Appointment of hearings officer in TMT case challenged
Hawaii Tribune-Herald -
When the state Supreme Court invalidated the permit for construction of the Thirty Meter Telescope in December, it ruled the granting of a land use permit by the state Board of Land and Natural Resources prior to a contested case hearing violated the due process rights of the project’s opponents. Now, the Honolulu attorney for a group that sued to stop construction of the $1.4 billion observatory near the summit of Mauna Kea claims his clients’ rights to due process were again violated when the state selected retired Hilo Circuit Judge Riki May Amano to hear the next contested case hearing.
Richard Naiwieha Wurdeman, who represents Mauna Kea Anaina Hou and several others, said he filed an objection with BLNR on Friday to the selection process, and to the appointment by BLNR Chairwoman Suzanne Case of Amano, because the process circumvented his clients and the public. The complaint asks BLNR to restart the hiring process. The document states that prior to Judge Greg Nakamura’s remand of the TMT case to BLNR on Feb. 22, “and apparently without any authorization by (BLNR),” the state Department of Land and Natural Resources published a legal notice seeking a hearings officer in the upcoming TMT land use permit contested case.
The notice was first published Jan. 29 in the Honolulu Star-Advertiser. “We believe that on remand (of the TMT case to BLNR by the 3rd Circuit Court) the board was required to hold a public hearing to determine, under the rules, whether the board was going to conduct a contested case hearing or if it was going to delegate that function to a hearing officer, at which point, the board would then authorize the chair to begin the selection process. That public hearing was never held,” Wurdeman said late Tuesday.
The next notice the appellants received was notification March 31 that Case appointed Amano to preside over the quasi-judicial hearing, according to the filing. Wurdeman said after he contacted the board’s legal counsel and objected to the selection process as being in violation of the state’s open meetings, or “sunshine” law, a second document was issued by BLNR, “seemingly in response to my conversation with the board’s counsel,” saying the board met Feb. 26.
The BLNR document, attached to the objection filing, stated, “After full discussion of the issue, the board delegated the conduct of the contested case hearing to a hearing officer … and confirmed that the chairperson was authorized to engage the services of a hearing officer pursuant to law.”
“We weren’t notified of that,” Wurdeman said. He added his clients deserved advance notice of the board’s meeting because they are parties to the hearing. The filing also states Amano failed to disclose that she and her husband, Donald Amano, who’s also an attorney, have been members of the ‘Imiloa Astronomy Center since 2012, paying $85 per year for a “family” membership. The facility is part of the University of Hawaii at Hilo, which holds the subleases for observatories on the mountain, including the TMT site, is a strong supporter of TMT and lists TMT as a corporate sponsor on its website.
“The fact is that they’re part of the University of Hawaii at Hilo and UH-Hilo is a party to the action,” Wurdeman said. “She’s a dues-paying member to a party in an action. We feel that’s at least an appearance of a conflict, to say the least.”
Questions emailed to the DLNR and the state attorney general’s office Wednesday morning were not answered by press time.
Email John Burnett at firstname.lastname@example.org.