Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 2015 Haw. LEXIS 325 (Hawaii Sup. Ct. Dec. 2, 2015):
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 district1 comported with due process.
UHH [the University of Hawai'i at Hilo] 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 [*63] 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, which is not necessarily indicative of how it may proceed upon remand with a clean slate.13
13 Moreover, this court takes judicial notice that none of the members of BLNR who voted on February 25, 2011 are currently members of BLNR. See Hawai'i Rules of Evidence Rule 201 (regarding judicial notice); Compare http://dlnr.hawaii.gov/boards-commissions/blnr/ (listing BLNR members as of October 20, 2015), with ROA 15, ICA Dkt. 60:4 (listing BLNR members who voted on February 25, 2011).
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