HILO, Hawaii – A motion to disqualify lawyers with the Department of the Attorney General from representing the state land board and its hired hearing officer in the Thirty Meter Telescope contested case is being taken under advisement.
Retired judge Riki May Amano told the Mauna Kea Anaina Hou attorney who made the request, Richard Wurdeman, that she will render her decision in the coming weeks.
Wurdeman moved to disqualify the BLNR and Amano’s Counsel, “including, but not limited to, State of Hawaii Deputy Attorney Generals William J. Wynhoff, Julie H. China, and any other deputy attorney generals and Attorney General Douglas Chin, himself, from any further participation in the contested case proceedings.”
Wurdeman made the motion based on the “adversarial” nature of the attorney general participation in the TMT permitting process.
“They were involved in group emails,” Wurdeman told Amano during the pre-hearing conference on Friday, saying the messages “involved the arrests and attempts at prosecution of some of the parties in this case.”
“One of my clients was arrested,” Wurdeman said, “a member of the Flores-Case ohana… after Mr. Chin went before the land board, and made this big presentation about emergency rules in dealing with protectors up on Mauna Kea, and how to get them out of the way.”
The emergency rules were passed by the land board – amid public controversy – in July 2015. “This appears to be… this ‘home run’ that they found,” Wurdeman said, alluding to terminology used in one of the emails.
Wurdeman has been unable to obtain all the emails he requested from the state. He caught wind of the “home run” comment thanks to an article by the Hawaii Tribune-Herald, which did obtain emails related to the emergency rule planning.
In an apparent attempt to avoid accusations that it was targeting protesters, state officials considered restricting public access not only on Mauna Kea, but in public hunting areas statewide, according to internal communications between state officials…. On June 29, Deputy Attorney General Linda Chow wrote to Chin and outlined a proposal that Wynhoff described in a later email as “potentially a real home run.”
“These advisers, who are supposed to fair and impartial, participated in that,” Wurdeman told Amano. “Its really disingenuous for the other parties to somehow think that this is something that we can just simply sweep under the rug.”
David Louie, the Special Deputy Attorneys General, countered that “the petitioners have it wrong on the law and they have it wrong on the facts, and there is no basis to disqualify.”
Louie said, “Mr. Wurderman ignores the law that says the Attorney General shall represent the BLNR and shall represent the hearing officer. Mr. Wurderman ignores the normal conflicts of interest do not apply to the Dept. of the Attorney general.”