Staffers working for Sen. Daniel Inouye have been helping state and university officials make sure that a $300 million solar telescope on Maui gets built, according to internal government emails.
But a Native Hawaiian group that is challenging the project in state hearings and in court say emails released under court order in a public records lawsuit show Inouye’s staff and high-level state officials wrongly brought political pressure to bear on a state hearing officer who was considering whether a permit should be issued for the telescope.
Kilakila o Haleakala objects to the University of Hawaii’s Advanced Technology Solar Telescope on cultural and environmental grounds and has filed several lawsuits to stop it. The emails bolster allegations that the senator’s office crossed a legal line by taking up the UH side of the contested case and could aid Kilakila o Haleakala’s attempts to derail the project.
The Institute of Astronomy says the ATST is a world-class telescope that will allow astrophysicists to study solar wind and solar flares and their impact on Earth’s climate. The telescope, the largest of its kind, is slated to be built on an 18-acre site known as “Science City,” which includes about a half dozen other observatories.
Inouye has long supported the telescope and has championed the science and technology sector in Hawaii. “Senator Inouye remains a strong supporter of the ATST project on Haleakala,” his spokesman, Peter Boylan, said in an email.
Jennifer Sabas, Inouye’s chief of staff, recently led efforts to move the telescope forward, according to the emails. She did not respond to an interview request.
Earlier this year, attorneys for the Native Hawaiian Legal Corporation requested that UH disclose any correspondence between Inouye’s office and Gov. Neil Abercrombie’s administration on the telescope after a state hearing officer said that he had been inappropriately pressured by Inouye’s staff. The former superintendant of Haleakala National Park, Marilyn Parris, also said that Inouye’s staff had placed “heavy pressure” on her to stifle objections to the project, according to documents.
UH attorneys denied the records request. The Native Hawaiian Legal Corporation successfully sued to have the information released under the state’s public records law.
David Kimo Frankel, an attorney for the Native Hawaiian Legal Corporation, asked last week that the state’s case records be updated to reflect the communications, ostensibly to aid in an appeal if the state decides to permit the telescope.
Kilakila o Haleakala is contesting a key permit that the state issued to UH to build the telescope. A final decision in the case is expected any day.
The emails show that university officials were worried they would lose $146 million in stimulus funds if the permit challenge wasn’t resolved soon, effectively killing the project.
Of chief concern was Steven Jacobson, who was hired to be the hearing officer in the case. He was responsible for issuing a recommendation on whether the Board of Land and Natural Resources should have issued a conservation district use permit for the project and whether Kilakila o Haleakala should have been allowed to intervene in the case.
Jacobson, an attorney with the Department of Health, was taking months to complete his report. And university officials were starting to panic, the emails show, about the timing as well as what he might recommend.
In January, Mike Maberry, assistant director for UH’s Institute of Astronomy, asked Sabas to help push things along.
It wasn’t the first time she had tried to help. Sabas had previously talked to William Aila, chair of both the Department of Land and Natural Resoureces and the Board of Land and Natural Resources. But Maberry said she should be talking to Loretta Fuddy, Jacobson’s boss. Fuddy is the director of the health department.
On January 30, he wrote:
I know you’ve talked with Aila, but as previously mentioned, Steve Jacobson doesn’t work for Aila he works for Fuddy. Would it be possible for you or someone to talk with Fuddy to see if it could be clarified that Steve’s work priority is to complete the Finding of Facts, Conclusions of Law and Recommendation in the ATST Contested Case?
Sabas promptly asked Bruce Coppa, Abercrombie’s chief of staff, to contact Fuddy:
can you reach out to loretta fuddy who apparently the hearing officer is on contract with rather than dlnr — uh and my feds are getting really really nervous about losing the money for the atst.
Coppa emailed her back, saying he would, and noted, “I also spoke with Bill (Aila) and asked to please help.”
He suggested to Sabas that they call a meeting to strategize on how to make sure that the telescope doesn’t lose its funding:
This will be bad if we lose it. Can we do this — if you all can’t get a handle on this guy by mid-week, can you call a meeting with uh, me, and your depts — dlnr, health and ag. We need a plan b — we need to review our options before we get notified that we are losing the monies — I think it’s been 14 weeks!
The meeting alarmed Maberry. If UH officials met with DLNR it could jeopardize the contested case because communication with any party involved with the case is prohibited.
Sabas said that instead she “can carry the message and I can also carry the uh message.”
Maberry was also worried that word would get out that the astronomy institute was planning to start construction before a decision was reached in the case.
He wrote to Sabas:
I guess I don’t understand the agenda for the meeting you & Bruce Coppa are talking about. We definitely are not ready to let anyone outside our inner circle know we are considering starting construction before receiving the Hearing Officers FoF, CoL & Recommendation. I only shared that information with you so you would appreciate how dire the situation was getting.
In April, the institute did announce that it would begin construction but later backed off the decision.
It’s unclear what effect pressure from Inouye’s office may have had on the timing or outcome of the hearing officer’s decision.
Jacobson filed his 100-page report in February, recommending that UH be allowed to keep the permit. But he was dismissed from the case shortly afterward.
In March, Jacobson complained about inappropriate pressure from Inouye’s office but said it hadn’t played a role in his final decision. He noted that Aila had asked him when his report would be released, but said Aila hadn’t suggested he rule in any particular way.
“I was not asked to recommend a particular result, although the result Senator Inouye’s office wanted from the Board was clear,” Jacobson wrote in March. “I did not see any evidence that anyone else (i.e., anyone in State Government), wanted any particular result, and the Board’s Chair, in particular, made clear that all he wanted to know was when this matter could be put on the Board’s calendar.”
Nonetheless, Jacobson was dismissed by the board and his report thrown out because of the communications between UH officials and others. A new hearing officer was hired, who issued the same recommendation in July.
In a recent filing with the BLNR, Frankel, the attorney for the Native Hawaiian Legal Corporation, said that the emails clearly show that the communications violated state law governing contested cases.
Hawaii law “bars a party in a contested case from using a representative or agent to engage in ex parte communication with any member of the board,” he wrote. “The evidence is now clear that Jennifer Sabas, Chief of Staff to the Senator Daniel Inouye, was acting as the University’s agent or representative.”
Darolyn Lendio, vice president for legal affairs for UH, said by email that the correspondence only reflected the attempts of university officials, Inouye’s staff and the governor’s office to find out when the hearing officer would release his recommendations.
“Under the rules of the Board of Land and Natural Resources, it is not an improper communication to ask a hearing officer when the hearing officer’s recommendations will be issued,” he wrote.
Frankel told Civil Beat that it didn’t matter whether Sabas and other officials explicitly pushed officials for a particular outcome or not.
“Think about it this way,” he said. “Is there a difference between saying, ‘Hey when is the decision coming?’ versus, ‘Hey, can you hurry up and make a decision — because if we don’t hear before this day the project is dead?’”
Read the emails here: