Archives and Political Processes: H-3 Construction

Contested Case

Introduction

The contested case process exists to protect the legal rights of those who are affected by a regulatory agency’s decisions. When a person or an entity files a complaint about an agency’s decision, a contested case is initiated. A contested case hearing is a form of quasi-judicial proceeding in which the agency that is the subject of the complaint conducts hearings, hears evidence, and issues a ruling. Administrative agencies hold contested case hearings in accordance with the procedures outlined in HRS 91-9. Each agency maintains its own rules for the conduct of contested cases, which can be found in the administrative rules of the agency. For example, Subchapter 5 of the Administrative Rules of the Department of Land and Natural Resources contains the rules for the Board of Land and Natural Resources’ contested case hearings. Parties may also pursue mediation to resolve contested cases.

The basic outline of the contested case process is as follows:

  1. A citizen or community group submits a petition for a contested case hearing to the agency. An individual or organization other than the initial petitioner can also petition the agency to be named as an intervenor.
  2. In the pre-hearing phase, the parties exchange lists of exhibits and witnesses, set hearing dates, and stipulate (agree to) the order in which witnesses will appear and the designation of certain witnesses as experts. They also stipulate which issues will be discussed at the hearing. When the hearing is scheduled, a legal notice is published in the newspaper. [insert example legal notice]
  3. In the hearing, each party presents documentary evidence and calls witnesses. Members of the public can also give testimony at a contested case hearing without being a party in the case. A member of the state board or commission involved may preside over the hearing. A few agencies, including the Land Use Commission, Board of Land and Natural Resources, and the Water Commission, have the legal authority to appoint a hearings officer who is not a member of the board or commission.
  4. In the post-hearing phase, each party prepares a proposed Findings of Fact (FOF) and Conclusions of Law (COL) that present its arguments for what the outcome should be and why. All of the parties receive copies of other parties’ FOF/COL and have the opportunity to respond to the points made therein. The decision makers draft their own version of the FOF/COL and share it with all of the parties. A hearing is scheduled where the parties present oral arguments on the proposed FOF/COL. If a hearings officer conducts the proceedings, he or she will issue a proposed Decision and Order (D&O). The parties have the opportunity to make oral arguments on the proposed D&O. In cases where there is no hearings officer, the board or commission members meet and make decisions in private (the Land Use Commission is required to make its decisions in public).
  5. The board or commission issues a final D&O that includes the final version of the FOF/COL. If a party disagrees with the decision, it may pursue relief in the courts.

The information above is derived from Jarman, M. Casey. Making Your Voice Count: A Citizen Guide to Contested Case Hearings. Honolulu: Environmental Law Program, William S. Richardson School of Law University of Hawai‘i at Mānoa, 2002. http://www.hawaii.edu/ohelo/resources/MakingYourVoiceCount.pdf

Contested Case Hearings Involving H-3

In 1981, the Hawaiʻi Department of Transportation petitioned the state Board of Land and Natural Resources (BLNR) for an amendment to the 1975 CDUP to address the realigned route through North Hālawa Valley, and BLNR granted the permit. In June 1983, Circuit Court Judge Wakatsuki sided with H-3 opponents who argued that BLNR should have held a contested case hearing on the state’s CDUA to build a freeway through North Hālawa Valley. In September of 1983, the hearings took place over four days. Afterwards, three BLNR members actually made a site visit to the proposed route through North Hālawa. The State of Hawaiʻi Department of Transportation, Stop H-3 Association, Life of the Land, Conservation Council for Hawaiʻi, and Hui Malama Aina o Koʻolau filed FOF/COL documents in the case. In November 1983, the BLNR issued a Decision and Order granting the CDUP.

Stop H-3 Association filed suit in Circuit Court (Stop H-3 Association v. State of Hawaii, Department of Land and Natural Resources, Civ. No. 69450 (1st Cir. July 12, 1983)) to contest the BLNR’s issuance of the CDUP in 1984. The circuit court affirmed the BLNR’s FOF/COL and D&O. The plaintiffs appealed the decision. In September 1985, the state Supreme Court affirmed the circuit court’s decision.

Where to Find Decisions and Orders

Individuals who wish to view a D&O or the FOF/COL must make a request to the agency that conducted the contested case hearing through the UIPA form, Request to Access a Government Form. Records for older cases may not have been retained. Transcripts of hearings may be available from the court reporter assigned to the case. Some case records may have been transferred to the Hawaiʻi State Archives.