DLNR Urges Denial of Contested Case Hearings

The Land Board today will consider a denial of all requests for contested case hearings on TMT International Observatory’s sublease from the University of Hawaii to build the 30-meter telescope on Mauna Kea.

The Board tentatively approved the sublease on June 27, but stayed its effectiveness until the conclusion of any administrative proceedings on contested cases.

Requests for a contested case hearing on the decision were made at the June 27 meeting by the Flores-Case Ohana, Dan Purcell, Harry Fergerstrom, Kealoha Pisciotta for herself and on behalf of Clarence Kukauakahi Ching and Paul K. Neves, and the Office of Hawaiian Affairs.

The petitioners claim interests stemming from customary and traditional beliefs, standing as beneficiaries in the ceded lands trust, and environmental concerns.

OHA cited a Constitutional and statutory right to a portion of income derived from ceded lands, and said the amount of rent the University charges for international use of its facilities on Mauna Kea is “not substantial or even a meaningful or equitable rent.” OHA withdrew its request on July 15, however, without explanation.

The DLNR’s Land Divison recommended denial of the requests because the law makes no provision for contested case hearings on matters such as state subleases. The petitioners “have no right” to a contested case hearing, the DLNR’s report said, because a hearing was not legally required before the agency’s decision-making process. The sublease is an internal management decision that doesn’t require hearing, it said.

The DLNR also recommended that the board find that approval to deny the requests would conclude “all administrative proceedings as to all contested case requests.”