The contested case hearing over the Thirty Meter Telescope is gearing up. It is set to begin in Hilo on Tuesday.
But the sparring has already begun, and if the number of documents filed with the Department of Land and Natural Resources and the number of potential witnesses to be called are any measure of the discord to come, hearing officer Riki May Amano, a retired judge, will have her hands full keeping order in this forum.
The Thirty Meter Telescope is proposed to be built near the summit of Mauna Kea, but before construction can start, it needs to have a Conservation District Use Permit granted by the state Board of Land and Natural Resources. In 2010, the University of Hawaii-Hilo applied for the permit. The board voted to approve the permit, but at the same time ordered a contested case hearing be held.
That first hearing was conducted in 2011. In early 2013, the Land Board approved the hearing officer’s findings of fact, voting in effect to ratify the earlier decision it had made. Opponents challenged the procedure in court, arguing that by holding the contested case after the board had already voted to approve the permit for the telescope, their rights to due process had been violated.
Late last year, the state Supreme Court agreed with the protesters, ordering the Land Board to begin the contested case process anew and refrain from voting on the permit until after the hearing had run its course.
On the eve of the second contested case hearing, here is how things stood.
On March 31, Land Board chair Suzanne Case announced the appointment of Amano as hearing officer – a decision that was challenged by the six parties who petitioned for the contested case hearing the first time around: Mauna Kea Anaina Hou and Kealoha Pisciotta; Clarence Kukaukahi Ching; the Flores-Case Ohana; Deborah Ward; Paul K. Neves; and KaHEA: The Hawaiian-Environmental Alliance. (For convenience, these will be known as the original petitioners.)
These petitioners, represented by attorney Richard Naiwieha Wurdeman, claimed that Case lacked the authority to make the appointment and that Amano’s conduct would be prejudiced by her membership in the Imiloa Astronomy Center at the $85-a-year “family” level. (Wurdeman noted that the TMT was itself a member of Imiloa, at the corporate level.) This affiliation, he argued, was sufficient to disqualify her.
The Land Board disagreed. In Minute Order 4, issued May 6, it explained its reasons for not dismissing Amano.
First, the board noted, “a ‘family membership’ does not confer any right to participate in Imiloa’s governance or decision-making, in contrast to organizations where members may vote for a board of directors or other officers. A ‘family membership’ in Imiloa means only that the member has prepaid the admission for two people and five children and receives some discounts at the restaurant and gift shop.”
The board also considered whether in an “exercise of discretion,” it should replace Amano “even though no legal grounds exist for disqualification. The board declines to do so.”
That same day, Wurdeman repeated his clients’ objections to the way in which Amano was selected, by a committee that included BLNR member Chris Yuen. He argued that Yuen should have been disqualified on the basis of statements made in a 1998 interview he gave to Environment Hawaii, in which, Wurdeman said, Yuen appeared to be prejudiced in favor of telescope development.
(Wurdeman and his clients also protested the DLNR’s posting of documents related to the contested case on a website devoted to the topic: “How did this web page come about and why a Mauna Kea specific web page? Was it discussed and approved in a hearing of any kind? Who authorized it? Who rendered the opinions and through what process? ….”)
A week later, Wurdeman filed a formal motion for a reconsideration of the board’s decision to stick by its selection of Amano as hearing officer.
In early June, the board denied the motion. Among other things, the minute order announcing the denial addressed the claim that Yuen was prejudiced against the petitioners as a result of statements made in 1998:
In his written response to petitioners’ objections,” the minute order states:
The minute order offered further discussion on the petitioners’ argument (joined by both the University of Hawaii and TMT) that the selection of Amano might not survive review in any legal appeal of a future board decision:
On Oct.r 10, Wurdeman announced he was withdrawing as counsel for the petitioners, citing scheduling conflicts. The following day, Yuklin Aluli and Dexter Kaiama informed the DLNR and all other parties that they would be representing KaHEA as co-counsel, along with Wurdeman, in the contested case proceedings. No mention was made of representation for the five other original petitioners.
Generally, Amano took a liberal approach to allowing interested parties to intervene, approving more than two dozen individuals, associations or institutions to participate in the contested case proceedings.
Among the parties admitted is the TMT International Observatory, LLC, the organization that is seeking to build the telescope and to which the University of Hawaii, in 2014, issued the sublease of land where the TMT is to be built. In the first contested case hearing, the TMT organization – which at that time was calling itself the TMT Observatory Corporation – did not participate, although it did have counsel that observed the proceedings closely. The original petitioners have objected to the TMT’s participation.
Eleven individuals who had submitted a timely application to intervene in the contested case were not granted standing. In Minute Order 13, issued July 21, Amano dismissed their applications, citing the fact that they were not physically present at a June 17 pre-hearing conference nor had they appealed their dismissal within the time allowed for appeals.
Almost all the parties seeking admission to the contested case, including those dismissed, indicated their opposition to construction of the TMT.
Apart from the TMT itself, the only intervenor that has taken a stance in favor of the TMT’s construction is a group calling itself PUEO, short for Perpetuating Unique Educational Opportunities, Inc. As described in its petition for standing, PUEO’s purposes “include furthering ‘educational opportunities for the children of Hawaii in the fields of science, technology, engineering, and mathematics.’ Its board members and beneficiaries include native Hawaiians that reside in the Keaukaha-Panaewa Hawaiian Homesteads located in Hilo, Hawaii. PUEO’s board members include native Hawaiians who seek knowledge and understanding and exercise customary and traditional native Hawaiian rights on Mauna Kea.”
The original petitioners have objected strenuously to PUEO’s admission as an intervenor. In a memorandum opposing Amano’s decision to admit PUEO, the original petitioners’ attorney, Wurdeman, claims that PUEO was formed for the sole purpose of intervening in the case.
“[G]iven the timing of its formation, the P.U.E.O., Inc., was obviously formed solely to try and participate in the contested case hearing and the Petitioners submit that such an attempt is clearly improper,” Wurdeman wrote. He went on to recite the chronology of the group’s origin:
Wurdeman disparaged the claimed interests of the PUEO’s leaders in protecting traditional practices on Mauna Kea:
The effort to discredit PUEO did not stop there. In its list of witnesses to be called, the original petitioners included Stanley Roehrig, who would be asked to testify about “conflict of interest and voting on issues with P.U.E.O., Inc., representatives.”
Wurdeman and other parties to the case have pointed out a close relationship between PUEO’s president, Shadd Keahi Warfield, and board member Roehrig. Roehrig was instrumental in establishing another non-profit, Keaukaha One Youth Development Corporation, which Warfield now leads as its president. That group uses as its base of operation a home in Keaukaha owned by Roehrig. Wurdeman claimed that the group rents the house from Roehrig, but Warfield says the group pays no rent.
In a pre-conference hearing in late August, Amano rejected – for now – the state’s efforts to have Amano issue a protective order that would keep Roehrig, Land Board chair Case, and Gov. David Ige from being called as witnesses by the petitioners. Amano noted that the usual way of handling challenges to witnesses in cases such as this is to hear them later in the proceedings. “I’m aware the Supreme Court (remanded the permit) because of failure to follow the process,” Amano was reported by the Hawaii Tribune-Herald as saying. “For that reason, I’m reluctant to support anything out of process. It’s just not worth it.”
Dwight J. Vicente, one of the parties admitted to the contested case, voiced his support for Wurdeman’s efforts to have Ige testify. In an August 11 filing wherein he indicated his opposition to the state’s request for the protective order, Vicente recited his reasons for claiming that the state of Hawaii does not exist. On this basis, he argued that Ige, Case and Roehrig enjoy no special treatment:
Vicente’s claims are by no means unusual among the TMT opponents.
Kalikolehua Kanaele, in petitioning for admission as an intervenor, stated:
Perhaps the most extreme example is that of the purported Kingdom of Hawaii. On June 22, Lanny Sinkin filed on its behalf a “notice of absence of necessary and indispensable parties” with the DLNR.
Sinkin says that his pleading “is a limited appearance solely to provide notice to the hearing officer of the missing necessary and indispensable parties and provide the hearing officer with sufficient evidence to conclude that, given the absence of these parties, the hearing officer lacks jurisdiction and must sua sponte dismiss the case.” Attached to Sinkin’s pleading is a declaration from the king, Alii Nui Moi Edmund Kelii Silva, Jr.
Among other things, Silva claims that, “at the request of an elder descended from the last House of Nobles of the Kingdom of Hawaii, I agreed to assume the position of Alii Nui Moi (High Chief/King) within a restored Hawaiian Kingdom Government twelve years ago.” One of his first acts, he goes on to say, “was to affirm the Kingdom’s independence from the United States.”
The lands of the restored kingdom include the lands where the TMT is proposed to be built, he says, making his participation in the hearing necessary. (Neither Silva nor the Kingdom of Hawaii applied to be an intervenor in the case.)
In reply, J. Douglas Ing, one of the attorneys for the TMT, writes, “The purported Kingdom of Hawaii and its claimed king (collectively, ‘the Kingdom’) is not a necessary and indispensable party to this contested case because it does not exist.” (Ing also takes a swipe at Sinkin, noting in a footnote that “neither the Kingdom nor Mr. Sinkin provide any evidence that Mr. Sinkin is properly representing the Kingdom under [Hawaii Administrative Rule] § 13-1-10(a),” which states that a person can appear on their own behalf, a partner can represent a partnership, an officer or director of a corporation can represent the corporation, or an officer or employee of an agency can represent the agency in any proceeding before the Land Board or its hearing officer. Otherwise, representation is limited to licensed Hawaii lawyers. “Mr. Sinkin is not a licensed Hawaii lawyer and therefore cannot represent the Kingdom …. Mr. Sinkin’s appearance before this Hearings Officer on purported behalf of the Kingdom is therefore in violation of HAR § 13-1-10. Mr. Sinkin’s cavalier attitude towards the applicable administrative rules should not be tolerated by this Hearings Officer and the Notice should be dismissed on this basis alone.”)
Ing cites a federal case brought by David Keanu Sai on behalf of a different Kingdom of Hawaii against then-Secretary of State Hillary Clinton, in which the Circuit Court of the District of Columbia opined that, it has “long [been] recognized that the determination of sovereignty over a territory is fundamentally a political question beyond the jurisdiction of the courts.” (In another footnote, Ing points out that “the Kingdom that filed the Notice is different than the Kingdom of Hawaii that Mr. Sai claimed to be the regent of… Indeed, a quick Google search reveals at least four different websites claiming to be the Kingdom of Hawaii.”
Sai himself appears on the list of witnesses submitted by Chase Michael Kahookahi Kanuha. According to a website Sai maintains, hawaiiankingdom.org, he is the acting minister of interior and chairman of the council of regency for the Hawaiian kingdom. Sai may be best known for his involvement in a company called Perfect Title, which sold fraudulent deeds to hundreds of Hawaiian homeowners facing foreclosure. Sai and Perfect Title claimed that since the overthrow of the Hawaiian monarchy, all land transfers were invalid if they were subject to pre-existing claims. Sai was sentenced to five years’ probation in 1999 after a jury in state Circuit Court found him guilty of attempted theft for his part in the scheme.
In addition to presenting claims on behalf of the Kingdom of Hawaii (one of them, in any case), Sinkin also is representing the Temple of Lono and its leader, Tahuna Frank Kamehameha Tamealoha Anuumealani Nobriga.
On June 20, Sinkin filed a motion for partial summary judgment, asking the hearing officer to acknowledge “that the peak of Mauna Kea (Mauna a Wakea) is especially sacred to the traditional Hawaiian faith and that the traditional Hawaiian faith still exists.”
“Mr. Nobriga is a kahuna and a teacher of the ancient faith,” Sinkin continued. “He is recognized as such by such luminaries as Judge Samuel King who wrote: ‘Frank Nobriga is an active force behind the Temple of Lono movement which began in 1971. Their purpose is to maintain a spiritual land bank, with five temples throughout the islands. … The Temple of Lono is rediscovering the elements of ancient Hawaiian religion, including a four-god concept.’”
The university objected. In responding to Sinkin’s motion, UHH attorney Ian Sandison stated that any acknowledgement by the hearing officer that the mountain is a sacred site “would violate the establishment clause of both the U.S. and Hawaii Constitutions. It would require the hearing officer to recognize a religious servitude over that small land area of Mauna Kea proposed for the TMT project.”
“It is irrelevant to this proceeding,” Sandison argued, “whether ‘the traditional Hawaiian faith is still practiced,’ unless ‘the traditional Hawaiian faith’ also was actually ‘practiced’ on the Mauna Kea summit or within the TMT site. … [T]he Temple has not even shown that it held or conducted any religious ceremonies within the summit’s astronomy precincts. Therefore, there can be no burden on the religious ceremonies, and, in turn, no viable claim under the free exercise (of religion) clause.”
Sandison laid out the university’s strategy in dealing with any effort by TMT opponents to use religious exercise claims as a means of halting telescope construction:
In July, PUEO filed a motion to delineate the issues that it argued should properly be before the hearing officer in making her recommendation to the Land Board as to whether or not it should grant the Conservation District permit allowing the telescope to be built. The TMT and UHH joined in support of the motion, while the original petitioners, the Temple of Lono, and intervenor Harry Fergerstrom filed motions in opposition, with intervenor Mehana Kihoi joining the original petitioners’ opposition.
At a prehearing conference on Aug. 29, Amano asked PUEO to draft a minute order granting its motion.
In its proposed minute order, PUEO offered five topics that would be fair game for arguing in the contested case:
In addition, PUEO set forth three issues that would not be allowed to be raised in the contested case hearing:
“1. The sovereignty of the Kingdom of Hawaii or any other issues relating to the purported existence of the Kingdom of Hawaii.
“2. Challenges to the legal status of the state of Hawaii.
“3. Challenges to the state’s ownership of and title to the lands comprising the summit area of Mauna Kea.”
Such issues, PUEO stated, “present non-justiciable political questions that are outside the subject matter jurisdiction of this hearings officer and are therefore not issues for this contested case hearing.”
In Minute Order No. 19, issued September 23, Amano adopted PUEO’s proposal regarding limits to the issues to be considered in the contested case.
Reprinted with permission from the current issue of Environment Hawaii, a non-profit news publication founded in 1990. All issues published in the last five years are available free to Environment Hawaii subscribers at www.environment-hawaii.org. Non-subscribers must pay $10 for a two-day pass. All issues older than that are free to the public.