Hawaii lawmakers are seeking to speed up the resolution of important contested cases brought before certain state boards and commissions in the wake of the Thirty Meter Telescope debacle.
House Bill 1581, which has sailed through House and Senate committees and now awaits a vote by the full Senate, would allow some contested cases before the Land Use Commission, the Board of Land and Natural Resources, the Commission on Water Resource Management and the Hawaii Community Development Authority to go straight to the Hawaii Supreme Court in the case of an appeal.
Two years could be shaved off the appeals process by allowing cases to bypass the Circuit Court and Intermediate Court of Appeals, said House Majority Leader Scott Saiki, the bill’s primary backer.
The bill would also allow the Circuit Court to appoint a master to oversee contested cases that are remanded back to government departments.
“The benefit is to provide a clearer guideline for all of the parties involved in contested case hearings,” said Saiki. “It is not good enough for the court to simply remand a case because of prior procedural errors. In those situations, there needs to be judicial oversight and the courts need to explain what is expected in terms of how contested case proceedings go.”
Saiki said that the TMT case was not the primary inspiration for the bill, but it was a consideration.
In December, the Supreme Court ruled that the Board of Land and Natural Resources erred when in 2011 it approved a Conservation District Use Permit for the $1.4 billion telescope project prior to holding a contested case hearing.
The case was sent back to the Land Board to hold a new hearing. A new hearings officer wasn’t selected by the Department of Land and Natural Resources until last week.
Meanwhile, the board of the TMT project has said that it’s eyeing alternatives to Mauna Kea for the project, including the Cerro Armazones, a mountain in Chile’s Atacama Desert.
Rep. Karl Rhoads, chairman of the House Judiciary Committee and the bill’s introducer, said that he’s concerned that what is happening with the TMT case could scare other projects away.
“There is concern that the TMT is going to go somewhere else and they have already gone through seven years of hearings and court cases and it has just been never-ending,” said Rhoads (D, Chinatown-Iwilei-Kalihi). “And they thought they had done everything they were supposed to do. At some point, it is just better to get a no quickly than a yes 10 years from now.”
The Land Board’s TMT decision is one of a number of decisions by state boards and commissions that have been overturned by the courts in recent years. Saiki said that the bill could pressure departments to make sure that contested case hearings are conducted properly, because they will know the case could be appealed directly to the Supreme Court.
Moses Haia, executive director of the Native Hawaiian Legal Corp., said that the bill could help speed up cases before the water commission regarding the allocation of water resources. The nonprofit law firm has been battling Alexander &Baldwin for more than 15 years over the diversion of millions of gallons of water daily from streams and tributaries on Maui.
He said that a direct appeal to the Supreme Court could also have assisted cases that the firm has successfully prosecuted involving the disruption of Native Hawaiian burials at sites being developed by Walmart and Ward Villages.
Still, he said, the bill likely needs some more research and discussion to make sure that the Supreme Court isn’t flooded with cases.
“For the most part, I think when it comes to really important issues that impact a community or the state as a whole, that generally trying to get a resolution in terms of a legal process and decision as soon as possible is a good thing,” he said. “The one concern that I have in respect to that is the potential for overburdening the Supreme Court.”