In re Contested Case Hearing re Conservation District Use Application, 431 P.3d 752

Background

The Board of Land and Natural Resources (BLNR) approved a Conservation District Use Permit (CDUP) for the Thirty Meter Telescope (TMT) on Mauna Kea; opponents appealed. The Supreme Court of Hawai‘i affirmed the BLNR decision.
Mauna Kea summit is culturally significant to Native Hawaiians; numerous existing telescopes and access roads have produced cumulative impacts. The TMT site is located ~600 feet below the summit ridge in the University-managed Mauna Kea Science Reserve (MKSR) Astronomy Precinct.
After this Court’s prior decision (Mauna Kea I) vacated the original CDUP for procedural defects, the BLNR remanded for a contested-case hearing before a hearing officer (Judge Amano); extensive evidentiary hearings followed and led to a lengthy BLNR Findings, Conclusions, and Decision and Order.
Appellants raised multiple challenges including alleged bias/disqualification of the hearing officer, disqualification of deputy attorneys general and BLNR members, whether BLNR satisfied duties protecting Native Hawaiian traditional/customary rights (Kā Paʻakahi framework), public‑trust/Article XI obligations, and compliance with HAR §13‑5‑30(c) CDUP criteria.
The BLNR found no traditional or customary practices located on the actual TMT footprint or access way; it imposed mitigation and conditions (including decommissioning commitments, cultural safeguards, and restoration measures). The Court reviewed factual findings for clear error and legal conclusions de novo and affirmed the BLNR.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Disqualification of hearing officer (Amano) for ʻImiloa membership	Membership created appearance of impropriety and bias in favor of astronomy interests	Membership was de minimis, akin to museum membership, no managerial/financial tie; Amano lacked knowledge of any connection	Denial of disqualification upheld; membership too attenuated to raise reasonable doubt about impartiality
Disqualification of Deputy AGs and BLNR members (Yuen, Gon)	DAGs had prior adversarial involvement; Yuen/Gon had expressed pro-astronomy views or participated in prior CDUP decision, creating prejudgment	DAGs represented BLNR in an advisory (not adversarial CDUP) role and had duty to advise; Yuen/Gon’s prior statements/roles did not show disqualifying bias	Denial of disqualification upheld; White distinguished and no due-process violation shown
BLNR duties to protect Native Hawaiian traditional and customary rights (Kā Paʻakai / Article XII, §7)	BLNR failed to identify/safeguard rights and improperly delegated protective duties; evidence showed cultural harm and contemporary practices should be protected	BLNR made extensive findings identifying cultural resources, found no protected practices on the TMT site, analyzed impacts per Kā Paʻakai, and imposed protective conditions	BLNR complied with Kā Paʻakai; findings that no traditional/customary rights were exercised on the TMT footprint supported by substantial evidence; conditions were not improper delegations
Public trust / Article XI, §1 and HAR §13‑5‑30(c) criteria for CDUP	Project would cause substantial adverse impacts and undermine conservation/public trust; mitigation and decommissioning promises insufficient	TMT sited to minimize cultural/visual impacts, mitigation and binding conditions (including telescope decommissioning and restoration) address harms; TMT advances public benefits (science, education, funds)	Court held TMT consistent with Article XI balancing and did not violate HAR §13‑5‑30(c); BLNR’s findings and conditions supported that project won’t cause substantial adverse impacts and is compatible with locality

Key Cases Cited

Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 363 P.3d 224 (Haw. 2015) (remanding original CDUP for contested‑case due process defects)
Sussel v. City & County of Honolulu Civil Serv. Comm’n, 71 Haw. 101, 784 P.2d 867 (Haw. 1989) (appearance of impropriety standard for adjudicators)
Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n (PASH), 79 Hawai‘i 425, 903 P.2d 1246 (Haw. 1995) (protections for traditional/customary Native Hawaiian rights)
Kā Paʻakai o Ka ʻĀina v. Land Use Comm’n, 94 Hawai‘i 31, 7 P.3d 1068 (Haw. 2000) (framework for agency findings re: Native Hawaiian rights)
In re Water Use Permit Applications (Waiāhole I), 94 Hawai‘i 97, 9 P.3d 409 (Haw. 2000) (public trust principles under Article XI)
Kilakila ʻO Haleakalā v. Bd. of Land & Nat. Res., 138 Hawai‘i 383, 382 P.3d 195 (Haw. 2016) (review of conservation‑district project impacts and adjudicator disqualification issues)
White v. Bd. of Educ., 54 Haw. 10, 501 P.2d 358 (Haw. 1972) (limits on deputy AGs participating in adjudicative decision‑making after adversarial representation)
Mitchell v. BWK Joint Venture, 57 Haw. 535, 560 P.2d 1292 (Haw. 1977) (HRS §91‑12 does not require separate ruling on each proposed finding)