‘Contested Case’ Changes May Speed Up TMT Ruling

The Thirty Meter Telescope dispute may become one of many to gain access to an expedited appeal process that should still safeguard litigants and the public.

Honolulu Civil Beat - May 13, 2016

By: Civil Beat Editorial Board

Gov. David Ige quietly signed into law Wednesday what might be the legal equivalent of a zipper lane for the contested-case-hearing process that is about to open for the Thirty Meter Telescope project.

House Bill 1581 doesn’t change the mechanics of the TMT hearing, soon to be conducted by Judge Riki May Amano, whose appointment was unanimously approved last Friday by the Board of Land and Natural Resources.

But if any party to a state contested-case hearing appeals a ruling, HB 1581 lets that appeal bypass appellate courts and go directly to the Hawaii Supreme Court. That could shave months, even years, off a potential resolution. Once at the high court, the case would be given priority status by justices if it were deemed to be of “significant statewide importance.”

There seems little doubt that the TMT matter, involving a conservation district atop a mountain considered sacred by many Native Hawaiians, and the needs of the scientific community in this state and around the world, would meet that requirement.

The changes in the law would go into effect Aug. 1 for contested-case hearings before the commissions on Water Resource Management, Land Use, Public Utilities, the Hawaii Community Development Authority and cases involving conservation districts. Those changes seem both appropriate and desirable, in our reading of the legislation.

All parties in contested-case hearings should welcome streamlining the typically long waiting periods for such matters, owing to busy dockets and the plodding pace of too many court processes. Litigants seek resolution in such matters; eliminating needless delays is entirely reasonable.

One important way to do that is to ensure that the proper steps are followed in contested case hearings. HB 1581 provides that, when a court has remanded a matter to an agency to conduct a contested case hearing, the court can appoint a special master or monitors to ensure the subsequent process is sound and complies with the court’s order.

If such a hearing results in an expedited appeal to the Supreme Court, justices could exercise the same level of discretion as in any other case. The law simply says such cases may be appealed directly to Hawaii’s high court, and the most significant of them must be heard on a priority basis.

A review of the TMT case underscores why all of this is particularly important.

Last December, the state Supreme Court vacated the University of Hawaii’s permit to allow TMT to be built atop Mauna Kea. The court found that the state Board of Land and Natural Resources violated due process when it granted a permit for the project before holding a required contested case hearing.

UH originally applied for the permit in 2010. The “preliminary” permit was issued in 2011, and a final permit in 2013. The Supreme Court decision came two years later. In all, it has taken more than five years of proceedings just to get to this point.

Some permit applicants might lack the financial ability to sustain such a long process. A resolution by year’s end in TMT’s favor might be enough for the project to be built in Hawaii rather than in one of three alternative sites in Chile, India and the Canary Islands.

It’s hard to imagine a scenario, in the TMT matter or other cases, in which it would be undesirable to have a faster resolution that still protects the rights of permit applicants and the public interest.

Ensuring Faster Outcomes

Legislators and Ige showed admirable restraint in announcing the completion of this law. They took no position on whether the TMT contested-case ruling might be appealed or whether such an appeal would be of significant statewide importance. Neither Ige, whose office sent out a news release on the signing, nor House Majority Leader Scott Saiki, who is quoted in that release, even mentioned TMT.

That caution seems to have characterized the legislative process for the bill, too. Its journey was so low-key that few news outlets picked up on the bill’s implications for TMT. Most Capitol reporters didn’t cover it, though the TMT saga has been one of Hawaii news media’s most prominent subjects over the past year.

Saiki said that as the legislation was being crafted, he met with environmental groups and state agency leaders who are often involved in contested-case hearings, to ensure that the proposed changes would be understood and seen as improvements to the process, rather than as handing an advantage to one side or the other. That helped keep temperatures low, and no individual or group raised objections over suspicions of rights being violated or the process being rigged.

A normal contested-case appeal would go first to circuit court, and then potentially to the Intermediate Court of Appeals before possibly winding up at the Supreme Court. Removing those two appellate layers could “almost certainly” save years in litigation, Rhoads said.
House Judiciary Chair Karl Rhoads, who introduced the bill, and lead Senate conferee Mike Gabbard underscored the legislation’s intent — not to guarantee a particular outcome in any case, but to ensure that an outcome is had quickly. The TMT matter, Rhoads pointed out, has slogged along for a total of seven years, more than any permit applicant should have to endure.

A normal contested-case appeal would go first to circuit court, and then potentially to the Intermediate Court of Appeals, before possibly winding up at the Supreme Court. Removing those two appellate layers “almost certainly” could save years in litigation, Rhoads said.
As the TMT contested-case hearing goes forward — Judge Amano has scheduled a pre-hearing meeting Monday — there are things we’ll look for to ensure the new law accomplishes its intended purpose and does no harm along the way.

• If Amano’s ruling is appealed, what will the time savings be from leapfrogging appellate hearings? If the case is deemed of significant statewide importance, how quickly will the Supreme Court get to it, compared to the time it might have taken?
• The law sunsets in 2019. Over the next three years, will the expedited review of select contested-case hearings create pressure on the high court docket, such that other important matters would be disadvantaged? Saiki, for one, doesn’t expect that. He points out that the Supreme Court is among the state’s least burdened courts.
• Will any legitimate evidence arise that cases using this process shortchange litigants’ due process rights or otherwise harm either plaintiffs or the public interest?
Acceptable answers to all those questions might provide legislators a reason to remove the July 1, 2019, sunset and allow the judicial zipper lane to remain open in perpetuity.

When Ige stepped in almost a year ago with a thoughtful plan aimed at changing the way the state has overseen telescope projects atop Mauna Kea and to “do right by the mountain,” we were among those who applauded the plan’s provisions. They offered a fresh approach to what had become a terribly contentious issue, drawing news coverage around the world.

HB 1851 is evidence that the commitment didn’t end with the ideas in that plan, but continues to play out in a thoughtful way, with a new measure that could bring greater efficiency to an important public process.