363 P.3d 224 (Hawai'i 2015), SCAP-14-0000873, Hou v. Board of Land & Natural Resources

Docket Nº:SCAP-14-0000873
Citation:363 P.3d 224, 136 Hawai'i 376
Opinion Judge:Mark E. Recktenwald, C.J.
Party Name:MAUNA KEA ANAINA HOU; CLARENCE KUKAUAKAHI CHING; FLORES-CASE 'OHANA; DEBORAH J. WARD; PAUL K. NEVES; and KAHEA: THE HAWAIIAN ENVIRONMENTAL ALLIANCE, a domestic non-profit corporation, Appellants-Appellants, v. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; SUZANNE D. CASE, in...
Attorney:Richard Naiwieha Wurdeman, for appellants. Ian L. Sandison, Timothy J. Lui-Kwan, John P. Manaut, and Arsima A. Muller, for appellee University of Hawai#i at Hilo. Douglas S. Chin, William J. Wynhoff, and Julie H. China, for appellees BLNR, DLNR, and Suzanne D. Case, in her official capacity as Ch...
Judge Panel:RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., CONCURRING SEPARATELY, WITH WHOM WILSON, J., JOINS, AND WITH WHOM McKENNA, J., JOINS AS TO PART IV. CONCURRING OPINION BY POLLACK, J., IN WHICH WILSON, J., JOINS, AND IN WHICH McKENNA, J., JOINS AS TO PART IV. POLLACK, J., IN WHICH ...
Case Date:December 02, 2015
Court:Supreme Court of Hawai'i
 
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Page 224

363 P.3d 224 (Hawai'i 2015)

136 Hawai'i 376

MAUNA KEA ANAINA HOU; CLARENCE KUKAUAKAHI CHING; FLORES-CASE 'OHANA; DEBORAH J. WARD; PAUL K. NEVES; and KAHEA: THE HAWAIIAN ENVIRONMENTAL ALLIANCE, a domestic non-profit corporation, Appellants-Appellants,

v.

BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I; SUZANNE D. CASE, in her official capacity as Chair of the Board of Land and Natural Resources and Director of the Department of Land and Natural Resources; and UNIVERSITY OF HAWAI'I AT HILO, Appellees-Appellees

SCAP-14-0000873

Supreme Court of Hawaii

December 2, 2015

Page 225

[Copyrighted Material Omitted]

Page 226

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. CAAP-14-0000873; CIV. NO. 13-1-0349.

Richard Naiwieha Wurdeman, for appellants.

Ian L. Sandison, Timothy J. Lui-Kwan, John P. Manaut, and Arsima A. Muller, for appellee University of Hawai#i at Hilo.

Douglas S. Chin, William J. Wynhoff, and Julie H. China, for appellees BLNR, DLNR, and Suzanne D. Case, in her official capacity as Chairperson of the Board.

RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., CONCURRING SEPARATELY, WITH WHOM WILSON, J., JOINS, AND WITH WHOM McKENNA, J., JOINS AS TO PART IV. CONCURRING OPINION BY POLLACK, J., IN WHICH WILSON, J., JOINS, AND IN WHICH McKENNA, J., JOINS AS TO PART IV.

OPINION

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[136 Hawai'i 379] Mark E. Recktenwald, C.J.

This case requires us to determine whether the procedure followed by the Board of Land and Natural Resources (Board or BLNR) in issuing a permit to construct an observatory in a conservation district1 comported with due process.

Specifically, the University of Hawai'i at Hilo (UHH) applied for approval from the Board to construct the Thirty Meter Telescope (TMT) on Mauna Kea on the island of Hawai'i. The Board held two public hearings on the application, at which more than 80 people spoke. Proponents asserted that the " next generation" large telescope would facilitate

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[136 Hawai'i 380] cutting-edge scientific research that could not be conducted as effectively anywhere else. Opponents included Native Hawaiians who stated that the summit area was sacred in Native Hawaiian culture and that the construction of the eighteen-and-one-half-story high observatory would be a desecration.

The Board scheduled UHH's application for action at a public board meeting in February 2011. Various opponents of the application spoke at the meeting and requested that the Board delay action on the permit until it could conduct a contested case hearing, at which evidence concerning the application could be presented under oath and subject to cross-examination.

Despite those objections, the Board voted to approve the permit at the meeting, subject to a number of conditions. It also took two further steps that are relevant here. First, acting on its own motion, it directed that a contested case hearing be conducted. Second, it included a condition in the permit that no construction could be undertaken until the contested case hearing was resolved.

Subsequently, the Chair of the Board appointed a hearing officer to conduct the hearing, which took place over the course of seven days in 2011. In 2012, the hearing officer recommended that the permit be approved, subject to essentially the same conditions as originally imposed by the Board. The Board adopted that recommendation in 2013, and the Circuit Court of the Third Circuit affirmed the Board's action. Appellants, who oppose the issuance of the permit and who include several of the people who requested that the Board not act on the application until after the contested case hearing was held, appealed to this court.

The question we must answer is whether the approval of the permit before the contested case hearing was held violated the Hawai'i Constitution's guarantee of due process, which provides that, " No person shall be deprived of life, liberty or property without due process of law . . . ." Haw. Const. art. I, § 5. We hold that it did.

A " fair trial in a fair tribunal is a basic requirement of due process." Sifagaloa v. Bd. of Tr. of Emp. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). While the specifics of that guarantee can vary depending on the circumstances, in the instant case the Appellants were entitled to a contested case hearing and had unequivocally requested one before the Board voted on the permit at its February 2011 meeting. A contested case hearing is similar in many respects to a trial before a judge: the parties have the right to present evidence, testimony is taken under oath, and witnesses are subject to cross-examination. It provides a high level of procedural fairness and protections to ensure that decisions are made based on a factual record that is developed through a rigorous adversarial process.

By voting on the permit before the contested case hearing was held, the Board denied the Appellants their due process right to be heard at " a meaningful time and in a meaningful manner." Sandy Beach Def. Fund v. City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). The Board was on record in support of the project, and the permit itself was issued before evidence was taken and subject to adversarial testing before a neutral hearing officer. While UHH and the Board argue that the February 2011 decision was " preliminary" and subject to revision, the fact remains that the Board issued the permit prior to holding the contested case hearing. This procedure was improper, and was inconsistent with the statutory definition of a contested case as " a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS § 91-1(5) (emphasis added).

Such a procedure lacked both the reality and appearance of justice. As this court noted in Sifagaloa:

The Supreme Court teaches us . . . that justice can " perform its high function in the best way [only if it satisfies] the 'appearance of justice.'" For in a popular government, " 'justice must not only be done but must manifestly be seen to be done . . . .'"

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[136 Hawai'i 381] 74 Haw. at 189-90, 840 P.2d at 371 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954), and Murchison, 349 U.S. at 136).

The process followed by the Board here did not meet these standards. Quite simply, the Board put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand.2 We therefore vacate the judgment of the circuit court and the permit issued by the Board, and remand so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.

I. BACKGROUND

A. BLNR proceedings

1. Conservation District Use Application and Permit

On September 2, 2010, UHH submitted to the Department of Land and Natural Resources a Conservation District Use Application (CDUA) for the TMT. UHH submitted the application on behalf of TMT Observatory Corporation, a private non-profit corporation, which proposed the TMT in partnership with the University of California, the California Institute of Technology, and the Association of Canadian Universities for Research in Astronomy; the National Astronomical Observatory of Japan was noted to be a " collaborator and potential partner," and the National Astronomical Observatories of the Chinese Academy of Sciences and India's Department of Science and Technology were noted to be " observers and potential partners."

The application proposed an astronomy observatory and ancillary facilities and access roads on a site of roughly five acres on the upper slopes of Mauna Kea. The proposed site was within the astronomy precinct of the Mauna Kea Science Reserve, which is within the Conservation District Resource subzone. The CDUA stated that as of mid-2010, thirteen astronomical facilities were operational on Mauna Kea. It explained that observatories were attracted to Mauna Kea " principally because of the superb viewing conditions that its high-altitude/mid-oceanic location provides," and noted the " intellectual and physical support infrastructure that has developed around the [astronomy] complex." The CDUA added that these factors " have helped Hawai'i become one of the most important centers for astronomical research in the world."

The proposed observatory consisted of a telescope thirty meters in diameter, attached instruments to record data, an enclosing dome, an attached building to house support and maintenance facilities, and parking. The CDUA also proposed a TMT Access Way, consisting of an improved road and underground utilities improvements to connect the TMT with other existing roads and utilities, and temporary use of an existing four-acre staging area for materials during construction. The CDUA also proposed to upgrade existing underground electrical wiring, electrical transformers, and related equipment within a nearby substation.

On December 2 and 3, 2010, BLNR held public hearings on the CDUA in Hilo and Kailua-Kona, respectively. Approximately 200 individuals attended the hearings, 84 of whom testified, and a number of individuals and groups provided written comments before and after these hearings. A range of opinions were expressed in support of and against the CDUA, and at least 6 individuals or groups requested a contested case hearing verbally, in writing, or both.

In the weeks that...

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