"Sequence Matters" - Zoning analysis on Hawaii's Thirty Meter Telescope

December 2, 2015

LAND USE:  “Sequence Matters” -  Hawaii Supreme Court Finds Thirty Meter Telescope Permit Improper Because the Board of Land and Natural Resources Decided to Issue the Permit Conditionally, Before Holding a Contested Case Hearing on the Matter


There is inherent risk in relying on contested permits. Agency decisions that fail to follow prescribed procedures in form as well as substance are vulnerable to being overturned by the Hawaii Supreme Court, particularly if the decisions have broad political implications.

This highly publicized case, Mauna Kea Anaina Hou v. Board of Land & Natural Resources, State of Hawaii, SCAP-14-0000873 (Dec. 2, 2015), challenged construction of the Thirty Meter Telescope on Mauna Kea on the island of Hawaii on the basis that the permit for the telescope was issued in violation of the appellants’ constitutional due process rights.  Many Native Hawaiians strongly opposed the telescope, arguing that it would desecrate the culturally significant Mauna Kea summit area. 

In February 2011, the  Hawaii Board of Land and Natural Resources (BLNR) held a public hearing on the telescope permit application submitted by the University of Hawaii at Hilo.  Opponents of the telescope had an opportunity to speak out at the hearing, after which the BLNR voted to approve the application and issue the permit, subject to a number of conditions. The BLNR also voted at the hearing to hold a contested case hearing (which had been requested by opponents).  Hawaii statutes define a contested case hearing as “a proceeding in which the legal rights, duties, or privileges of specific parties are required to be determined after an opportunity for agency hearing” (emphasis added).  As required under the conditions of the permit, construction on the telescope was stayed pending the outcome of the contested case hearing.

The contested case hearing was held beginning in August 2011. At the hearing, opponents presented written and direct testimony and cross-examined witnesses under oath.  In all, twenty-six witnesses testified at the hearing. On November 30, 2012, the hearing officer issued findings and a decision granting the application for the telescope permit, subject to conditions virtually the same as those imposed in 2011.  Opponents objected to the officer’s findings and conclusions, and the BLNR held another hearing on the matter after allowing briefing.  On April 12, 2013, the BLNR issued findings and a decision granting application, which findings and decision were substantially the same as the hearing officer’s, and which constituted a final decision to issue the permit. 

Opponents of the telescope sued, arguing that the issuance of the permit violated their constitutional right to due process because the BLNR prejudged the application on the merits before receiving all of the relevant evidence.  The trial court upheld the decision of the BLNR, finding that the 2011 grant of the application was a “preliminary grant,” and there was no prejudice to the opponents because a contested case hearing was held prior to a final decision and construction was stayed during that time.

The Hawaii Supreme Court overruled the trial court, finding that the BLNR “put the cart before the horse” in issuing the permit before the contested case hearing was held.  According to the Court, “the procedural protections that were afforded during the contested case process simply cannot remedy the fact that the decisionmaker appeared to have already decided and prejudged the matter at the outset.”  As such, the Court found that the opponents of the telescope were not given an opportunity to be heard at a meaningful time and in a meaningful manner, in violation of their procedural due process rights under the Hawaii constitution.

The Court focused on the similarity between the 2011 permit and the 2013 BLNR decision, stating the similarity gave the impression that what the BLNR reviewed in between – thousands of pages of written testimonies, exhibits, and factual and legal arguments and dozens of hours of verbal testimonies and more legal arguments – was not seriously considered. The Court further concluded that it did not matter that construction had been stayed pending the outcome of the contested case hearing because the permit should have never been issued before the contested case hearing in the first place.