House’s proposal ends contested case land use hearings, sending them directly to court

In a supposed effort to streamline the state’s contested case hearing process, a controversial new bill in the state Legislature would end those hearings over land use issues entirely.

Under provisions proposed in House Bill 344, proceedings like the contested case hearing over the development of the Thirty Meter Telescope on Maunakea that stretched for four months between 2016 and 2017 would no longer happen, and would instead be relegated to Circuit Court.

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The bill specifically targets language governing the Board of Land and Natural Resources and Commission on Water Resource Management, erasing clauses that allow disputes to be discussed before the board or commission. Those clauses would be replaced with language that allows people who dispute a board or commission action to seek relief “by timely filing a civil action before the circuit court having jurisdiction over the location of the alleged violation.”

According to a report by the House Committee on Water and Land — which voted unanimously in support of the bill on Tuesday — the bill’s intention is to reduce “some of the duplication, uncertainty and costs” associated with holding lengthy land use decision hearings. Other departments, the report went on, would be able to continue to use contested case hearings with no changes.

“The state does a lot of contested case hearings, and a lot of them end up going to court anyway,” said Doug Simons, executive director of the Canada-France-Hawaii Telescope. “This would just speed that process along.”

Simons, who last year was one of three candidates identified in the currently suspended search for a new director of the Institute for Astronomy at the University of Hawaii at Manoa, said it is in the best interest of both the public and the state to resolve disputes in a timely manner, rather than through a long contested case hearing that often just ends up getting relegated in the courts anyway.

Simons said the bill is part of a suite of measures in the state Legislature aimed at streamlining the contested case process — House Bill 343 would simplify the process of selecting officers to manage contested case hearings, while House Bill 342 would revise legal definitions related to the process. However, he said, the bills should not change the process too much for members of the public.

“By my understanding, the community can still provide testimony,” Simons said. “I don’t want to inhibit the right of people to testify.”

Among the written testimony submitted at Tuesday’s committee meeting was a statement from UH, which noted the need to mitigate taxpayer costs in light of the ongoing economic impacts of the COVID-19 pandemic, and argued that the measure does not impede public participation.

“The changes proposed by HB 344 do not come at the expense of less public participation, due process or judicial oversight,” UH’s statement read. “The bill leaves intact the right to participate in the agency decision-making processes under the Sunshine Law at open public meetings. The bill leaves intact public hearing requirements for certain discretionary permits and approvals … so that the public will have an opportunity to present information and views on the record. And finally, the bill leaves fully intact appeals through the Hawaii Judiciary.”

Other organizations, including the Maunakea Observatories and the Hawaii Island Chamber of Commerce, echoed UH’s statement Tuesday, as did Roberta Chu, a former member of UH’s Maunakea Management Board who testified as a private citizen.

“Contested cases hold up land use decisions across the state which create unpredictability in projects that could deter investors,” Chu wrote. “The economic impact of potentially numerous contested cases has the probability of making investment in Hawaii non-existent. The contested case option should be left to the court system.”

“This legislation is crucial for the Maunakea Observatories given that future land authorization for the Maunakea Science Reserve may be subject to a contested case, introducing lengthy delays in the land authorization process,” read a letter by the Maunakea Observatories. “It is in the interests of the State, Federal sponsors, Maunakea Observatories, and broader community to have timely and complete resolution of land use decisions that may arise in the MKSR land authorization.”

Others do not feel the same, however. Opponents of TMT who were involved in the 2016 contested case hearing believe HB 344 is a clear violation of due process and removes a way for members of the public to have their voices heard.

“It’s trying to eliminate any kind of public participation,” said cultural practitioner E. Kalani Flores, who participated in the 2016 hearing and other legal challenges against TMT. “The purpose of a contested case hearing is so we can provide the people making decisions with the information they need.”

Flores said that if the 2016 hearing had gone straight to Circuit Court rather than the initial contested case hearing, then far fewer members of the public would have been able to participate, purely because of the financial costs of hiring legal representation.

That sentiment was shared by Henry Curtis, executive director of environmental action group Life of the Land, who submitted testimony opposing the measure to Tuesday’s House Committee meeting.

“HB 344 appears to say that if an agency fails to do its job in protecting public trust resources, rather than filing a contested case proceeding, one must hire a lawyer and clog up the courts,” Curtis’ statement read. “As for those without abundant funds, tough noodles.”

The committee report acknowledged the due process concerns, and requested that future committees consider the possibility of allowing the BLNR to conduct contested case hearings “in certain circumstances.”

Noe Noe Wong-Wilson, a leader of the group opposing TMT construction, said the fact that the bill applies only to land and water disputes is telling.

“If they’re trying to speed things up, why not get rid of it in all cases?” Wong-Wilson said. “It looks like it’s just here to push through development on Maunakea and elsewhere.”

Flores said he finds it ironic that this bill would abolish certain contested case hearings for the sake of efficiency, while three other bills also active in the state legislature — HB 972, SB 1126 and SB 873 — seek to improve the process by legalizing the use of interactive conference technologies like Zoom, which would make the process accessible to more people.

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Representatives of the Department of Land and Natural Resources declined to comment on pending legislation. However, DLNR chair Suzanne Case submitted testimony Tuesday, saying the department supports the measure because it would relieve the board of the burden of managing an increasing number of complex contested cases whose efficacy “is unclear especially since important and complex contested cases generally are ultimately referred to the Judiciary anyway.”

The bill passed second reading in the house Friday, with only three representatives voting against it.

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