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### IN THE SUPREME COURT OF THE STATE OF HAWAI # I ---o0o---

MAUNA KEA ANAINA HOU; CLARENCE KUKAUAKAHI CHING; FLORES-CASE
# OHANA; DEBORAH J. WARD; PAUL K. NEVES; and KAHEA: THE HAWAIIAN ENVIRONMENTAL ALLIANCE, a domestic non-profit corporation, Appellants-Appellants,

vs. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI # I; DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI # I; SUZANNE D. CASE, in her official capacity as Chair of the Board of Land and Natural Resources and Director of the Department of Land and Natural Resources; and UNIVERSITY OF HAWAI # I AT HILO, Appellees-Appellees.

SCAP-14-0000873
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CAAP-14-0000873; CIV. NO. 13-1-0349)

DECEMBER 2, 2015 RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., CONCURRING SEPARATELY, WITH WHOM WILSON, J., JOINS, AND WITH WHOM McKENNA, J., JOINS AS TO PART IV Electronically Filed Supreme Court SCAP-14-0000873 02-DEC-2015 12:58 PM* ** FOR PUB LICAT ION I N WES T’S HAWAI # I REPORTS AND PACIFI C REPORTER ***



### OPINION OF THE COURT BY RECKTENWALD, C.J. This case requires us to determine whether the procedure followed by the Board of Land and Natural Resources (Board or BLNR) in issuing a permit to construct an observatory in a conservation district comported with due process. 1 

### Specifically, the University of Hawai # i at Hilo (UHH) applied for approval from the Board to construct the Thirty Meter Telescope (TMT) on Mauna Kea on the island of Hawai # i. The Board held two public hearings on the application, at which more than 80 people spoke. Proponents asserted that the “next generation” large telescope would facilitate cutting-edge scientific research that could not be conducted as effectively anywhere else. Opponents included Native Hawaiians who stated that the summit area was sacred in Native Hawaiian culture and that the construction of the eighteen-and-one-half-story high observatory would be a desecration.

Hawai # i Rev ised Statu tes ( HRS) § 183 C-1 ( 1994) , con taini ng th e 1 findi ngs a nd pu rpose of C onser vatio n Dis trict s, pr ovide s:

The l egisl ature find s tha t lan ds wi thin the s tate land use c onser vatio n dis trict cont ain i mport ant n atura l resou rces essen tial to th e pre serva tion of th e Sta te’s fragi le na tural ecos ystem s andthe susta inabi lity of the S tate’ s wat er su pply. It is th erefo re, t he in tent of th e leg islat ure t o con serve , pro tect, and prese rve the i mport ant n atura l res ource s of the S tate throu gh appro priat e man ageme nt an d use to p romot e the ir long- term susta inabi lity and t he pu blic healt h, sa fety and w elfar e. 

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### The Board scheduled UHH’s application for action at a public board meeting in February 2011. Various opponents of the application spoke at the meeting and requested that the Board delay action on the permit until it could conduct a contested case hearing, at which evidence concerning the application could be presented under oath and subject to cross-examination.

Despite those objections, the Board voted to approve the permit at the meeting, subject to a number of conditions. It also took two further steps that are relevant here. First, acting on its own motion, it directed that a contested case hearing be conducted. Second, it included a condition in the permit that no construction could be undertaken until the contested case hearing was resolved.

Subsequently, the Chair of the Board appointed a hearing officer to conduct the hearing, which took place over the course of seven days in 2011. In 2012, the hearing officer recommended that the permit be approved, subject to essentially the same conditions as originally imposed by the Board. The Board adopted that recommendation in 2013, and the Circuit Court of the Third Circuit affirmed the Board’s action. Appellants, who oppose the issuance of the permit and who include several of the people who requested that the Board not act on the application until after the contested case hearing was held,
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### appealed to this court.

The question we must answer is whether the approval of the permit before the contested case hearing was held violated the Hawai # i Constitution’s guarantee of due process, which provides that, “No person shall be deprived of life, liberty or property without due process of law . . . .” Haw. Const. art. I, § 5. We hold that it did.

A “fair trial in a fair tribunal is a basic requirement of due process.” Sifagaloa v. Bd. of Tr. of Emp. Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371 (1992) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). While the specifics of that guarantee can vary depending on the circumstances, in the instant case the Appellants were entitled to a contested case hearing and had unequivocally requested one before the Board voted on the permit at its February 2011 meeting. A contested case hearing is similar in many respects to a trial before a judge: the parties have the right to present evidence, testimony is taken under oath, and witnesses are subject to cross-examination. It provides a high level of procedural fairness and protections to ensure that decisions are made based on a factual record that is developed through a rigorous adversarial process.

By voting on the permit before the contested case hearing was held, the Board denied the Appellants their due

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### process right to be heard at “a meaningful time and in a meaningful manner.” Sandy Beach Def. Fund v. City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). The Board was on record in support of the project, and the permit itself was issued before evidence was taken and subject to adversarial testing before a neutral hearing officer. While UHH and the Board argue that the February 2011 decision was “preliminary” and subject to revision, the fact remains that the Board issued the permit prior to holding the contested case hearing. This procedure was improper, and was inconsistent with the statutory definition of a contested case as “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.” HRS § 91-1(5) (emphasis added).

Such a procedure lacked both the reality and appearance of justice. As this court noted in Sifagaloa:

The S uprem e Cou rt te aches us . . . that justi ce ca n “perf orm i ts hi gh fu nctio n in the b est w ay [o nly i f it satis fies] the ‘appe aranc e of justi ce.’” For in a popul ar go vernm ent, “‘jus tice must not o nly b e don e but m ust m anife stly be se en to be d one . . . .’” 

### 74 Haw. at 189-90, 840 P.2d at 371 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954), and Murchison, 349 U.S. at 136).

The process followed by the Board here did not meet these standards. Quite simply, the Board put the cart before the

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### horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held. Accordingly, the permit cannot stand. We therefore vacate the 2 

### judgment of the circuit court and the permit issued by the Board, and remand so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion.
I. BACKGROUND
A. BLNR proceedings
1. Conservation District Use Application and Permit On September 2, 2010, UHH submitted to the Department of Land and Natural Resources a Conservation District Use Application (CDUA) for the TMT. UHH submitted the application on behalf of TMT Observatory Corporation, a private non-profit corporation, which proposed the TMT in partnership with the University of California, the California Institute of Technology, and the Association of Canadian Universities for Research in Astronomy; the National Astronomical Observatory of Japan was

Appel lants also argu e tha t the ir du e pro cess right s und er th e 2 Unite d Sta tes C onsti tutio n hav e bee n vio lated , tha t BLN R’s f indin gs an d concl usion s didnot satis fy HA R § 1 3-5-3 0(c), the permi t lac ked a n ade quate under lyingmana gemen t pla n, an d BLN R fai led t o mee t its obli gatio ns to prot ect and p reser ve cu stoma ry an d tra ditio nal N ative Hawa iian right s. D ue to the dispo sitio n of this case on a thres hold issue , thi s cou rt do es no t add ress Appel lants ’ add ition al ar gumen ts. See U nitedPub. Work ers, AFSCM E Loc al 64 6 AFL-C IO v. Hann eman, 106 Hawai # i 359 , 360 , 105 P.3d236, 237 (2005 ) (de clini ng to ad dress othe r iss ues w here appea l dis posedon a prel imina ry is sue). 

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### noted to be a “collaborator and potential partner,” and the National Astronomical Observatories of the Chinese Academy of Sciences and India’s Department of Science and Technology were noted to be “observers and potential partners.”

The application proposed an astronomy observatory and ancillary facilities and access roads on a site of roughly five acres on the upper slopes of Mauna Kea. The proposed site was within the astronomy precinct of the Mauna Kea Science Reserve, which is within the Conservation District Resource subzone. The CDUA stated that as of mid-2010, thirteen astronomical facilities were operational on Mauna Kea. It explained that observatories were attracted to Mauna Kea “principally because of the superb viewing conditions that its high-altitude/mid-oceanic location provides,” and noted the “intellectual and physical support infrastructure that has developed around the [astronomy] complex.” The CDUA added that these factors “have helped Hawai # i become one of the most important centers for astronomical research in the world.”

The proposed observatory consisted of a telescope thirty meters in diameter, attached instruments to record data, an enclosing dome, an attached building to house support and maintenance facilities, and parking. The CDUA also proposed a TMT Access Way, consisting of an improved road and underground

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### utilities improvements to connect the TMT with other existing roads and utilities, and temporary use of an existing four-acre staging area for materials during construction. The CDUA also proposed to upgrade existing underground electrical wiring, electrical transformers, and related equipment within a nearby substation.

On December 2 and 3, 2010, BLNR held public hearings on the CDUA in Hilo and Kailua-Kona, respectively. Approximately 200 individuals attended the hearings, 84 of whom testified, and a number of individuals and groups provided written comments before and after these hearings. A range of opinions were expressed in support of and against the CDUA, and at least 6 individuals or groups requested a contested case hearing verbally, in writing, or both.

In the weeks that followed, Samuel Lemmo, Administrator of the Office of Conservation and Coastal Lands, and Michael Cain, Staff Planner for the Office of Conservation and Coastal Lands, completed a staff report for BLNR that summarized the CDUA and public comments, including the requests for a contested case hearing, and recommended that BLNR approve the CDUA and issue a Conservation District Use Permit (CDUP). The staff report also recommended twenty-one conditions for the permit. Other than noting that requests for a contested case hearing had been
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### received, Lemmo and Cain did not at that time recommend that BLNR hold a contested case hearing.

On February 17, 2011, BLNR advised UHH, Mauna Kea Anaina Hou, Deborah Ward (Chairperson of Sierra Club, Hawai # i Chapter), Miwa Tamanaha (Executive Director of KAHEA), Fred D. Stone, and Clarence Kukauakahi Ching that BLNR would “consider” the application at its regularly-scheduled meeting on February 25, 2011, and would also consider

a req uest for d ecisi on-ma king by th e Boa rd (a ) on its own m otion hold[sic ] a c ontes ted c ase h earin g or grant requ ests by Ma una K ea An aina Hou, Fred Stone , KAHEAEnvi ronme ntal Allia nce, Kukau akahi (Cla rence Ching ), an d Sie rra C lub f or a conte sted case heari ng, and ( b) ap point a he aring s off icer and d elega te to the Chair perso n the auth orityto s elect saidhear ings offic er to cond uct a ll he aring s for one (1) c ontes ted case heari ng. 

### On February 25, 2011, BLNR’s Chair began BLNR’s regularly-scheduled public board meeting by asking members of the public to limit their testimonies to no more than five minutes
each. Lemmo then gave a presentation explaining the recommendation for approval of the application and issuance of a permit. A summary of that presentation, as reflected in the meeting minutes, spans nearly five pages single-spaced. He verbally supplemented the staff report with several additional recommended conditions, including the condition that: “If a

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### contested case proceeding is initiated no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed.”

After Lemmo spoke, forty-one individuals testified either for or against the application, which included several more requests for a contested case hearing and objections to BLNR issuing a permit before holding a contested case hearing. For example, Marti Townsend, Program Director of KAHEA: The Hawaiian Environmental Alliance (KAHEA), testified to her belief that before a contested case hearing was held, BLNR could only “defer or deny” issuance of a permit:

She r eferr ed to writ ten t estim ony s he su bmitt ed earli er po intin g out a di agramthat expl ains how t he conte sted case proce ss is supp osed to wo rk. There is no ar row f rom t he Bo ard m akingthe decis ion t o conte sted case decis ion a nd ba ck an d tha t’s b ecaus e the c ontes ted c ase h earin g pro cess is no t a m otion for recon sider ation . It ’s no t say ing h ey Bo ard y ou ma de a mista ke an d you needto c onsid er th is in forma tion and re-vo te. It’s a pro cess for y ou to coll ect infor matio n bec ause in th ese k inds of me eting s we only have five minut es to spea k we don’t get to cr oss exami ne wi tness es. The a ctual fact s don ’t ge t to you, at le ast n ot in the way t hat i t sho uld s o you can make an in forme d dec ision . To day y our o nly o ption s for decis ion m akingare to de fer t he pe rmit until the compl etion of t he co ntest ed ca se or to d eny t he permi t. 

### Clarence Kukauakahi Ching stated that “BLNR is not ready to grant an unconditional CDUP at this time and shouldn’t be. A conditional CDUP might work in the interim.”

Kealoha Pisciotta, President of Mauna Kea Anaina Hou,

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### explained to BLNR:

[W]e’ ve as ked f or a conte sted case heari ng . . . . The p roced ural probl em he re is that a co ntest ed ca se heari ng ha s to go be fore a per mit a pprov al. .
. . [T]he reas on is beca use c ontes ted c ase h earin gs is [sic] to m ake s ure c itize ns li ke us that don’ t hav e stand ing d on’t have to go into cour t. T he co ntest ed case heari ng is a pr ocess wher eby y ou’re allo wed t o prese nt fa cts a nd in forma tion to th e dec ision make rs (the Board ) via the heari ng pr ocess so y ou ca n mak e an infor med d ecisi on. But, if yo u mak e you r dec ision befor e lik e if it is appr oved todaythen you grant the conte sted case heari ng. [ sic] There is n o poi nt

. . . . W hat I am a skingyou guys is to cons ider that we do n’t p ut pr ocess “B” befor e pro cess “A”? It i s equiv alent to a Judg e rul ing b efore he h as th e evide nce s o I d on’t know why i t’s g one o n lik e thi s, but w e’ve had t his p roble m bef ore. . . . 

### Jonathan Osorio, a University of Hawai # i at M â noa Professor of Hawaiian Studies and board member of KAHEA, also objected to issuing a permit before a contested case hearing. Professor Osorio explained that although he was not a religious practitioner, he was deeply concerned as a historian of how telescopes have “proliferated” on Mauna Kea, and was also concerned by what he believed was an insufficient amount of revenues received from this type of project. Professor Osorio compared BLNR to konohiki and ali # i, who were faced with 3 4 

### decisions to allocate resources, including “how they were used to

Konoh iki i s def ined as “H eadma n of an ah upua # a lan d div ision unde r 3 the c hief[ .]” Mary Kawen a Puk ui & Samue l H. Elber t, Ha waiia n Dic tiona ry 16 6 (rev. ed. 1986)
.

Ali # i is defin ed as “Chi ef, c hiefe ss, o ffice r, ru ler, monar ch, 4 peer, headman, noble , ari stocr at, k ing, queen , commande r[.]” Puk ui & Elber t, Hawai ian D ictio nary, at 2 0. 

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### develop.” He cautioned:

You h ave a diff icult deci sion to ma ke he re. It ma y very well be th at wh at we needto d o is look at th is and g ive a cont estedcase hear ing a chan ce to pres ent more infor matio n, mo re fa cts a nd mo re pe ople havin g acces s to give these kind s of testi monie s bef ore y ou can m ake a deci sion. We defin itelydo n ot be lieve that you s houldmake a de cisio n tod ay. 

### BLNR member Robert Pacheco asked Lemmo to respond to these comments that a contested case hearing must occur before BLNR decided. Lemmo responded:

[W]e have old r ules Chapt er 13 -1, R ules of Pr actic e and P roced ure w hich have a sec tion on th e con duct of the c ontes ted c ase h earin gs. Under thes e oldrule s which are no lo nger in ef fect and h ave b een r eplac ed, an en tity couldask for a cont estedcase hear ing a t the r equir ed pu blic heari ng fo r the proj ect w hich occur red l ong b efore this came befo re th is bo dy. The pract ice h ad de velop ed of havi ng a conte sted case when someb ody a sked for a cont estedcase at t he pu blic heari ng fo r the CDUP whic h is long befor e a d ecisi on is ma de. The r ules were chang ed ab out f ive o r six years ago which esse ntial ly se emed to no w all ow th e Boardto m ake a deci sion even with a pen ding reque st for a cont estedcase hear ing b efore you. Sho uld a conte sted case heari ng be requ ired or he ld af ter t hat you g o thr ough that proce ss an d it wouldcome backto you ( the B oard) agai n andyou wouldrule on t hat. 

### BLNR then voted unanimously to approve the application and issue a permit. BLNR adopted the conditions recommended in the staff report and the additional conditions that Lemmo recommended at the meeting, including the condition that, “If a contested case proceeding is initiated, no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed.”

Pisciotta then asked whether, in the event a contested

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### case hearing occurred and the hearing officer disagreed with issuance of the permit, BLNR would “rescind the permit that they just approved[,]” and questioned how BLNR would prevent construction. BLNR minutes reflect the following response:

Chair Aila saidthat with rega rds t o the [cons truct ion] one o f the cond ition s of the C DUP t hat they just appro ved i s tha t no const ructi on ca n beg in until the conte sted case heari ng is adju dicat ed. Mr. Lemmo saidfina l dec ision maki ng ha s bee n mad e. C hair Aila said there are no bu lldoz ers u p the re. There is a dif feren ce of opin ion o n howthos e rul es ar e appli ed. Ms. P iscio tta a greedwhic h wil l be figur ed out b y the cour t. S till the p urpos e is to al low t he decis ion m akers to m ake a n inf ormeddeci sion and y ou can’t make an i nform ed de cisio n unl ess y ou ha ve al l the i nform ation at h and t hat i s whywe a re su ppose [sic] to h ave c ontes ted h earin gs be fore we ha ve decis ion m akingbeca use a cont estedcase hear ing i s not a moti on fo r rec onsid erati on. Membe r Pac heco said this body makes deci sions all the t ime t hat c an go into conte sted case heari ng an d com es ba ck to us r ight away. 

### (Emphasis added).

Subsequently, at this same meeting, BLNR voted unanimously to hold a contested case hearing.

A few days later, in correspondence dated March 3,2011, regarding “Conservation District Use Permit (CDUP) HA3568,” BLNR formally advised UHH that “on February 25, 2011, the Board of Land and Natural Resources approved Conservation District Use Permit (CDUP) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve,” subject to conditions. BLNR included the same conditions that were approved at the February 25, 2011 meeting.

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### Pertinent conditions included:

5. Be fore proce edingwith any work autho rizedby t he Board , the appl icant shal l sub mit f our c opies of t he const ructi on an d gra ding plans and speci ficat ions to the C hairp erson or h is au thori zed r epres entat ive f or appro val f or co nsist ency with the c ondit ions of th e permi t andthe decla ratio ns se t for th in the permi t appli catio n. T hree of th e cop ies w ill b e ret urnedto the a pplic ant. Plan appr oval by th e Cha irper son d oes not c onsti tute appro val r equir ed fr om ot her a genci es; 6. Al l rep resen tatio ns re lativ e to mitig ation set forth in t he En viron menta l Imp act S tatem ent a nd Conse rvati on Di stric t Use Appl icati on ar e inc orpor ated as co nditi ons o f the perm it; 7. Al l mit igati on me asure s andmana gemen t act ions conta ined in th e His toric Pres ervat ion M itiga tion Plan, Cons truct ion P lan, Histo rical & Ar chaeo logic al Site Plan, Main tenan ce Pl an, a nd An throp od Mo nitor ing Plan, are incor porat ed as cond ition s of this permi t;

. . . 9. Th e TMT Mana gemen t Pla n is appro ved, inclu ding all speci fic m anage ment actio ns ar ticul ated in th e TMT Manag ement Plan incl uding , Cul tural Reso urces Manag ement , Nat ural Resou rces Manag ement , Edu catio n & Outre ach, Astro nomic al Re sourc es, P ermit ting and Enfor cemen t, In frast ructu re an d Mai ntena nce, Const ructi on Gu ideli nes, Site Recyc ling, Decommissi oning , Dem oliti on & Resto ratio n, Fu ture Land Uses, and Monit oring , Eva luati on & Updat es. These manag ement acti ons a nd th eir a ssoci ated mitig ation measu res a re in corpo ratedas c ondit ions of th is permi t; 10. T he fo llowi ng ad ditio nal c ondit ions shall be imple mente d by OMKM and T MT:

. . . C Worki ng wi th OM KM to deve lop a nd impleme nt a habit at re stora tion study ;

. . . C Provi ding $1 mi llion annu ally, adju sted for infla tion, for “Comm unityBene fits Packa ge” which will comm ence with const ructi on an d conti nue t hroug h the termof t he su bleas e. T he packa ge wi ll be admi niste red v ia Th e Haw ai # i Islan d NewKnow ledge (THI NK) F und B oard of Advis ors; and

C Partn eringwith othe r ins titut ions to impleme nt a Wor kforc e Pip eline Prog ram, heade d by at le ast one f ull-t ime p ositi on th rough the Commu nity Outre ach o ffice , to prepa re lo cal r eside nts f or jobs in sc ience , eng ineer ing, and t echni cal field s;

. . . C The a pplic ant w ill p resen t a p lan f or ha ndlin g


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recre ation al pa rkingduri ng co nstru ction to t he OCCL for r eviewand appro val p rior to be ginni ng const ructi on;

. . . C The A rchae ologi cal M onito ring Plan will be submi tted to th e Sta te Hi stori c Pre serva tion Divis ion f or re view and a pprov al pr ior t o the onset of c onstr uctio n;

. . . 15. T he ap plica nt un derst ands and a grees that this permi t doe s not conv ey an y ves ted r ights or e xclus ive privi lege; 16. I n iss uing this permi t, th e Dep artme nt an d Boa rd have relie d on the i nform ation and data that the appli cant has p rovid ed in conn ectio n wit h thi s per mit appli catio n. I f, su bsequ ent t o the issu ance of th is permi t, su ch in forma tion and d ata p rove to be fals e, incomplete or i naccu rate, this perm it ma y be modif ied, suspe nded or re voked , in whole or i n par t, an d/or the Depar tment may, in a dditi on, i nstit ute a pprop riate legal proc eedin gs;

. . . 20. N o con struc tion work shall be i nitia ted u ntil the appli cant demon strat es co mplia nce w ith a ll pr econst ructi on co nditi ons a nd mi tigat ion m easur es outli ned i n thi s rep ort. Once this cond ition has been satis fied, the Depar tment will issu e not ice t o pro ceed with const ructi on; 21. I f a c ontes ted c ase p rocee ding is in itiat ed, n o const ructi on sh all o ccur until a fi nal d ecisi on is rende red b y the Boar d in favor of t he ap plica nt or the proce edingis o therw ise d ismis sed;

. . . 25. F ailur e to compl y wit h anyof t hese condi tions shall rend er th is Co nserv ation Dist rict Use P ermit null and v oid. 

### This correspondence further asked UHH to acknowledge receipt of “this approval,” and advised that BLNR had decided to hold a contested case hearing. 2. Contested Case Hearing Beginning in August 2011, a hearing officer appointed by BLNR’s Chair presided over a contested case hearing, during which voluminous written direct testimony was admitted, and

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### twenty-six witnesses, under oath, testified and were crossexamined. The following is a brief summary of the issues raised by the evidence and arguments presented.

Perry White, the principal author of UHH’s application, testified that in crafting the application, he relied upon the final environmental impact statement (FEIS) that had been approved by the Governor in 2010 and the Mauna Kea Comprehensive Management Plan and its four sub-plans, the Natural Resources Management Plan, the Cultural Resources Management Plan, the Decommissioning Plan, and the Public Access Plan. White further testified to the reasons he believed that TMT satisfied HAR § 13-5-30(c), which contains criteria for BLNR’s approval of a 5

HAR § 13-5 -30(c ) pro vides : 5
In ev aluat ing t he me rits of a propo sed l and u se, t he depar tment or b oard shall appl y the foll owing crite ria: (1) T he pr opose d lan d use is c onsis tent with the purpo se of the conse rvati on di stric t; (2) T he pr opose d lan d use is c onsis tent with the objec tives of t he su bzone of t he la nd on whic h the use will occur ; (3) T he pr opose d lan d use comp lies with provi sions and guide lines cont ainedin c hapte r 205 A, HR S, en title d “Coas tal Z one M anage ment” , whe re ap plica ble; (4) T he pr opose d lan d use will not cause subs tanti al adver se impact to ex istin g nat ural resou rces withi n the s urrou ndingarea , communit y, or regi on; (5) T he pr opose d lan d use , inc ludin g bui lding s, struc tures , andfaci litie s, sh all b e compatib le wi th the l ocali ty an d sur round ing a reas, appr opria te to the physi cal c ondit ions and c apabi litie s of the s pecif ic parce l or parce ls; (6) T he ex istin g phy sical and envir onmen tal a spect s of the l and, such as na tural beau ty an d ope n spa ce (cont inued ...) 

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### permit, and in particular, how he believed that the TMT project would not cause “substantial adverse impact.” White also testified regarding future decommissioning of Mauna Kea observatories, including TMT.

Dr. Gary Sanders, the TMT Project Manager, testified that TMT’s design was developed in consultation with the Office of Mauna Kea Management. He testified extensively regarding measures intended to mitigate the impact of TMT, including a reflective exterior dome that fit tightly around the telescope to minimize visual impact. Dr. Sanders also testified that TMT was designed for a service lifetime of fifty years, while acknowledging that UH’s lease of the land from the State expired in 2033. Dr. Sanders also responded to questions regarding whether TMT would cause a permanent alteration or disturbance to the natural landscape at the TMT site, acknowledging that “there will likely be some permanent alteration.”

James Hayes, of an engineering firm contracted to prepare the FEIS, testified regarding the anticipated visual

(...c ontin ued) 5 chara cteri stics , wil l be prese rved or improve d upo n, which ever is ap plica ble; (7) S ubdiv ision of l and w ill n ot be util ized to incre ase t he in tensi ty of landuses in t he conse rvati on di stric t; an d (8) T he pr opose d lan d use will not be ma teria lly detri menta l to the p ublic heal th, s afety , andwelf are. 

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### impact, level of “cumulative impact” in light of existing telescopes on Mauna Kea, and several mitigation measures incorporated in the design of TMT. More specifically, Hayes testified that TMT would add only a “limited increment to the level of cumulative impact that currently exists on Mauna Kea, but it will not tip the balance of any assessed impact from a level that is currently less than significant to a significant level.” Indeed, the FEIS stated, “From a cumulative perspective, the impact of past and present actions on cultural, archaeological, and historic resources is substantial, significant, and adverse; these impacts would continue to be substantial, significant, and adverse with . . . [TMT] and other reasonably foreseeable actions.” Hayes further testified that placing TMT on a recycled telescope site was considered but ultimately deemed “not feasible.”

Wallace Ishibashi, Jr., a member of the Kealoha Poli # ahu family, a lineage traditionally recognized as descendants of Poli # ahu, a snow goddess of Mauna Kea, testified that upon asking Poli # ahu whether TMT was “compatible with the sacred landscape,” he was informed that “it was okay.” Ishibashi further testified in writing that due to his experience learning from navigator Nainoa Thompson and from his grandfather about the stars and the moon and the importance of the study of
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### the heavens to ancient Hawaiians, he supported the TMT because he believed that it would help his grandchildren “learn more about ourselves, our God, and what’s out there beyond the stars that we can see with only our eyes.” He compared TMT’s advanced search for knowledge and understanding to a search for the aumakua or ancestral origins of the universe, and expressed disagreement with those who “oppose[d] things like the TMT on Mauna Kea just because it’s a modern thing, as Hawaiians have always been a creative and adaptive people.”

Kealoha Pisciotta explained in her opening statement that in Native Hawaiian cosmology, Mauna Kea is an origins place. “[I]t’s where the heaven and the earth come together, where all life forms originated from. . . . It is a temple, but one not made by man but for man, so that man could learn the ways of the heavens and the laws of this earth, which mean how do we live with each other; how do we live in relationship to the earth; how do we live in relationship to the heaven.”

Dr. J. Kehaulani Kauanui, a Professor of Anthropology and American Studies at Wesleyan University, testified that telescope development on Mauna Kea had “proliferate[d]” beyond levels anticipated in the general lease from the State and the 1983 Master Plan for Mauna Kea. Professor Kauanui added that TMT constituted 21st century colonialism, and that observatories on
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### Mauna Kea “literally supplant our indigenous temple of worship,” and are a “desecration.”

Marti Townsend, Program Director of KAHEA: The Hawaiian Environmental Alliance, testified that TMT would negatively affect the viewplanes of cultural practitioners, and that telescopes on Mauna Kea negatively affected cultural practices and the environment. Townsend further testified that the mitigation measures proposed did not address “substantial adverse impacts” identified in the FEIS and CDUA because the majority of the measures were only indirect, speculative, and beneficial to “particular groups.”

In closing, Appellants and UHH presented arguments, among other things, regarding whether Appellants’ due process rights had been violated. Pisciotta argued:

I hav e to note here that in th is ca se BL NR ap prove d the T MT CD UA pr ior t o con ducti ng a conte sted case heari ng, w hich we be lieve viol ated our d ue pr ocess right s, po tenti ally shift ing t he bu rden of pr oof, and there by fo rcingus t o hav e to chang e BLN R’s m ind, rathe r tha n BLN R lis tenin g wit h an open mind to he ar all e viden ce. 

### UHH responded as follows:

Let m e sta rt wi th th e cla im th at so mehowthe Appli cant has r eliedon t he ap prova l of the C DUA f or the C DUP f or th e per mit i n Feb ruary . Ag ain, we ne ver relie d on that. In fact, we a greed –-we accep ted t he condi tion where ther e wou ld be no a ction take n on it. In fa ct, w e nev er ra ised that as an issu e in terms of certa in th ings that we ac cepte d. And w e did n’t s hift– -the burde n of proof did not shift . Th e Uni versi ty ag reed and h as co ntinu ed to agree to a ccept the burde n of proof of t he ei ght



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crite ria f or th e iss uance of a CDUP whic h we belie ve the r ecordhas clear ly sh own, and t he ev idenc e tha t was s ubmit ted c learl y sup ports the issua nce o f a C DUP. 

### On November 30, 2012, the hearing officer issued his 124-page findings of fact, conclusions of law, and decision and order, which stated that “the CDUA is GRANTED, and a Conservation District Use Permit is issued,” subject to conditions. Other than omission of the condition that if a contested case hearing be held, then construction shall be stayed, all conditions in the hearing officer’s order were virtually the same as those in BLNR’s March 3, 2011 letter nearly twenty-one months earlier. As germane to the issue before this court, the hearing officer concluded that BLNR’s approval of the permit prior to the contested case hearing was consistent with HAR § 13-1-28(b) (2009). Appellants objected to this and other findings and

6


### conclusions before BLNR. Voluminous briefings were filed and BLNR held a hearing.

On April 12, 2013, BLNR issued its 126-page findings of fact, conclusions of law, and decision and order (BLNR’s FOFs/COLs/D&O), stating that “the CDUA is GRANTED, and a Conservation District Use Permit is issued,” subject to conditions. In appearance and substance, BLNR’s FOFs/COLs/D&O is

HAR § 13-1 -28(b ) pro vides : “T he co ntest ed ca se he aringshal l be 6 held after any publi c hea ring which by l aw is requ ired to be heldon t he sa me subje ct ma tter. ” 

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### substantially the same as the hearing officer’s findings, conclusions, and decision and order.

BLNR addressed Appellants’ procedural argument by characterizing the February 25, 2011 decision as a “preliminary ruling” that complied with the Department of Land and Natural Resources’ (DLNR) Rules of Practice and Procedure, including HAR § 13-1-28(b). BLNR concluded that there was no due process violation because (1) the February 25, 2011 meeting was a “preliminary approval” and not a “final agency action,” (2) the “preliminary approval” was conditioned upon the outcome of the contested case hearing and thus gave Appellants an opportunity to be heard, and (3) the prescribed sequence in the procedural rule was followed because public hearings preceded the contested case hearing:
[COL] 225. In a pre limin ary r ulingby t he BL NR, t he

CDUP was g rante d andthe follo wing condi tion was simul taneo usly impos ed bythe BLNR: “If a co ntest ed case proce edingis i nitia ted, no co nstru ction shal l occur unti l a f inal decis ion i s ren deredby t he Bo ard in fa vor o f the appl icant or t he pr oceed ing i s other wise dismi ssed. ” Immedia tely there after , on its own m otion , the BLNRvote d to direc t tha t a c ontes ted case be he ld, a nd pr ovide d a d ate f or in teres ted parti es to peti tion to pa rtici pate in th e con teste d case. The cond ition quot ed ab ove i s for maliz ed as Condi tion 21 in the BLNR’ s Mar ch 3, 2011 lett er to the Unive rsity . Th us, t he BL NR re taine d res ponsi bilit y to revie w andacce pt, r eject , or modif y the Hear ing Offic er’s propo sed f indin gs an d con ditio ns. By immed iatel y ord eringthat a co ntest ed ca se be heldand prohi bitin g con struc tion until , if ever, it r ender ed its “ final deci sion” in f avor of th e app lican t follo wing the c onclu sion of th e con teste d cas e proce eding , the BLNRdemo nstra ted t hat i ts Fe bruar y 25, 2 011 v ote a nd su bsequ ent M arch 3, 20 11 le tter



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const itute d a p relim inaryruli ng an d didnot refle ct any f inal agenc y act ion.

. . . [COL] 228. In their brie f in the c ontes ted c ase proce eding , [Ap pella nts] did n ot ar gue t hat t he conte sted case heari ng sh ould have been held befor e the B LNR v oted on th e CDU A. T hey d id, h oweve r, menti on th at is sue, at le ast i n pas sing, duri ng closi ng ar gumen ts. [Appe llant s’] p ositi on is not suppo rted by th e DLN R’s R ules of Pr actic e and Proce dure, whic h spe cific ally provi de fo r a c ontes ted case heari ng to occu r aft er th e pub lic h earin g on the matte r, an d not befo re. Thus, Haw. Admi n. R. § 13 -1- 28(b) stat es: “The conte sted case heari ng sh all b e held after any publi c hea ring which by l aw is requ ired to be heldon t he sa me su bject matt er.” (Emp hasis added[sic ].) The orde r of proce eding s her e [ ] 7 compl ied w ith t hat r ule. [COL] 229. In any e vent, [App ellan ts] c annot plaus ibly claimthat theyhave been depr ived of du e proce ss or , ind eed, that they have suffe red a ny ha rm at al l by the o rder of pr oceed ings. The cond ition impos ed bythe BLNR and q uotedabov e man datedthat no work be do ne on the TMT P rojec t unt il th e con teste d case has c onclu ded a nd th e BLN R has fina lly r esolv ed the m atter in U HH’s favor . Th at co nditi on ha s bee n honor ed. The H earin g Off icer was p rompt ly ap point ed, and t he co ntest ed ca se wa s hel d in due c ourse . Th e Proje ct re mains in a beyan ce pe ndingthe outco me of this proce ss. The B LNR m ust s till vote on th is matte r. T he BL NR ha s at all t imes retai ned t he autho rity to re view and a ccept , rej ect, or mo dify the Heari ng Of ficer ’s pr opose d fin dings and concl usion s, and u ntil the B LNR h as vo ted a gain, ther e has been no final agen cy ac tion on th is ap plica tion. For all pract ical purpo ses, [Appe llant s] ar e exa ctly where they wouldhave been if t he pr ocess had not f ollow ed the B LNR’s Rule s of Pract ice a nd Pr ocedu re, b ut inste ad ha d occ urredin t he ma nner they desir ed. 

### (Internal exhibit citation omitted).
B. Appeal and secondary appeal

Appellants appealed BLNR’s FOFs/COLs/D&O to the circuit court, continuing to argue that BLNR’s approval of the CDUA and

This porti on of BLNR ’s FO Fs/CO Ls/D& O con tains no e mphas is. 7 

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### issuance of the CDUP before a contested case hearing was inconsistent with Appellants’ rights to due process and pertinent
statutes and rules.

On May 5, 2014, the circuit court entered a decision and order affirming BLNR’s FOFs/COLs/D&O, and entered final judgment. The circuit court reasoned that “BLNR granted a

8 

### contested case hearing essentially simultaneously with the preliminary grant of the CDUP[,]” and that the 2011 “preliminary grant” “depended upon a final grant of the permit after a contested case hearing.” In addition, the circuit court reasoned that the “preliminary grant” in 2011 “did not have such a legal consequence” that a contested case hearing was required to have preceded it, and Appellants were not prejudiced because a contested case hearing was held and construction had been stayed. Appellants appealed and sought transfer to this court, which we granted.
II. STANDARD OF REVIEW

In this secondary appeal, this court applies the standards of HRS § 91-14(g) to determine whether the circuit court decision was right or wrong. Korean Buddhist Dae Won Sa Temple of Hawai # i v. Sullivan, 87 Hawai # i 217, 229, 953 P.3d 1315,

The H onora ble G reg K . Nak amura pres ided. 8 

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### 1327 (1998). HRS § 91-14(g) (Supp. 2015) provides:

Upon revie w of the r ecordthe court may affir m the decis ion o f the agen cy or rema nd th e cas e wit h instr uctio ns fo r fur ther proce eding s; or it m ay rever se or modi fy th e dec ision and order if t he subst antia l rig hts o f the peti tione rs ma y hav e bee n preju dicedbeca use t he adminis trati ve fi nding s, concl usion s, de cisio ns, o r ord ers a re: (1) I n vio latio n of const ituti onal or st atuto ry provi sions ; or (2) I n exc ess o f the stat utoryauth orityor juris dicti on of the agenc y; or (3) M ade u pon u nlawf ul pr ocedu re; o r (4) A ffect ed byothe r err or of law; or (5) C learl y err oneou s in view of th e rel iable , proba tive, and subst antia l evi dence on t he wh ole recor d; or (6) A rbitr ary, or ca prici ous, or ch aract erize d by abuse of d iscre tion or cl earlyunwa rrant ed ex ercis e of discr etion
. 

### Further, “[u]nder HRS § 91–14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency’s exercise of discretion is reviewable under subsection (6).” Bragg v. State Farm Mut. Auto. Ins. Co., 81 Hawai # i 302, 305, 916 P.2d 1203, 1206 (1996).
III. DISCUSSION
A. Due process of law

The Hawai # i Constitution provides, “No person shall be deprived of life, liberty or property without due process of law . . . .” Haw. Const. art. I, § 5. Due process “calls for such procedural protections as the particular situation demands.”

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### Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261 (citations and internal quotations omitted). The requirements of due process are flexible and depend on many factors, but “there are certain fundamentals of just procedure which are the same for every type of tribunal and every type of proceeding[,]” including those before administrative agencies. Sifagaloa, 74 Haw. at 189, 840 P.2d at 371 (quoting Sussel v. City & Cnty. of Honolulu Civil Serv. Comm’n, 71 Haw. 101, 107, 784 P.2d 867, 870 (1989)).

The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261; In re Guardianship of Carlsmith, 113 Hawai # i 236, 240, 151 P.3d 717, 721 (2007) (due process “afford[s] [interested parties] an opportunity to present their objections”). However, while “a fair trial in a fair tribunal is a basic requirement of due process,” Sifagaloa, 74 Haw. at 189, 840 P.2d at 371 (quoting Murchison, 349 U.S. at 136 (internal quotation marks omitted)), giving a person “a day in court” does not alone mean that a process is fair, State v. Brown, 70 Haw. 459, 463, 776 P.2d 1182, 1185 (1989).

Fundamentally, in the justice system, “justice can perform its high function in the best way only if it satisfies the appearance of justice.” Sifagaloa, 74 Haw. at 189, 840 P.2d
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### at 371 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)) (internal quotation marks and brackets omitted; emphasis added).

In th e adm inist ratio n of justi ce bya co urt o f law , no princ iple is be tter recog nizedas a bsolu tely essen tial than that everycase , be it cr imina l or civil , andthe parti es in volve d the rein are e ntitl ed to the “cold neutr alityof a n imp artia l jud ge.”
. . . In the w ords of Mr . Jus tice Cardo zo, . . . “But justi ce, t hough due to th e acc used, is d ue to the accus er al so. The conce pt of fair ness must not b e str ainedtill it i s narro wed t o a f ilame nt. We ar e to keep the b alanc e true. ” 

### Peters v. Jamieson, 48 Haw. 247, 262-63, 397 P.2d 575, 585 (1964) (quoting Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)).

This means that the manner in which the justice system operates must be fair and must also appear to be fair. Sifagaloa, 74 Haw. at 190, 840 P.2d at 371 (“[J]ustice must not only be done but must manifestly be seen to be done[.]”) (quotations omitted). Indeed, this “stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” Murchison, 349 U.S. at 136. These principles of the justice system--mandated by the United States and Hawai # i Constitutions, statutes, administrative rules, and decisions by the courts--are manifested in procedural protections.

In an adjudicatory proceeding before an administrative agency, due process of law generally prohibits decisionmakers

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### from being biased, and more specifically, prohibits decisionmakers from prejudging matters and the appearance of having prejudged matters. See Sussel, 71 Haw. at 109, 784 P.2d at 871 (concluding that where an adjudicator’s actions while presiding over a matter gave rise to an appearance of impropriety, the circuit court erred in not enjoining the adjudicator from deciding the case); Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“Not only is a biased decisionmaker constitutionally unacceptable, but ‘our system of law has always endeavored to prevent even the probability of unfairness.’”) (quoting Murchison, 349 U.S. at 136); see also Cinderella Career & Finishing Schs., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (holding that the standard for evaluating the existence of improper prejudgment in an adjudicative context is whether “a disinterested observer may conclude that (the agency) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it”). 9



### “Indeed, if there exists any reasonable doubt about the adjudicator’s impartiality at the outset of a case, provision of the most elaborate procedural safeguards will not avail to create

UHH a rgues that the Cinde rella stan dard is “o bsole te an d gen erall y 9 rejec ted.” As expla ined in Se ction C, U HH is inco rrect . Th e Cin derel la stand ard c ontin ues t o be widel y acc eptedacro ss th e cou ntry, and moreo ver, is consi stent with Hawa i # i Sup reme Court deci sions
. 

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### [an] appearance of justice.” Sussel, 71 Haw. at 108, 784 P.2d at 870 (quoting M. Redish & L. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455, 483- 84 (1986)); see Sifagaloa, 74 Haw. at 190, 840 P.2d at 371 (same); see also Cinderella, 425 F.2d at 590 (disapproving of circumstances “which give the appearance that [a decisionmaker] has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves”). It is abundantly clear that “[f]ew situations more severely threaten trust in the judicial process than the perception that a litigant never had a chance” due to “some identifiable potential bias.” Redish & Marshall, Adjudicatory Independence, 95 Yale L.J. at 483 (emphasis in original); see Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2015) (stating that “public perception of judicial integrity” is a governmental interest of “the highest order”) (quotations omitted).

Thus, this court must determine whether Appellants were given an opportunity to be heard at a meaningful time and in a meaningful manner when--despite their pending requests for a contested case hearing and specific requests to not issue a permit before such hearing--BLNR issued the permit before resolving those requests and conducting a contested case hearing.

“A contested case is an agency hearing that 1) is
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### required by law and 2) determines the rights, duties, or privileges of specific parties.” Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai # i 64, 67, 881 P.2d 1210, 1213 (1994); see HRS § 91-1(5). An agency hearing that is required by law “may be required by (1) agency rule, (2) statute, or (3) constitutional due process.” Kaniakapupu v. Land Use Comm’n, 111 Hawai # i 124, 132, 139 P.3d 712, 720 (2006).

It is undisputed that Appellants were entitled to a contested case hearing. BLNR recognized as much when it voted unanimously to hold a contested case hearing after approving the permit. Indeed, a contested case hearing was required as a matter of constitutional due process. The right to exercise Native Hawaiian customs and traditions is explicitly protected by article XII, section 7 of the Hawai # i Constitution:

The S tate reaff irms and s hall prote ct al l rig hts, custo maril y andtrad ition ally exerc ised for subsi stenc e, cu ltura l andreli gious purp oses and posse ssed by ah upua # a ten ants who a re de scend ants of nativ e Haw aiian s who inha bitedthe Hawai ian I sland s prior to 1 778, subje ct to the right of t he St ate t o regul ate s uch r ights
. 

### Appellants have argued throughout this case that the project will have significant negative effects on their Native Hawaiian cultural practices on Mauna Kea. For example, Appellant Neves testified that “[TMT] development in my sacred temple of religious practice will seriously interfere with my ability to

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### adore Mauna Kea.” And in a jointly submitted letter, Appellant Mauna Kea Anaina Hou, Appellant Clarence Kukauakahi Ching, The Royal Order of Kamehameha, and Sierra Club wrote, “Mauna Kea is considered the Temple of the Supreme Being[,] the home of Na Akua (the Divine Deities), Na # Aumakua (the Divine Ancestors), and the meeting place of Papa (Earth Mother) and Wakea (sky Father).”

Given the substantial interests of Native Hawaiians in pursuing their cultural practices on Mauna Kea, the risk of an erroneous deprivation absent the protections provided by a contested case hearing, and the lack of undue burden on the government in affording Appellants a contested case hearing, a contested case hearing was “required by law” regardless of whether BLNR had voted to approve one on its own motion at the February 25, 2011 meeting. See Sandy Beach Def. Fund, 70 Haw. 1 0 

### at 378, 773 P.2d at 261.

Once a contested case hearing is mandated, due process requires that the parties be given a meaningful opportunity to be heard. See Application of Hawai # i Elec. Light Co., 67 Haw. 425, 430, 690 P.2d 274, 278 (1984). In this case, BLNR’s decision to vote on the permit prior to the contested case hearing denied Appellants a meaningful opportunity to be heard in both reality

Moreo ver, Appel lees never disp uted Appel lants ’ sta ndingto a ssert 10 artic le XI I, se ction 7 ri ghts and t o fil e thi s app eal. 

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### and appearance.

A contested case hearing affords parties extensive procedural protections similar to those afforded parties in a civil bench trial before a judge. These protections include the opportunity to issue subpoenas for witnesses to testify under oath or produce documents, to cross-examine witnesses under oath, and to present evidence by submitting documents and testimony under oath in support of their positions. See HAR §§ 13-1-32(c), (g); 13-1-33(a), (b); 13-1-35. Moreover, a contested case hearing affords parties the opportunity to obtain and utilize the assistance of counsel, comment on how a site visit by the hearing officer should be conducted, review the written decision of the hearing officer, and challenge the hearing officer’s decision both in writing and verbally at a hearing before BLNR.

These procedures are designed to ensure that the record is fully developed and subjected to adversarial testing before a decision is made. Yet that purpose is frustrated if, as was the case here, the decisionmaker rules on the merits before the factual record is even developed. Such a process does not satisfy the appearance of justice, since it suggests that the taking of evidence is an afterthought and that proceedings were merely “mov[ing] in predestined grooves.” Cinderella, 425 F.2d at 590; see Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at
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### 261. In this case, the procedural protections that were afforded during the contested case process simply cannot remedy the fact that the decisionmaker appeared to have already decided and prejudged the matter at the outset. Decisionmakers cannot decide matters on the merits before taking evidence.

Such a process threatens the reality of justice as well. As well-intentioned as the hearing officer may be, he or she knows BLNR’s position on the permit before the first witness is sworn in. See Murchison, 349 U.S. at 136 (explaining that the “stringent rule [to avoid the appearance of prejudgment] may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties”). BLNR members were of course aware of the prior vote when the hearing officer’s recommendation came
before them.

BLNR’s procedure in this case was also inconsistent with the statutory definition of a contested case hearing. HRS § 91-1(5) defines a contested case as “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.” (Emphasis added). Plainly, BLNR should not have voted on the permit when it did.

In sum, BLNR put the cart before the horse when it
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### approved the permit before the contested case hearing was held. Once the permit was granted, Appellants were denied the most basic element of procedural due process–-an opportunity to be heard at a meaningful time and in a meaningful manner. Our Constitution demands more.
B. BLNR’s February 25, 2011 decision was a determination on the merits BLNR and UHH argue that the February 25, 2011 vote was merely preliminary and tentative pending a contested case hearing and repeat vote by BLNR. To be clear, BLNR’s approval of the permit-–“preliminary” or not-–before the contested case hearing was held violated Hawaii’s constitutional guarantee of due process. Regardless, the record indicates that BLNR issued a permit on that day that was operative and determined UHH’s rights and responsibilities, although with some aspects stayed pending further action.

BLNR’s letter to UHH on March 3, 2011 stated that “on February 25, 2011, the Board of Land and Natural Resources approved Conservation District Use Permit (CDUP) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve,” subject to conditions. The permit contained 25 conditions for TMT, andCondition 10 contained 18 bullet points of apparent subconditions. As noted below, many of the conditions denominated

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### the permit as “the” permit, and not merely a “preliminary” permit. Specifically, conditions stated: that representations in the environmental impact statement and CDUA “are incorporated as conditions of the permit[,]” (Condition 6); mitigation measures and management actions contained in other plans submitted with the CDUA “are incorporated as conditions of this permit[,]” (Condition 7); the TMT Management Plan, which was submitted with the CDUA, “is approved,” and it and related plans “are incorporated as conditions of this permit[,]” (Condition 9); UHH understood and agreed that “this permit” did not convey vested rights[,] (Condition 15); “[i]n issuing this permit,” DLNR and BLNR relied upon the CDUA, and “[i]f, subsequent to the issuance of this permit, such information and data prove to be false, incomplete or inaccurate, this permit may be modified . . . .[,]” (Condition 16); and failure to comply with “any of these conditions shall render this Conservation District Use Permit null and void[,]” (Condition 25). Thus, “the permit” was effective as of February 25, 2011, and contained conditions that detailed when and how the permit holder could act. Quite simply, “the permit” was issued as of that date.

BLNR and UHH argue that despite the 2011 permit’s repeated statement that it is “the permit,” the 2011 permit was only preliminary because construction was stayed pursuant to the

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### condition that, “If a contested case proceeding is initiated, no construction shall occur until a final decision is rendered by the Board in favor of the applicant or the proceeding is otherwise dismissed[,]” (Condition 21). However, construction was stayed due to a number of conditions, not only Condition 21. Specifically, various conditions explained that construction could not begin immediately because: UHH was required to submit construction and grading plans and specifications for approval and consistency with the “conditions of the permit and the declarations set forth in the permit application[,]” (Condition 5); UHH needed to submit for review and approval plans for handling recreational parking during construction and monitoring archaeological sites[,] (Condition 10); and UHH was required to “demonstrate[] compliance with all pre-construction conditions and mitigation measures outlined in this report. Once this condition has been satisfied, the Department will issue notice to proceed with construction[,]” (Condition 20). Indeed, these conditions preventing immediate construction in 2011 were repeated in the document that UHH and BLNR characterize as the operable permit--BLNR’s FOFs/COLs/D&O in 2013. Thus, a stay on construction beginning immediately did not render the 2011 permit anything less than an operative permit that was issued on the merits of the CDUA.
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### Further, at least one condition--the annual funding for a community benefits package, (Condition 10)--was to “commence with construction.” That this condition would commence with construction also suggests that even without construction, the application had been approved and a permit had been issued. If there was no operative permit until construction could begin, then it would not be reasonable or necessary to explain that funding the community benefits package need not begin until construction begins, meanwhile authorizing other aspects to commence immediately. 1 1



### Indeed, the February 2011 permit authorized at least some aspects of TMT to commence immediately. For example, one condition stated: “The following additional conditions shall be implemented by OMKM [the Office of Mauna Kea Management] and TMT: . . . Working with OMKM to develop and implement a habitat restoration study; . . . Partnering with other institutions to implement a Workforce Pipeline Program, headed by at least one full-time position through the Community Outreach office, to prepare local residents for jobs in science, engineering, and technical fields[,]” (Condition 10). The permit did not stay these conditions, which are unrelated to construction. That the

It is also nota ble t hat i n 201 1 and2013 the permi t was give n the 11 same numbe r (HA -3568 ). T his f urthe r sug gests that the 2011 permi t was inde ed an op erati ve pe rmit. 

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### permit authorized aspects of TMT to commence immediately underscores that the effect and apparent intention of issuing the permit was a determination on the merits of the CDUA. The circuit court erred in concluding that the 2011 permit “did not have such a legal consequence” that a contested case was required to have preceded it.

Despite the above, BLNR and UHH also contend that the 2011 permit was only preliminary because a few minutes after BLNR issued the permit, BLNR decided to hold a contested case hearing. But, simply stated, sequence matters. Here, BLNR issued the permit despite pending requests for a contested case hearing and a right to such a hearing under the applicable rules and the Hawai # i Constitution, and only then decided to hold the hearing. This sequence plainly gives rise to the appearance of prejudgment and did not provide Appellants with a meaningful opportunity to
be heard. Further, the conditions enunciated in BLNR’s FOFs/COLs/D&O in 2013 are virtually the same as those in the 2011 permit. This similarity is significant because BLNR appears to suggest that in 2011, BLNR anticipated serious consideration of evidence presented during the contested case hearing. But the similarity between the 2011 permit and the 2013 decision gives the appearance that less than full consideration was given to the

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### voluminous legal and factual arguments and materials presented in the contested case hearing. Such similarity “give[s] the appearance that [BLNR] ha[d] already prejudged the case and that the ultimate determination of the merits [had] move[d] in predestined grooves.” Cinderella, 425 F.2d at 590.

In sum, the 2011 permit was a determination on the merits, even though Appellants were entitled to a contested case hearing. This gives rise to an appearance of prejudgment.
C. UHH’s and BLNR’s arguments in defense of issuing the 2011 permit before the contested case hearing was held are unpersuasive UHH and BLNR make several arguments in defense of BLNR issuing the permit before a contested case hearing. However, none of those arguments are persuasive. Rather, the circumstances of this case give rise to the reality and appearance of impropriety, and thereby violate the Due Process Clause of article I, section 5 of the Hawai # i Constitution.

UHH begins by distinguishing this case from Kilakila # O Haleakal â v. Bd. of Land & Natural Res., 131 Hawai # i 193, 317 P.3d 27 (2013). UHH characterizes Kilakila as a case of “whether, where a formal contested case has been requested, an agency may nonetheless make a rights-determinative ‘final decision’ before ruling on the contested case request.” UHH argues that because BLNR’s 2011 decision was not “final,” i.e.,
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### not “final agency action,” Kilakila does not apply to this case. UHH also suggests that because in the instant case BLNR “simultaneously” granted a motion to hold a contested case hearing and issued the permit, this case is distinguishable from Kilakila, where BLNR did not make a decision on requests for a contested case hearing until its approval of the CDUA had been appealed two months later. As explained above, sequence matters. Here, BLNR issued an operative permit despite pending requests for a contested case hearing and a right to such a hearing under the applicable rules and the Hawai # i Constitution, and only then decided to hold such a hearing. This sequence--whether events were separated by two minutes or two months--plainly gives rise to the appearance of prejudgment, and denied Appellants the opportunity to be heard at a meaningful time and in a meaningful

manner. UHH next argues that because Condition 21 stayed construction on TMT, this case was unlike Kilakila, where BLNR approved the CDUA without staying construction. As explained above, it does not matter whether or not the permit was stayed. BLNR should not have issued the permit prior to holding a contested case hearing. Moreover, construction was stayed due to a number of conditions, and the 2011 permit authorized some aspects of TMT to commence immediately. A stay on construction

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### did not render the 2011 permit anything less than an operative permit that was issued on the merits.

UHH next argues that Appellant Clarence Kukauakahi Ching “agreed that BLNR could properly vote and issue a permit” before a contested case hearing so long as the permit was conditioned upon construction not proceeding before a contested case hearing was resolved in favor of UHH and BLNR took a final vote also in favor of UHH. (Emphasis in original). But this statement by a private citizen at a public meeting did not authorize BLNR to act inconsistently with the Hawai # i Constitution, particularly with regard to the other Appellants.

Relatedly, UHH highlights Appellants’ assertions that BLNR’s procedural error of issuing the permit before a contested case hearing “could and should be addressed by the HearingOfficer in the contested case the BLNR ordered.” (Citing Ex. A320 to the contested case hearing, at 11, 21, 31, 42) (Emphasis omitted). UHH appears to suggest that these assertions constitute Appellants’ concession that BLNR’s procedural error could be remedied after-the-fact. But these statements by Appellants in letters on March 7, 2011, after BLNR had issued the permit, did not retroactively authorize BLNR to violate Appellants’ due process rights under the Hawai # i Constitution ten days earlier.
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### UHH also argues that because Appellants made these statements and participated in the contested case hearing, Appellants “got what they requested.” This argument misstates the facts. As described, multiple Appellants strenuously objected at every opportunity to BLNR issuing the permit before a contested case hearing because they believed that such sequence would not allow for adequate and impartial consideration of the merits. When BLNR did otherwise and issued the permit at the February 2011 meeting, Appellants continued to challenge that procedure with letters in March 2011, and in addition, participated in the contested case hearing on the merits and made legal arguments to the hearing officer. BLNR’s February 2011 decision effectively forced Appellants to take this approach after BLNR issued the permit. Accordingly, Appellants’ participation in the contested case hearing does not constitute consent to suffer the consequences of BLNR’s improper decision in February 2011, or a waiver of their ability to challenge it
later. UHH next refers to HRS § 91-14 in support of its argument that the February 2011 decision was merely preliminary. This statute concerns the scope of courts’ 1 2

HRS § 91-1 4 pro vides , in perti nent part: 12 (cont inued ...) 

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### jurisdiction for appellate review of specific types of agency rulings. UHH makes two mistaken characterizations in support of its argument: first, characterizing the 2011 permit as “preliminary” as used in this statute, and second, characterizing Appellants’ position as a direct challenge of the 2011 permit. Specifically, UHH argues that if the 2011 permit was as prejudicial as Appellants contend, then it was at least a “preliminary ruling of the nature that deferral of review . . . would deprive appellant of adequate relief,” under HRS § 91-14, so the judicial review that Appellants seek has been waived because it was not sought “within thirty days after the preliminary ruling.” See HRS § 91-14(a), (b).

However, UHH’s reliance on this statute is flawed at the outset because UHH conflates two distinct concepts: the availability of judicial review at a particular time, and the

(...c ontin ued) 12 (a) A ny pe rson aggri eved by a final deci sion and o rder in a conte sted case or bya pr elimi nary rulin g of the natur e tha t def erral of r eviewpend ing e ntry of a subse quent fina l dec ision woul d dep rive appel lant of adequ ate r elief is e ntitl ed to judi cial revie w the reof under this chap ter;
. . . . (b) E xcept as o therw ise p rovid ed he rein, proc eedin gs for r eviewshal l be insti tutedin t he ci rcuit cour t . . . w ithin thir ty da ys af ter t he pr elimi nary rulin g or withi n thi rty d ays a fter servi ce of the certi fied copy of th e fin al de cisio n andorde r of the a gencypurs uant to ru le of cour t . .
. . (Emph ases added ). 

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### question of whether the procedures followed by BLNR comported with due process. Essentially, UHH attempts to utilize its substantive argument as to due process--that the 2011 permit was only tentative or “preliminary”--to make a procedural argument regarding the type of preliminary ruling for which a court has jurisdiction to review BLNR’s actions. These are distinct concepts, and the way in which UHH relies on HRS § 91-14 is inapposite to the issue before this court.

UHH’s argument is also flawed because Appellants are not seeking to set aside the 2011 permit, rather, they are seeking to set aside BLNR’s FOFs/COLs/D&O in 2013 based on the process that led to its adoption. UHH’s position would effectively require a party to a contested case hearing to appeal whenever a decisionmaker appears to engage in prejudgment of the matter at issue. Thus, for example, it would appear to require an immediate appeal where a decisionmaker makes arguably improper extrajudicial statements about the merits of a case. See, e.g., Cinderella, 425 F.2d at 584. Requiring a party to appeal (or lose the right to do so) based on such indefinite circumstances would encourage piecemeal appeals, inconsistent with well established law. See Mitchell v. State Dep’t of Educ., 77 Hawai # i 305, 308, 884 P.2d 368, 371 (1994) (stating that an end served by the requirement of a requisite degree of finality of

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### agency decisions before appellate review is the avoidance of piecemeal litigation). Here, it was not until after the contested case hearing did not lead to adequate relief that judicial review was appropriate.

Moreover, UHH’s argument is not supported by a plain reading of this statute. HRS § 91-14(b) provides that a party wishing to appeal shall appeal “within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency[.]” (Emphasis added). Accordingly, even if the 2011 permit is characterized as a “preliminary ruling” under this statute, Appellants’ appeal shortly after the “final decision and order of the agency” was appropriate. Appellants did not waive a due process challenge by not immediately appealing after BLNR issued the 2011 permit.

UHH next defends the procedure here by generally arguing that it is analogous to other procedures that have been found to pass muster under due process in Hawai # i and elsewhere. However, as set forth below, UHH refers to no federal or state case--and this court finds none--similar to this case, where a decisionmaker ruled on the merits before hearing the evidence.

UHH contends that Cinderella, 425 F.2d 583, which prohibits appearance of the decisionmaker’s “prejudgment in some
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### measure,” sets a standard that is “obsolete and generally rejected.” In support, UHH refers this court to Amerada Hess Pipeline Corp. v. Regulatory Comm’n of Alaska, 176 P.3d 667 (Alaska 2008), for the proposition that Cinderella is generally rejected, and NEC Corp. v. United States, 151 F.3d 1361 (Fed. Cir. 1998), for the proposition that the appearance of “prejudgment in some measure” is permissible so long as the decisionmaker does not have an “irrevocably closed mind.” In so arguing, UHH mischaracterizes Cinderella’s continued broad acceptance across the country under appropriate circumstances and ignores well established principles throughout Hawai # i case law.

In Cinderella, a member of the Federal Trade Commission made a public statement on a pending adjudicative matter before the Commission rendered a decision. The United States Court of Appeals for the District of Columbia held that where prejudgment is alleged, the test for disqualification is “whether a disinterested observer may conclude that (the agency) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” 425 F.2d at 591 (internal quotation marks omitted). The court added that “an administrative hearing must be attended, not only with every element of fairness but with the very appearance of complete fairness[.]” Id. (internal quotation marks omitted).
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### Before and after Cinderella, the commitment to an objective “appearance of fairness” test is consistent throughout Hawai # i judicial decisions. For instance, in Sifagaloa, 74 Haw. 181, 840 P.2d 367, this court considered whether an employee’s due process rights were violated. The employee applied for disability retirement benefits as a member of the State Employees’ Retirement System (ERS). The ERS Board of Trustees, upon reviewing a decision submitted by the Medical Board, denied Sifagaloa’s request for disability retirement benefits. Id. at 186–87, 840 P.2d at 370. The same Board of Trustees adjudicated his appeal from the Medical Board’s decision and affirmed the denial. Id. at 187-88, 840 P.2d at 370. On appeal, the employee asserted that he was denied due process because the Board of Trustees had conflicting interests to award retirement benefits and to preserve the retirement fund, and this conflict gave rise to an appearance of impropriety whereby the Board of Trustees’ impartiality might reasonably be questioned. Id. at 188, 840 P.2d at 370–71.

This court observed that the Supreme Court in Withrow determined that the fundamentals of just procedure require impartiality of “administrative agencies which adjudicate as well as courts[,]” and concluded that there is “no reason why an administrative adjudicator should be allowed to sit with impunity

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### in a case where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on his impartiality.” Id. at 189-90, 840 P.2d at 371 (quoting Brown, 70 Haw. at 467 n.3, 776 P.2d at 1188 n.3).

Ultimately, this court concluded that: “[f]airly read, neither the facts . . . nor the generalized assertions made here about [the Trustees’] ‘inconsistent’ responsibilities prove an interest on [their] part in the outcome of the determinations made [on Sifagaloa’s claim] sufficient . . . to overcome the ‘presumption of honesty and integrity’ that attaches by virtue of [their] office.” Sifagaloa, 74 Haw. at 193, 840 P.2d at 372 (alterations and ellipses in original). Many other Hawai # i cases take this approach. See, e.g., In re Sawyer, 41 Haw. 270, 283 (Haw. Terr. 1956) (“A judge owes a duty not to withdraw from a case––however much his personal feelings may incline him to do so––where he is not legally disqualified, yet there may be circumstances that cast suspicion on the fairness of the judge proceeding in the case so that it may be advisable for a judge not technically disqualified to withdraw sua sponte.”); Peters, 48 Haw. at 262-63, 397 P.3d at 585; Honolulu Roofing Co. v. Felix, 49 Haw. 578, 617, 426 P.2d 298, 323 (1967) (quoting Sawyer); Brown, 70 Haw. at 462-63, 776 P.3d at 1185; Sussel, 71 Haw. at 106, 784 P.2d at 869 (describing Honolulu Roofing’s

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### reference to Sawyer as “urg[ing] the circuit court to apply ‘an appearance of impropriety’ test in the situation at hand and disqualify the commissioners”); State v. Ross, 89 Hawai # i 371, 377, 974 P.2d 11, 17 (1998) (relying on Brown); In re Estate of Damon, 119 Hawai # i 500, 508, 199 P.3d 89, 97 (2008) (relying on, inter alia, Sussel, Brown, Offutt, Murchison, Withrow, and the Revised Code of Judicial Conduct in discussing the prohibition of even the appearance of impropriety).

The Cinderella standard also remains in use across the country. See, e.g., Fogo De Chao (Holdings) Inc. v. United States Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014); McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1216 n.8 (10th Cir. 2000); Stivers v. Pierce, 71 F.3d 732, 741, 747 (9th Cir. 1995).

Nevertheless, UHH refers this court to Amerada, where the Alaska Supreme Court explained its view that the Cinderella standard “most squarely stands”--notably in the present tense-- “for the proposition that intemperate public remarks by a decisionmaker create a constitutionally impermissible appearance of outcome-determinative prejudgment.” Amerada, 176 P.3d at 674, 676. It characterized Cinderella as a “public-foot-in-mouth case,” and noted that “public intemperance [was] so central” to the decision that, it “can best be viewed as [a] response[] to

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### egregious official obnoxiousness which gratuitously undermines public trust.” Id. at 674, 676. According to Amerada, Cinderella did not set an “across-the-board standard[] for all agency prejudgments of arguably adjudicative facts.” Id. at 676. Amerada involved allegations that a commission’s decision concerning the Trans Alaska Pipeline was tainted because one of the commission’s staff persons previously wrote a master’s thesis regarding that pipeline system. Id. at 672. The Amerada court was critical of the Cinderella test, calling it vague, “unduly abstract and impractical,” and inconsistent with a presumption of regulatory propriety, and referred to federal cases in support of its critique. Id. at 675-76. Ultimately, though, the Amerada court applied the Cinderella standard in evaluating the due process claim under the United States Constitution: “This situation does not approach that zone of egregiousness where federal courts discern a procedural due process violation based on prejudgment bias relegating adjudication to ‘predestined grooves.’” Id. at 676 (quoting Cinderella, 425 F.2d at 590).

Although the Alaska Supreme Court and some other jurisdictions have been critical of Cinderella, Hawai # i courts continue to embrace the dual requirements of the reality and the appearance of justice. Accordingly, UHH’s argument that the Cinderella standard is generally rejected is both incorrect and

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### inconsistent with Hawai # i case law. See, e.g., Sawyer, 41 Haw. at 270; Honolulu Roofing, 49 Haw. at 617, 426 P.2d at 323; Sussel, 71 Haw. at 106, 784 P.2d at 869; Sifagaloa, 74 Haw. at 191, 840 P.2d at 372.

UHH next argues that rehearing of a matter by the same tribunal is a regular occurrence and does not violate due process. (Citing FTC v. Cement Inst., 333 U.S. 683 (1948)). In Cement Institute, a party alleged, one year after testimony had been concluded but “while . . . proceedings were still pending,” prejudgment by members of the Federal Trade Commission who investigated the parties, submitted reports on the matters at issue to Congress and the President in accordance with law, testified before congressional committees in hearings related to their reports, and whose reports and testimonies indicated their opinions that were shaped while preparing the reports. Id. at 700. The Court concluded that the commission was not necessarily disqualified from the matter before it because (1) the party could still present evidence and argument before the Commission rendered its decision, id. at 701, (2) “the fact that the Commission had entertained such views as the result of its prior ex parte investigations did not necessarily mean that the minds of its members were irrevocably closed on the [issues],” id. at 701, (3) congressional purposes would be frustrated if commission

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### members could not have testified or reported, id. at 701-02, and (4) “judges frequently try the same case more than once and decide identical issues each time[,]” id. at 703.

Cement Institute is different from this case. Unlike the party in Cement Institute, Appellants were not afforded an opportunity to present evidence before BLNR rendered its decision on the merits. As discussed, an “irrevocably closed” mind is not the applicable standard under Hawai # i law. Rather, Hawai # i law is consistent with the Cinderella standard. Unlike Cement Institute, no act of Congress, statute, or even administrative rule would have been frustrated by BLNR holding a contested case hearing before deciding whether to issue the permit.

UHH refers to Cement Institute apparently in support of the notion that BLNR could “vote again” on the application after voting on it in 2011. But Cement Institute does not provide any guidance on the issue of whether BLNR’s issuance of the permit before a contested case hearing gave rise to the appearance of impropriety.

UHH next refers to Nat’l Labor Relations Bd. v. Donnelly Garment Co., 330 U.S. 219 (1947), for the proposition that an administrative decisionmaker should not be excluded for prejudgment from rehearing a case merely because the decisionmaker previously excluded evidence that was later found

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### to have been erroneously excluded. UHH also refers to Morgan v. Planning Dep’t, Cnty. of Kauai, 104 Hawai # i 173, 86 P.3d 982 (2004), for the related proposition that agencies have “inherent authority to reconsider [their] own decisions.” (Quoting id. at 185, 86 P.3d at 994). But the issue here is not BLNR rehearing or reconsidering anything.

UHH next refers to MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959), and Pangburn v. Civil Aeronautics Bd., 311 F.2d 349 (1st Cir. 1962), for the propositions that an agency administrator who presides over a proceeding similar to and related to a prior proceeding, or who has had contact in a prior hearing with facts at issue in the hearing at bar, or who has taken a public position on facts, does not inherently violate due process under the United States Constitution. Simply put, those propositions refer to different factual circumstances and do not guide disposition of this case. The due process issue under the Hawai # i Constitution here concerns the propriety of BLNR issuing the permit at the outset in 2011, not what it did afterward.

In sum, although UHH defends the procedure here by generally arguing that it is analogous to other procedures that have been found to pass muster, no case put forth by UHH is analogous to the circumstances here.

UHH also defends the position that the hearing officer

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### and BLNR adopted in response to Appellants’ argument that the sequence of issuing the permit before a contested case hearing was improper. The hearing officer and BLNR, in their respective findings, conclusions, and orders in 2012 and 2013 stated that this sequence was authorized by HAR § 13-1-28(b) (2009). This rule provides: “The contested case hearing shall be held after any public hearing which by law is required to be held on the same subject matter.” HAR § 13-1-28(b). Here, the contested case hearing was indeed held after public hearings. Critically, however, and contrary to Lemmo’s response to BLNR member Pacheco’s question on the issue, this rule did not authorize BLNR to decide the merits and issue the permit before the contested case hearing, or before the request for a contested case hearing had been resolved. In any event, due process would prohibit such a procedure.

It might be argued that the high level of detail over 126 pages of BLNR’s FOFs/COLs/D&O demonstrates transparency that mitigates, albeit belatedly, an appearance of prejudgment. Indeed, one benefit of a transparent articulation of the bases for decisions is the impression that the “processes were in fact meaningful to the outcome.” Redish & Marshall, Adjudicatory Independence, 95 Yale L.J. at 486 (internal quotation omitted, emphasis omitted).

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### That said, the similarity between the 2011 permit and the 2013 decision give the exact opposite impression, because this similarity exists despite what BLNR received in between: thousands of pages of written testimonies, exhibits, and factual and legal arguments, and dozens of hours of verbal testimonies and more legal arguments. As a result, the virtually indistinguishable documents of 2011 and 2013 give the impression that none of the testimonies, arguments, or evidence submitted to BLNR between the two were seriously considered. BLNR should not have issued the permit before the request for a contested case hearing had been resolved. The appearance of prejudgment continues. UHH next argues that the remedy Appellants seek--remand to a new hearing officer for a new contested case hearing-- reveals a flaw in Appellants’ position. Specifically, UHH contends that even if a new hearing officer holds a new contested case hearing, the matter would again be presented to BLNR for a final vote, as it was in 2013, and thus would not resolve Appellants’ challenge to BLNR’s prejudgment. This argument is mistaken because Appellants do not challenge BLNR’s ability to be fair and impartial (i.e., Appellants are not seeking recusal of any or all members of BLNR). Rather, Appellants contend and this court agrees that BLNR erred in the way it proceeded in 2011,

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### which is not necessarily indicative of how it may proceed upon remand with a clean slate. 1 3



### BLNR argues that when it approved the CDUA and issued the CDUP at the February 25, 2011 meeting, a request for a contested case hearing was not perfected, so BLNR did not ignore a procedurally-compliant request. In support, BLNR refers to HAR § 13-1-29 (2009), which generally states that in addition to a request for a contested case hearing before the close of a board meeting, a written petition must also be filed soon after the board meeting.

BLNR generally reads this rule correctly, but the absence of a perfected request for a contested case hearing did not authorize BLNR to issue a permit before such contested case hearing might be granted or occur. This is particularly so because there was no doubt that a contested case hearing would in fact be held, given (1) that Appellants were entitled to a contested case hearing under the applicable administrative rules and the Hawai # i Constitution; (2) numerous requests for a contested case hearing as early as the public hearings in

Moreo ver, this court take s jud icial noti ce th at no ne of the 13 membe rs of BLNRwho votedon F ebrua ry 25 , 201 1 are curr entlymemb ers o f BLN R. See H awai # i Rul es of Evid ence Rule 201 ( regar ding judic ial n otice ); Co mpare http: //dln r.haw aii.g ov/bo ards- commi ssion s/bln r/ (l istin g BLN R members as of Octob er 20 , 201 5), w ith R OA 15 , ICADkt. 60:4 (lis ting BLNR membe rs wh o vot ed on Fe bruar y 25, 2011 ). 

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### December 2010 and leading up to the February 25, 2011 meeting; (3) repeated requests during the February 25, 2011 meeting for a contested case hearing and specific requests to not issue a permit before such hearing; (4) Lemmo’s apparent conclusion and recommendation that a contested case hearing should be held; and (5) BLNR’s apparent agreement with Lemmo by deciding on its own motion that a contested case hearing should be held.

BLNR also argues that Appellants have not overcome the presumption that administrative adjudicators perform their duties with honesty and integrity. See Withrow, 421 U.S. at 47. 1 4


### Under the factual circumstances of this case as described above-- most notably, the appearance of impropriety created by the process employed by BLNR--this presumption does not warrant judgment in favor of BLNR. See Murchison, 349 U.S. at 136 (stating that the requirement that proceedings must appear fair “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties”).

In short, BLNR acted improperly when it issued the permit prior to holding a contested case hearing. No case or

BLNR also refer s thi s cou rt to case s whi ch ge neral ly st ate t hat 14 due p roces s doe s not requ ire a bsolu te “p erfec t[]” execu tion of pr ocedu ral prote ction s, an d alt hough this is t rue, this gener al st ateme nt do es no t warra nt ju dgmen t in favor of B LNR u nder the c ircum stanc es of this case . 

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### argument put forth by UHH or BLNR persuades otherwise.
IV. CONCLUSION For the foregoing reasons, this court vacates the circuit court’s May 5, 2014 Decision and Order Affirming Board of Land and Natural Resources, State of Hawaii’s Findings of Fact, Conclusions of Law and Decision and Order Granting Conservation District Use Permit for the Thirty Meter Telescope at the Mauna Kea Science Reserve Dated April 12, 2013, and final judgment thereon. This matter is remanded to the circuit court to further remand to BLNR for proceedings consistent with this opinion, so that a contested case hearing can be conducted before the Board or a new hearing officer, or for other proceedings consistent with this opinion. Richard Naiwieha Wurdeman for appellants Ian L. Sandison, Timothy J. Lui-Kwan, John P. Manaut, and Arsima A. Muller for appellee University of Hawai # i at Hilo Douglas S. Chin, William J. Wynhoff, and Julie H. China for appellees BLNR, DLNR, and Suzanne D. Case, in her official capacity as Chairperson of the Board /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna

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