Land Board member violates rules in TMT case

A member of the Board of Land and Natural Resources who supports the Thirty Meter Telescope tried to contact state Supreme Court Justice Michael Wilson in violation of court rules.

Sam ‘Ohu Gon III sent Wilson two emails last week, prompting the justice to file a notice warning that communication with him about the case outside the presence of the parties or their lawyers — known as ex parte communication — is strictly prohibited.

The fate of the $1.4 billion project is in the hands of the state’s highest court following an appeal of the Land Board’s September approval of its conditional use permit.

Gon, senior scientist and cultural adviser with The Nature Conservancy, was in the 5-2 majority that voted to allow construction of the 18-story, cutting-edge telescope near the 13,803-foot summit of Mauna Kea.

Gon also voted for the original 2014 TMT conditional use permit allowing construction during his first stint on the board. That permit was invalidated by the Supreme Court in late 2015 over due-process issues, leading to a redo of its contested case hearing and the repeat vote of the BLNR.

In his court notice, Wilson said Gon sent him an email pertaining to the TMT case July 28.

“I did not review the substance of the email, but immediately replied by email to Mr. Gon that I did not read the email and could not do so,” he wrote.

Two days later he received a second email from Gon that Wilson said he did not open. That prompted the notice warning against the ex parte communication.

Asked to comment, Gon declined Thursday, saying he was advised by the state Attorney General’s Office to make no TMT-related comments to the press.

“I apologize, but I should comply with the AG’s guidance,” he said in an email.

Former Native Hawaiian Legal Corp. attorney David Kimo Frankel said he was “shocked and appalled” to hear of Gon’s actions — especially considering that the BLNR was involved in a hearing just eight months ago in which ex parte communication was an issue that led to the recusal of at least one member of the board.

“The irony is resonating,” Frankel said. “It’s kind of unbelievable that he wouldn’t know the rules of the game.”

Frankel is not involved in the TMT case, but was the litigator in an effort by Kilakila ‘o Haleakala to block construction of the Daniel K. Inouye Solar Telescope now under construction on Maui. Ex parte communication became an issue in that case and was argued before the state Supreme Court.

Frankel said keeping court communications open and on the record is important to at least uphold an appearance of fairness.

“Ex parte communications are prohibited because we expected judges and justices to make their decisions based on a public record,” he said. “Judges and justices are not politicians. They are not supposed to make their decisions based on backroom deals, but purely based on the law and the facts presented to them.”

Gon, who was reappointed to the BLNR by Gov. David Ige in 2016 and serves as its official cultural adviser, was in the news in October when a trio of Native Hawaiians interrupted a Land Board meeting to demand Gon’s resignation for voting for the TMT permit.

While Gon is an expert on Hawaii environmental issues, a fluent speaker of the Hawaiian language and a respected practitioner of Hawaiian culture, he is not Native Hawaiian, and the protesters said he shouldn’t be making decisions that affect their people.