Tuesday, October 22, 2019
Hawai'i Free Press

Current Articles | Archives

Saturday, June 04, 2016
Telescope: Nobody can remove all fears of reversal
By Robert Thomas @ 7:39 PM :: 4959 Views :: Hawaii County , Greenmail, Higher Education, OHA

"Common Sense Must Prevail" - Agency Won't Remove TMT Hearing Officer

by Robert Thomas, InverseCondemnation, June 3, 2016

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 (two reluctantly) 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").

PDF: In re Contested Case Hearing re CDUA Thirty Meter Telescope, No. BLNR-CC-16-002 (Bd. of Land and Nat. Res....

  *   *   *   *   *

The Latest On The Thirty Meter Telescope Case: Everyone Wants The Hearing Officer Removed

by Robert Thomas, InverseComdemnation, June 3, 2016

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.

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT