The Hawaii Supreme Court: Mauna a Wakea and the Thirty Meter Telescope
On Thursday, August 27, the Hawai’i Supreme Court heard oral argument in a case that challenges the permit granted to the Thirty Meter Telescope on sacred Mauna a Wākea.
The issue that seemed to be of most interest to the Court was the procedure followed by the Board of Land and Natural Resources in granting the permit. In a highly unusual, if not unique, process, the Board voted to grant the permit application and then scheduled a contested case in which evidence would be heard on whether the permit should be granted.
Not surprisingly, the Justices found this procedure to raise serious questions of due process, e.g. the right of those contesting the permit to be heard before any decision was made. One justice asked: “Do you think due process would allow a court, for example, in a situation where a plaintiff files a lawsuit, for the judge to say, ‘Here is my judgment in favor of the plaintiff. We will now have a trial?’” Another Justice observed: “I was a trial judge a long time. I don’t recall a case where I decided a case before the trial.”
The State tried to argue that the first decision made was only a preliminary decision and that the second decision to grant the permit, made after the contested case hearing was the only final action of the agency.
There were some logical flaws in the State argument because the first permit has both positive conditions that the project was free to fulfill and one negative condition – no construction until after the contested case – that was an enforceable provision. If the first vote for the permit was simply a preliminary step, then, if the project began construction what would the BLNR do? “Revoke” a permit that they claim is not a permit? Go to court to enforce the stay on construction found in a permit that does not exist?
What if the contested case had resulted in a decision by the hearing officer that the permit should not be granted? For the Board to then deny the permit, the Board would have to rescind the prior approval. To rescind a permit under the BLNR rules, the permit holder would have to have violated the permit. A decision by the agency not to grant the permit would not be such a violation by the permit holder.
One justice speculated that the Board might have to go to court in that situation to ask a judge to rescind the permit that should never have been granted.
Clearly the Justices were not buying the State argument that the Board insisting on voting approval prior to the contested case satisfied constitutional, statutory, and regulator requirements.
One of the most telling observations coming from the Justices was that the need to give the appearance of due process is important to the credibility of public agencies. There is no question that granting the TMT permit before going through the quasi-judicial process of a contested case, e.g. calling of witnesses, cross examination, submission of evidence, etc., gave the appearance of a rigged process.
Given the tenor and substance of the Justices questions, it is difficult to believe that the Court would turn around and find the BLNR process to be acceptable. If the process is found to have violated the due process rights of opponents, the Court will declare the permit invalid and TMT will have to start all over again. That will probably lead TMT to cut their losses and go to another site – a decision that they should made long ago.
Present in the audience at the Supreme Court were representatives of the State of Hawai’i Attorney General’s Office and at least one member of the Board of Land and Natural Resources. They must have seen their hopes of defending the permit slipping away as the Justices asked more and more pointed questions. Perhaps their policies going forward, e.g. arrests of Protectors, etc. will be mitigated by the increasing certainty that TMT will never get approval to be built.