UPDATED 3/30/12 10:20 a.m.
A controversial solar telescope atop Haleakala suffered a setback Thursday when the hearing officer was fired and his recommendation to approve the project was thrown out by the Board of Land and Natural Resources.
The board ruled that Steven Jacobson had inappropriate discussions with outside parties to the case — ostensibly, Sen. Daniel Inouye’s office and the University of Hawaii’s Institute of Astronomy, among others. The board ordered him immediately discharged from the case.
“I know neither side liked my decision very much, so it doesn’t surprise me,” Jacobson told Civil Beat. He declined to talk about any discussions with Inouye’s staff or others, saying he couldn’t comment beyond what was in his case file.
The decision references communications that Jacobson had with the Department of Health, the chair of the Board of Land and Natural Resources and “other people,” but doesn’t get into specifics.
In a document filed earlier this month, Jacobson complained about pressure from Inouye’s office that he rule in favor of the telescope observatory, which has sparked opposition by Native Hawaiian groups in particular, who argue that it will disrupt an important cultural site.
“I was not asked to recommend a particular result, although the result Senator Inouye’s office wanted from the Board was clear,” wrote Jacobson. “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.”
Jacobson said that the discussions played no part in his final decision, but the board ruled that his dismissal was important in order to “avoid even the appearance of impropriety.”
UPDATED Peter Boylan, Inouye’s deputy chief of staff for government and external affairs, did not directly respond to the concerns raised about communications with Inouye, but did say by email Friday morning that the senator supported the project, the Advanced Technology Solar Telescope, and hoped that it would soon more forward.
“We support robust debate on projects of this magnitude. Such debate is an integral part of our democracy. However, there must also be a fair and reasonable timeline – a measure of certainty – to conclude the debate process,” wrote Boylan. “As a long standing supporter of the A-T-S-T, Senator Inouye recognizes the value of the scientific research to be undertaken, providing the University of Hawaii with a coveted ‘place in the sun.’ We remain optimistic that construction will begin in the not too distant future.”
Jacobson had recommended that a December 2010 decision to grant the project a conservation district use permit should stand and that Kilakila o Haleakala, a group that had requested a contested case hearing on the matter, had no authority to intervene. The recommendation was supposed to then go to the Board of Land and Natural Resources for approval.
The sequence of events was unusual and has added a lot of confusion to the case, as David Kimo Frankel of the Native Hawaiian Legal Corporation and the group’s counsel, explained to Civil Beat:
“We believe they effectively denied our request for a contested case hearing,” Frankel said. “So we are challenging the permit that was granted, that shouldn’t have been granted. The contested case hearing is supposed to be on whether an application should be granted or not. But in this case it was already granted.”
Department of Land and Natural Resources Chairman William Aila, who also chairs the board, is to appoint a new hearings officer and a ruling on Kilakila o Haleakala’s standing in the case is anticipated within 60 days.
But it’s unlikely that this will put an end to the debate surrounding the proposed $300 million Advanced Technology Solar Telescope, a joint project of the University of Hawaii and the National Science Foundation. Frankel said that if the board ultimately rules against his client, he will challenge the decision in court.
Jacobson hasn’t been the only one to complain about pressure from Inouye’s office. The former superintendent of Haleakala National Park, Marilyn Parris, said in a case document that she too had been pressured to support the project.
“While serving as superintendent, I was well aware of Senator Inouye’s displeasure with my statements/comments against the construction of the ATST,” she wrote. “His staff assistant, James Chang, office placed heavy pressure on me to mute objections that the National Park Service had regarding the impacts of the ATSST. For example, in a meeting with Mr. Chang he strongly encouraged me to go along with the construction of the ATST project. When I stated it was my job to guard against such extreme impacts to this majestic national park, he indicated they would go to the Secretary of the Interior to override my objections.”
Frankel said that the situation showed “the extreme pressure that is being applied to grease the skids for this project.”
Decision of the Board of Land and Natural Resources:
Steven Jacobson describes pressure from Sen. Daniel Inouye’s office:
Marilyn Parris, former superintendent of Haleakala National Park, says she was pressured from Inouye as well: