Hawaii News Now came calling yesterday, looking for commentary about the latest in the case challenging the proposed Thirty Meter Telescope on the Big Island's Mauna Kea. We obliged.
As you know, we've been following the case. It's already been up to the Hawaii Supreme Court, which unanimously invalidated the Conservation District Use Permit which the State Board of Land and Natural Resources had previously issued. The court correctly held that the BLNR should not have issued the permit (even if the permit didn't allow construction to begin) before it conducted the contested case to consider the objections of the challengers. This process, the court emphasized, "lacked both the reality and appearance of justice." In other words, it looked really bad to grant a permit and only then consider objections.
The court remanded the case to the Board for a reboot.
Once there, the BLNR started looking for a Hearing Officer to conduct the contested case, to assemble the record, and to make a recommendation to the Board. Eventually it settled on what seemed like a good choice, a retired state judge from the Big Island.
But the challengers objected and asked for her removal because she was a member of the Imiloa Astronomy Center, which touts itself as "an integral part of the University of Hawai‘i at Hilo" (the permit applicant). The objectors didn't assert that the Hearing Officer was actually biased, but that her appointment would run afoul of the "appearance of bias" standard adopted by the Supreme Court.
Then, in a somewhat unusual move, the University of Hawaii -- as noted above, the permit applicant -- also (reluctantly) joined in the calls for her removal. The UH also noted that there were no allegations that she was actually biased, and made it a point to say that her serving as the hearing officer wouldn't even give the appearance of bias. But it also had come to light that she had not disclosed that she is also serving as a mediator in another, unrelated case in which the UH is a party. That, the UH asserted, would only give the objectors more ammunition, and the worse thing that could happen would be to go through the entire contested case, only to have the permit vacated yet again. Last year, the Hawaii Supreme Court in a case involving an arbitrated dispute over construction defects, Nordic PCL Construction, Inc. v. LPIHGC, LLC. 136 Haw. 29 | 358 P.3d 1 (2015), re-emphasized the duty of disclosure which makes it incumbent on neutrals to tell all, especially about other cases in which they have been hired by the same parties. [Barista's note: we were involved as counsel in that appeal.] Thus, according to UH, discretion was the better part of valor, and the hearing officer should go.
Next, the Thirty Meter Telescope organization itself (which isn't even formally a party to the contested case yet) noted that the BLNR should "pick the next alternate candidate from the list developed by its selection committee," and that its request "is not and should not be construed as a lack of faith in Judge Amano's abilities as a jurist." The enemy here is delay, and the request that she be removed "is simply being made to eliminate any potential risk of appeal that may result from Judge Amano's selections as Hearings Officer and to minimize any further delay that has resulted because of her selection."
We think that this is the smart play:
Thomas said the opposition to Amano could be part of a larger strategy from TMT opponents.
"A lot of times the goal of the objectors is -- you've heard of death by a thousand cuts -- well, they call it death by a thousand days. As long as you can tie the project up -- whether you win or lose in the end doesn't matter," he said.
There's no doubt replacing Amano will stall the process, but legal experts say it's a temporary setback that could ultimately benefit TMT.
New legislation that goes into effect on August 1 will give the state Supreme Court direct review over decisions like those made by the land board.
"Generally speaking, they push the timing -- but on this one, maybe it's better to do a little bit of a delay," Thomas said. "At which point that new law kicks in and covers it, in which case you skip over a year's worth of process and go straight to the Supreme Court, where I think it's a pretty good bet they're going to be anyway."
"That new law" we referenced is HB 1581 which puts certain cases -- this one included -- on the appellate fast track, with a go-straight-to-the-Supreme-Court pass. If the TMT contested case is decided after the bill's effective date, it will be able to take advantage of that new track. Better to lose time now in a re-re-boot of the contested case and potentially save up to a year of appellate court time for the inevitable appeal.
As for the hearing officer, now what? With all three major players calling for her removal, the BLNR would be hard-pressed to keep her. Doing so would only make additional benchslaps by the Supreme Court more likely, in our view.