BOARD OF LAND AND NATURAL RESOURCES STATE OF HAWAIIIn re Petition Requesting a Contested Case ) DLNR File No. MA-11-04 ;* :Hearing Re Conservation District Use ) ;Permit(CDUP) MA-3542 for the Advanced ) MINUTE ORDER NO. 15 _ORDER>Technology Solar Telescope at the Haleakala ) DISCHARGING THE HEAI11 OIICE1High Altitude Observatories Site on Puu ) AND APPOINTING A NEW tEARIGKolekole, Makawao, Maui, TMK (2)2-2- ) OFFICER; CERTIFICATE OF SERVThE007:008, ) MINUTE ORDER NO.15 ORDER DISCHARGING THE - HEARING OFFICER AND APPOINTING A NEW HEARING OFFICER On March 23, 2012, the Board of Land and Natural Resources (Board) held a hearingpursuant to Minute Order #14 — Order re: Ex Parte Communications filed on March 16, 2012.Lisa Bail, Esq. appeared for Applicant, the University of Hawaii Institute for Astronomy(UHIfA), and Sharla Manley, Esq. and Camille Kalama, Esq. appeared for the Petitioner,Kilakila ‘0 Haleakalà (Kilakila). UHIfA filed its Response to Minute Order No. 14— Order Re:Ex Parte Communication on March 22, 2012. Kilakila filed its Response to Minute Order No.14 on March 22, 2012. The Hearing Officer, Steven Jacobson, (Hearing Officer) filed aResponse to Minute Order No. 14 on March 20, 2012. The Board, having considered the record and filings herein and arguments of counsel andthe applicable law, finds and concludes as follows: The Hearing Officer has alleged that he received communications from various entities,including the Department of Health, the Chairperson of the Board, and other people, regardingthe status of the Hearing Officer’s report and recommended decision and when the same wouldbe forthcoming.
The Hearing Officer has denied that any of the communications to him from the statednon-parties advocated a particular outcome for the case or influenced him regarding the resultingdecision in his report and recommended decision. The communications to the Hearing Officer regarding the status of the Hearing Officer’sreport and decision did not occur until after the conclusion of the evidentiary portion of thehearing. The Hearing Officer has not alleged that any of these communications came directly fromeither of the parties in this case. After the filing of the Hearing Officer’s Final and Amended Report of the HearingOfficer including Final and Amended Proposed Findings of Fact, Proposed Conclusions of Lawand Recommended Decision and Order (Final and Amended Report), the Hearing Officerconsulted with the Board’s counsel, Deputy Attorney General Linda Chow, regarding thecommunications from the third parties. As counsel for the tribunal, the Board’s counsel advised the Hearing Officer in theHearing Officer’s role as the agent for the Board on matters relating to this case. All communications between the Hearing Officer and the Board’s counsel were attorney-client privileged communications. There was no conflict of interest created when the Board’s counsel advised the HearingOfficer in this matter; it is the responsibility of the assigned deputy attorney general to providelegal advice to the tribunal, including any appointed hearing officer. Subsequent to consulting with the Board’s counsel, the Hearing Officer communicateddirectly and solely with counsel for UHIfA regarding the communications from the non-parties. 2
Even assuming the communications from the non-parties were initiated at the urging of aparty in this case, such communications would be considered permitted ex parte communicationsunder Hawaii Administrative Rules (HAR) § 13-1-37(b)(2) which permits requests forinformation with respect to the procedural status of a proceeding. The communication from the Hearing Officer to UHIfA was an unpermitted ex partecommunication in violation of Hawaii Administrative Rules (HAR) § 13-1-37. Despite the assertions by the Hearing Officer that the pressure that was put on him toissue a decision did not influence the outcome of his decision, the Board finds that the totality ofthe circumstances gives rise to a question regarding the impartiality of the Hearing Officer inarriving at his recommended decision. In order to avoid even the appearance of impropriety, the Board makes the followingorders: 1. The Hearing Officer, Steven Jacobson, is immediately discharged as the hearingofficer in this case. 2. The following filings by the Hearing Officer are to be stricken from the recordand should not be referred to in any future filings or arguments in this case: a. Supplemental Order and Notice re Judicial Notice filed on December 29, 2011; b. Proposed Findings of Fact, Proposed Conclusions of Law and Recommended Decision and Order; Notice of Intention to Take Judicial Notice filed on February 24, 2012; and c. Final and Amended Report of the Hearing Officer including Final and Amended Proposed Findings of Fact, Proposed Conclusions of Law and Recommended Decision and Order (Final and Amended Report) filed on March 12, 2012. 3
3. The Chairperson of the Board is authorized to appoint a new hearing officer for this case. The hearing officer is directed and authorized as follows: a. The hearing officer shall make a ruling as to the issue of Kilakila’s standing in this case; b. The hearing officer shall issue a report and recommended findings of fact, conclusions of law, and decision and order in this matter within sixty (60) days of appointment. If the hearing officer is unable to issue a report and recommended decision within this time, the hearing officer shall make a written report to the Board stating why a report and decision has not been issued and the status of the pending decision; c. The hearing officer is authorized to schedule a site visit with the parties. The site visit shall be conducted under the same protocols as established in Minute Order No. 6; d. The hearing officer is authorized to hold additional evidentiary hearings, as deemed necessary by the hearing officer, to receive testimony from those witnesses that provided oral testimony during the prior evidentiary hearings. The testimony should not go beyond the scope of each witnesses’ prior testimony; and e. The hearing officer will supplement the record in this case by accepting into evidence the Final Supplemental Environmental Assessment for the Advanced Technology Solar Telescope Project dated February 10, 2012 (FSEA), notice of which was published on February 23, 2012, in The Environmental Notice. The hearing officer is authorized to accept additional evidence or argument relating to the FSEA as the hearing officer deems appropriate. 4. The request by Kilakila to disqualify the Board’s counsel, Deputy AttorneyGeneral Linda Chow, is denied. SO ORDERED this day of March, 2012. ‘William J. Aila, Jr. Chairperson Board of Land and Natural Resourcesl The Board has delegated authority to the Chairperson to sign this Order on behalf ofthe Board. 4