Sunday, October 21, 2018
Hawai'i Free Press

Current Articles | Archives

Thursday, August 09, 2018
Telescope: Cultural Property Ownership Gets You Only One Proceeding
By Robert Thomas @ 5:14 AM :: 988 Views :: Hawaii County , Higher Education, Judiciary

Hawaii Telescope - Been There, Done That: Cultural Property Ownership Gets You Only A Public Hearing If You Have Other Chances To Make Your Case

by Robert Thomas, Inverse Condemnation, August 8, 2018

One of the problems with high-public-profile cases like the multiple challenges to the "Thirty Meter Telescope" up on the top of the Big Island's Mauna Kea, is that when the court issues an opinion, the public focuses only on the result, mostly from a policy perspective. Who won? Did the court invalidate the TMT permits? Did it side with the "right" party? 

We get that. Big cases make big headlines, and most people don't care much about what the decision might mean for the law and future cases. And it matters in these type of cases who won. 

But those of us down here in the trenches look at these cases somewhat differently. Yes, the Hawaii Supreme Court's long-awaited opinion in the latest phase of the multiple litigations challenging the TMT has dropped, and as you might have figured from this post's headline, the court sided with the telescope and the State, and ultimately ruled against this part of the challenge. But we didn't focus so much on which party won (the State and the TMT won the case, but the challenges are not over yet), because we were more interested in what this might mean for future cases. 

In Flores v. Board of Land and Natural Resources, No. SCAP-17-0000059 (Aug. 8, 2018), the unanimous court held that the State of Hawaii Board of Land and Natural Resources did not need to conduct a "contested case" (administrative trial) prior to consenting to the sublease of the property from the University of Hawaii to the TMT. The court held that Mr. Flores -- a native Hawaiian who claims a cultural interest in the mountaintop -- owned "property," but that he had the opportunity to protect that interest in a a parallel administrative proceeding, and didn't need another one.

If your interest in the situation is limited to who was the big winner (the telescope and the University, at least for now), and whether the court shut down the TMT project (it didn't, at least not yet), you can stop right here. You already know what you need to know. But for our thoughts on the court's rationale and what it might mean for future cases, read on.  

We won't cover the facts of the case (which we did in this post about the oral arguments a few months ago). Suffice it to say that the one issue which we termed a "dead end" turned out to be the decisive question to all five Justices, and the court concluded that Flores' participation in a parallel contested case about the telescope meant that a public hearing on the sublease was good enough. Here's what we wrote earlier:

After this ruling, the agency on remand held a contested case in which Flores is a party. The agency and the University seemed to be arguing [during oral arguments] for a form of administrative res judicata, even though neither couched it that way. To us, that seems like a dead end because if Flores' rights are being impacted by two separate agency actions, why not two contested cases?   

So much for our predictive abilities!

Turns out this was hardly the "dead end" we predicted, but was the dispositive issue. First, as we (correctly) predicted, the court agreed that Flores owns "property" (New Property aka due process property -- but property nonetheless). Of that we had little doubt. The question then became whether Flores was entitled by virtue of his ownership of cultural property to any special process beyond what a member of the general public would get in a public agency hearing. 

The court concluded that no statute provided him more, nor did any agency rule. So that left the question of whether Hawaii's due process clause required the agency to provide someone in Flores' circumstance additional procedures by an administrative trial. The court applied what is, in essence, the procedural due process standard of Board of Regents v. Roth, 408 U.S. 564 (1972), which asks whether someone has a "legitimate claim of entitlement" to something, and if so, what procedures must the government follow before it can deprive someone of that interest, the latter determined by a three-part test which values the private interest affected, the risk of erroneous deprivation, and the value of additional procedures. 

The court didn't have much problem with the first factor. Flores has cultural property which the court had already determined in another case to be a "substantial" right. The court next assumed without deciding the issue which took up most of the time at oral arguments: whether Flores' interests were actually put at risk by the sublease. Assuming it did, the court concluded that there was no risk of erroneous deprivation, because he was asserting these same rights in the other parallel contested case:

With respect to the second factor, we acknowledge that,as an initial matter, the parties largely dispute the extent to which the Sublease and the Consent adversely affected Flores’s interest in engaging in Native Hawaiian cultural practices on Mauna Kea, and whether there was a risk of erroneous deprivation on the basis that the Sublease and the Consent had no bearing upon this interest. However, assuming arguendo that the Sublease and the Consent had an impact on Flores’s interest under the specific circumstances of this case, we believe that there is no risk of erroneous deprivation, because Flores has already been afforded a full opportunity to participate in a contested case hearing and express his views and concerns on the matter, and he has not persuaded us that the provision of an additional contested case hearing is necessary to adequately safe guard against erroneous deprivation in this case.

Slip op. at 32-33. With no real risk of erroneous deprivation of Flores' cultural property, the addition of an extra contested case wouldn't add much to the equation. After all, Flores seemed to be making the same claims in the parallel contested case as he would be making in the contested case he was seeking regarding the sublease:

In this case, it appears that Flores seeks a distinct contested case hearing on the Consent in order to express the same concerns, and to vindicate the same interests, that he previously raised in the contested case hearing on the CDUP. Moreover, Flores does not clarify the extent to which, if BLNR held a contested case hearing on the Consent, he would put forth evidence and arguments materially different from that which he already proffered at the CDUP contested case hearing.

Slip op. at 33. 

So the TMT and the State win this round, but only on a very narrow basis: because Flores already had a "bite at the apple" (to use the worn legal cliche), even though that bite was still ongoing, he couldn't get another one. Backdoor administrative res judicata. 

That seems like a bit of a dodge -- although not a bad one -- because (as we asked earlier), if Flores' rights are being affected by two separate agency actions, why not have two contested cases. All this case means that in the future, the lawyers representing challengers in these situations will simply split their plaintiffs, and make sure that no one plaintiff appears in more than one agency proceeding. 

Because what about if some other challenger didn't take the belt-and-suspenders approach that Flores did, and a different person who didn't also participate in the parallel contested case challenged the sublease process for not providing a contested case? In that situation, it looks like that is still an unresolved question to the court.

We're guessing that leaving that question open -- and avoiding the more difficult issue of whether the contested case statute's "to be determined" language means that a person only need show the potential deprivation of property in order to be granted a contested case -- is what brought aboard Justices Pollack and Wilson to make a unanimous court. As we've noted previously, both Justices seem okay with the idea that cultural property is enough to get you a contested case in most cases, and it was somewhat surprising to us that they both signed onto the opinion. That it was exceedingly narrowly drawn seems to us one reason they might have done so. 

As for the next case, we'll see. 

PDF: Flores v. Board of Land and Natural Resources, No. SCAP-17-0000059 (Haw. Aug. 8, 2018)

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

Affordable Hawaii Coalition

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

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 Senate Informer

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Hawaii Votes

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop

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

Hunting, Farming and Fishing Assoc.

I Vote Hawaii

If Hawaii News

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

OHA Lies

Ohana Policy Group

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 Copenull

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

TEA Party Maui

TFB Micronesia

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

United Veterans Hawaii

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT