Despite all of the parties in the case calling for the removal of the hearing officer selected by the Board of Land and Natural Resources to conduct the contested case after remand by the Hawaii Supreme Court as we noted just a couple of days ago, the Board has -- somewhat surprisingly -- refused to do so.
Here's the Order, which concluded:
The Board is concerned that, taken to its logical extreme, ensuring a contested case process that subjectively “appears to be fair” to every possible person who takes an interest in the TMT project would likely necessitate not only the disqualification of Judge Amano but of every potential hearing officer who otherwise possessed the acumen to hear this case. No qualified hearing officer candidate is likely to satisfy all spectators and remove all fears of reversal. The Board will not go down this rabbit hole. Instead, the Board adopts the objective standard cited by the unanimous Supreme Court in Mauna Kea Anaina Hou: “… [T]he commitment to an objective ‘appearance of fairness’ test is consistent throughout Hawai‘i judicial decisions.” Mauna Kea Anaina Hou, 136 Hawai‘i at 395, 363 P.3d at 243.....
Lastly, the late request by the University to remove Judge Amano, even though she is “eminently qualified” to hear the contested case, out of a fear that retaining her might be overturned on appeal, invites the Board to subvert its own independent judgment. The Board expressly rejects this invitation. With due respect and consideration to the parties’ various interests and reasons for asking the Board to replace Judge Amano, the Board cannot and will not sidestep its own administrative responsibility to exercise judgment and common sense regarding whether the selection process up until now has objectively appeared to be fair. Common sense must prevail. Upon reconsideration and after further deliberation, the Board stands by its decision to keep Judge Amano.
With the issues preserved for the inevitable appeal, the contested case will now move forward, we presume.
More from the Honolulu Star-Advertiser's Timothy Hurley ("Board backs Amano in TMT case").
