363 P.3d 224
Haw.2015Background
- University of Hawai‘i at Hilo (UHH) applied for a Conservation District Use Permit (CDUP) to build the Thirty Meter Telescope (TMT) on Mauna Kea; public hearings elicited substantial support and opposition, including claims by Native Hawaiians that the summit is sacred.
- At the February 25, 2011 BLNR meeting, the Board voted unanimously to approve the CDUP subject to conditions and, on its own motion, directed that a contested case hearing be held; it also included a condition staying construction until the contested case was resolved.
- Multiple parties had requested a contested case hearing before the Board acted; appellants argued issuing the permit before the contested case prejudged the matter and violated due process and constitutional protections for Native Hawaiian rights and public-trust resources.
- A hearing officer conducted a contested case in 2011; he recommended approval subject to conditions largely identical to the 2011 permit; BLNR adopted the recommendation in 2013.
- The circuit court affirmed BLNR’s 2013 decision; appellants appealed to the Hawaii Supreme Court, which vacated the permit and remanded, holding that issuing the permit before the contested case violated due process and related constitutional duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLNR’s issuance of the permit before the contested case hearing violated procedural due process | Appellants: issuing the permit before the contested case prejudged the matter and denied a meaningful opportunity to be heard | UHH/BLNR: the February 2011 vote was a preliminary ruling/conditioned approval; construction was stayed and a contested case was ordered, so no prejudice | Held: Violation. The Board’s vote on merits before the contested case denied appellants a hearing "at a meaningful time and in a meaningful manner" and created appearance of prejudgment. |
| Whether the February 25, 2011 vote was merely "preliminary" or a rights-determinative decision | Appellants: the document and conditions functioned as an operative permit that determined rights and responsibilities | UHH/BLNR: it was tentative; Condition staying construction and BLNR’s later review preserved rights and allowed a full contested-case process | Held: The 2011 action was a determination on the merits (operative permit in effect); sequencing produced appearance and reality of prejudgment. |
| Whether administrative rules/statutes authorized deciding merits before resolving contested-case requests | Appellants: statutory and constitutional principles require contested case before final merits decision where protected interests are implicated | UHH/BLNR: HAR §13-1-28(b) and rule practice allow contested case after public hearings; post-approval contested case complied with rules | Held: Administrative rule did not authorize issuance of a merits decision before the contested case; due process and statutory contested-case definition require determination after opportunity for hearing. |
| Remedies and scope of review: whether appeal was timely and proper relief | UHH: appellants should have appealed the 2011 preliminary ruling within 30 days under HRS §91-14; relief is waived | Appellants: they timely appealed the final 2013 decision; challenge is to the process that produced that decision | Held: Appeal of the 2013 final decision was proper; the court vacated BLNR’s permit and remanded for proceedings consistent with opinion (contested case before decision). |
Key Cases Cited
- Sifagaloa v. Bd. of Trs. of Emps.’ Ret. Sys., 840 P.2d 367 (Haw. 1992) (administrative adjudicator must avoid appearance of impropriety; fair tribunal requirement)
- Sandy Beach Def. Fund v. City & Cnty. of Honolulu, 773 P.2d 250 (Haw. 1989) (due process requires notice and opportunity to be heard at a meaningful time and in a meaningful manner)
- Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., 317 P.3d 27 (Haw. 2013) (contested-case hearing required prior to decision-making when rights implicated)
- Pele Def. Fund v. Puna Geothermal Venture, 881 P.2d 1210 (Haw. 1994) (contested case required where permit issuance implicates others' protected interests)
- Ka Pa‘akai O Ka‘aina v. Land Use Comm’n, 7 P.3d 1068 (Haw. 2000) (agency must make particularized findings on effect to traditional/customary rights and feasible protections)
- In re Water Use Permit Applications (Waiahole I), 9 P.3d 409 (Haw. 2000) (public trust doctrine adopted in Hawaii Constitution; trustee duties of protection and balancing)
- Cinderella Career & Finishing Schs., Inc. v. F.T.C., 425 F.2d 583 (D.C. Cir. 1970) (appearance-of-prejudgment standard: whether a disinterested observer would conclude decisionmaker adjudged facts in advance)
- Withrow v. Larkin, 421 U.S. 35 (U.S. 1975) (biased decisionmakers and probability of unfairness doctrine)
- In re Murchison, 349 U.S. 133 (U.S. 1955) (justice must not only be done but be seen to be done; appearance of justice)