All seven members of the Hawai‘i Board of Land and Natural Resources (Board), in a decision released today, directed retired Hawai‘i island Judge Riki May Amano to proceed as the contested case hearing officer for the Conservation Use District Application (CDUA) for the Thirty Meter Telescope (TMT) at the Mauna Kea Science Reserve.
In response to objections raised by certain parties (“Petitioners”) to Judge Amano’s selection as the TMT hearing officer due to her family membership in the ‘Imiloa Astronomy Center (“‘Imiloa”) operated by the University of Hawaii-Hilo, the Board stated: “A ‘family membership’ does not confer any right to participate in ‘Imiloa’s governance or decision making, in contrast to organizations where members may vote for a board of directors or other officers,” and the membership simply allows her and her family to “view exhibits and displays at a museum that focuses on astronomy, Mauna Kea, and Hawaiian culture.”
In written disclosures to the Board last month, Judge Amano stated that she and her husband paid $85 per year since 2008 to maintain an ‘Imiloa family membership, which allows free admission to the astronomy center and discounts at the center restaurant and gift shop. Judge Amano further declared that her family membership expires on May 24, 2016 and will not be renewed.
The Board stated, “No reasonable person would infer that the possibility of this ‘benefit’ (‘Imiloa family membership) would override the hearing officer’s duty to make an impartial recommendation to the Board.” The Hawai’i Revised Code of Judicial Conduct directly addresses the issue of how to treat Judge Amano’s membership if ‘Imiloa is assumed to be a party to the contested case. “The rule provides that a judge shall disqualify herself if the judge or her specific listed relative are a party to the proceeding, or an officer, director, general partner, managing member of trustee of a party. While this list is not exhaustive, what is significant to the BLNR is that all of these grounds involve some kind of fiduciary or managerial relationship between the judge (or the judge’s relative) and the party. Such relationships do not remotely resemble the ‘family membership’ at issue here,” said the Board in its decision.
The Board carefully deliberated as to Judge Amano’s statement that she initially saw no connection between ‘Imiloa and the TMT application, and her statement that she did not know that ‘Imiloa was part of UH-Hilo. The Board accepted Judge Amano’s explanation and added, “The Board would certainly encourage hearing officers to disclose a broad range of known relationships…but it will not disqualify Judge Amano for not disclosing her ‘Imiloa family membership, which even in connection with facts she did not know, is not something that a reasonable person would consider likely to affect the impartiality of the arbitrator. The Board finds that under the applicable legal standards, a reasonable person knowing all the facts would not doubt the impartiality of Judge Amano.”
The Board also found that the public notice soliciting attorneys to apply to serve as the TMT contested case hearing officer was properly published on January 29, 2016. Additionally the Board ruled that its decision to delegate the selection of the hearing officer to the Board Chairperson did not need to be made in an open meeting pursuant to chapter 92 of the Hawaii Revised Statutes (the “Sunshine Law”). Citing legal decisions, the Board found that the Sunshine Law did not apply to boards exercising adjudicatory functions, such as conducting a contested case hearing. Further, the Petitioners’ claim that they should have received prior notice of the selection process was not required because, “The Board’s decision to delegate authority to a hearing officer and the selection of a hearing officer are properly adjudicatory functions.”
On December 2, 2015, the Hawaii Supreme Court remanded the TMT permit application to the circuit court to further remand to the Board for a contested case hearing. On February 22, 2016, circuit judge Greg K. Nakamura remanded the matter to the Board. Four days later on February 26, the Board met to restart the contested process. A public solicitation for a hearing officer occurred, a three member committee evaluated applications, and the hearing officer was announced on March 31. Three supplemental disclosures were filed by Judge Amano in April, followed by more opportunities for the Petitioners to respond. The Board gave all parties until May 2 to raise legal arguments for or against the selection process and selection of the hearing officer.
Today’s sixteen-page decision denies the Petitioners’ objections and directs Judge Amano to begin the contested case process.