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Oral Agrument Before the Hawaii Supreme Court

No. SCWC-13-0003065, Thursday, April 2, 2015, 08:45 a.m.

KILAKILA `O HALEAKALÂ, Petitioner/Appellant-Appellant, vs. BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND NATURAL RESOURCES, WILLIAM AILA, Jr., in his official capacity as Chairperson of the Board of Land and Natural Resources, and UNIVERSITY OF HAWAI`I, Respondents/Appellees-Appellees.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

David Kimo Frankel and Sharla Ann Manley

Attorneys for Respondent UH:

Darolyn H. Lendio, Bruce Y. Matsui, Lisa Woods Munger, Lisa A. Bail, Kimberly A. Vossman, and Christine A. Terada

Attorneys for Respondent BLNR, etc.:

Russell Susuki, William J. Wynhoff and Linda L.W. Chow, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 01/07/15.


 [ Listen to the entire audio recording in mp3 format ]

Brief Description:

This appeal concerns a conservation district use permit (“CDUP”) that would allow the construction of the Advanced Technology Solar Telescope (ATST) project atop the summit of Haleakala on Maui. In this case, Kilakila `O Haleakala (“Kilakila”) challenges the findings of the CDUP that the Board of Land and Natural Resources (“BLNR” or “the Board”) approved for the construction of the ATST project.

The BLNR first approved the CDUP on December 1, 2010, notwithstanding Kilakila’s requests for a contested case hearing. While the first CDUP was appealed, the BLNR held a contested case hearing with a hearing officer presiding. Prior to the completion of the hearing officer’s report, the hearing officer submitted an ex parte communication to the University of Hawai`i’s counsel, stating that he had been subjected to ex parte pressure to complete his report. The Board decided to remove this hearing officer and strike his report from the record. Subsequently, Kilakila filed motions for disclosure of the BLNR’s communications regarded the ATST project. The BLNR allowed limited discovery.

The BLNR subsequently approved the second CDUP that is relevant to this case, finding that the CDUP complied with all requirements of Hawai`i Administrative Rules (“HAR”) 13-5-30(c). The circuit court affirmed the BLNR’s decision and order.

Kilakila appealed to the Intermediate Court of Appeals, which also affirmed the BLNR’s decision and order.

Kilakila’s timely filed application for writ of certiorari raises several questions:

1) Did the ICA err when it held that an agency can use decisionmaking criteria that are not identified in its own rules?

2) Is the ATST project consistent with the purposes of the land use law and the conservation district?

3) Should the courts take a close look at the record in cases affecting the environment?

4) Did the ICA err in concluding that the ATST project would not have substantial impacts to cultural resources?

5) Did the ICA err by relying on grounds not invoked by the agency?

6) Did the ICA err in interpreting HAR § 13-5-30(c)(6) in a manner that excludes consideration of natural beauty and open space characteristics?

7) Did the ICA err in assuming that the lease of a portion of land does not subdivide it despite the plethora of law to the contrary?

8) Did the ICA err in holding that the ATST project is consistent with a valid management plan?

9) Did the BLNR prejudge the issue by granting the CDUP before the contested case was held and then authorizing some construction activities to proceed pursuant to that permit prior to completion of the post hoc contested case hearing?

10) Did the ICA err in relying on HRS § 171-6(20) to justify the BLNR’s conduct pursuant to HRS chapter 183C when chapter 183C is not part of HRS chapter 171?

11) Was the BLNR’s post hoc contested case hearing tainted by political pressure, ex parte communication, the refusal to fully and timely disclose the extent of ex parte communication, the dual role of the deputy attorney general as adversary and advisor to the tribunal, and the arbitrary deletion of key findings by the hearing officer?

12) Did the ICA err in holding that the applicant was authorized to apply for the permit?

In response, UH and BLNR argue that the BLNR’s findings were not clearly erroneous and complied with the requirements of HAR 13-5-30(c), and ask this court to affirm the ICA and circuit court.