Posted by: Patricia Salkin | April 27, 2015

HI Supreme Court Holds Ex Parte Communication Did Not Influence Outcome of Controversial Siting and that Deputy AG Did Not Have a Conflict in Advising the Board

The state of Hawai’i transferred eighteen acres of land to a University on the condition that the land would be set-aside for Haleakala High Altitude Observatory Site, and the University of Hawai’i Institute of Astronomy (UIA) requested a permit in order to build a Solar Telescope at the Observatory Site. Kilakila Haleakala (Kilakila) then requested that Deputy Attorney General Linda Chow be disqualified due to Chow’s previous representation of the board in a proceeding against the Kilakila but this request was denied. Kilakila then filed a post hearing motion to disqualify Chow from advising the board regarding the hearing, but the board denied the motion on the ground that Chow’s appearance as counsel for the board in a previous matter did not disqualify her from advising the Board. The Board then filed an order stating that they were aware of emails between the hearing officer, Steven Jacobson, and the counsel for the University that pressured Jacobson into making a quick recommendation to grant the permit. The Board found that the email was an impermissible ex parte communication despite the assertion that the pressure placed on Jacobson did not influence the outcome of his decision. Kilakila then moved for disclosure of all communications to and from the board regarding the telescope, but the Board denied this request and stated that the Kilakila’s motion failed to show that any communications other than those permissible under statute had occurred. Kilakila ultimately appealed the Board’s granting of the Conservation District Use Application (CDUA), but the circuit court affirmed the Board’s order granting the CDUA.

As to whether the Solar Telescope was inconsistent with the purpose of the conservation district and objectives of the general subzone, the Intermediate court of Appeals of Hawai’i found that the astronomy facilities were expressly allowed to be built in the resource subzone, and there were no limitation in the rule regarding the size, appearance, or other characteristics a facility may have, as long as the construction and operation of the facility complied with the Hawaii Revised States (HRS). The court went on to find that the Solar Telescope would not cause a significant visual impact and the site’s cultural resources would be reasonably protected. As to whether evidence existed that the Solar Telescope would be compatible with the National Park that was a few hundred yard away, the court found that an agency’s interpretation of its own rules is generally entitled to deference unless the interpretation is plainly erroneous or inconsistent with the legislative purpose, and the Board’s actions reflected compliance with the HRS. As to whether the Board improperly considered economic benefits, job creation and community benefits, the court found that Kilakila provided no authority for the proposition that the Board is limited to considering HRS criteria when deciding whether to grant conservation district use permits. On the issue of whether the case hearing was procedurally flawed because of political pressure, ex parte communication and the dual role of a deputy attorney general and the arbitrary omission of key findings of the hearing officer, the court found that Jacobson was discharged after he made an impermissible ex parte communication, and any impropriety was cured when the Board discharged Jacobson and appointed a new hearing officer. Finally, as to whether the Board erred in refusing to disqualify Chow due to a conflict of interest, the court found that Kilakila’s claim was unavailing because the authority cited dealt with the representation of a party while Chow only represented the board. For the reasons, the court affirmed the findings of the Circuit Court.

‘O Haleakala v. Board of Land and Natural Resources, 134 Hawai’i 132 (2014)

The opinion can be accessed at:

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