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Electronically Filed
Supreme Court
SCWC-11-0000353
13-DEC-2013
12:19 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
KILAKILA #O HALEAKALA,
Petitioner/Appellant-Appellant,
vs.
BOARD OF LAND AND NATURAL RESOURCES,
THE DEPARTMENT OF LAND AND NATURAL RESOURCES,
AND WILLIAM AILA, IN HIS OFFICIAL CAPACITY AS
CHAIRPERSON OF THE BOARD OF LAND AND NATURAL RESOURCES,
UNIVERSITY OF HAWAII, AND THOMAS M. APPLE, IN HIS OFFICIAL
CAPACITY AS CHANCELLOR OF THE UNIVERSITY OF HAWAI#I AT MANOA,
Respondents/Appellees-Appellees.
SCWC-11-0000353
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000353; CIV. NO. 10-1-2651)
DECEMBER 13, 2013
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
WITH ACOBA, J., CONCURRING SEPARATELY,
WITH WHOM POLLACK, J., JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
It is well established that under Hawai#i Revised
Statutes (HRS) § 91-14(a), “[a]ny person aggrieved by a final
decision and order in a contested case . . . is entitled to
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judicial review thereof under this chapter[.]” In Kaleikini v.
Thielen, 124 Hawai#i 1, 26, 237 P.3d 1067, 1092 (2010), this
court most recently reaffirmed the principle that a denial of a
request for a contested case hearing (or a request to intervene
and participate in one) also constitutes a “final decision and
order” of an administrative agency from which the aggrieved party
may appeal pursuant to HRS § 91-14. In this case, we must
consider whether a circuit court has jurisdiction over an HRS §
91-14 appeal when an agency makes a final decision on a given
matter -- in this case, an application for a conservation
district use permit -- without either granting or denying an
interested party’s request for a contested case hearing on the
matter.
This case concerns a proposed project of
Respondent/Appellee-Appellee University of Hawai#i (UH) to
construct an advanced solar telescope, observatory, and
associated facilities near the summit of Haleakalâ on Maui.
Petitioner/Appellant-Appellant Kilakila #O Haleakalâ (KOH), “an
organization dedicated to the protection of the sacredness of the
summit of Haleakalâ[,]” opposed UH’s conservation district use
application (CDUA or application) to Respondent/Appellee-Appellee
Department of Land and Natural Resources (DLNR or the department)
for a conservation district use permit (CDUP or permit) to build
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on the project site. KOH also requested and formally petitioned
DLNR for a contested case hearing on the application in order for
Respondent/Appellee-Appellee Board of Land and Natural Resources
(BLNR or the board) to make a decision on the application after
having considered evidence on the record, including exhibits and
witness testimony. Without either granting or denying KOH’s
petition, BLNR considered UH’s application as an agenda item at a
regularly scheduled public board meeting and proceeded to vote to
grant the permit. KOH orally renewed its request for a contested
case hearing immediately after the vote and submitted another
formal written petition the next day. KOH also filed an agency
appeal in the Circuit Court of the First Circuit1 seeking remand
to BLNR for a contested case hearing, a stay of the permit, and
reversal of the permit. The circuit court dismissed the agency
appeal for lack of jurisdiction because there had been no
contested case hearing. The circuit court also concluded that
KOH’s appeal was mooted by the fact that BLNR had subsequently
granted KOH’s request for a contested case hearing subject to a
preliminary hearing on KOH’s standing. KOH appealed the circuit
court’s decision to the ICA, and the ICA affirmed on the ground
that, under HRS § 91-14, the circuit court did not have
jurisdiction because no contested case hearing had been held.
1
The Honorable Rhonda A. Nishimura presided.
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Now before this court, KOH maintains that BLNR’s
decision to grant the permit was “a final decision and order in a
contested case” pursuant to HRS § 91-14; as a result, a separate
contested case hearing was not required for it to appeal and for
the circuit court to have jurisdiction over the appeal pursuant
to HRS § 91-14. Although BLNR did grant KOH’s request for a
contested case hearing subsequent to the board meeting at which
it issued the permit, BLNR has not ever stayed or vacated the
permit. Thus, KOH’s position is that it may still seek those
remedies and therefore that this appeal is not moot. Based on
the discussion herein, we agree that the case is not moot, that a
contested case hearing should have been held prior to the vote,
and that the circuit court erred in dismissing KOH’s appeal.
Because BLNR voted to grant the permit without having held a
contested case hearing as requested by KOH prior to taking that
vote, BLNR effectively rendered a final decision and order within
the meaning of HRS § 91-14, and KOH at that point had the right
to appeal to circuit court.
I. BACKGROUND
A. Factual and Procedural Background
On March 10, 2010, UH submitted an application to DLNR
for its Advanced Technology Solar Telescope (ATST or telescope)
project at Haleakalâ on the island of Maui. The telescope
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project “involves the construction, installation and operation of
a solar telescope and associated infrastructure near the summit
of Haleakalâ.” KOH, which “is an organization dedicated to the
protection of the sacredness of the summit of Haleakalâ[,]”
submitted a written petition to DLNR on May 24, 2010 for a
contested case hearing on the application. “On June 10, 2010,
Sam Lemmo of DLNR rejected the petition for a contested case
hearing, stating that a hearing was not required by law[.]”
Subsequently, on July 8, 2010, KOH “re-submitted its petition for
a contested case hearing on the ATST project because Mr. Lemmo
did not have authority to reject the petition.” DLNR did not
take any action on the July 8 resubmission. On August 26, 2010,
DLNR held a public hearing on the application in Pukalani, Maui,
KOH “testified in opposition to the project, citing its impacts
on resources in the conservation district, and orally requested a
contested case hearing.” DLNR persisted in taking no action on
KOH’s requests for a contested case hearing.
On November 22, 2010, at a regularly scheduled board
meeting, BLNR considered UH’s application for the telescope
project but deferred any decisions on the application until the
next scheduled meeting. At the next regularly scheduled board
meeting on December 1, 2010, BLNR again considered UH’s
application; at that meeting, BLNR voted to grant the application
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and thereafter issued a permit to UH. Immediately after the
vote, KOH, through counsel, again orally requested a contested
case hearing. The next day, December 2, 2010, KOH again
submitted a written petition for a contested case hearing
pursuant to Hawai#i Administrative Rules (HAR) § 13-1-29.2
On December 13, 2010, KOH filed an appeal in circuit
court, pursuant to HRS § 91-14,3 “from the final decision of BLNR
2
HAR § 13-1-29 provides, in pertinent part:
(a) . . . An oral or written request for a contested
case hearing must be made to the board no later than the
close of the board meeting at which the subject matter of
the request is scheduled for board disposition. An agency
or person so requesting a contested case must also file [a]
written petition with the board for a contested case no
later than ten calendar days after the close of the board
meeting at which the matter was scheduled for disposition.
3
HRS § 91-14 (Supp. 2010) provided then, as it does now:
(a) Any person aggrieved by a final decision and order
in a contested case or by a preliminary ruling of the nature
that deferral of review pending entry of a subsequent final
decision would deprive appellant of adequate relief is
entitled to judicial review thereof under this chapter[.]
. . . .
(b) Except as otherwise provided herein, proceedings
for review shall be instituted in the circuit court within
thirty days after the preliminary ruling or within thirty
days after service of the certified copy of the final
decision and order of the agency pursuant to rule of court,
except where a statute provides for a direct appeal to the
intermediate appellate court, subject to chapter 602.
. . . .
(c) The proceedings for review shall not stay
enforcement of the agency decisions or the confirmation of
any fine as a judgment pursuant to section 92-17(g); but the
reviewing court may order a stay if the following criteria
have been met:
(continued...)
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on December 1, 2010 (1) effectively denying the timely request of
[KOH] for a contested case hearing and (2) granting [UH]’s
conservation district use application (CDUA MA 3542).”4 In its
statement of the case filed with the notice of appeal, KOH
indicated that it was asking the circuit court to:
A. Remand the case with instructions to the
Chairperson, BLNR and DLNR to:
(i) properly apply the criteria set forth in
HAR § 13-5-30;
(ii) provide [KOH] with a contested case
hearing with all the procedural protections
provided in HAR §§ 13-1-28 [to] 13-1-39 and HRS
§[§] 91-9 [to] 91-13.
B. Stay the decision granting the conservation
district use permit.
C. Reverse the decision granting the conservation
district use permit.
On January 4, 2011, UH filed a motion to dismiss KOH’s notice of
appeal in the circuit court. In support of the motion, UH argued
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(...continued)
(1) There is likelihood that the subject person will
prevail on the merits of an appeal from the
administrative proceeding to the court;
(2) Irreparable damage to the subject person will
result if a stay is not ordered;
(3) No irreparable damage to the public will result
from the stay order; and
(4) Public interest will be served by the stay order.
. . . .
4
On November 22, 2010, KOH also filed an original complaint in
circuit court seeking declaratory relief. On January 11, 2011, KOH filed a
motion to consolidate the declaratory action with the agency appeal. On
February 7, 2011, a hearing on the motion to consolidate was held before the
Honorable Virginia L. Crandall; Judge Crandall took the motion under
submission pending Judge Nishimura’s ruling on UH’s motion to dismiss the
agency appeal. Because the motion to dismiss was granted, the motion to
consolidate was denied as moot.
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that the appeal had to be dismissed for lack of jurisdiction and
on ripeness grounds because no contested case hearing had been
held, and further that KOH’s request for such a hearing had not
yet been decided. On January 11, 2011, BLNR filed a joinder to
UH’s motion to dismiss.
In its February 10, 2011 memorandum in opposition to
the motion to dismiss, KOH argued that Hawai#i case law does not
require a formal contested case hearing as a necessary condition
precedent to a chapter 91 appeal when the appellant has done all
it can to participate in the agency proceedings and preserve its
right to appeal; accordingly, in this case, KOH argued that the
circuit court had jurisdiction to determine whether the permit
was properly granted even in the absence of a formal contested
case hearing. KOH therefore argued that the appeal was ripe
because even without a formal contested case hearing, BLNR’s
decision to grant the permit at the December 1, 2010 meeting
constituted final agency action that was therefore appealable.
KOH further argued that BLNR’s granting of the permit had the
mark of finality because once granted, a permit can only be
revoked if BLNR is ordered to do so by a court or if the permit
applicant fails to comply with a condition of the permit. KOH
also noted that a contested case hearing on a matter, when such a
hearing is required, must take place before an agency’s decision
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on that matter; in this case, therefore, “[t]he granting of a
permit to develop in the face of a [pending] request for a
contested case hearing effectively denies the request for the
hearing.” Furthermore, as KOH argued, “[n]othing in BLNR’s rules
would allow it to: first, grant a conservation district use
permit; second, conduct a formal contested case hearing; and then
revoke the conservation district use permit if the party
challenging the conservation district use application prevailed.”
Meanwhile, on February 11, 2011, BLNR granted KOH’s
request for a contested case hearing and authorized the
appointment of a hearing officer to conduct all hearings
regarding UH’s application, subject to a preliminary hearing to
determine whether KOH had standing to participate in a contested
case hearing. On February 15, 2011, UH replied to KOH’s memo in
opposition, arguing that KOH’s appeal was now moot because BLNR’s
February 11 grant of KOH’s contested case hearing request
afforded KOH the relief it was seeking from the circuit court.
On February 18, 2011, the circuit court held a hearing
on the motion to dismiss. Before ruling, the court expressed
concerns regarding the implementation of the permit in light of
the pending contested case hearing. BLNR’s counsel asserted that
the contested case hearing would be the appropriate venue for
pursuing a possible stay of the permit. The circuit court then
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granted the motion to dismiss, but it encouraged BLNR to stay the
permit until the contested case hearing concluded. KOH timely
appealed to the ICA.
B. The ICA’s June 28, 2012 Memorandum Opinion
On appeal to the ICA, KOH raised one general point of
error: that the circuit court erred in dismissing its agency
appeal for lack of jurisdiction. In support of that point of
error, KOH argued, adhering to its position in circuit court,
that a party can appeal pursuant to HRS chapter 91 even when a
formal contested case hearing has not been held, and that the
circuit court had jurisdiction to rule on whether BLNR properly
granted the permit even in the absence of a formal contested case
hearing; that the case was ripe and not moot; that KOH had
exhausted the administrative remedies that were available to it;
and that BLNR could not grant a permit before holding a contested
case hearing.
In response, UH argued that the circuit court did lack
jurisdiction because KOH was not a “person aggrieved by a final
decision and order in a contested case” pursuant to HRS § 91-14.
Specifically, UH noted that “[a]mong its prerequisites, [HRS §
91-14(a)] requires that a contested case must have occurred
before appellate jurisdiction may be exercised.” UH also argued
that the agency appeal was moot because a contested case hearing
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was in fact granted. Similarly, UH argued that the appeal was
not ripe because at the time of its filing, no contested case
hearing had been held; moreover, because a contested case hearing
had been granted, the appeal would remain unripe until BLNR
issued a final decision and order from which KOH could then
appeal.
In a memorandum opinion, the ICA affirmed the final
judgment of the circuit court dismissing KOH’s agency appeal for
lack of jurisdiction. The ICA’s brief analysis focused on the
following passage explaining the requirements that an appellant
must meet in an HRS § 91-14 appeal from an agency to the circuit
court:
first, the proceeding that resulted in the unfavorable
agency action must have been a contested case hearing
-- i.e., a hearing that was (1) required by law and
(2) determined the rights, duties, and privileges of
specific parties; second, the agency’s action must
represent a final decision and order, or a preliminary
ruling such that deferral of review would deprive the
claimant of adequate relief; third, the claimant must
have followed the applicable agency rules and,
therefore, have been involved in the contested case;
and finally, the claimant’s legal interests must have
been injured -- i.e., the claimant must have standing
to appeal.
Kilakila #O Haleakalâ v. Bd. of Land & Natural Res., No. CAAP-11-
0000353, 2012 WL 2476802, at *2 (Haw. App. June 28, 2012) (mem.
op.) (emphasis in original) (quoting Kaleikini, 124 Hawai#i at
16-17, 237 P.3d at 1082-83 (quoting Pub. Access Shoreline Haw. v.
Haw. Cnty. Planning Comm’n (PASH), 79 Hawai#i 425, 431, 903 P.2d
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1246, 1252 (1995))) (internal quotation marks omitted).
The ICA relied solely on the first requirement in its
disposition of the case. It stated that “[b]ecause KOH does not
meet the first criteria [sic] -- that the agency action stemmed
from a contested case hearing -- we look no further and conclude
[that the] circuit court did not err when it dismissed the case
for lack of jurisdiction.” Id. KOH timely filed its application
for writ of certiorari on September 27, 2012.
II. STANDARD OF REVIEW
A. Jurisdiction
“‘The existence of subject matter jurisdiction is a
question of law that is reviewable de novo under the right/wrong
standard.’” Kaniakapupu v. Land Use Comm’n, 111 Hawai#i 124,
131, 139 P.3d 712, 719 (2006) (quoting Aames Funding Corp. v.
Mores, 107 Hawai#i 95, 98, 110 P.3d 1042, 1045 (2005)).
III. DISCUSSION
On certiorari review in this court, KOH makes the same
arguments with regard to the jurisdiction of the circuit court to
hear its initial HRS § 91-14 agency appeal from BLNR and adds
that the ICA has erred in affirming the circuit court’s judgment.
Nevertheless, UH maintains in this court that KOH’s
appeal is moot. Because mootness is a matter of justiciability
and implicates the question of whether this court may validly
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render a decision on appeal, we consider this issue first.
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A. This case is not moot
UH argues, as it did below, that because BLNR
ultimately granted KOH a contested case hearing, the reviewing
court can not grant effective relief. UH submits that “[KOH]
asked the [c]ircuit [c]ourt to remand the case with instructions
to [BLNR] to provide [KOH] with a contested case hearing.” UH
thus concluded that because “[KOH] received the relief it
requested on February 11, 2011 when [BLNR] granted its request
for a contested case hearing . . . the instant appeal falls
squarely within the definition of moot.”
KOH responds, as it also did below, that the case is
not moot. In fact, it responded to UH’s argument to this court
by noting that it “requested not only that a contested case be
provided, but also that the [permit] be stayed and reversed.”
KOH further notes that “‘[a]s long as all of the construction
authorized under the . . . permit is not completed, the appeal
presents an adversity of interests and possibly affords the
appellant an effective remedy.’”
Crucially, BLNR has neither stayed nor revoked the
permit, not even when KOH appealed or BLNR granted KOH a
contested case hearing on the already-issued permit. Because the
permit remains in effect despite BLNR’s failure to hold a
contested case hearing before voting to grant the permit, UH can
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still build on Haleakalâ and KOH can still seek effective relief
against UH. Consequently, we agree with KOH’s position and
conclude that this case is not moot. As a result, we now turn to
the substance of KOH’s appeal.
B. The circuit court erred in dismissing, and the ICA erred in
affirming the dismissal of, KOH’s agency appeal based strictly on
the absence of a formal contested case hearing
KOH argues to this court that although it requested and
petitioned for a contested case hearing prior to BLNR’s vote on
UH’s application and although BLNR did not hold a contested case
hearing before conducting the vote at the December 1, 2010
regularly scheduled board meeting, the proceedings that did take
place before the BLNR nevertheless did constitute a contested
case from which KOH can appeal to the circuit court pursuant to
HRS § 91-14. Moreover, KOH maintains that pursuant to HRS
chapter 91, as well as PASH and Kaleikini, an appeal may be taken
even in the absence of a formal contested case hearing if the
appellant has followed the procedures necessary for it to
preserve its right to appeal. Indeed, much of KOH’s argument
follows the test this court has previously applied in PASH and
Kaleikini, and it is to that test which we must now turn.
To determine whether a circuit court can exercise
jurisdiction over an appeal brought pursuant to HRS § 91-14, we
consider whether the following requirements have been met:
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first, the proceeding that resulted in the unfavorable
agency action must have been a contested case hearing
-- i.e., a hearing that was (1) required by law and
(2) determined the rights, duties, and privileges of
specific parties; second, the agency’s action must
represent a final decision or order, or a preliminary
ruling such that deferral of review would deprive the
claimant of adequate relief; third, the claimant must
have followed the applicable agency rules and,
therefore, have been involved in the contested case;
and finally, the claimant’s legal interests must have
been injured -- i.e., the claimant must have standing
to appeal.
Kaleikini, 124 Hawai#i at 16-17, 237 P.3d at 1082-83 (emphases,
brackets, and internal quotation marks omitted) (quoting PASH, 79
Hawai#i at 431, 903 P.2d at 1252).
1. The BLNR proceedings were a contested case hearing
within the meaning of HRS § 91-14
a. “Required by law”
In order for an administrative agency hearing to be
“‘required by law, it may be required by (1) agency rule, (2)
statute, or (3) constitutional due process.’” Id. at 17, 237
P.3d at 1083 (quoting Kaniakapupu, 111 Hawai#i at 132, 139 P.3d
at 720) (some internal quotation marks omitted).
At the outset, we note that no statute mandates that
BLNR conduct public hearings as part of its permitting
procedures. See, e.g., HRS § 171-3 (2011); HRS § 171-6 (2011);
HRS § 26-15(b) (2009). HRS § 183C-6 (2011), located in the
chapter of HRS dealing specifically with conservation district
lands, provides, in pertinent part:
(a) The department shall regulate land use in
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the conservation district by the issuance of permits.
(b) The department shall render a decision on a
completed application for a permit within one-hundred-
eighty days of its acceptance by the department. If
within one-hundred-eighty days after acceptance of a
completed application for a permit, the department
shall fail to give notice, hold a hearing, and render
a decision, the owner may automatically put the
owner’s land to the use or uses requested in the
owner’s application. When an environmental impact
statement is required pursuant to chapter 343, or when
a contested case hearing is requested pursuant to
chapter 91, the one-hundred-eighty-days may be
extended an additional ninety days at the request of
the applicant. Any request for additional extensions
shall be subject to the approval of the board.
Although HRS § 183C-6(b) does reference the “hold[ing] [of] a
hearing” as part of the permitting process for uses in the
conservation district, it does not mandate one. The sentence
that contains the phrase “hold a hearing” is written as a
negative conditional; in other words, if, within 180 days of
accepting an application, DLNR does not give notice, does not
hold a hearing, and does not render a decision on the
application, then the applicant may proceed to use the land in
the manner requested. Because some hearings may not be required
by law but may nevertheless be held voluntarily, we cannot read
the statute to require a hearing for all permit applications in
the absence of mandatory language directing the agency to do so.
Indeed, the statutes in HRS chapter 171 governing DLNR
and BLNR speak in general terms and delegate rulemaking authority
to the agency to devise and promulgate the rules that will govern
the agency’s procedures in specific situations. We thus next
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look to those administrative rules for a requirement that a
public hearing be held as part of the process of considering an
application for a conservation district use permit.
In this particular case, UH seeks through its
application to build astronomy facilities near the summit of
Haleakalâ, an area which is classified as being in the general
subzone of the conservation district. HAR § 13-5-25, “Identified
land uses in the general subzone,” provides, in pertinent part:
(a) In addition to the land uses identified in
this section, all identified land uses and their
associated permit or site plan approval requirements
listed for the protective, limited, and resource
subzones also apply to the general subzone, unless
otherwise noted.
. . .
(c) Identified land uses in the general subzone
and their required permits (if applicable), are listed
below:
(1) Identified land uses beginning with
the letter (A) require no permit from the
department or board;
(2) Identified land uses beginning with
the letter (B) require site plan approval
by the department;
(3) Identified land uses beginning with
the letter (C) require a departmental
permit; and
(4) Identified lang uses beginning with
the letter (D) require a board permit and
where indicated, a management plan.
HAR § 13-5-24 identifies “astronomy facilities” as an
identified land use in the resource subzone:
R-3 ASTRONOMY FACILITIES
(D-1) Astronomy facilities under a management plan
approved simultaneously with the permit, is also
required.
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By virtue of HAR § 13-5-25(a), astronomy facilities are
also a permissible land use in the general subzone. Further, as
a letter (D) land use, HAR § 13-5-25(c)(4) requires submission of
an application for a board permit and simultaneous approval of
the permit and a management plan.
Board permits are governed by HAR § 13-5-34, which
provides in full:
(a) Applications for board permits shall be
submitted to the department in accordance with section
13-5-31.
(b) A public hearing, if applicable, shall be
held in accordance with section 13-5-40.
(c) The application for a board permit shall be
accompanied by:
(1) The application fee which is equal to
2.5 per cent of the total project cost,
but no less than $250, up to a maximum of
$2,500; and
(2) A public hearing fee of $250 plus
publication costs, if applicable.
(d) Contested case hearings, if applicable, and
as required by law, shall be held as provided in
chapter 13-1. The aggrieved appellant or person who
has demonstrated standing to contest the board action
may request a contested case hearing pursuant to
chapter 13-1.
Finally, with respect to public hearings, HAR § 13-5-40
provides:
(a) Public hearings shall be held:
(1) On all applications for a proposed use of
land for commercial purposes, (excluding site
plan approvals);
(2) On changes of subzone or boundary,
establishment of a new subzone, changes in
identified land use, or any amendment to this
chapter;
(3) On applications requiring a board permit in
the protective subzone; and
(4) On all applications determined by the
chairperson that the scope of proposed use, or
the public interest requires a public hearing on
the application.
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Under this rule, the BLNR chairperson determined that,
pursuant to HAR § 13-5-40(a)(4), the public interest required a
public hearing on UH’s application; this was the public hearing
that took place on August 26, 2010 in Pukalani, Maui. While
subsection (4), as written, does seem to indicate an amount of
discretion on the chairperson’s part, subsection (4) is also no
less valid a prerequisite for the holding of a public hearing
than any of the other subsections. Accordingly, if the
chairperson determines that the scope of the project or the
public interest requires a public hearing on the application,
then BLNR shall hold a public hearing.
Accordingly, based on the foregoing discussion, we
conclude that UH’s application necessitated a hearing required by
law -- i.e., by the administrative rules governing DLNR and
BLNR.5
b. “Rights, duties, and privileges”
In this case, no formal contested case hearing was
actually held before the BLNR voted to grant the permit in this
5
As discussed in the Concurrence, KOH also argued to the circuit
court, to the ICA, and to this court that a hearing was required by law on the
ground of constitutional due process, under the provisions of the Hawai#i
Constitution protecting Native Hawaiian rights and the right to a clean and
healthful environment. See Haw. Const. art. XI, § 9, art. XII, § 7. Because
we conclude that the administrative rules required that a hearing be held, we
need not reach this argument. Nevertheless, we do discuss KOH’s Native
Hawaiian and environmental interests with regard to their standing to appeal.
See infra Part III.B.4.
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case, so the question becomes whether a formal hearing would have
determined -- or whether the proceedings that did take place
determined -- the “rights, duties, and privileges of specific
parties.” Kaleikini, 124 Hawai#i at 17, 237 P.3d at 1083
(quoting PASH, 79 Hawai#i at 431, 903 P.2d at 1252) (internal
quotation marks omitted). The inquiry here is “directed at the
party whose application was under consideration.” Id. at 24, 237
P.3d at 1090 (quoting PASH, 79 Hawai#i at 432, 903 P.2d at 1253)
(internal quotation marks omitted). Thus, we focus on the
rights, duties, and privileges of UH.
As discussed supra in Part III.B.1.a, UH’s proposed
project involves construction of a substantial complex of
astronomy facilities on conservation district land. Accordingly,
as provided for in the statutes and rules concerning land use in
the conservation district, UH could not legally commence that
construction without first submitting an application for a permit
and having that application reviewed and approved by BLNR.
Approval, including any conditions attached thereto, or denial of
the application clearly implicates whether UH would or would not
be able to engage in the requested use of building astronomy
facilities at the telescope project site. Thus, a formal
contested case hearing approving of denying UH’s application
would have determined UH’s rights, duties, or privileges with
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regard to the project. Even in the absence of a formal contested
case hearing, we point out that the proceedings that otherwise
took place, including the vote to grant the permit, in fact did
determine UH’s rights, duties, and privileges.
2. BLNR’s decision to approve the permit without either
granting or denying KOH’s contested case hearing request was a
“final decision and order” within the meaning of HRS § 91-14
We must next “examin[e] whether the agency’s action
represents ‘a final decision or order,’ or ‘a preliminary ruling’
such that deferral of review would deprive the claimant of
adequate relief.” Kaleikini, 124 Hawai#i at 26, 237 P.3d at 1092
(ellipses and some internal quotation marks omitted) (quoting
PASH, 79 Hawai#i at 431, 903 P.2d at 1252). Again, our decisions
in PASH and Kaleikini provide the most useful guidance for our
analysis.
In PASH, an organization (PASH) and an individual
(Pilago) opposed a developer’s application to the Hawai#i County
Planning Commission (HCPC) for a special management area (SMA)
use permit and requested contested case hearings. 79 Hawai#i at
429, 903 P.2d at 1250. HCPC denied the requests on the ground
that PASH and Pilago did not have standing to participate in a
contested case and subsequently issued the permit. Id. This
court affirmed the ICA’s decision affirming the circuit court’s
order (with respect to PASH, but reversing the circuit court’s
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order as to Pilago) to remand to HCPC for the purpose of holding
a contested case hearing in which PASH would be allowed to
participate. Id.
In Kaleikini, the discovery of iwi, or Native Hawaiian
burial remains, at a construction site in Honolulu necessitated
submission of a burial treatment plan by the developer. 124
Hawai#i at 5-7, 237 P.3d at 1071-73. After the O#ahu Island
Burial Council approved the plan, Kaleikini wrote a letter to
DLNR requesting a contested case hearing. Id. at 6-7, 237 P.3d
at 1071-72. DLNR denied her request, and Kaleikini filed a
notice of agency appeal in circuit court to seek review of that
denial. Id. at 7, 237 P.3d at 1072. The circuit court dismissed
the appeal because no contested case hearing had been held, but
recognized that it would be impossible for an appellant to obtain
judicial review if an agency improperly denies the request for a
contested case hearing. Id. at 7-8, 237 P.3d at 1073-74.
Although the ICA then dismissed Kaleikini’s secondary appeal as
moot, this court held that it could consider the case pursuant to
the public interest exception to the mootness doctrine. Id. at
12-13, 237 P.3d at 1078-79. On the merits, this court noted that
the relevant administrative rule provided Kaleikini with a
procedural vehicle to obtain a contested case and that she had
followed the applicable procedures to request a contested case
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hearing; therefore, this court’s inquiry focused on whether
Kaleikini met the requirements of HRS § 91-14 under the test we
set out in PASH. Id. at 16, 237 P.3d at 1082. With respect to
this prong of the test, we concluded that DLNR’s decision to deny
Kaleikini’s request for a contested case hearing constituted a
“final decision and order” of the agency because “it ended the
litigation.” Id. at 26, 237 P.3d at 1092.
Here, KOH’s oral and written requests for a contested
case hearing prior to the December 1, 2010 vote were neither
granted nor denied by the agency. However, the absence of a
formal denial is not dispositive of the issue. While in PASH and
Kaleikini we concluded that the formal denial of the contested
case hearings provided the requisite finality to enable the
respective appellants to appeal to the circuit court pursuant to
HRS § 91-14, we note here that the failure to either grant or
deny KOH’s requests for a contested case hearing became an
effective denial when BLNR proceeded to render a final decision
by voting to grant the permit to UH at the December 1, 2010 board
meeting. Accordingly, we conclude that BLNR’s vote to grant the
permit in the face of a valid pending request for a contested
case hearing satisfies this prong of the test.
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3. KOH followed all applicable agency rules in requesting
a contested case hearing
The third part of the PASH/Kaleikini test “requires a
determination [of] whether the claimant followed the applicable
agency rules and, therefore, was involved in the contested case.”
Id. at 26, 237 P.3d at 1092 (ellipses, brackets, and internal
quotation marks omitted) (quoting PASH, 79 Hawai#i at 431, 903
P.2d at 1252).
The applicable agency rules, HAR §§ 13-1-28 and 13-1-
29, provide as follows:
§ 13-1-28 Contested case hearings.
(a) When required by law, the board shall hold a
contested case hearing upon its own motion or on a
written petition of any government agency or any
interested person.
(b) The contested case hearing shall be held
after any public hearing which by law is required to
be held on the same subject matter.
(c) Any procedure in a contested case may be
modified or waived by stipulation of the parties.
§ 13-1-29 Request for hearing.
(a) On its own motion, the board may hold a
contested case hearing. Others must both request a
contested case and petition the board to hold a
contested case hearing. An oral or written request
for a contested case hearing must be made to the board
no later than the close of the board meeting at which
the subject matter of the request is scheduled for
board disposition. An agency or person so requesting
a contested case must also file (or mail a postmarked)
written petition with the board for a contested case
no later than ten calendar days after the close of the
board meeting at which the matter was scheduled for
disposition. For good cause, the time for making the
oral or written request or submitting a written
petition or both may be waived.
(b) Except as otherwise provided in section 13-
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1-31.1,[6] the formal written petition for a contested
case hearing shall contain concise statements of:
(1) The nature and extent of the requestor’s
interest that may be affected by board action on
the subject matter that entitles the requestor
to participate in a contested case;
(2) The disagreement, if any, the requestor has
with an application before the board;
(3) The relief the requestor seeks or to which
the requestor deems itself entitled;
(4) How the requestor’s participation would
serve the public interest; and
(5) Any other information that may assist the
board in determining whether the requestor meets
the criteria to be a party pursuant to section
13-1-31.
As we noted in the factual background of this case, KOH
first submitted a written petition for a contested case hearing
on May 24, 2010; it resubmitted that petition on July 8, 2010
after a pro forma denial by a person at DLNR who apparently did
not have authority to reject the original petition. The May 24,
2010 petition, which appears in the record, contains the “concise
statements” required by HAR § 13-1-29(b). KOH also made an oral
request for a contested case hearing at the August 26, 2010
public hearing in Pukalani, Maui; aside from that request, we
also note that at the public hearing, KOH “testified in
opposition to the project, citing its impacts on resources in the
conservation district[.]”
Moreover, after the vote to grant the permit passed at
the December 1, 2010 board meeting but before the close of the
6
HAR § 13-1-31.1 applies to hearings concerning violations of the
administrative rules and does not apply to a permitting situation as in the
present case.
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meeting, KOH made yet another oral request for a contested case
hearing pursuant to HAR § 13-1-29(a). The next day, December 2,
2010, KOH filed yet another written petition with BLNR requesting
a contested case hearing, also pursuant to HAR § 13-1-29(a).
There is no question that KOH did all it could, both
prior to and following BLNR’s decision on the permit, to comply
with the agency’s rules for requesting a contested case hearing.
4. KOH has standing to appeal because it has sufficiently
alleged injury to its interests
The final prong of the PASH/Kaleikini test “requires
that the claimant’s legal interests must have been injured --
i.e., the claimant must have standing to appeal.” Kaleikini, 124
Hawai#i at 26, 237 P.3d at 1092 (citing PASH, 79 Hawai#i at 431,
903 P.2d at 1252). We evaluate standing using the “‘injury in
fact’ test requiring: ‘(1) an actual or threatened injury, which,
(2) is traceable to the challenged action, and (3) is likely to
be remedied by favorable judicial action.’” Ka Pa#akai O Ka#Aina
v. Land Use Comm’n, 94 Hawai#i 31, 42, 7 P.3d 1068, 1079 (2000)
(quoting Citizens for the Prot. of the N. Kohala Coastline v.
Cnty. of Haw., 91 Hawai#i 94, 100, 979 P.2d 1120, 1126 (1999)).
However, in cases involving native Hawaiian and environmental
interests, we have been especially concerned that the doctrine of
standing not serve as a barrier to a plaintiff’s legitimate
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claims:
With regard to native Hawaiian standing, this
court has stressed that “the rights of native
Hawaiians are a matter of great public concern in
Hawai[#]i.” Pele Defense Fund v. Paty, 73 Haw. 578,
614, 837 P.2d 1247, 1268 (1992), certiorari denied,
507 U.S. 918, 113 S. Ct. 1277, 122 L. Ed. 2d 671
(1993). Our “fundamental policy [is] that Hawaii’s
state courts should provide a forum for cases raising
issues of broad public interest, and that the
judicially imposed standing barriers should be lowered
when the “needs of justice” would best be served by
allowing a plaintiff to bring claims before the
court.” Id. at 614-15, 837 P.2d at 1268-69 (citing
Life of the Land v. The Land Use Comm’n [(Life of the
Land II)], 63 Haw. 166, 176, 623 P.2d 431, 441
(1981)).
We have also noted that, “where the interests at
stake are in the realm of environmental concerns[,]
‘we have not been inclined to foreclose challenges to
administrative determinations through restrictive
applications of standing requirements.’” Citizens, 91
Hawai#i at 100-01, 979 P.2d at 1126-27 (quoting
Mahuiki v. Planning Commission, 65 Haw. 506, 512, 654
P.2d 874, 878 (1982) (quoting Life of the Land [II],
63 Haw. at 171, 623 P.2d at 438))). Indeed, “[o]ne
whose legitimate interest is in fact injured by
illegal action of an agency or officer should have
standing because justice requires that such a party
should have a chance to show that the action that
hurts his interest is illegal.” Mahuiki, 65 Haw. at
512-13, 654 P.2d at 878 (quoting East Diamond Head
Association v. Zoning Board of Appeals, 52 Haw. 518,
523 n.5, 479 P.2d 796, 799 n.5 (1971) (citations
omitted)). See also Mahuiki, 65 Haw. at 515, 654 P.2d
at 880 (those who show aesthetic and environmental
injury are allowed standing to invoke judicial review
of an agency’s decision under HRS chapter 91 where
their interests are “personal” and “special,” or where
a property interest is also affected) (citing Life of
the Land v. Land Use Commission [(Life of Land I)], 61
Haw. 3, 8, 594 P.2d 1079, 1082 (1979)); Akau v.
Olohana Corporation, 65 Haw. 383, 390, 652 P.2d 1130,
1135 (1982) (an injury to a recreational interest is
an injury in fact sufficient to constitute standing to
assert the rights of the public for purposes of
declaratory and injunctive relief); Life of the Land
[II], 63 Haw. at 176-77, 623 P.2d at 441 (group
members had standing to invoke judicial intervention
of LUC’s decision “even though they are neither owners
nor adjoining owners of land reclassified by the Land
Use Commission in [its] boundary review”); Life of the
Land [I], 61 Haw. at 8, 594 P.2d at 1082 (group
members who lived in vicinity of reclassified
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properties and used the subject area for “diving,
swimming, hiking, camping, sightseeing, horseback
riding, exploring and hunting and for aesthetic,
conservational, occupational, professional and
academic pursuits,” were specially, personally and
adversely affected by LUC’s decision for purposes of
HRS § 91-14).
Id. at 42-43, 7 P.3d at 1079-80; see also Mottl v. Miyahira, 95
Hawai#i 381, 393, 23 P.3d 716, 728 (2001) (“To date, the
appellate courts of this state have generally recognized public
interest concerns that warrant the lowering of standing barriers
in two types of cases: those pertaining to environmental concerns
and those pertaining to native Hawaiian rights.”).
In its petition to BLNR requesting a contested case
hearing and in its statement of the case on agency appeal to the
circuit court, KOH emphasized that its members have used the
Haleakalâ summit area to engage in traditional and customary
practices as well as enjoy the views, natural beauty, and quiet
of the area and thus allege that construction of the proposed
facilities will directly and adversely affect their ability to
engage in traditional and customary practices and enjoy the area.
Due to the procedural history of this case, in which the
requested contested case hearing was not held prior to approving
the permit and the circuit court granted the motion to dismiss
KOH’s agency appeal, we are bound, even on further appeal, to
deem KOH’s factual allegations as true. See, e.g., Buscher v.
Boning, 114 Hawai#i 202, 212, 159 P.3d 814, 824 (2007) (“A trial
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court’s ruling on a motion to dismiss is reviewed de novo. The
court must accept plaintiff’s allegations as true and view them
in the light most favorable to the plaintiff . . . .” (internal
citations omitted)).
Because we must accept KOH’s assertions as true, we
must conclude that KOH had standing to pursue its HRS § 91-14
appeal based on the threatened injury to its Native Hawaiian
traditional and customary practices and to its aesthetic and
environmental interests in the summit area. See, e.g.,
Kaleikini, 124 Hawai#i at 26, 237 P.3d at 1092; Mottl, 95 Hawai#i
at 393, 23 P.3d at 728; Ka Pa#akai, 94 Hawai#i at 42-43, 7 P.3d at
1079-80; Citizens, 91 Hawai#i at 100-01, 979 P.2d at 1126-27;
PASH, 79 Hawai#i at 434 & n.15, 903 P.2d at 1255 & n.15; Pele
Def. Fund, 73 Haw. at 614-15, 837 P.2d at 1268-69; Mahuiki, 65
Haw. at 515-16, 654 P.2d at 880; Life of the Land II, 63 Haw. at
176-77, 623 P.2d at 441; Life of the Land I, 61 Haw. at 8, 594
P.2d at 1082.
Accordingly, KOH has met this final requirement, and
thus has met all of the requirements, of the PASH/Kaleikini test.
We therefore conclude that BLNR should have held a contested case
hearing as required by law and requested by KOH prior to decision
making on UH’s application, and that the circuit court had
jurisdiction to hear KOH’s HRS § 91-14 agency appeal.
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IV. CONCLUSION
Based on the foregoing, we conclude that KOH’s appeal
is not moot and that a contested case hearing should have been
held, as required by law and properly requested by KOH, on UH’s
application prior to BLNR’s vote on the application.
Accordingly, we vacate the ICA’s July 30, 2012 judgment on
appeal, vacate the circuit court’s March 29, 2011 final judgment
and March 15, 2011 order granting the motion to dismiss, and
remand to the circuit court for further proceedings consistent
with this opinion regarding KOH’s request for stay or reversal of
the conservation district use permit granted by BLNR to UH on
December 1, 2010.
David Kimo Frankel /s/ Mark E. Recktenwald
(Sharla Ann Manley and
2
Camille Kaimalie Kalama /s/ Paula A. Nakayama
with him on the briefs)
for petitioner /s/ Sabrina S. McKenna
Linda L.W. Chow /s/ Richard W. Pollack
(Donna H. Kalama and
Julie H. China with her
on the briefs) for
respondents Board of Land
and Natural Resources,
Department of Land and
Natural Resources, and
William Aila, in his
official capacity as
Chairperson of the Board of
Land and Natural Resources
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Lisa Woods Munger
(Bruce Y. Matsui, Randall K.
Ishikawa, Lisa A. Bail and
Adam K. Robinson with her on
the briefs) for respondents
University of Hawai#i and
Thomas M. Apple, in his
official capacity as
Chancellor of the University
2
of Hawai#i at Manoa
32