Hawaii Telescope - Been There, Done That: Cultural Property Ownership Gets You Only A Public Hearing If You Have Other Chances To Make Your Case

by Robert Thomas, Inverse Condemnation, August 8, 2018

One of the problems with high-public-profile cases like the multiple challenges to the "Thirty Meter Telescope" up on the top of the Big Island's Mauna Kea, is that when the court issues an opinion, the public focuses only on the result, mostly from a policy perspective. Who won? Did the court invalidate the TMT permits? Did it side with the "right" party? 

We get that. Big cases make big headlines, and most people don't care much about what the decision might mean for the law and future cases. And it matters in these type of cases who won. 

But those of us down here in the trenches look at these cases somewhat differently. Yes, the Hawaii Supreme Court's long-awaited opinion in the latest phase of the multiple litigations challenging the TMT has dropped, and as you might have figured from this post's headline, the court sided with the telescope and the State, and ultimately ruled against this part of the challenge. But we didn't focus so much on which party won (the State and the TMT won the case, but the challenges are not over yet), because we were more interested in what this might mean for future cases. 

In Flores v. Board of Land and Natural Resources, No. SCAP-17-0000059 (Aug. 8, 2018), the unanimous court held that the State of Hawaii Board of Land and Natural Resources did not need to conduct a "contested case" (administrative trial) prior to consenting to the sublease of the property from the University of Hawaii to the TMT. The court held that Mr. Flores -- a native Hawaiian who claims a cultural interest in the mountaintop -- owned "property," but that he had the opportunity to protect that interest in a a parallel administrative proceeding, and didn't need another one.

If your interest in the situation is limited to who was the big winner (the telescope and the University, at least for now), and whether the court shut down the TMT project (it didn't, at least not yet), you can stop right here. You already know what you need to know. But for our thoughts on the court's rationale and what it might mean for future cases, read on.  

We won't cover the facts of the case (which we did in this post about the oral arguments a few months ago). Suffice it to say that the one issue which we termed a "dead end" turned out to be the decisive question to all five Justices, and the court concluded that Flores' participation in a parallel contested case about the telescope meant that a public hearing on the sublease was good enough. Here's what we wrote earlier:

After this ruling, the agency on remand held a contested case in which Flores is a party. The agency and the University seemed to be arguing [during oral arguments] for a form of administrative res judicata, even though neither couched it that way. To us, that seems like a dead end because if Flores' rights are being impacted by two separate agency actions, why not two contested cases?   

So much for our predictive abilities!

Turns out this was hardly the "dead end" we predicted, but was the dispositive issue. First, as we (correctly) predicted, the court agreed that Flores owns "property" (New Property aka due process property -- but property nonetheless). Of that we had little doubt. The question then became whether Flores was entitled by virtue of his ownership of cultural property to any special process beyond what a member of the general public would get in a public agency hearing. 

The court concluded that no statute provided him more, nor did any agency rule. So that left the question of whether Hawaii's due process clause required the agency to provide someone in Flores' circumstance additional procedures by an administrative trial. The court applied what is, in essence, the procedural due process standard of Board of Regents v. Roth, 408 U.S. 564 (1972), which asks whether someone has a "legitimate claim of entitlement" to something, and if so, what procedures must the government follow before it can deprive someone of that interest, the latter determined by a three-part test which values the private interest affected, the risk of erroneous deprivation, and the value of additional procedures. 

The court didn't have much problem with the first factor. Flores has cultural property which the court had already determined in another case to be a "substantial" right. The court next assumed without deciding the issue which took up most of the time at oral arguments: whether Flores' interests were actually put at risk by the sublease. Assuming it did, the court concluded that there was no risk of erroneous deprivation, because he was asserting these same rights in the other parallel contested case:

With respect to the second factor, we acknowledge that,as an initial matter, the parties largely dispute the extent to which the Sublease and the Consent adversely affected Flores’s interest in engaging in Native Hawaiian cultural practices on Mauna Kea, and whether there was a risk of erroneous deprivation on the basis that the Sublease and the Consent had no bearing upon this interest. However, assuming arguendo that the Sublease and the Consent had an impact on Flores’s interest under the specific circumstances of this case, we believe that there is no risk of erroneous deprivation, because Flores has already been afforded a full opportunity to participate in a contested case hearing and express his views and concerns on the matter, and he has not persuaded us that the provision of an additional contested case hearing is necessary to adequately safe guard against erroneous deprivation in this case.

Slip op. at 32-33. With no real risk of erroneous deprivation of Flores' cultural property, the addition of an extra contested case wouldn't add much to the equation. After all, Flores seemed to be making the same claims in the parallel contested case as he would be making in the contested case he was seeking regarding the sublease:

In this case, it appears that Flores seeks a distinct contested case hearing on the Consent in order to express the same concerns, and to vindicate the same interests, that he previously raised in the contested case hearing on the CDUP. Moreover, Flores does not clarify the extent to which, if BLNR held a contested case hearing on the Consent, he would put forth evidence and arguments materially different from that which he already proffered at the CDUP contested case hearing.

Slip op. at 33. 

So the TMT and the State win this round, but only on a very narrow basis: because Flores already had a "bite at the apple" (to use the worn legal cliche), even though that bite was still ongoing, he couldn't get another one. Backdoor administrative res judicata. 

That seems like a bit of a dodge -- although not a bad one -- because (as we asked earlier), if Flores' rights are being affected by two separate agency actions, why not have two contested cases. All this case means that in the future, the lawyers representing challengers in these situations will simply split their plaintiffs, and make sure that no one plaintiff appears in more than one agency proceeding. 

Because what about if some other challenger didn't take the belt-and-suspenders approach that Flores did, and a different person who didn't also participate in the parallel contested case challenged the sublease process for not providing a contested case? In that situation, it looks like that is still an unresolved question to the court.

We're guessing that leaving that question open -- and avoiding the more difficult issue of whether the contested case statute's "to be determined" language means that a person only need show the potential deprivation of property in order to be granted a contested case -- is what brought aboard Justices Pollack and Wilson to make a unanimous court. As we've noted previously, both Justices seem okay with the idea that cultural property is enough to get you a contested case in most cases, and it was somewhat surprising to us that they both signed onto the opinion. That it was exceedingly narrowly drawn seems to us one reason they might have done so. 

As for the next case, we'll see. 

PDF: Flores v. Board of Land and Natural Resources, No. SCAP-17-0000059 (Haw. Aug. 8, 2018)