Malama Kakanilua, Ho’oponopono O Makena and the Pele Defense Fund had asked the commission to recuse hearings officer Linden Joesting over claims that she had not been fair. The commission, however, felt there was not enough evidence to show bias.

“I don’t feel as though the burden of proof has been met,” said Chairman Lawrence Carnicelli, who voted alongside other members in a 5-0 bare quorum vote. “With that being said, I would hope that then some of the concerns of the intervenors will be taken into account.”

The Grand Wailea, one of Maui’s largest resorts, is looking to build 151 more rooms and other additions, including 158 more parking stalls, expansion of the Spa Grande, construction of new pools, paving of a beach access parking lot and installation of artificial turf on the luau grounds.

The resort scaled back its original plans for 224 more rooms after coming up against opposition last year.

The Wailea Seaside Chapel has been a fixture at the Grand Wailea since it opened in 1991. It was originally slated for demolition but was later retained in hotel expansion/renovations plans. This photo was taken Tuesday afternoon.

In January, the three community groups — which include lineal descendants and cultural practitioners of the area — won the right to intervene on the project, which they said would create further disturbance on a property where iwi kupuna, or ancestral bones, have been discovered in the past.

Both sides are supposed to go through contested case proceedings before returning to the commission, which will have final say on the project. But Bianca Isaki, attorney for the community groups, said that the pandemic has made the process difficult and that Joesting’s actions haven’t helped.

“Our decision to seek recusal was not made lightly,” Isaki told the commission Tuesday.

First, there were problems with scheduling. Isaki explained that the members of the groups she represented didn’t have access to or couldn’t use BlueJeans to attend virtual meetings and confirm hearing dates. Isaki said that Joesting didn’t ask the Grand Wailea if they could wait to see how the pandemic would impact scheduling or the reasons why they needed to have the hearing on June 30. Instead, the burden fell to the community groups to disclose their research and explain why they needed more time.

In addition, Joesting contacted the state Department of Land and Natural Resources to ask about the intervening groups’ public record requests and told them that because the intervenors were elderly, she wanted the hearing to happen as soon as possible. Isaki said that contacting the agency was a violation of law.

“This instance also raises questions about why the hearing officer herself wants to have the hearing as soon as possible and why she interpreted intervenors’ age as a reason to expedite the hearing when they themselves have expressly requested the opposite,” Isaki said.

She added that Joesting exceeded her authority by closing the hearings to the public. On Friday, the Hawaii Supreme Court found “probable cause” for a petition filed by media groups seeking to have the case reopened to the public. These actions and others, including rulings against the intervening groups’ requests, pointed to bias, Isaki argued.

But William Meheula, attorney for the Grand Wailea owners, said that just because a judge or hearing officer rules against a party does not mean they’re biased or should be disqualified.

He defended Joesting’s actions in contacting the DLNR’s State Historic Preservation Division, saying that she was trying to determine how long it would take the agency to respond.

“What Ms. Isaki now wants to argue is that that action of reaching out to SHPD somehow demonstrates partiality,” Meheula said. “And there’s no law to substantiate it because there was no substantive discussion about the merits of anything by that communication.”

Meheula added that the intervening groups were waiting on documents from a number of agencies, but that if they needed an extension, “we need to see what those requests are.” He said Isaki wouldn’t provide these documents because they were confidential, but Meheula disagreed, pointing out that the only communications that are confidential are between attorneys and clients, not a “third party” like the state agency.

“If you’re making a document request to an agency, that’s a third party. The agency doesn’t owe any confidentiality,” Meheula said.

He also supported Joesting’s decision to keep the hearing closed to the public, saying the contested case was not subject to state Sunshine Law and that Joesting’s call was correct.

Joesting said that while the intervening groups may not agree with the decisions she’s made, they’ve been based on law and “not made out of any other motivation.” She said if the groups need to ask to postpone the hearing date, they can. However, she said they need to offer specific reasons.

“I did not ask for everything which they’re investigating and everything that they’re looking for,” Joesting said. “I just said, if you want a continuance and you’re saying it’s because you can’t gather evidence, then you need to provide an explanation of that evidence that you plan to use at the hearing.”

After listening to arguments from both sides, commissioners said they didn’t see evidence of bias and felt the two sides could work out the issues and compromise on a hearing date.

“I think both sides know what each other’s issues were,” commissioner Kawika Freitas said. “I would rather them try to figure it out. . . . Originally, I was going to go the other way, but after hearing everything, let’s give them a little bit more time. Is that possible? If it is possible I would say have them hash it out some more.”

The commission also voted 5-0 to deny another request by the intervening groups to overrule Joesting’s order to partially grant their motion for a continuance and recusal, and another denying their motion to strike the Grand Wailea ownership’s response in opposition to the continuance and recusal.

Commissioners said they thought it was fair to give the groups extra time (Joesting extended the hearing four weeks beyond June 30) and that they again did not see any bias one way or another.

Planning Director Michele McLean said that specific dates haven’t been set for the hearing, but she expected it would be the last week of July.

* Colleen Uechi can be reached at cuechi@mauinews.com.