The state Board of Land and Natural Resources formally appointed Hawaii island Judge Riki May Amano as the officer for the upcoming Thirty Meter Telescope contested case hearing, rejecting arguments against her appointment.
In a decision released Friday, the board unanimously dismissed an assertion by project foes that Amano’s family membership at the ‘Imiloa Astronomy Center, which is part of TMT applicant University of Hawaii at Hilo, suggests bias in favor of the $1.4 billion project.
“No reasonable person would infer” that such a membership “would override the hearing offer’s duty to make an impartial recommendation to the board,” the board said in its decision.
The 16-page decision directs Amano to begin the contested case process.
Richard Naiwieha Wurdeman, attorney for Mauna Kea Hui, disagreed with the decision but said he will be prepared to move forward with the hearing.
“If it is a fair process, we will prevail,” he said.
TMT spokesman Scott Ishikawa issued a statement, saying, “We are happy to learn that a hearings officer has been appointed and we look forward to the next step in the process.”
Hawaii island astronomer Thayne Currie, a spokesman for the social media group Yes2TMT, which has been critical of the board for moving at a “ponderous pace,” said he was pleased.
“This is good for bringing clarity (and) integrity to the process, I believe, though I hope the board tries to be extremely forthright about any future rulings,” he said.
The contested case hearing will be a replay of the one that took place in 2011, when the board approved the project before holding the hearing. In December the state Supreme Court nullified the project’s conservation district use permit, saying the board had put “the cart before the horse.”
According to the decision released Friday, the board looked to the Hawaii Revised Code of Judicial Conduct to address the issue of how to treat Judge Amano’s ‘Imiloa membership. Assuming the astronomy center is a party to the contested case, there would need to be a financial or managerial relationship between the judge (or the judge’s relative) and UH Hilo to establish bias, according to the code.
“Such relationships do not remotely resemble the ‘family membership’ at issue here,” the board noted in its decision.
The board added, “A ‘family membership’ does not confer any right to participate in ‘Imiloa’s governance or decision making, in contrast to organizations where members may vote for a board of directors or other officers,” and the membership simply permits her and her family to “view exhibits and displays at a museum that focuses on astronomy, Mauna Kea, and Hawaiian culture.”
In a written response to the board, Amano disclosed that she and her husband paid $85 per year since 2008 for an ‘Imiloa family membership that allows them free admission and discounts at the center’s restaurant and gift shop. Amano declared that her membership expires May 24 and that she will not renew.
The board also rejected arguments by Wurdeman that the board violated the law during the selection
process.
The board ruled that there was no need to hold an open meeting under the state Sunshine Law. Citing legal decisions, the board found that the state’s open-meeting law does not apply to boards exercising “adjudicatory” functions, such as conducting a contested case hearing.
In addition, the law does not require that the parties be given prior notice to decision-making in the selection process, the board said.
Wurdeman said his objections are on file — just in case a higher court wants to take a second look at the legality of the issues. “Just because (the board) make(s) decisions doesn’t mean they’re accurate,” he said.
Not only was the board overturned by the state Supreme Court in December over due-
process issues, it was reversed by the Hawaii island Circuit Court for establishing illegal emergency rules for the Mauna Kea summit last summer, Wurdeman said.
It’s now up to Amano to schedule a hearing that will take place on the Big Island.
It’s uncertain whether the TMT International Observatory Board will be allowed to join the hearing as a party as it requested.
