January 29, 2016 Articles

Volcanic Justice: Procedural Due Process for Mauna a Wakea

Issuing a permit to construct a telescope on Mauna Kea, without a requested contested case hearing, violated procedural due process.

By Mária Zulick Nucci – January 29, 2016

In Mauna Kea Anaina Hou v. Board of Land & Natural Resources, No. SCAP-14-0000873 (Haw. Dec. 2, 2015), the Supreme Court of Hawaii held that the state’s Board of Land and Natural Resources (BLNR) violated procedural due process by issuing a Conservation District Use Permit (CDUP) for construction of the Thirty Meters Telescope (TMT) on Mauna Kea, a volcanic mountain on the island of Hawaii, before holding a contested case hearing requested by project opponents. The court’s decision is the most recent in a line of administrative, judicial, and other governmental actions regarding the mountain, and the court emphasized the fundamental due process requirements of the right to be heard at “a meaningful time and in a meaningful manner” and of “both the reality and appearance of justice.” Mauna Kea Anaina Hou, slip op. at 5 (citations omitted).

The history of the case could be viewed as dating to 1893, when United States and European powers removed the Native Hawaiian government. Upon statehood in 1959, ceded lands were returned to the new state government to be held in public trust. Colorado College, Indigenous Religious Traditions, Mauna Kea. In 1968, the state leased space on the mountain to the University of Hawaii for 65 years, chiefly for research by the university’s Institute for Astronomy. In the 1990s, those parties were developing a master plan for the mountain, but in 1998 an audit report stated that the university did not balance development with archeological, cultural, and environmental concerns, noting that Native Hawaiians, who visited Mauna Kea for religious reasons, complained about development and trash deposits as desecrations. In Native Hawaiian religion and culture, Mauna Kea is known as Mauna a Wākea, “The Mountain of Wakea,” first-born son of Wākea, his father, and Papa, his mother, further to the belief in the sky as father and Earth as mother, who created what is now known as the Big Island, with Mauna Kea at its center. U.S Geological Survey, Hawaiian Volcano Observatory, Mauna Kea: Hawai’i’s Tallest Volcano. Disputes over telescopes on the mountain continued: In 2006, after the master plan issues, litigation, and protests, the National Aeronautics and Space Administration abandoned plans for development of up to six “outrigger” scopes. Alexandra Witze, “The Mountain-Top Battle over the Thirty Meter Telescope,” Nature, Sept. 29, 2015.

At present, the university leases 45,000 square kilometers on the mountain from the state, chiefly for use by its Institute for Astronomy; 13 telescopes are located there. University of Hawaii, Institute for Astronomy, About Mauna Kea Observatories; University of Hawaii, Institute for Astronomy, Culture, Astronomy and Natural History: Maunakea Is Home to Varied and Unique Resources. TMT would be a $1.4 billion project, 18 stories high and 34,000 square feet. Mauna Kea contains several wood and stone altars as well as many archaeological sites; three main shrines are within 1,600 feet of the proposed TMT site. Colorado College, Indigenous Religious Traditions, Mauna Kea. Early in the permit review proceedings, there was an effort to have a Hawai’ian spirit associated with Mauna Kea represented; this was rejected on the basis that a spirit is not a person. Id. There are 13 telescopes on the mountain and, in May 2015, Governor David Ige announced that construction of TMT could go on, but he called for the removal of at least three of the existing telescopes. Dennis Overbye, “Hawaii Court Rescinds Permit to Build Thirty Meter Telescope,” N.Y. Times, Dec. 3, 2015.

In its opinion, the Supreme Court of Hawaii noted the two public hearings, including Native Hawaiians’ statements that Mauna Kea’s summit area was considered sacred and that an observatory 18 ½ stories tall would be a desecration. Mauna Kea Anaina Hou, slip op. at 2. It noted BLNR scheduled the matter for action at a February 2011 public meeting. Opponents of TMT requested a contested case hearing, where they could present evidence, including testimony under oath and subject to cross-examination. Nonetheless, BLNR approved the permit, albeit subject to conditions, and directed that a contested case hearing be held and that construction would not begin until the hearing was “resolved.” The hearing was held that year, and in 2012 the hearing officer recommended permit approval, subject to almost the same conditions BLNR had imposed. In 2013, BLNR adopted the hearing officer’s findings, conclusions, and recommendations, and the circuit court affirmed. Id. at 3.

The Supreme Court framed the issue as whether approving the permit before the hearing violated the Hawaii Constitution’s requirement of due process, that no person shall be deprived of life, liberty, or property without due process of law, a basic element of which is a “fair trial in a fair tribunal.” Id. at 4 (citations omitted). Here, permit approval before the contested case hearing denied the right to be heard at “a meaningful time and in a meaningful manner.” Id. at 4–5 (citation omitted). The process thus lacked “both the reality and appearance of justice”: “justice must not only be done but must manifestly be seen to be done.” Id. at 5 (quoting In re Murchison, 349 U.S. 133, 136 (1955)).

The court reviewed the procedural history of the TMT permit process. In 2010, the university submitted a Conservation District Use Application (CDUA) on behalf of TMT Observatory Corporation, a private, nonprofit entity that, along with other academic and scientific entities, proposed TMT. The observatory, with other facilities and roads, would be built on five acres in the astronomy precinct of Mauna Kea Science Reserve, in the Conservation District Resource subzone. At December 2010 public hearings, 84 persons testified; there were also written comments and at least six requests for a contested case hearing. At the February 2011 BLNR public meeting, there was discussion about whether the CDUP could issue before that hearing, but BLNR unanimously voted for permit approval; the administrator of the Office of Conservation and Coastal Lands stated at that meeting that a final decision had been made. Id. at 6–13.

At the August 2011 contested case hearing, much written testimony and testimony from 26 witnesses was received. The Supreme Court reviewed this, including testimony from Native Hawaiians both for and against TMT. In November 2012, the hearing officer issued a 124-page decision and order, with findings of fact and conclusions of law, granting the CDUA and issuing the CDUP. Five months later, BLNR issued its own, 126-page decision, which the Supreme Court described as “substantially the same.” Id. at 15–22.

On appeal, BLNR argued that the 2011 CDUP was a preliminary ruling: The circuit court had found its grant “preliminary,” with the essentially simultaneous contested case hearing. Id. at 22–24. However, the Supreme Court reiterated the standard of a meaningful time and meaningful manner, such that a “day in court” was not necessarily equal to a fair process. The manner of the justice system’s operations must both be and appear fair; this includes protections against the appearance of bias, partiality, and prejudgment. Id. at 26–29. The key question was whether a disinterested observer could conclude that the agency, in some measure, had judged the facts and law in a matter in advance of hearing them. Id. at 28. The court discussed a lead case on the importance of both the substance and appearance of public decision-making processes, Cinderella Career & Finishing Schs., Inc. v. Fed. Trade Comm’n, 425 F.2d 583 (D.C. Cir. 1970), in which the federal court emphasized the need to examine whether an agency’s “ultimate determination . . . will move in predestined grooves.”Mauna Kea Anaina Hou, slip op. at 39 (quoting 425 F.2d at 590).

In addition, Hawaii’s Constitution specifically protects Native Hawaiians’ “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes.” Id. at 30 (quoting Haw. Const. art. XII, § 7). Citing the opposition of some Native Hawaiians to TMT, the court found that, under Hawaiian law, a contested case hearing was required regardless of whether the BLNR had voted to approve it. Decision on the CDUP before this hearing was held denied the required meaningful opportunity to be heard, in reality and appearance. At such a hearing, a full record can be developed before decision: Parties may issue subpoenas, take testimony and other evidence, use oaths and cross-examination, have the assistance of counsel, schedule a site visit, and review the hearing officer’s decision and have the right to challenge it before BLNR. Id. at 31–32. The court reviewed the conditions BLNR placed on the permit and found that they did not change its character as a decision on the merits before the hearing was held; in particular, the court again noted the similarity of the conditions recited in the 2011 permit and 2013 BLNR decision. Id. at 34–39. The court then analyzed and rejected numerous arguments to uphold the permit. Id. at 39–58. It vacated the circuit court’s decision and order upholding BLNR’s action and remanded to the circuit court for remand to BLNR for action consistent with the Supreme Court’s decision. Id. at 58.

The Hawaii Supreme Court’s action clearly was not a defeat of the TMT project and did not end the permit process. Accordingly, legal action and activism will continue. However, the court made clear that Native and non-Native opponents are entitled to the basic element of due process that requires a fair trial in a fair tribunal, at a meaningful time and in a meaningful manner, satisfying both the reality and appearance of justice, so that justice is manifestly seen to have been done; they are not subject to the risk of a decision that arrived in predestined grooves.

For Native opponents of TMT, Mauna Kea Anaina Hou might have additional significance. Concurrent with, but separate from, the TMT dispute was an effort to hold an election regarding Native Hawaiian self-governance. The election included a dispute about whether non-Native Hawaiians could vote. The matter reached the United States Supreme Court, and on November 27, 2015, Justice Anthony Kennedy issued an order enjoining counting the ballots and certifying winners, pending further action. Keli’i Akina v. Hawaii, No. 15A551 (Nov. 27, 2015) (Kennedy, Circuit Justice). On December 2, 2015, the Court enjoined the counting of ballots and certification of winners pending appellate review, although Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the injunction application.Keli’I Akina v. Hawaii, No. 15A551 (Dec. 2, 2015).

At this writing, the parties decided to forgo potentially protracted litigation. A constitutional convention will be held in February 2016 to discuss potential self-governance. Hawaiian Kingdom Independence Blogsee also Matthew Santiago, “Supreme Court Blocks Hawaii Election Pending Federal Court Ruling,” Jurist, Dec. 3, 2015. Mauna Kea Anaina Houupheld the rights of all Hawaiians to due process. Its specific reference to Native rights under the state constitution and the separate but concurrent litigation and convention activity regarding self-governance show justice issues in the Aloha State that merit following.

 

Keywords: litigation, access to justice, procedural due process, meaningful time and meaningful manner, reality and appearance of justice, Mauna Kea contested case hearing, administrative procedure

 

Mária Zulick Nucci graduated from Temple University School of Law, where she was an editor of two publications and won sports law and trial advocacy awards.


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