A hearing officer who acknowledged receiving inappropriate outside pressure to reach a decision on a major new telescope proposed for Haleakala said Monday that he was "surprised" to have his report thrown out and felt it was rejected because it embarrassed people on both sides.
Attorney Steven Jacobson said that it was "irritating" to see his work rejected after four years of hearings and review. But with both supporters and opponents of the project upset about his report, he said there was no one willing to come forward and argue in favor of keeping it when it was challenged.
"The decision I wrote neither side liked," he said. "There are things that are embarrassing in there for both sides. I can understand why both sides would want to bury it."
In a document filed March 20, Jacobson reported that he had been pressured by state officials, some parties in the case claiming at the behest of U.S. Sen. Daniel Inouye's office, "to simply spit out a recommended decision quickly" on a contested case petition and
permit for the proposed $300 million Advanced Technol-ogy Solar Telescope atop Haleakala.
He said that he was not pressured to recommend a particular outcome, just to speed up his deliberations. Jacobson did eventually recommend granting a conservation district use permit for the telescope project, which has come under fire from Native Hawaiians as a desecration of a sacred site. He also ruled that Kilakila 'O Haleakala, a group opposing the project, had no legal standing to launch a contested case proceeding against the joint project of the University of Hawaii and National Science Foundation.
He later said that, in spite of the pressure he received, his final decision was "entirely mine."
Board of Land and Natural Resources Chairman William Aila Jr. signed an order Thursday discharging Jacobson and ordering his recommendations stricken from the record. The decision was made "in order to avoid even the appearance of impropriety," the order said.
"It actually surprised me," Jacobson said Monday about the order. He said he believed that he handled the situation appropriately.
"I received some inappropriate pressures from outside, consulted with the appropriate counsel on ethical matters on what I ought to do, and did exactly what I was told to do," he said. "If they disagree, it's their prerogative to disagree."
He said that he stood by his report, saying the pressure he received "didn't taint the decision in my mind, didn't affect me at all."
"My understanding is they weren't able to find a single example of bias in the entire 101 pages" of the report, he said.
Jacobson was tasked with considering the testimony presented at public meetings, as well as information provided by experts, consultants and studies of the project and site.
But he said that a lot of the information that was presented "didn't make sense," requiring him to do independent research to verify what was actually true. When he investigated further, a lot of the claims being made didn't check out "to say the least," he said.
"For both sides," he added.
In reading reports made by the experts, "it sounded like some of them had never been to Maui," he said.
Other people who were supposed to be cultural ex-perts misidentified sites on Haleakala, he said.
"There are things (in the report) that are embarrassing to the experts," he said.
He said that he was particularly troubled to find himself accused of bias in the report, especially by allegations that it was slanted against Native Hawaiians. He noted that in addition to arguing for Native Hawaiian rights as an attorney, he also has done a significant amount of writing as a historian about Native American rights.
"It was kind of galling to me," he said.
In rejecting Jacobson's report, the BLNR authorized Aila to appoint a new hearing officer to rule on Kilakila's standing in the case and to issue a report and recommendation within 60 days. The board also authorized the new hearing officer to hold additional evidentiary hearings if necessary and to schedule a site visit with the parties in the case.
Jacobson continued to sound troubled about the incident Monday.
"It's kind of irritating to put that much work into something" and have it thrown out, he said.
* Ilima Loomis can be reached at firstname.lastname@example.org.