13-5-30(c)(4),(5), and (6) were valid?
(3) Did the ICA err in concluding that the ATST was
not inconsistent with the purposes of conservation
districts and general subzones?
A. The permit approval process did not suffer from procedural
infirmities
Kilakila alleges that the approval process for CDUP MA-
11-04 suffered from two procedural defects: (1) BLNR prejudged
the permit approval and (2) BLNR engaged in impermissible ex
parte communications and failed to disclose them. We address
each of these issues below.
1. BLNR did not prejudge the permit prior to the contested
case hearing
Before addressing the issue of prejudgment, it is
necessary to review the underlying sequence of events. At the
first public hearing regarding the ATST’s CDUA, Kilakila
requested that BLNR conduct a contested case hearing. Without
granting Kilakila’s request, BLNR approved the first permit for
the construction of the ATST, CDUP MA-3542. Kilakila then
appealed BLNR’s decision to grant the permit prior to holding a
contested case hearing.
That appeal resulted in this court’s decision in
Kilakila I, in which we held that the circuit court had
jurisdiction over the appeal pursuant to HRS § 91-14 and that
Kilakila’s request for a contested case hearing should have been
granted prior to BLNR’s approval of the permit. 131 Hawai#i at
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205-06, 317 P.3d at 39-40. We remanded to the circuit court
regarding Kilakila’s request for stay or reversal of CDUP
MA-3542. Id. at 206, 317 P.3d at 40. On remand, the parties
entered into a stipulation, titled “Stipulation That the
Conservation District Use Permit (CDUA MA-3542) Is Void”:18
IT IS HEREBY STIPULATED by and amongst the parties
described below, through their respective undersigned
counsel that the conservation district use permit
(CDUA MA-3542) granted by the Board of Land and
Natural Resources and the Department of Land and
Natural Resources in December 2010 is void.
This stipulation ended the appeal.
While the appeal regarding CDUP MA-3542 was pending,
BLNR granted Kilakila’s request for a contested case hearing.
After the contested case hearing, on November 9, 2012, BLNR
issued an order approving a second permit for the construction of
the ATST, CDUP MA-11-04. It is that permit that is the subject
of the instant appeal.
Kilakila now asserts that BLNR prejudged the permit at
issue in this case, CDUP MA-11-04, because it approved
construction prior to the completion of the contested case
18
The stipulation was not included in the record for this case, but
in the record of the pending case Kilakila #O Haleakalâ v. Univ. of Hawai#i,
134 Hawai#i 86, 332 P.3d 688 (App. 2014), cert. granted, SCWC-13-0000182
(Sept. 12, 2014). We may therefore take judicial notice of the stipulation.
See Hawai#i Rules of Evidence 201(b) (“A judicially noticed fact must be one
not subject to reasonable dispute that is . . . capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably be
questioned.”); see also State v. Puaoi, 78 Hawai#i 185, 190, 891 P.2d 272, 277
(1995) (“[A]n appellate court may take judicial notice of facts despite the
failure of the trial court to do so, provided that the facts are capable of
immediate and accurate demonstration by resort to easily accessible sources of
indisputable accuracy.”) (internal quotation marks and citation omitted).
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hearing. However, this construction was for the removal of an
unused foundation at the Reber Circle site. BLNR did not approve
any construction of the ATST itself. The removal of the unused
foundation was previously supported by Kilakila and was required
by other agreements, such as the Archaeological Recovery Plan
that BLNR approved in 2006. Furthermore, no construction
ultimately occurred prior to the completion of the contested case
hearing.
Kilakila also argues that BLNR prejudged the second
permit, CDUP MA-11-04, by voting on the first permit, CDUP MA-
3542, prior to a contested case hearing. The issue of
prejudgment was recently addressed by this court in Mauna Kea
Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai#i 376, 363 P.3d
224 (2015), in which we held that BLNR’s decision to approve a
permit prior to a contested case hearing violated appellants’ due
process rights. Id. at 391; 363 P.3d at 239. This case is
dissimilar to Mauna Kea, insofar as here Kilakila entered into a
stipulation with BLNR and UH to void the first permit. Since
BLNR’s initial approval of CDUP MA-3542 was voided, appellants’
due process rights were adequately protected by the contested
case hearing and subsequent vote by BLNR. See Hawai#i Elec.
Light Co. v. Dep’t of Land & Nat. Res., 102 Hawai#i 257, 266, 74
P.3d 160, 169 (2003) (holding that, when BLNR’s initial vote on a
permit was later invalidated, “the constitutional right of due
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process was adequately protected through the contested case
hearing process and the subsequent votes by the Board”).
Indeed, the stipulation rendered the first permit “of
no validity or effect.” Black’s Law Dictionary 1805 (10th ed.
2014) (defining “void” as “[t]o render of no validity or effect;
to annul”). Because the first permit was deemed invalid by the
stipulation, Kilakila received the relief sought in its previous
appeal. Kilakila cannot now seek to vacate the second permit
based on the first permit, which Kilakila voluntarily stipulated
to void.
In sum, the permit approval process for CDUP MA-11-04
met procedural due process requirements. BLNR did not approve
any construction of the ATST itself prior to the completion of
the contested case hearing. Since BLNR’s initial approval was
voided, appellants’ due process rights were protected by the
contested case hearing and subsequent vote by BLNR.
2. Ex parte communications with BLNR were not improper
Kilakila argues that the ICA erred in concluding that
BLNR’s permit approval process was not subject to impermissible
ex parte political pressure. Kilakila alleges that the Governor
and Senator Inouye’s offices exerted pressure on BLNR Chairperson
Aila in order to attain approval of the telescope, and that BLNR
failed to disclose these ex parte communications.
The ICA rejected Kilakila’s argument on the basis that
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BLNR promptly removed Jacobson as the hearing officer and
disregarded his recommendation, curing any allegation of
partiality involving Jacobson. The ICA also noted that Kilakila
did not contend that hearing officer Ishida, who ultimately made
the recommendation to BLNR, was subject to any ex parte
communication or political pressure.
We agree with the ICA that any concern of impropriety
was cured when BLNR replaced Jacobson with Ishida. Indeed, this
is precisely the relief that Kilakila requested.
However, the ICA did not consider whether any ex parte
communications involving Aila tainted the permit approval process
or whether BLNR improperly denied Kilakila’s discovery requests
for additional communications involving the ATST. Though we note
that Kilakila never moved to disqualify Aila as it did with
Jacobson, we address these questions now.
The communications at issue here are: (1) the March
21, 2012 meeting between Aila, the Governor’s office, the
Attorney General’s office, and Senator Inouye’s office, (2) the
January 30-31, 2012 emails between Jennifer Sabas of Senator
Inouye’s office and Mike Maberry of UHIfA, and (3) the January
30-31, 2012 emails between Sabas and Bruce Coppa of the
Governor’s office.
We first determine whether the communications violated
the relevant administrative rule, HAR § 13-1-37. HAR § 13-1-37
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governs ex parte communication in contested case proceedings and
provides:
(a) No party or person petitioning to be a party in a
contested case, nor the party’s or such person’s to a
proceeding before the board nor their employees,
representatives or agents shall make an unauthorized
ex parte communication either oral or written
concerning the contested case to the presiding officer
or any member of the board who will be a participant
in the decision-making process.
(b) The following classes of ex parte communications
are permitted:
(1) Those which related solely to the matters
which a board member is authorized by the board to
dispose of on ex parte basis.
(2) Requests for information with respect to
the procedural status of a proceeding.
(3) Those which all parties to the proceeding
agree or which the board has formally ruled may be
made on an ex parte basis.
HAR § 13-1-37 does not apply to the January 30-31, 2012
communications because they were not sent to “any member of the
board who will be a participant in the decision-making process.”
HAR § 13-1-37(a). Nor would it apply to the March 21, 2012
meeting between Aila, the Governor’s office, the Attorney
General’s office, and Senator Inouye’s office. Although Aila was
a “member of the board” as BLNR Chairperson, the other meeting
participants were not “part[ies] . . . to a proceeding” or a
party’s “employees, representatives or agents.” HAR § 13-1-37(a)
(emphasis added). There is no evidence that UH or Kilakila
attended the meeting.
Even if the Governor’s office and Senator Inouye’s
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office were considered “representatives or agents” of UH, the
meeting would not violate HAR § 13-1-37 because the “sole topic”
of the discussion during the meeting was the timing of BLNR’s
final decision following the contested case hearing. The timing
of BLNR’s decision falls under the category of permitted ex parte
communications, as “[r]equests for information with respect to
the procedural status of a proceeding.” HAR § 13-1-37(b)(2).
Though the communications were not impermissible ex
parte communications in violation of HAR § 13-1-37, they may
nevertheless demonstrate that improper outside influences tainted
BLNR’s permit approval. In In re Water Use Permit Applications
(Waiâhole), this court determined whether external political
pressure on an agency violated due process and invalidated the
agency’s decision. 94 Hawai#i 97, 123, 9 P.3d 409, 435 (2000).
We noted:
External political inference in the administrative
process is of heightened concern in a quasi-judicial
proceeding, which is guided by two principles. First,
the appearance of bias or pressure may be no less
objectionable than the reality. Second, judicial
evaluation of the pressure must focus on the nexus
between the pressure and the actual decision maker.
As we have previously observed, the proper focus is
not on the content of communication in the abstract,
but rather upon the relation between the
communications and the adjudicator’s decisionmaking
process.
Id. (internal quotation marks, brackets, and citations omitted;
emphases in original).
This court then evaluated an allegation of improper
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political pressure based on these principles. The petitioner in
Waiâhole alleged that the Governor exerted improper influence on
the Commission on Water Resource Management by publicly
criticizing the Commission’s proposed decision. Id. Consistent
with the focus on “the relation between the communications and
the adjudicator’s decisionmaking process,” this court noted that
other instances of improper political influence involved “at
minimum, some sort of direct contact with the decisionmaker
regarding the merits of the dispute.” Id. (emphases added).
The Governor’s comments in Waiâhole did not meet this
minimum standard. Although the Governor had made several
statements that “related directly to the dispute before the
Commission,” there was not sufficient evidence of “direct and
focused interference” in the Commission’s decision-making. Id.
at 124, 9 P.3d at 436. Thus, there was not a nexus between the
Governor’s comments and the Commission that demonstrated improper
pressure on the Commission’s decision. Id. at 124-25, 9 P.3d at
436-37.
Similar to Waiâhole, the communications here do not
show evidence of “direct contact” with BLNR over the “merits of
the dispute.” The January 30-31, 2012 emails do not discuss the
merits of the contested case hearing. Rather, as the ICA
described, the emails appear to indicate concerns over “the
possibility of losing funding for the [ATST] if construction did
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not begin by a certain date.” The email communications are also
unclear on whether there was any direct contact with Aila. Only
one email mentions Aila and states that “[Coppa, the Governor’s
chief of staff] spoke with [Aila] and asked to please help.” The
Governor’s office and Senator Inouye’s office did have direct
contact with Aila at the March 21, 2012 meeting, but there is no
evidence that they discussed anything other than the timing of
BLNR’s final decision following the contested case hearing.19
Undoubtedly, the public criticisms in Waiâhole and the
timing concerns voiced here both placed pressure on the
respective agencies. However, the question is not whether there
was any pressure placed on the agency, but whether the pressure
was directed at the merits of the agency’s decision. While the
communications here concerned the permit approval process for the
ATST and therefore “related directly to the dispute before” BLNR,
we are not presented with evidence of communications relating to
the merits that would constitute “direct and focused
interference” in BLNR’s decision-making. Id. at 124, 9 P.3d at
436. In sum, we do not find that the political pressure placed
19
The March 21, 2012 email from a member of the Governor’s staff to
Coppa stated that “[Sabas] requested a meeting today at 3 p.m. to discuss the
telescope, hearings officer and funding issue.” Similar to the January 30-31,
2012 emails, the email indicates an interest in knowing when the final BLNR
decision will be made given funding deadlines. It was also sent prior to the
March 21, 2012 meeting by someone who appears to have helped schedule the
meeting, but did not actually attend it. Thus, the fact that this email
mentions “funding” does demonstrate that Aila discussed the merits of the case
at the March 21, 2012 meeting.
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on BLNR rose to the level of impropriety.
We now turn to Kilakila’s three requests for
communications regarding the ATST. In its March 30, 2012 motion
for disclosure, its June 12, 2012 motion to reconsider Minute
Order No. 23, and its September 27, 2012 second motion to
reconsider Minute Order No. 23, Kilakila sought the release of
oral, written, and electronic communications involving BLNR
members. Kilakila was specifically concerned with ex parte
communications involving Aila, though it never moved to
disqualify Aila or any other BLNR member. BLNR provided
information about the March 21, 2012 meeting in response to the
first two requests, and dismissed the third request outright.
We have concerns about BLNR’s handling of Kilakila’s
requests. For example, in light of Kilakila’s receipt of the
January 30-31, 2012 emails, BLNR could have granted discovery
limited to the parties involved in the emails, rather than
dismissing the request outright. In future contested case
hearings, BLNR could certainly do more to remove doubts of
impropriety and build confidence in its permit approval process.
Despite these concerns, we cannot say that BLNR abused
its discretion when it denied Kilakila’s requests. “[A]
determination made by an administrative agency acting within the
boundaries of its delegated authority will not be overturned
unless ‘arbitrary, or capricious, or characterized by . . . [a]
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clearly unwarranted exercise of discretion.’” Paul’s Elec.
Serv., 104 Hawai#i at 419, 91 P.3d at 501 (citing HRS §
91-14(g)(6)); see also Save Diamond Head Waters, 121 Hawai#i at
24, 211 P.3d at 82 (stating that an agency’s exercise of
discretion is reviewable under the arbitrary and capricious
standard).
BLNR had broad discretion over Kilakila’s discovery
requests, and it did in fact provide additional information in
response to the requests. See Hawai#i Ventures, LLC v. Otaka,
Inc., 114 Hawai#i 438, 472, 164 P.3d 696, 730 (2007) (stating
that courts have “considerable latitude and discretion” over
discovery requests). In its Minute Order No. 23, BLNR disclosed
the participants and nature of the March 21, 2012 meeting.
Later, BLNR clarified that the meeting’s topic of discussion
concerned the timing of BLNR’s decision in light of the dismissal
of hearing officer Jacobson. Contrary to Kilakila’s argument,
BLNR was not required to provide all of the disclosures sought in
the requests. See id. (determining that the circuit court did
not abuse its discretion when it “did not grant all of the
requests for discovery[,]” but did require an opposing party
provide a financial statement which addressed concerns of
improper payment underlying the discovery requests).
BLNR also provided its reasoning for not disclosing
more information. It concluded that Kilakila’s first request was
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too broad, noting that it did not provide a time frame for the
request and encompassed communications beyond the subject of the
contested case hearing. BLNR also concluded that Kilakila failed
to show any improper ex parte communications, and as discussed
above, we agree that the communications did not constitute an
impermissible ex parte communication in violation of HAR § 13-1-
37 or an improper political influence under the reasoning in
Waiâhole.20
This reasoning was not unreasonable or unlawful. See
Del Monte Fresh Produce, 112 Hawai#i at 509, 146 P.3d at 1086
(Hawai#i Labor Relations Board did not abuse its discretion when
its disputed action was not “unreasonable or in disregard of
principles of law”); see also Hac v. Univ. of Hawai#i, 102 Hawai#i
92, 100, 73 P.3d 46, 54 (2003) (“[T]he extent to which discovery
is permitted . . . is subject to considerable latitude and the
discretion of the trial court.”) (quoting Wakabayashi v. Hertz
Corp., 66 Haw. 265, 275, 660 P.2d 1309, 1315 (1983)) (internal
20
In circumstances such as these, we have never held that procedural
communications with agency officials raise due process concerns. Thus, we
need not employ any constitutional analysis, but instead must refer to the
applicable statute and administrative rule, neither of which preclude
procedural communications. See HRS § 91-13 (“No official of an agency who
renders a decision in a contested case shall consult any person on any issue
of fact except upon notice and opportunity for all parties to participate,
save to the extent required for the disposition of ex parte matters authorized
by law.”) (emphasis added); HAR § 13-1-37. The communications here were
permissible as they did not address the merits of the contested case or any
issues of fact. Given that this issue involves a question of administrative
law, the appropriate standard of review of BLNR’s denial of Kilakila’s
disclosure requests is abuse of discretion. See Paul’s Elec. Serv., 104
Hawai#i at 419, 91 P.3d at 501.
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brackets omitted).
Therefore, we cannot conclude that BLNR abused its
discretion. However, we caution public officials and other
interested parties that contacts of the type involved here carry
significant risk of creating the appearance of impropriety,
and––as Jacobson’s filings indicate––of having an effect on the
process.
B. BLNR properly analyzed the criteria under HAR § 13-5-30
Kilakila argues that BLNR’s decision to grant the
permit was not supported by the evidence and does not satisfy HAR
§ 13-5-30(c), which provides eight criteria that BLNR must
consider prior to approving a permit. Specifically, Kilakila
argues that the ICA erred in affirming BLNR’s findings under HAR
§ 13-5-30(c)(4), (5), and (6). We address these three criteria
below.
1. BLNR did not err in determining that the ATST would
not have a substantial adverse impact under HAR
§ 13-5-30(c)(4)
HAR § 13-5-30(c)(4) states: “The proposed land use
will not cause substantial adverse impact to existing natural
resources within the surrounding area, community, or region[.]”
“Natural resource” is defined as “resources such as plants,
aquatic life and wildlife, cultural, historic, recreational,
geologic, and archeological sites, scenic areas, ecologically
significant areas, watersheds, and minerals.” HAR § 13-5-2.
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Kilakila argues that the ICA erred in
“rubberstamp[ing]” BLNR’s findings of no substantial adverse
impact on existing natural resources, specifically cultural and
visual resources. Kilakila argues that the ICA, the circuit
court, and BLNR erred by failing to cite any evidence that the
impacts to cultural resources would be less than substantial and
that mitigation measures would reduce the intensity of the
impacts. Kilakila further asserts that BLNR erred in
disregarding certain findings in the FEIS to conclude that the
ATST would not have a substantial impact on scenic vistas.
Despite Kilakila’s contentions, we do not find that
BLNR’s treatment of the FEIS and its analysis under HAR
§ 13-5-30(c)(4) was clearly erroneous. See Save Diamond Head
Waters, 121 Hawai#i at 25, 211 P.3d at 83 (“A conclusion of law
that presents mixed questions of fact and law is reviewed under
the clearly erroneous standard[.]”).
It is undisputed that the FEIS concluded that there
would be adverse impacts on cultural and visual resources from
the construction and operation of the ATST. The FEIS determined
that there would be “major, adverse, short- and long-term, direct
impacts” on cultural resources and that mitigation measures
“would not reduce the impact intensity[.]” It also determined
that the direct impact on visual resources within the Haleakalâ
National Park would be “moderate, adverse and long-term” and that
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“[n]o mitigation would adequately reduce this impact.” From
outside the Park, the impact of building the ATST “would result
in minor, adverse and long-term impact to visual resources[,]”
and therefore “[n]o mitigation would be necessary.”
Kilakila suggests that the FEIS findings required BLNR
to determine that HAR § 13-5-30(c)(4) was not satisfied. While
BLNR was required to consider the findings in the FEIS, it was
not bound by these findings and still retained discretion over
its decision. See Mauna Kea Power Co. v. Bd. of Land & Nat.
Res., 76 Hawai#i 259, 265, 874 P.2d 1084, 1090 (1994) (affirming
BLNR determination despite conflicting conclusions in EIS). In
other words, BLNR was not required to conclude that the ATST
would not satisfy HAR § 13-5-30(c)(4) solely because the FEIS
determined there would be major adverse impacts on cultural
resources. Rather, an environmental impact statement is “merely
an informational document,” and its findings neither presume
approval nor denial of a conservation district use application.
Id.; see also HRS § 343-2 (defining “environmental impact
statement” as “an informational document”).
As such, in making its decision to grant the permit,
BLNR properly considered the FEIS, along with the information
provided by the permit application, the site visits and maps, the
public hearing testimony, the contested case hearing testimony
and evidence, the hearing officer’s recommendation, and other
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documents. See HAR §§ 13-5-31, 13-5-40 (1994), 13-1-28; see also
Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)
(“[I]n deference to the administrative agency’s expertise and
experience in its particular field, the courts should not
substitute their own judgment for that of the administrative
agency where mixed questions of fact and law are presented. This
is particularly true where the law to be applied is not a statute
but an administrative rule promulgated by the same agency
interpreting it.”) (citation omitted).
Next, Kilakila argues that BLNR did not sufficiently
explain how it reached its decision despite the conflicting
findings in the FEIS. More specifically, Kilakila asserts that
BLNR should have provided “supporting analytical data” for its
decision, rather than “a perfunctory description or mere listing
of mitigation measures[.]” Kilakila takes this language from
Makua v. Rumsfeld, in which the U.S. District Court for the
District of Hawai#i concluded that a supplemental environmental
assessment’s finding of no significant impact on endangered
species “contain[ed] no analysis or evidence of the effectiveness
of [the] mitigation measures” and therefore was insufficient.
163 F. Supp. 2d 1202, 1218 (D. Haw. 2001).
In addition to not being binding on this court, Makua
is not analogous because the issue in that case was whether an
environmental impact statement should have been prepared. Id. at
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1216. Here, an environmental impact statement was completed, and
BLNR subsequently determined “[b]ased upon the evidence and
testimony presented in this case, and the files and records
herein,” that a permit approval was warranted. Furthermore, this
court has never required an agency to provide “supporting
analytical data” to uphold its findings. Instead, our court
requires that “where the record demonstrates considerable
conflict or uncertainty in the evidence, the agency must
articulate its factual analysis with reasonable clarity, giving
some reason for discounting the evidence rejected.” Waiâhole, 94
Hawai#i at 163-64, 9 P.3d at 475-76 (emphasis added).
We therefore consider whether BLNR articulated with
reasonable clarity why the ATST would not result in a substantial
adverse impact on natural resources, despite the apparently
conflicting findings in the FEIS.
BLNR noted that “[t]he impacts of the ATST Project must
be viewed in the context of the HO site[,]” which has “housed
astronomy facilities since the 1950’s and was specifically
created for astronomy uses.” There are eleven facilities
currently located within the HO site, and the ATST would leave
only one vacant location, the Reber Circle site.
Due to these existing facilities in the HO, the FEIS
found that there would be “major, adverse, long-term, direct
impacts” on cultural resources even under the No-Action
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Alternative. The No-Action Alternative refers to the scenario in
which “no construction [of the ATST] would take place and
operations [in the HO] would continue unaltered.” These impacts
are almost identical to the impacts that would result from the
construction of the ATST, which the FEIS described as “major,
adverse, short- and long-term, direct.” Therefore, regardless of
whether or not the ATST was constructed, the FEIS determined that
there would be major, adverse impacts on cultural resources.
Consistent with this finding in the FEIS, BLNR
concluded that “because of the past construction of man made
structures[,]” the ATST’s additional impact on cultural resources
would be “incremental[.]” BLNR concluded that the impact on
visual resources would be similarly incremental: “[T]he ATST
would be visible to a point of co-dominance with other nearby
structures” and “would not substantially alter the existing
visual character visible in any view.” In other words, BLNR
concluded that the ATST would have an impact on cultural and
visual resources, but given the existing buildings in the HO,
BLNR concluded that the impact would not be substantial.
BLNR also considered mitigating measures when
determining whether ATST would have a substantial adverse impact
on natural resources. In the CDUA, UHIfA committed to mitigation
measures “intended to reduce the duration, intensity or scale of
impacts or to compensate for the impact by replacing or providing
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substitute resources or environments.” The measures specifically
directed at reducing cultural and visual impacts included
creating a Native Hawaiian Working Group to address issues
concerning Native Hawaiians, setting aside area within the HO
site solely for use by Native Hawaiians, removing unused
facilities, and decommissioning the ATST within 50 years.
Other mitigating effects included the expected
scientific, economic, and educational benefits of the ATST. BLNR
determined that the ATST would result in “the advancement of
scientific knowledge,” as it would “significantly increase
understanding of the Sun . . . and help scientists predict major
solar events having a profound impact on life on Earth.”
Additionally, BLNR noted that “[j]obs and revenue for the economy
would be created on Maui,” including job opportunities in the
“clean high-tech industry.” It also concluded that
“[e]ducational opportunities would be created for students at the
Maui Community College as well as for native Hawaiian
astronomers” to “foster a better understanding of the
relationships between native Hawaiian culture and science.”21
21
Specifically, Maui College submitted a “mitigation proposal,”
which requested funding for:
(1) development and implementation of an innovative
math and science curriculum and program based on
Hawaiian cultural knowledge and worldview; (2)
building up relevant coursework and dedicated programs
at Maui College; (3) significantly increasing the
number and retention of native Hawaiian students in
(continued...)
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Additionally, BLNR noted that the ATST was designed to
be as small as possible while still being consistent with
scientific needs. It also added permit conditions that would
mitigate impacts on cultural resources, including:
17. Within 2 years of completion of the construction
of the ATST facility, Kilakila may require the
construction and consecration of a new ahu[22] in
addition to the two currently present. Upon request
by Kilakila, UHIfA will work with Kilakila, the
Cultural Specialist and the Native Hawaiian Working
Group to select an appropriate location for the new
ahu which shall be built and consecrated in [a]
similar manner to the prior ahu;
. . . .
20. In order to protect the traditional and customary
rights exercised in the HO site, during construction
of the ATST Project and after, UHIfA shall allow
access to the two ahu for the reasonable exercise of
traditional and customary practices of native
Hawaiians to the extent feasible and safe, as
determined by the Cultural Specialist and the ATST
Project construction site supervisor.
Based on this analysis, BLNR concluded that “[t]he
proposed land use, when considered together with all minimization
and mitigation commitments discussed . . . and with the
additional conditions contained in this Decision, will not cause
21
(...continued)
Science, Technology, Engineering and Math (“STEM”)
courses and programs at Maui College; and (4)
cultivating and developing an experienced, highly
skilled native Hawaiian workforce for STEM related
industries and careers.
The National Science Foundation adopted the proposal and “will make $20
million ($2 million per fiscal year for ten years) available to support this
educational initiative to address the intersection between traditional native
Hawaiian culture and science and to foster a better understanding of the
relationships between native Hawaiian culture and science.”
22
An “ahu” is defined as an altar or shrine. Pukui & Elbert,
Hawaiian Dictionary 8 (2nd ed. 1986). In 2005, UHIfA contracted with Native
Hawaiian stonemasons to erect a west-facing ahu within the HO site. In 2006,
“in the spirit of makana aloha for the ATST Project,” UHIfA contracted with
the same stonemasons to erect an east-facing ahu in the HO site.
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substantial adverse impact [sic] to existing natural resources
within the surrounding area, community or region.”
In reviewing BLNR’s findings under HAR § 13-5-30(c)(4),
we first consider BLNR’s reliance on the “incremental” nature of
the ATST Project. We agree with Kilakila that 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.
In spite of our concerns, we are not “left with a firm
and definite conviction” that BLNR made a mistake in reaching its
conclusion given the highly specific circumstances of this case.
Brescia v. N. Shore Ohana, 115 Hawai#i 477, 491-92, 168 P.3d 929,
943-44 (2007) (“An agency’s findings are not clearly erroneous
and will be upheld if supported by reliable, probative and
substantive evidence unless the reviewing court is left with a
firm and definite conviction that a mistake has been made.”)
(quoting Poe v. Hawai#i Labor Relations Bd., 105 Hawai#i 97, 100,
94 P.3d 652, 655 (2004)).
BLNR reviewed the ATST Project within the context of a
single, highly developed 18.166-acre area within a much larger
conservation district, and which involves a use (astromony) which
is specifically permitted in the general subzone of the
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conservation district. The FEIS also determined that the level
of impacts on natural resources would be substantially the same
even in the absence of the ATST. In addition, UHIfA committed to
mitigation measures directed at reducing the cultural and visual
impacts on natural resources. See HAR § 13-5-42(a)(9) (1994)
(“All representations relative to mitigation set forth in the
accepted environmental assessment or impact statement for the
proposed use are incorporated as conditions of the permit[.]”);
see also Morimoto v. Bd. of Land & Nat. Res., 107 Hawai#i 296,
303, 113 P.3d 172, 179 (2005) (concluding that BLNR properly
considered mitigation measures when evaluating HAR §
13-5-30(c)(4)). Taken cumulatively, BLNR “articulate[d] its
factual analysis with reasonable clarity” why the ATST would not
result in a substantial adverse impact on natural resources.
Waiâhole, 94 Hawai#i at 164, 9 P.3d at 476.
Lastly, Kilkila argues that BLNR made its findings
under HAR § 13-5-30(c) based on “unwritten criteria,” referring
to BLNR’s mention of the ATST’s scientific, economic, and
educational benefits in its findings under HAR § 13-5-30(c)(4).
However, there is no regulation suggesting that BLNR could not
consider benefits related to HAR § 13-5-30(c) when approving a
permit. HAR § 13-5-30(c) states, “In evaluating the merits of a
proposed land use, the department or board shall apply the
following criteria[,]” but the statute and agency regulations
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concerning conservation districts do not suggest that scientific,
economic, and education benefits are not relevant. Rather, they
suggest the opposite.
The purpose of HAR § 13-5-30(c) and the other
conservation district regulations is “to regulate land-use in the
conservation district for the purpose of conserving, protecting,
and preserving the important natural and cultural resources of
the State through appropriate management and use to promote their
long-term sustainability and the public health, safety, and
welfare.” HAR § 13-5-1 (1994). The statute governing the
conservation districts, HRS § 183C-1 (Supp. 1996), similarly
states:
The legislature finds that lands within the
state land use conservation district contain important
natural resources essential to the preservation of the
State’s fragile natural ecosystems and the
sustainability of the State’s water supply. It is
therefore, the intent of the legislature to conserve,
protect, and preserve the important natural resources
of the State through appropriate management and use to
promote their long-term sustainability and the public
health, safety and welfare.
BLNR is therefore unequivocally tasked with protecting
natural and cultural resources through “appropriate management
and use to promote their long-term sustainability and the public
health, safety, and welfare.” HRS § 183C-1; HAR § 13-5-1. The
consideration of relevant scientific, economic, and educational
benefits of the ATST within the context of the HO does not
conflict with this, as these benefits impact long-term
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sustainability and public welfare.23 See Black’s Law Dictionary
1828 (10th ed. 2014) (defining “public welfare” as “[a] society’s
well-being in matters of health, safety, order, morality,
economics, and politics”).
The cases cited by Kilakila are not applicable here,
where an agency has evaluated considerations relevant to––rather
than instead of––the criteria set forth in the applicable
regulations. See Aluli v. Lewin, 73 Haw. 56, 58, 828 P.2d 802,
803 (1992) (agency had no rules governing the issuance of
permit); Mahuiki v. Planning Comm’n, 65 Haw. 506, 519, 654 P.2d
874, 882 (1982) (court found no evidence in the record supporting
agency finding); Ainoa v. Unemployment Compensation Appeals Div.,
62 Haw. 286, 293, 614 P.2d 380, 385 (1980) (agency failed to
comply with existing requirements); Aguiar v. Hawai#i Hous.
Auth., 55 Haw. 478, 498, 522 P.2d 1255, 1268 (1974) (same).
Therefore, while BLNR could certainly not rely solely
on the scientific, economic, or educational benefits of the ATST,
BLNR did not improperly consider benefits relevant to the ATST’s
23
We agree with Kilakila that BLNR should not have considered that
“[j]obs and revenue for the economy would be created on Maui” under
13-5-30(c)(4) inasmuch as jobs unrelated to the preservation and advancement
of natural or cultural resources are irrelevant. However, as BLNR properly
considered the scientific and educational benefits in addition to the findings
in the FEIS and numerous other mitigating measures, we conclude that this
error was harmless. See Korean Buddhist Dae Won Sa Temple, 87 Hawai#i at 241-
42, 953 P.2d at 1339-40 (holding that the Director of the Department of Land
Utilization’s improper consultation of evidence outside the record was
harmless error because “the outcome of the proceedings would not have been
altered”).
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expected impact on existing natural resources under HAR §
13-5-30(c)(4). See Morimoto, 107 Hawai#i at 303, 113 P.3d at 179
(allowing BLNR to consider mitigation measures even though not
explicitly mentioned in HAR § 13-5-30(c)).
Accordingly, we find that BLNR’s conclusion that the
ATST satisfied the criteria under HAR § 13-5-30(c)(4) was not
clearly erroneous, though we emphasize that review of future BLNR
decisions will be “dependent upon the facts and circumstances of
the particular case.” Save Diamond Head Waters, 121 Hawai#i at
25, 211 P.3d at 83 (quoting Del Monte Fresh Produce, 112 Hawai#i
at 499, 146 P.3d at 1076).
2. BLNR did not err in interpreting HAR § 13-5-30(c)(5) to
include the area within the HO
HAR § 13-5-30(c)(5) states: “The proposed land use,
including buildings, structures, and facilities, shall be
compatible with the locality and surrounding areas, appropriate
to the physical conditions and capabilities of the specific
parcel or parcels[.]” Kilakila argues that the ICA erred in
affirming BLNR’s interpretation of “locality and surrounding
areas” in HAR § 13-5-30(c)(5) as the immediate vicinity of the
proposed ATST site. Rather, Kilakila asserts that “surrounding
areas” includes Haleakalâ National Park, and that there is no
evidence that the ATST is compatible with the Park.
In its consideration of HAR § 13-5-30(c)(5), BLNR
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focused on the permitted land use in the HO site:
The HO site was specifically set aside for observatory
site purposes under Executive Order No. 1987.
Astronomical and observatory facilities have existed
on the HO site since 1951. The ATST Project includes
the construction of astronomical facilities which are
compatible with the locality and surrounding areas,
appropriate to the physical conditions and
capabilities of the specific parcel.
Because it did not mention areas outside of the HO
site, BLNR necessarily interpreted “locality and surrounding
areas” as the areas within the HO site.
We defer to BLNR’s interpretation unless it was plainly
erroneous or inconsistent with the underlying legislative
purpose. See Kaleikini v. Yoshioka, 128 Hawai#i 53, 67, 283 P.3d
60, 74 (2012) (“An agency’s interpretation of its own rules is
generally entitled to deference.”); In re Wai#ola O Moloka#i,
Inc., 103 Hawai#i 401, 425, 83 P.3d 664, 688 (2004) (stating that
courts do not defer to agency interpretations that are “plainly
erroneous or inconsistent with the underlying legislative
purpose”).
The ATST will be located in a small subsection of the
HO site, which is a clearly defined, highly specialized area.
The HO site’s 18.166 acres were specifically set aside for
observatory site purposes by Governor Quinn in 1961, and this
site is the only site at Haleakalâ used for these purposes.
Since Governor Quinn’s designation, the HO has been considerably
developed by the construction of numerous observatories and other
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astronomical research facilities. The ATST will be the next
facility built within the site’s set boundaries and will fulfill
the site’s designated purposes. As such, it was not plainly
erroneous to interpret “locality” as the location of the ATST and
“surrounding areas” as the HO site, due to the site’s unique
characteristics and history.
Kilakila argues that BLNR recognized that Haleakalâ
National Park was part of the “surrounding area” based on a quote
from the BLNR order approving the permit. In describing a site
visit, BLNR states:
The parties and Hearing Officer Jacobson visited the
site of the proposed ATST and the surrounding area on
July 15, 2011. They observed the views from the area,
the proximity of the structures to each other, the ahu
in the HO site and views from them, the view from Pu#u
#Ula#ula, the view from Haleakalâ National Park Visitor
Center and the area around the Visitor Center, the
view from the road driving up to the HO site, and the
historic sites in the HO site.
This quote does not demonstrate any such recognition,
as the second sentence appears to simply be listing locations
without any reference to the first sentence’s use of “surrounding
area.” Regardless, the fact that BLNR used the term “surrounding
area” in describing a site visit does not bind BLNR to this exact
definition when interpreting HAR § 13-5-30(c)(5).
Therefore, the ICA did not err in affirming BLNR’s
conclusions under HAR § 13-5-30(c)(5).
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3. BLNR did not err in concluding existing aspects of the
land would be preserved under HAR § 13-5-30(c)(6)
HAR § 13-5-30(c)(6) states: “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[.]” Kilakila argues that HAR §
13-5-30(c)(6) is not satisfied because UH admitted that the ATST
does not improve natural beauty or open space characteristics,
and because “BLNR failed to point to any evidence that ATST
preserves natural beauty and open space[.]”
In its consideration of HAR § 13-5-30(c)(6), 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.” In other words, BLNR
relied on similar reasoning as in HAR § 13-5-30(c)(4), which
focused on the ATST within the context of the HO site. Because
the ATST will be located within the HO site and among other
pre-existing facilities, the ATST will maintain, or “preserve,”
the “existing physical and environmental aspects of the land[.]”
Additionally, BLNR considered numerous mitigation
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commitments in the CDUA, which were designed to mitigate impacts
on biological resources. The measures included consulting a
wildlife biologist, monitoring invertebrates, flora, and fauna,
and following washing and inspection protocol to prevent the
introduction of alien invasive species. BLNR also determined
that “[l]ittle to no impacts are anticipated to the topography,
geology, soils, water resources or air quality as a result of the
ATST Project and as such no mitigation is required.”
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. See Waiâhole, 94 Hawai#i 97 at 164, 9 P.3d
at 476. Because we are not “left with a firm and definite
conviction that a mistake has been made,” we do not find BLNR’s
findings regarding HAR § 13-5-30(c)(6) clearly erroneous, and we
affirm the ICA on this point. Brescia, 115 Hawai#i at 492, 168
P.3d at 944.
C. The ATST is not Inconsistent with the Purposes of
Conservation Districts and General Subzones
Kilakila argues that the ICA erred in determining that
the ATST is consistent with the purposes of the conservation
district because of its “unprecedented height, mass, and scale;
industrial appearance; use of hazardous materials, location in
‘Science City’, location in an area that is already 40%
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developed, and substantial impacts[.]” The issue presents a
mixed question of fact and law, and is therefore “reviewed under
the clearly erroneous standard because the conclusion is
dependent upon the facts and circumstances of the particular
case.” Save Diamond Head Waters, 121 Hawai#i at 25, 211 P.3d at
83 (quoting Del Monte Fresh Produce, 112 Hawai#i at 499, 146 P.3d
at 1076).
To grant a CDUP in a conservation district, HAR
§ 13-5-30(c)(1) requires that the proposed land use is
“consistent with the purpose of the conservation district[.]”
Additionally, HAR § 13-5-30(c)(2) requires that the proposed land
use must be “consistent with the objectives of the subzone of the
land on which the use will occur[.]” The ATST must therefore be
consistent with the purposes of general subzones and conservation
districts.
A general subzone seeks to “designate open space where
specific conservation uses may not be defined, but where urban
use would be premature.” HAR § 13-5-14(a). HAR § 13-5-24
together with HAR § 13-5-25 provide guidance on appropriate land
uses in general subzones. HAR § 13-5-24 lists “astronomy
facilities under an approved management plan” as one of the
allowable uses under a resource subzone. HAR § 13-5-25 states
that “[i]n addition to the land uses identified [for general
subzones], all identified land uses . . . for the . . . resource
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subzones also apply to the general subzone, unless otherwise
noted.” Together, these rules specifically permit the
construction of astronomy facilities and do not specify a limit
as to size, appearance, or other characteristics. As an
astronomy facility, the ATST falls under an appropriate use and
is not inconsistent with the purposes of a general subzone.
Additionally, as discussed above, the ATST complies
with the broad purposes set out in the statute and agency rules
regulating conservation districts. See HAR § 13-5-1 (directing
BLNR to manage natural and cultural resources “to promote their
long-term sustainability and the public health, safety, and
welfare”); HRS § 183C-1 (stating that the legislature created
conservation districts “to conserve, protect, and preserve the
important natural resources of the State through appropriate
management and use to promote their long-term sustainability and
the public health, safety and welfare”).
In sum, BLNR did not erroneously conclude that the ATST
was consistent with the purposes of both general subzones and
conservation districts.
IV. Conclusion
For the reasons stated above, BLNR properly granted
CDUP MA-11-04 for construction of the ATST. The permit did not
suffer from the procedural infirmities of prejudgment or improper
ex parte communications, BLNR made valid findings under the
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applicable permit criteria, and the ATST is not inconsistent with
the purposes of the conservation district. Therefore, the ICA’s
November 13, 2014 Judgment on Appeal is affirmed.
David Kimo Frankel and /s/ Mark E. Recktenwald
Sharla Ann Manley
for petitioner /s/ Paula A. Nakayama
Kilakila #O Haleakalâ
/s/ Sabrina S. McKenna
Linda L.W. Chow
for respondents Board of
Land and Natural Resources,
Department of Land and Natural
Resources, and Suzanne Case,
in her official capacity as
Chairperson of the Board of
Land and Natural Resources
Lisa Woods Munger, Lisa A.
Bail, Kimberly A. Vossman,
and Christine A. Terada
for respondent University
of Hawai#i
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