MAUNA KEA FAQ; Contested Cases; DLNR

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Question: What is a contested case hearing?

Answer: A contested case is “a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” Hawaii Revised Statutes (HRS) § 91-1(5).

Question: What triggers a contested case hearing?

Answer: A contested case is required by law if a statute or rule governing the activity in question mandates a hearing prior to the administrative agency’s decision-making, or if a hearing is mandated by constitutional due process. A contested case may be required by due process if the person or agency seeking a contested case possesses a property interest, as that interest is defined by the State Constitution.

With respect to the application to build the Thirty-Meter Telescope (TMT), there is a contested case because certain parties who were deemed eligible, pursuant to law, to request a contested case hearing, made that request with respect to the 2011 TMT decision by the Board of Land and Natural Resources (BLNR). The contested case hearing is proceeding now because both the Supreme Court and the Circuit Court remanded to the BLNR with directions to conduct a contested case hearing before the BLNR or a new hearing officer.

Question: Who gets a contested case hearing?

Answer: Any interested person or government agency that is entitled to a contested case by law may petition for and receive a contested case hearing.

Question: Who can take part in a contested case hearing?

Answer: The applicant and all persons or government agencies admitted as parties may take part in the contested case hearing. Hawaii Administrative Rule (HAR) § 13-1-31.

Question: Are contested case hearings open to the public?

Answer: There is no requirement that a contested case hearing be open to the public. It has not yet been determined whether this particular contested case hearing will be open to the public.

Question: What role does the public have in a contested case hearing?

Answer: As noted above, while contested case hearings are not required to be open to the public, they may be. When a contested case hearing is open to the public, then – similar to a trial held in court – the public may observe the contested case hearing, but they do not participate in it.

Question: What kind of qualifications does a hearing officer need?

Answer: The qualifications for the TMT contested case hearing officer include the following: (1) being an attorney licensed to practice law in the State of Hawaiʻi and in good standing; (2) being able to serve with strict impartiality and having no conflicts of interest or appearance of conflict; (3) being available to devote a substantial amount of time in the next six to twelve months; and (4) being willing to accept the prevailing charge rate relevant to the professional service as a hearing officer, as determined by the Department of Land and Natural Resources (DLNR). Other desirable qualifications include civil litigation experience, practice in administrative law and process, familiarity with government proceedings and procedures, and knowledge of the statutes and rules administered by the DLNR.

Question: What role does the hearing officer play in a contested case hearing?

Answer: The BLNR may delegate the conduct of the contested case hearing to a hearing officer, and has done so for the TMT contested case hearing. Without limiting the hearing officer’s powers, the hearing officer may rule on motions, receive testimony and evidence, and issue a report and recommended findings of fact and conclusions of law and decision to the BLNR.

Question: What is the difference between “sunshine law” and “contested case law”?

Answer: The regular, twice-a-month, meetings of the BLNR held pursuant to HRS chapter 92 are conducted in a manner commonly referred to as the sunshine law, providing notice, public meetings, and opportunity for public testimony. A contested case hearing is a quasi-judicial proceeding similar to a court proceeding, which is held pursuant to HRS chapter 91. Chapter 92 explicitly provides that the sunshine law does not apply to contested case hearings. HRS § 92-6.

[Contested Cases] [The Board and the Chair] [Telescopes on Mauna Kea] [The Supreme Court decision] [Contested Case on TMT and Mauna Kea]

[Source: DLNR]

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