Saying common sense must prevail, the state Board of Land and Natural Resources on Friday rejected the pleas of parties on both sides of the issue and reaffirmed former Circuit Judge Riki May Amano as the hearings officer of the Thirty Meter Telescope contested case hearing.
The board unanimously denied a motion to disqualify the former circuit judge on Hawaii island and also declined to grant objections to board member Chris Yuen’s service on the selection committee that chose Amano.
The Mauna Kea Hui petitioners were the first to call for Amano’s dismissal, claiming the former judge maintains a potential bias due to her membership in the ‘Imiloa Astronomy Center, which is part of project applicant University of Hawaii at Hilo.
UH Hilo and the TMT International Observatory Board followed up with calls for Amano’s removal, saying the selection could face problems on appeal because of disclosure issues.
But the Land Board, in its order Friday, said it refuses to “go down this rabbit hole,” rejecting any notion that there’s an appearance of unfairness. Amano, it said, is entitled to “a presumption of honesty and integrity.”
The former Hilo judge, who now conducts mediation on Oahu, was selected by a three-person committee as the most qualified applicant and had made the appropriate disclosures about any potential conflicts, the filing said.
It’s unlikely any other hearings officer would satisfy all the parties and remove all fears of reversal, according to the document.
“With due respect and consideration to the parties’ various interests and reasons for asking the board to replace Judge Amano, the board cannot and will not sidestep its own administrative responsibility to exercise judgment and common sense regarding whether the selection process up until now has objectively appeared to be fair. Common sense must prevail,” the order said.
The board also rejected the petitioners’ assertion that the selection process was flawed because it failed to hold a public hearing. Such a hearing is not required under the state’s open-meeting law, it said.
In addition, the Land Board disagreed with TMT foes who claimed the board “fast-tracked” the process to prevent TMT’s developers from moving the telescope project elsewhere.
“Rather, the board is committed to a process that is efficient, fair and provides ample opportunity to be heard,” the order asserted.
Contacted for response, Richard Naiwieha Wurdeman, attorney for the Mauna Kea Hui, said the board continues to make errors that will certainly lead to a high-court reversal.
“These issues will be back before the Supreme Court sometime,” he said. “The TMT project is clearly on tenuous legal ground.”
UH spokesman Dan Mei-
senzahl said the university continues to view Amano as “eminently qualified” and believes the selection proc-ess was proper.
But, he said, the university also feels the $1.4 billion project and its contested case hearing would be better served by removing Amano to eliminate risk of delay and further appeals.
Meisenzahl added that the university will be exploring its legal options in the wake of Friday’s order.
TMT spokesman Scott Ishikawa offered the following statement: “We respect the decision by the Board of Land and Natural Resources. We look forward to being a party in the contested case and participating in the proceedings.”
As for the request that Yuen, the Hawaii island BLNR member, remove himself from the case, the board found that a statement made by him in a 1998 interview nearly a decade before the TMT construction permit application was filed is no evidence of bias.
In that interview, Yuen, among other things, said, “Honestly, I don’t see what difference it would make to have a few more telescopes up there as long as you site them properly. It doesn’t make a qualitative change in the mountaintop if you do that.”
Yuen asserted in a filing to the board this week that he would be able to evaluate the TMT project on its own merits.
Thirty people and three organizations, including the TMT, have formally asked for a seat at the table during the upcoming contested case hearing. A hearing to consider the proposed participants is scheduled for June 17 in Hilo.
