In light of the possibility that the TMT may re-enter the permitting process after their permit was remanded by the Supreme Court here is some useful information regarding the contested case hearing process from kahea.org.
The TMT official statements seem to elude to the idea that if they are required to conform to the due process set forth by the State of Hawaii and its Conservation District Use Application process, that they were considering a “Plan-B” for an alternative sight.
We know the TMT corporation has suggested that if they had to finance another Environmental (EIS) and Cultural impact (CIS) statement (which the contested case process involved) that the cost would be too much. To put cost into perspective the Makua valley EIS and CIS was financed with multi-million dollar budgets and still was not completed in time.
Let’s remind the TMT corporation that it is a bad investment to build in Hawaii over the burial grounds of the Hawaiian people, their spiritual sanctuary, and an endnangered species environment a stone’s throw away from the beginning of Hawaii Island’s water aquifer.
IN THE MEANTIME LET US EDUCATE OURSELVES AND MAKE SURE THIS PROCESS IS UNAFFORDABLE BY TAKING FULL ADVANTAGE OF THE CONTESTED HEARING CASE.
WHAT IS A CONTESTED CASE HEARING? Continue to be a part of the human revolution of spiritual ecology across the globe by staying informed and in action:
“Contested case hearing” is the name for quasi-judicial administrative hearings governed by Hawaii state law. State agencies that make decisions that could affect people’s “rights, duties, and privileges” must have a process for holding contested case hearings. The purpose of these hearings is to provide the decision-makers with the most complete and relevant information they need to make a proper decision. These hearings are like an informal court proceeding. They have three parts:
I. Pre-hearing: where the parties and scope of the hearing is decided
After an agency announces that it will be considering a possible decision in a matter, people who think they may be affected by the decision can submit a petition to become a “party” in a contested case hearing. To be party, you have an interest in the outcome of the decision that is somehow distinct from the general public. For example, if you and your family fish on shoreline where a hotel is proposed to be built, then you and your family are affected by the construction of that hotel in a way that most other people are not. Having a distinct interest in the outcome of the decision entitles you the right to stand before the decision-makers and present evidence regarding your unique interests in the decision. This is called “standing.”
A decision about who has standing and who does not, as well as what is the scope of the hearing to be held, is decided by the Hearing Officer at the “pre-hearing.”
II. Hearing: where witnesses are called to testify and evidence is submitted
After the parties have been identified and the scope of the case is determined, the parties prepare for the evidentiary phased of the process. This starts with a submission of exhibits and a list of witnesses, which are all evidence that demonstrate your argument. It takes a lot of time, effort, and (sometimes) expense to put all of this together. It is wise to start on this aspect of the case as soon as possible — even before you know for sure that you have standing. It helps to outline what you would like the decision-makers to decide and work backwards to make sure you present evidence that demonstrates the points you would like to make. Continuing with the preceding example, to prove that you and your family have a traditional and customary practice of fishing from the shoreline where the hotel is proposed to be built, you should list witnesses who can describe your traditions and submit any pictures, news articles, or maybe family genealogy that reference these practices.
After the written evidence and witness lists are submitted to all of the parties and the decision-makers, an in-person hearing is held. Each of the parties will call their witnesses and officially submit for the record any evidence of the claims being made. All of the parties will have an opportunity to object to evidence submitted and cross examine witnesses presented by the other parties. In some cases, the decision-makers will also have an opportunity to question witnesses. Depending the number of parties and the extent of the arguments being presented, this evidentiary phase could require several hearings spread out over several months.
III. Post-hearing: where the parties propose and advocate for a particular outcome
After all of the evidence has been submitted and all the witnesses have testified, the parties have an opportunity to propose a decision for the decision-makers. This means you write what are called proposed “findings of fact,” “conclusions of law,” and a “decision and order,” as if you were the decision-maker. The parties deliver their proposed decisions to each of the parties, who then have an opportunity in wiritng to respond, refute, and/or defend the positions presented. These are called filings and they are very detailed documents that reference evidence by exhibit numbers and lines from the hearing transcripts. The parties will usually have one proposal and then two opportunities to respond. After the filings are complete, the decision-makers convene a final hearing where the parties can present oral arguments in defense of their position and refuting the position of other parties. This post-hearing process can take several months.
After these three phases are complete, the decision-makers decide to either approve, deny, or approve with conditions whatever it is that is being proposed. The decision can either be made at the final hearing or a later public meeting. For example, with the hotel proposed on the beach, the agency could decide to allow the hotel to be built provided that it does not degrade the traditional fishing grounds nearby. If the hotel-developer cannot meet the conditions proposed, then hotel cannot be built. If any party is unsatisfied with the decision made, they can appeal the decision to State Court of the Circuit where the decision is made or the affected land is located.
If you did not engage in the Contested Case Hearing process, you may not have a right to appeal whatever final decision is made.
Contested case hearings are governed by Hawaii Revised Statute Chapter 91. This process is intended to be accessible to people without the need for an attorney — for example, the standards for evidence are not as strict as a court, and the staff of the agency are available to answer questions. That said, contested case hearings do require parties to be organized, able to meet deadlines, available to attend every hearing (which are held during normal business hours), and have access to a computer and printer (and lots of paper). Depending on the nature of the case, some parties may have the option of subsidized legal help from entities such as the Native Hawaiian Legal Corporation (www.nhlchi.org).
1. Making Your Voice Count: A Citizen Guide to Contested Case Hearings
http://www.hawaii.edu/…/Jarman/makingyourvoicecount.pdf : your first step if you are considering a petition for a contested case — this walks you through the whole process and provides examples (mahalo nunui Prof. Casey Jarman of the UH Richardson Law School)
2. Save Kaneohe http://savekaneohe.org/default.aspx : an excellent step-by-step through an actual contested case hearing before the Land Use Commission.
3. State Land Use Commission http://luc.state.hi.us/ : a basic primer on contested case hearings before the LUC.
4. Chapter 91 http://www.capitol.hawaii.gov/…/HRS0091/HRS_0091-0009.htm : the law that governs Contested Case Hearings and the rules each agency has adopted for holding these types of hearings.