Maui Lani Neighbors v. State

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-DEC-2023
08:04 AM
Dkt. 142 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

MAUI LANI NEIGHBORS, a Hawai#i Nonprofit
Corporation, Plaintiff-Appellant, v.
STATE OF HAWAI#I; STATE OF HAWAI#I DEPARTMENT
OF LAND AND NATURAL RESOURCES; SUZANNE D. CASE,
in her official capacity as chair of the State
of Hawai#i Board of Land and Natural Resources;
COUNTY OF MAUI; COUNTY OF MAUI PLANNING COMMISSION;
COUNTY OF MAUI DEPARTMENT OF PLANNING; WILLIAM
SPENCE, in his official capacity as County of
Maui Planning Director, Defendants-Appellees, and
JOHN DOES 1-10, JANE DOES 1-10, AND DOE PARTNERSHIPS,
CORPORATIONS, GOVERNMENTAL UNITS OR OTHER
ENTITIES 1-10, Defendants

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 14-1-0501)

DECEMBER 28, 2023

GINOZA, CHIEF JUDGE, HIRAOKA AND NAKASONE, JJ.

OPINION OF THE COURT BY GINOZA, CHIEF JUDGE

In this land use dispute, Plaintiff-Appellant Maui Lani
Neighbors, Inc. (MLN), appeals from the "Final Judgment" entered
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by the Circuit Court of the Second Circuit (Circuit Court),1
which entered judgment against MLN and in favor of Defendants
State of Hawai#i, State of Hawai#i Department of Land and Natural
Resources (DLNR), State of Hawai#i Board of Land and Natural
Resources (BLNR), and Dawn N.S. Chang,2 in her official capacity
as Chair of BLNR (collectively, the State), Defendants County of
Maui, County of Maui Planning Commission (Planning Commission),
County of Maui Department of Planning, and Kathleen Aoki,3 in her
official capacity as County of Maui Planning Director
(collectively, the County), and Intervenor Alexander & Baldwin,
LLC (A&B).
In this action, MLN asserts claims related to a county
special use permit (CUP)4 to develop a Central Maui Regional
Sports Complex (Sports Park) on land acquired from A&B. The
property at issue is sixty-five acres and is owned by DLNR.
Individuals who are members of MLN participated in a Planning
Commission hearing regarding the CUP, held in March 2014, but did
not intervene in that proceeding and did not appeal from the
Planning Commission's issuance of the CUP.5 Instead,
approximately six months after the CUP was issued, MLN filed this
lawsuit.
In its First Amended Verified Complaint (First Amended
Complaint), MLN asserts nine counts: Count I, violation of zoning
under Hawaii Revised Statutes (HRS) § 46-4 (2012); Count II,
declaratory relief that the CUP is void; Count III, the Special
Use Ordinance is unconstitutionally vague and ambiguous; Count
IV, declaratory relief as to interpretation of the PK-3 regional

1
The Honorable Peter T. Cahill presided.
2
Dawn N.S. Chang is automatically substituted for William Aila,
pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule 43(c)(1).
3
Kathleen Aoki is automatically substituted for William Spence,
pursuant to HRAP Rule 43(c)(1).
4
For consistency, we use the term "CUP", which was used in the
administrative and Circuit Court decisions in this case.
5
On May 12, 2014, one future member of MLN filed an appeal from the
Planning Commission’s decision to approve the CUP. However, that appeal was
dismissed about a month later.

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park district; Count V, violations of the Hawai#i Environmental
Policy Act (HEPA); Count VI, violation of article XI, section 9
of the Hawai#i Constitution; Count VII, public nuisance; Count
VIII, violation of due process; and Count IX, declaratory and
other relief that notice to surrounding neighbors was inadequate.
Except for Count VII (public nuisance),6 the Circuit
Court dismissed all counts in the First Amended Complaint on
grounds that MLN failed to exhaust administrative remedies by not
intervening in the CUP approval process and thereafter filing an
HRS § 91-14 (2012) appeal for judicial review of the Planning
Commission's decision. The Circuit Court also ruled that MLN
failed to prove that exhausting administrative remedies would
have been futile. The Circuit Court thus determined that, except
for Count VII, it lacked subject matter jurisdiction over MLN's
claims.
On appeal, MLN asserts three points of error: (1) the
Circuit Court erred by applying the doctrine of exhaustion
because the Planning Commission did not have exclusive original
jurisdiction over MLN's claims; (2) even if the doctrine of
exhaustion applied, the Circuit Court erred in ruling the
futility exception was not met; and (3) the Circuit Court erred
by staying the entire case under the primary jurisdiction
doctrine where only one discrete claim, Count 1(F), was within
the Land Use Commission's (LUC) jurisdiction.
With regard to Counts I, II, III, IV, VIII, and IX, we
conclude they were properly dismissed for failure to exhaust
administrative remedies, but for reasons different than the
Circuit Court.
With respect to Count V, to the extent Count V seeks to
invalidate the CUP, dismissal was warranted. However, to the
extent Count V seeks relief other than to invalidate the CUP,
dismissal based on failure to exhaust administrative remedies was
not proper.

6
In the Final Judgment, Count VII was dismissed without prejudice.
MLN does not challenge the dismissal of Count VII.

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With respect to Count VI, we conclude that the
exhaustion of administrative remedies doctrine and the primary
jurisdiction doctrine do not apply to claims brought under
article XI, section 9, because those doctrines are not
legislatively-created limitations to such claims. However, the
legislature has limited declaratory judgment actions under HRS
§ 632-1 (2016), such that the Circuit Court does not have
jurisdiction over MLN's article XI, section 9 claims defined by
HRS Chapters 46 and 205, because those claims challenge the
validity of the CUP. To the extent MLN's article XI, section 9
claims as defined by HRS Chapter 343 seek to invalidate the CUP,
the Circuit Court lacks jurisdiction; but to the extent these
claims seek other relief, they are not precluded by HRS § 632-1.
We therefore affirm in part and vacate in part. We
remand to the Circuit Court to address Count V (HEPA) and Count
VI (the article XI, section 9 claim defined by HRS Chapter 343),
to the extent those claims seek relief other than to invalidate
the CUP.
I. FACTUAL BACKGROUND
The Circuit Court made extensive findings of fact (FOF)
after an evidentiary hearing. MLN does not challenge most of the
Circuit Court's findings, and although it briefly asserts the
Circuit Court erred in FOFs 35-69 (regarding the futility
exception to the doctrine of exhaustion), it does not provide any
argument as to why those findings are erroneous. Thus, the
Circuit Court's unchallenged findings are binding upon this court
and MLN has waived any purported challenge to FOFs 35-69. See
Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458,
40 P.3d 73, 81 (2002); HRAP Rule 28(b)(7) ("Points not argued may
be deemed waived.").
A. Procedural History in Circuit Court
The relevant procedural history from the Circuit
Court's "Findings of Facts, Conclusions of Law, and Order"
(FOFs/COLs and Order), entered on February 23, 2015, are as
follows:

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1. On September 2, 2014, Plaintiff Maui Lani Neighbors, Inc.
filed its Verified Complaint. [7]

2. On September 8, 2014, Plaintiff filed its Motion for
Preliminary Injunction. The motion was set for hearing on
October 15, 2014.
3. On September 9, 2014, Plaintiff filed the [First Amended
Complaint].
4. On September 22, 2014, the County Defendants filed a
Motion to Dismiss in Part Plaintiff's First Amended
Complaint.
5. On October 15, 2014, the Court held a hearing on the
County Defendants' Motion to Dismiss in Part. The Court
denied the motion as to Count I.F of the First Amended
Complaint. The Court stayed the remainder of the motion,
discovery, and all other proceedings, pending resolution of
Plaintiff's already-filed Petition for Declaratory Order
("Petition") to the State of Hawai#i Land Use Commission
(the "LUC").
6. On October 29, 2014, the Court entered its Order Denying
in Part the County Defendants' Motion to Dismiss in Part,
Staying All Further Proceedings in this Matter, and
Deferring to LUC. The order stated that the Court would
"defer to the [LUC] for determination as to any potential
violation by any person or party of the Decision and Order
entered by the LUC in Docket No. A-10-789 dated June 21,
2012 [('LUC D&O')]."

7. On November 25, 2014, the Court held a status conference.
The parties advised the Court that on November 20, 2014, the
LUC denied Plaintiff's Petition. The Court scheduled further
hearing on the County Defendants' Motion to Dismiss In Part
on December 10, 2014, and ordered that the hearing on
Plaintiff's Motion for Preliminary Injunction would start on
December 22, 2014 and that all parties should be prepared to
proceed with witnesses, evidence, and testimony.

8. On December 5, 2014, the State Defendants filed their
Motion and an Ex Parte Motion to Shorten Time for Hearing on
the Motion.

9. The State Defendants' contended that Plaintiff had failed
to exhaust its administrative remedies and failed to bring
its challenge under [HRS] chapter 343 within the time
provided by statute.

. . . .
11. At the hearing held on December 10, 2014, for the County
Defendants' Motion to Dismiss in Part, the Court denied the
County Defendants' motion in its entirety. The same day,
the Court also granted the State Defendants' Motion to
Shorten Time for Hearing on the Motion for Partial Dismissal
and orally informed the parties it would be heard on
December 22, 2014. The Court also requested supplemental
briefing from all parties on two issues: 1) Did the Court

7
The Circuit Court found and it is not disputed that MLN is a non-
profit member corporation that was incorporated on June 12, 2014. The
Planning Commission approved the CUP on March 25, 2014.

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have subject matter jurisdiction given the issues raised in
the motion filed by the State; and 2) was Plaintiff
collaterally estopped from pursuing its claims.

. . . .
19. On December 22, 2014, the Court held a hearing on the
Motion for Partial Dismissal. After hearing argument from
the parties, the Court determined that a question of fact
existed as to whether the futility doctrine excused
Plaintiff from having to exhaust its administrative
remedies. Accordingly, the Court immediately began an
evidentiary hearing, took testimony and received evidence.
20. On December 22, 2014, Plaintiff called Mary Spencer,
Ph.D. ("Dr. Spencer"), Paul Fasi ("Mr. Fasi"), Senior
Planner of the Planning Department, and Harley Manner, Ph.D.
("Dr. Manner"). . . .
21. On December 23, 2014, the Court held a further
evidentiary hearing on the Motion. Plaintiff called Dr.
Manner, Carty Chang, a State DLNR representative, and Holden
Gannon ("Mr. Gannon"). After Plaintiff rested, A&B re-
called Dr. Manner and Will Spence, Director of the
Department of Planning, County of Maui. . . . .

22. At the conclusion of the December 23, 2014 hearing, the
Court requested that the parties return on December 31,
2014. Additionally, the Court requested supplemental
briefing regarding the failure to exhaust administrative
remedies, futility, and the issues that would
remain if it granted the Motion.

23. On December 30, 2014, Plaintiff filed its Memorandum re:
Court's Subject Matter Jurisdiction. On the same day, the
State Defendants filed a Memorandum Regarding Subject Matter
Jurisdiction, and the County Defendants filed a Supplemental
Brief Regarding Factual and Legal Distinctions of Kellberg.
A&B filed its Supplemental Memorandum Regarding Exhaustion
of Administrative Remedies. On the same day, the Court
entered its written Order Granting A&B's Motion to
Intervene.

24. On December 31, 2014, the Court held a further hearing
on the State Defendants' Motion for Partial Dismissal.
After hearing argument from the parties, the Court granted
the State Defendants' Motion for Partial Dismissal and
dismissed all Counts in the First Amended Complaint except
for Count VII.

25. On January 14, 2015, Plaintiff withdrew its Motion for
Preliminary Injunction.

(Citations to the record omitted.)
B. Substantive Findings
The Circuit Court made the following relevant
substantive findings:
31. Plaintiff's officers and members include the following
individuals:
a. Dr. Manner, who serves as Plaintiff's Vice-
President;
b. Dr. Spencer, who is a member of Plaintiff;

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c. Mr. Gannon, who serves as Plaintiff's Treasurer;
d. David Potter, who serves as Plaintiff's President;
e. Tina Hoenig, who previously served as Plaintiff's
President and currently serves as the fifth member of
the five-person Board of Directors;
i. Mark Hoenig, who is also a member; and
ii. Neal Sorensen, who is also a member.

. . . .
33. DLNR intends to build a regional park for general public
use in Central Maui (the "Sports Park"). The Sports Park is
planned to include, among other things, a high school
baseball field, softball fields, youth baseball fields, and
soccer fields.
34. The Property is within the State Urban Land Use District
and is zoned agricultural under County zoning.
3. The Final Environmental Assessment

35. DLNR prepared an environmental assessment for the Sports Park.
36. Plaintiff admitted that on June 23, 2013, the State of
Hawai#i Office of Environmental Quality Control (the " OEQC")
published DLNR's findings of no significant impact (" FONSI")
based on the Central Maui Regional Park Final Environmental
Assessment (the "FEA").
37. No one filed on appeal from the FONSI.

38. DLNR identified BLNR as the accepting authority for the
FEA. On October 11, 2013, BLNR accepted the FEA as final.
4. The CUP Application

39. On October 10, 2013, DLNR applied for a Special Use
Permit ("CUP") for the Sports Park from the County of Maui.

40. On October 9, 2013, DLNR sent notice of its application
to surrounding property owners.

41. DLNR failed to send the October 9 notice to all owners
and lessees of record located within a five-hundred-foot
distance from the Property.
42. On November 6, 2013, DLNR submitted an amended
application for a CUP (the "Application").
43. On November 14, 2013, DLNR sent notice of the amended
Application to surrounding property owners.
44. DLNR failed to send the November 14, 2013 notice to all
owners and lessees of record located within a five-hundred-
foot distance from the Property.
5. The CUP Notice of Hearing
45. On or about January 6, 2014, the Maui County Planning
Commission scheduled the Application for public hearing on
February 11, 2014.
46. On January 7, 2014, the applicant, DLNR, sent a notice
of public hearing. The Planning Department subsequently

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determined that the notice of public hearing had not been
sent to all owners and lessees of record located within a
five-hundred-foot distance from the Property.

47. As a result, the Planning Department rescheduled the
hearing and required applicant DLNR to send out a new notice
of public hearing.

48. On or about February 4, 2014, the Planning Commission
scheduled the Application for public hearing on March 25,
2014.
49. On February 12, 2014, DLNR, through its consultant,
mailed a second notice of public hearing.
50. The notice of public hearing was mailed to all owners
and lessees of record located within a five-hundred-foot
distance from the Property.
51. The Planning Department determined that the mailing of
the notice of public hearing to all owners and lessees of
record located within a five-hundred-foot distance from the
Property corrected any deficiency in the mailing of the
notice of the application.
52. The notice of public hearing identified the CUP
Application, the Property, the right to intervene, where and
how to submit written testimony, and the hearing date, time,
and place.
53. The notice of hearing stated, in part:

This hearing is held under the authority of
Chapter 92, Hawaii Revised Statues, Title 19 of the
Maui County Code and the Maui Planning Commission
Rules.

Petitions to intervene shall be in conformity
with Sections 12-201-20, 12-201-40, and 12-201-43 of
the Rules of Practice and Procedure for the Maui
Planning Commission and shall be filed with the Maui
Planning Commission and served upon the applicant no
less than ten (10) days before the first public
hearing date. Filing of all documents to the Maui
Planning Commission is c/o the Maui Planning
Department, 250 South High Street, Wailuku, Maui,
Hawaii 96793.

. . . .
. . . .
55. Persons receiving actual notice of public hearing
scheduled for March 25, 2015 [sic] included individuals who
would later become members and officers of Plaintiff MLN
including:
a. Vice-President Manner,
b. Member Spencer;
c. Treasurer Gannon;
d. President David Potter;
e. Former President and current Director Tina
Hoenig;
f. Member Mark Hoenig; and
g. Member Neal Sorensen.

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56. All of the members and officers of Plaintiff who
testified at the hearing admitted that that [sic] they
received the notice of hearing, specifically:
a. Dr. Manner stated he received the notice of
public hearing on February 19, 2014,
b. Dr. Spencer, who resides with Dr. Manner,
testified that she received the notice of public
hearing in February 2014, four to six weeks
before the March 25, 2014 hearing,
c. Mr. Gannon stated he received the notice of
public hearing in February 2014[.]
57. In response to the notice of public hearing, the
officers and members who testified for Plaintiff admitted
that they neither reviewed the Commission rules nor
contacted a lawyer, DLNR representative designated on the
notice, or the Planning Department.

. . . .
6. The March 25, 2014 Hearing on the CUP Application
. . . .
60. Several future officers, directors, and members of
Plaintiff attended the Commission hearing, including former
President, and current Director, Ms. Tina Hoenig; Vice-
President Manner; member Dr. Spencer; member Mr. Hoenig; and
member Mr. Sorensen.
. . . .

62. Ms. Hoenig testified at the March 25 hearing.
63. At no time prior to or during the March 25, 2014 hearing
did any person file a petition to intervene in the CUP
proceeding.

64. Because no petition to intervene was made and granted,
DLNR was the only party to the proceeding.

65. At the conclusion of the public hearing, the Commission
voted unanimously to approve the CUP. . . .
66. Dr. Spencer and Dr. Manner testified that they heard the
Commission's decision.

67. At the conclusion of the hearing, the Commission also
adopted the Planning Department's Report (" Planning
Department's Report") and Recommendation (the "Planning
Department's Recommendation") as its Findings of Fact,
Conclusions of Law, and Decision and Order.

. . . .
70. Accordingly, the Commission approved the Application and
issued the CUP on March 25, 2014.

. . . .
76. On May 12, 2014, Plaintiff's founding member, future
President, and director Tina Hoenig filed a notice of appeal
with this Court challenging the CUP pursuant to HRS § 91-14.

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. . . .

80. On June 20, 2014, Tina Hoenig and the County of Maui
filed a stipulation to dismiss Civil No. 14-1-0315 without
prejudice. Plaintiff failed to call Tina Hoenig as a
witness during the hearing on this motion and offered no
testimony or evidence to explain her reasons for agreeing to
the dismissal.
. . . .
81. On July 12, 2014, Plaintiff through its attorney Tom
Pierce, Esq. sent a letter to the DLNR demanding that it
cease and desist from any development of the Sports Park.
82. In the July 12, 2014 letter, counsel, on behalf of his
client, acknowledged that "[o]n March 25, 2014, the Maui
Planning Commission grant[ed] a special use permit for the
Sports Complex."

83. The Court finds from all credible evidence that
Plaintiff knew no later than July 12, 2014 that the
Commission had granted a county special use permit for the
Sports Park. The Court further finds that Plaintiff failed
to file an appeal within 30 days of July 12, 2014.

(Citations to the record omitted.)
II. STANDARDS OF REVIEW
A. Jurisdiction
In reviewing a lower court's application of the
exhaustion of administrative remedies doctrine, the Hawai#i
Supreme Court set out the following standard of review:
The existence of jurisdiction is a question of law that we
review de novo under the right/wrong standard. Questions
regarding subject matter jurisdiction may be raised at any
stage of a cause of action. When reviewing a case where the
circuit court lacked subject matter jurisdiction, the
appellate court retains jurisdiction, not on the merits, but
for the purpose of correcting the error in jurisdiction. A
judgment rendered by a circuit court without subject matter
jurisdiction is void.
Kellberg v. Yuen, 131 Hawai#i 513, 526, 319 P.3d 432, 445 (2014)
(citation omitted).
In considering whether primary jurisdiction applies,
"[f]irst, it must be determined whether the court had subject
matter jurisdiction over [the claims]." Pac. Lightnet, Inc. v.
Time Warner Telecom, Inc., 131 Hawai#i 257, 272, 318 P.3d 97, 112
(2013). "[A] court's decision to invoke the primary jurisdiction
doctrine is reviewed de novo[.]" United Public Workers, AFSCME,
Local 646 v. Abercrombie, 133 Hawai#i 188, 195, 325 P.3d 600, 607
(2014) (citation omitted). "If the court determines that the

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primary jurisdiction doctrine applies, the court, in its
discretion, may determine whether to stay the litigation or
dismiss without prejudice." Id. (citation and internal quotation
marks omitted).
Additionally, "review of a motion to dismiss for lack
of subject matter jurisdiction is based on the contents of the
complaint, the allegations of which we accept as true and
construe in the light most favorable to the plaintiff." Norris
v. Hawaiian Airlines, Inc., 74 Haw. 235, 240, 842 P.2d 634, 637
(1992) (citation and brackets omitted). However, "the trial
court is not restricted to the face of the pleadings, but may
review any evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of jurisdiction." Id.
(citation and brackets omitted); see also Yamane v. Pohlson, 111
Hawai#i 74, 81, 137 P.3d 980, 987 (2006).
B. Statutory Interpretation
The parties dispute, in part, whether MLN had a
statutory right to file suit in the Circuit Court such that the
court had original jurisdiction in this case. With regard to
statutory interpretation:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.

When there is ambiguity in a statute, the meaning of the
ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning. A court
may also resort to extrinsic aids in determining legislative
intent, such as legislative history or the reason and spirit
of the law.

Carmichael v. Bd. of Land and Nat. Res., 150 Hawai#i 547, 560,
506 P.3d 211, 224 (2022) (citations and internal quotation marks
omitted). Further, "[i]t is also a canon of construction that
statutes that are in pari materia may be construed together."

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Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 450, 420 P.3d
370, 381 (2018) (citation and internal quotation marks omitted).
C. Constitutional Law
We review questions of constitutional law "by
exercising our own independent constitutional judgment based on
the facts of the case." Protect and Pres. Kahoma Ahupua#a Ass'n
v. Maui Plan. Comm'n, 149 Hawai#i 304, 311, 489 P.3d 408, 415
(2021) (citation omitted). "[Q]uestions of constitutional law
are reviewed under the right/wrong standard." Id. (citation
omitted).
III. DISCUSSION
A. The Doctrines of Exhaustion of Administrative Remedies
and Primary Jurisdiction

In its first point of error, MLN argues the Circuit
Court erred in applying the exhaustion of administrative remedies
doctrine where the Planning Commission did not have exclusive
original jurisdiction over any of MLN's claims. Specifically,
MLN asserts the Circuit Court's conclusion that exhaustion
applies whenever claims "could have been" raised in an
administrative proceeding, regardless of whether the trial court
also had original jurisdiction, is not consistent with the
"exclusive original jurisdiction" test.
The Circuit Court's conclusion of law (COL) 3 states
that "the Court lacks jurisdiction to hear claims that could have
been raised in the administrative process, including those claims
that could have been raised on appeal pursuant to HRS chapter
91." (Emphases added.) COL 3 overlooks the requirement for an
agency to have exclusive original jurisdiction in order for the
exhaustion of administrative remedies doctrine to apply. In this
respect, MLN is correct that the Circuit Court did not accurately
articulate the standard for the exhaustion of administrative
remedies doctrine.
"Courts have developed two principal doctrines to
enable the question of timing of requests for judicial
intervention in the administrative process to be answered[.]"

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Kellberg, 131 Hawai#i at 527, 319 P.3d at 446 (quoting Kona Old
Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 92–93, 734 P.2d 161,
168 (1987) (Kona Old)). The first doctrine, exhaustion of
administrative remedies, "provides that where a claim is
cognizable in the first instance by an administrative agency
alone, judicial review of agency action will not be available
unless the party affected has taken advantage of all the
corrective procedures provided for in the administrative
process." Id. (emphasis added) (brackets and internal quotation
marks omitted) (quoting Kona Old, 69 Haw. at 93, 734 P.2d at
169). "The exhaustion principle asks simply that . . . the
avenues of relief nearest and simplest should be pursued first.
Judicial review of agency action will not be available unless the
party affected has taken advantage of all the corrective
procedures provided for in the administrative process." Kona
Old, 69 Haw. at 93, 734 P.2d at 169 (citations and internal
quotation marks omitted). "In order for the doctrine to apply,
'the statute, ordinance or regulation under which the agency
exercises its power must establish clearly defined machinery for
the submission, evaluation and resolution of complaints by
aggrieved parties.'" Kellberg, 131 Hawai#i at 536, 319 P.3d at
455 (brackets, emphasis, and internal quotation marks omitted)
(quoting Pele Defense Fund v. Puna Geothermal Venture, 9 Haw.
App. 143, 151, 827 P.2d 1149, 1154 (App. 1992)). Since
application of exhaustion requires that the claim be cognizable
only before the agency, "the court must first determine whether
the agency has exclusive original jurisdiction, in which case,
the doctrine of exhaustion would apply. If not, and the court
finds that it does possess jurisdiction over the matter, the
court can then decide if it is appropriate to apply the doctrine
of primary jurisdiction." Pac. Lightnet, 131 Hawai#i at 269, 318
P.3d at 109 (emphasis added).
The second doctrine, the doctrine of primary
jurisdiction, is "conceptually analogous" to the doctrine of
exhaustion of administrative remedies. Id. at 268, 318 P.3d at
108. "However, it is important to note that unlike the doctrine

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of exhaustion, the doctrine of primary jurisdiction does not
require a determination that the court lacks jurisdiction over
the matter." Id. at 269, 318 P.3d at 109. "Instead, primary
jurisdiction presumes that the claim at issue is originally
cognizable by both the court and the agency." Id. (emphasis
added) (citation omitted). In other words, "under the doctrine
of primary jurisdiction, the court and the agency share
concurrent jurisdiction over the matter."8 Id. at 272, 318 P.3d
at 112 (emphasis added). If a court's jurisdiction to address an
issue or claim is in question, the court decides whether the
primary jurisdiction doctrine applies. Id. at 275, 318 P.3d at
115. Under the primary jurisdiction doctrine, if "the claim
requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an
administrative body[,]" a court has discretion either to exercise
its concurrent jurisdiction, retain jurisdiction but stay the
proceeding pending agency resolution of the issues within the
agency's special competence, or dismiss the case without
prejudice if the parties would not be unfairly disadvantaged.
United Pub. Workers, 133 Hawai#i at 196-97, 201-02, 325 P.3d at
608-09, 613-14 (citation omitted).
In dismissing Counts I, II, III, IV, V, VI, VIII and
IX, the Circuit Court determined that these counts "constitute
challenges to the validity of the CUP and its approval." On
appeal, MLN does not directly dispute this determination and
indeed argues that "the gravamen of MLN's claims is that, in
essence, the only way that the intense, urban Sports Complex uses
could have been legal was through a change in zoning as opposed
to a special use permit." MLN requests that we reverse the
FOFs/COL and Order of the Circuit Court:
with directions to the trial court to: (1) accept
jurisdiction over all claims, as there is no legal basis to
apply either exhaustion or primary jurisdiction in this
case; (2) enter judgment for MLN on Count IX, for lack of
adequate notice of the [CUP]; and (3) deem the [CUP] issued
on March 25, 2014 by the Planning Commission null and void
as matter of law .

8
We note that throughout this opinion we use the terms "concurrent
jurisdiction" and "primary jurisdiction" interchangeably when referring to the
doctrine of primary jurisdiction.

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As to most of the dismissed counts, MLN's arguments
address whether the CUP is valid. However, as to Count V and
part of MLN's Count VI claim (based on article XI, section 9
defined by Chapter 343), MLN's allegations in the First Amended
Complaint and its arguments on appeal raise issues beyond the
validity of the CUP to challenge the adequacy of environmental
review documents under HEPA.
B. County Zoning and the Special Permit Process
In order for the exhaustion of administrative remedies
doctrine to apply, "the statute, ordinance or regulation under
which the agency exercises its power must establish clearly
defined machinery for the submission, evaluation and resolution
of complaints by aggrieved parties." Kellberg, 131 Hawai#i at
536, 319 P.3d at 455 (citations, brackets, emphasis, and internal
quotation marks omitted). We conclude that such "clearly defined
machinery" was in place related to the issuance of the CUP in
this case.9
HRS § 46-4 (2012) delegates specified zoning authority
to the counties, stating in part:
§ 46-4 County zoning. (a) This section and any
ordinance, rule, or regulation adopted in accordance with
this section shall apply to lands not contained within the
forest reserve boundaries as established on January 31,
1957, or as subsequently amended.

Zoning in all counties shall be accomplished within
the framework of a long-range, comprehensive general plan
prepared or being prepared to guide the overall future
development of the county. Zoning shall be one of the tools
available to the county to put the general plan into effect
in an orderly manner. Zoning in the counties of Hawaii,
Maui, and Kauai means the establishment of districts of such
number, shape, and area, and the adoption of regulations for
each district to carry out the purposes of this section. In
establishing or regulating the districts, full consideration
shall be given to all available data as to soil
classification and physical use capabilities of the land to
allow and encourage the most beneficial use of the land

9
The parties do not dispute the Circuit Court's finding that " [t]he
Property is within the State Urban Land Use District and is zoned agricultural
under County zoning." (Emphases added.) HRS § 205-2(b) (2017) states in
pertinent part: "Urban districts shall include activities or uses as provided
by ordinances or regulations of the county within which the urban district is
situated." Further, HRS § 205-5(a) (2017) provides that "the powers granted
to counties under section 46-4 shall govern the zoning within the districts,
other than in conservation districts." Because the Sports Park is within the
state urban district, but is zoned under County ordinance as agricultural,
County ordinances governing agricultural zoning districts apply.

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consonant with good zoning practices. The zoning power
granted herein shall be exercised by ordinance which may
relate to:
(1) The areas within which agriculture, forestry,
industry, trade, and business may be conducted;
. . .

(4) The areas in which particular uses may be subjected to
special restrictions;
. . .
The council of any county shall prescribe rules,
regulations, and administrative procedures and provide
personnel it finds necessary to enforce this section and any
ordinance enacted in accordance with this section. The
ordinances may be enforced by appropriate fines and
penalties, civil or criminal, or by court order at the suit
of the county or the owner or owners of real estate directly
affected by the ordinances.

. . . .

The powers granted herein shall be liberally construed in
favor of the county exercising them, and in such a manner as
to promote the orderly development of each county or city
and county in accordance with a long-range, comprehensive
general plan to ensure the greatest benefit for the State as
a whole. . . .

. . . .

(b) Any final order of a zoning agency established
under this section may be appealed to the circuit court of
the circuit in which the land in question is found. The
appeal shall be in accordance with the Hawaii rules of civil
procedure.

(Emphases added.)
As specified under the Maui County Code (MCC), Title 19
(Zoning), MCC § 19.30A.060 (2013 Supp. No. 38) relates to
"Special Uses" in a county agricultural zoning district and
provides in pertinent part:
19.30A.060 - Special uses.
The following uses and structures shall be permitted
in the agricultural district if a special use permit,
pursuant to section 19.510.070 of this title, has been
obtained; except that if a use described in this section
also requires a special permit pursuant to chapter 205,
Hawaii Revised Statutes, and if the land area of the subject
parcel is fifteen acres or less, the state special permit
shall fulfill the requirements of this section:
. . .

H. Open land recreation uses, structures or
facilities which do not meet the criteria of

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subsection 19.30A.050.B.11, [10] including
commercial camping, gun or firing ranges,
archery ranges, skeet shooting, paint ball,
bungee jumping, skateboarding, roller blading,
playing fields, accessory buildings and
structures. Certain open land recreation uses
or structures may also be required to obtain a
special permit pursuant to chapter 205, Hawaii
Revised Statutes. The following uses or
structures shall be prohibited: airports,
heliports, drive-in theaters, country clubs,
drag strips, motor sports facilities, golf
courses and golf driving ranges[.]

(Emphases added.)
The criteria for special use permits is explicitly set
out in the MCC. The applicable provision provides, in relevant
part:
19.510.070 - Special use permits.
A. Compliance Required. A special use permit shall
comply with the provisions of this section and with
the policies and objectives of the general plan and
community plans of the county, the Hawaii Revised
Statutes, and the revised charter of the county.
B. Criteria for Permit. Subject to the provisions of
this chapter, the appropriate planning commission
shall review and, after a public hearing, may approve
a request for a special use if the commission finds
that each of the following criteria have been met:

1. The proposed request meets the intent of the
general plan and the objectives and policies of
the applicable community plan of the county;

10
MCC § 19.30A.050.B.11 (2013 Supp. No. 38) sets out permitted
"accessory uses" in agricultural zoning districts pertaining to "Open land
recreation" as follows:
11. Open land recreation as follows: hiking; noncommercial
camping; fishing; hunting; equestrian activities;
rodeo arenas; arboretums; greenways; botanical
gardens; guided tours that are accessory to principal
uses, such as farm or plantation tours, petting zoos,
and garden tours; hang gliding; paragliding; mountain
biking; and accessory restroom facilities. If hiking,
fishing, hunting, equestrian activities, rodeo arenas,
hang gliding, paragliding, or mountain biking are
conducted for commercial purposes on the island of
Moloka#i, such uses shall have been approved by the
Moloka#i planning commission as conforming to the
intent of this chapter. Open land recreation uses or
structures not specifically permitted by this
subsection or by subsection 19.30A.060.H shall be
prohibited; certain open land recreation uses or
structures may also be required to obtain a special
permit pursuant to chapter 205, Hawai#i Revised
Statutes[.]

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2. The proposed request is consistent with the
applicable community plan land use map of the
county;
3. The proposed request meets the intent and
purpose of the applicable district;
4. The proposed development will not adversely
affect or interfere with public or private
schools, parks, playgrounds, water systems,
sewage and solid waste disposal, drainage,
roadway and transportation systems, or other
public requirements, conveniences, and
improvements;

5. The proposed development will not adversely
impact the social, cultural, economic,
environmental, and ecological character and
quality of the area;

6. That the public shall be protected from the
deleterious effects of the proposed use;

7. That the need for public service demands created
by the proposed use shall be fulfilled; and
8. If the use is located in the state agricultural
and rural district, the commission shall review
whether the use complies with the guidelines
established in section 15-15-95 of the rules of
the land use commission of the State.

MCC § 19.510.070 (2013 Supp. No. 38) (emphases added).
The Hawai#i Supreme Court has explained that,
[u]nlike a district boundary amendment, which is analogous
to a rezoning in its effect of reclassifying land, and
unlike a variance, which permits a landowner to use his
property in a manner forbidden by ordinance or statute, a
special permit allows the owner to put his land to a use
expressly permitted by ordinance or statute on proof that
certain facts and conditions exist, without altering the
underlying zoning classification.

Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n,
64 Haw. 265, 270–71, 639 P.2d 1097, 1102 (1982) (Waianae Coast).
The Maui Planning Commission Rules of Practice and
Procedure (MPC Rules) authorize petitions to intervene in
Planning Commission proceedings. MPC Rules § 12-201-39 (1993)
provides:
Petition to intervene. All proceedings in which action by
the commission will result in a final determination of the
legal rights, duties or privileges of a specific party or
parties, and which is appealable pursuant to section 91-14,
HRS, as amended, is a contested case. Petitions to
intervene in such proceedings may be filed in accordance
with the provisions of this subchapter.

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(Emphasis added.) Accordingly, the MPC Rules permit intervenors
to become parties to such a proceeding and provides:
All persons who have a property interest in land subject to
commission action, who lawfully reside on said land, or can
demonstrate they will be so directly and immediately
affected by the matter before the commission that their
interest in the proceeding is clearly distinguishable from
that of the general public shall be admitted as parties upon
timely application for intervention.
MPC Rules § 12-201-41(b) (2010). The MPC Rules also provide, in
pertinent part:
Petition filing. (a) Petitions to intervene shall be in
conformity with section 12-201-20 herein and shall be filed
with the commission and served upon the applicant no less
than ten days before the first public hearing date.
Untimely petitions will not be permitted except for good
cause, but in no event will intervention be permitted after
the commission has taken the final vote on the matter before
it.
MPC Rules § 12-201-40 (2001).
Post-hearing procedures expressly provide for appeals.
"Parties to proceedings before the commission may obtain judicial
review of decisions and orders issued by the commission in the
manner set forth in chapter 91-14, Hawaii Revised Statutes." MPC
Rules § 12-201-85 (1993). In turn, HRS § 91-14(a) and (b) (2012)
authorize appeals to the circuit court within thirty days.11
In the context of this case, the foregoing constitutes
"clearly defined machinery for the submission, evaluation and
resolution of complaints by aggrieved parties." Kellberg, 131
Hawai#i at 536, 319 P.3d at 455 (emphasis and citations omitted).
Here, it is undisputed that no MLN member petitioned to
intervene in the CUP proceedings before the Planning Commission,
as allowed under the MCC and MPC Rules.12 Further, the Circuit
Court found - and it is unchallenged - that "by no later than May
12, 2014, [MLN Director, Tina Hoenig,] had received a copy of the
CUP approval letter[,]" and MLN members "knew no later than July
12, 2014 that the Commission had granted a county special use

11
HRS § 91-14(b) provides, in relevant part, "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[.]"
12
As addressed infra, we conclude that MLN members had proper notice
of the application for the CUP.

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permit for the Sports Park[,]" but that "[MLN] failed to file an
appeal within 30 days of July 12, 2014." Rather than intervening
in the Planning Commission's proceedings to challenge the
issuance of the CUP, from which MLN members could have appealed
for judicial review under HRS § 91-14, MLN instead subsequently
filed this direct action in the Circuit Court on September 2,
2014.
C. Failure to Exhaust Administrative Remedies
Bars Counts I, II, III, IV, VIII and IX

1. Count I: Alleged Zoning Violations

In Count I of the First Amended Complaint, MLN asserts
that DLNR's intended uses for the Sports Park violate zoning
pursuant to HRS § 46-4 and the MCC in the following ways: Count
I.B., they are inconsistent with the Wailuku-Kahului Community
Plan designation; Count I.C., they are inconsistent with the Maui
Island Plan; Count I.D., they violate MCC Chapter 19.30A
(Agricultural district); Count I.E., they violate MCC §
19.510.070 (Special use permits); and Count I.F., they violate
the June 21, 2012 LUC Decision and Order (D&O) obtained by A&B to
reclassify, under certain conditions, 545 acres of land to State
Urban Land Use District.13
MLN argues that under Pavsek, the Circuit Court has
original jurisdiction over claims brought under HRS § 46-4(a)
because MLN is comprised of real estate owners who may sue to
enforce zoning ordinances without exhausting administrative
remedies. Pavsek v. Sandvold, 127 Hawai#i 390, 279 P.3d 55 (App.
2012), abrogated on other grounds by Bank of Am., N.A. v. Reyes-
Toledo, 143 Hawai#i 249, 428 P.3d 761 (2018).
HRS § 46-4 provides the counties with specified zoning
authority, and also includes provisions related to enforcing
zoning ordinances. MLN's argument is based on the following

13
Count I.A. contained general allegations common to the Count I
claims related to zoning. As to Count I.F., the Circuit Court temporarily
stayed this case pending resolution of MLN's already-filed petition with the
LUC and deferred to the LUC for a determination of any potential violation of
the LUC's June 21, 2012 D&O. The parties subsequently advised the Circuit
Court that the LUC had denied MLN's petition.

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paragraph in HRS § 46-4(a):
The council of any county shall prescribe rules,
regulations, and administrative procedures and provide
personnel it finds necessary to enforce this section and any
ordinance enacted in accordance with this section. The
ordinances may be enforced by appropriate fines and
penalties, civil or criminal, or by court order at the suit
of the county or the owner or owners of real estate directly
affected by the ordinances.

(Emphases added.) HRS § 46-4(a) thus provides that county
councils shall establish rules, regulations and procedures for
enforcing the statute and zoning ordinances, and also provides
that owners directly affected by zoning ordinances may bring suit
to enforce such ordinances.
The CUP in this case was subject to an established
administrative process. HRS § 46-4 delegates zoning authority to
the counties. Here, the MCC provided the criteria for a special
permit under MCC § 19.510.070, and sets out certain special uses
allowed under MCC § 19.30A.060 if a special use permit is
obtained. The MPC Rules allow for petitions to intervene, and
expressly provide for appeals from the Planning Commission's
decisions under HRS § 91-14. See MPC § 12-201-85. HRS § 46-4(b)
also authorizes appeals from final orders of a zoning agency.
In determining whether the exhaustion of administrative
remedies doctrine applies to Count I, the question is whether HRS
§ 46-4(a) provides concurrent jurisdiction to the Circuit Court
under the circumstances of this case. In short, MLN members
assert under Pavsek that they can bypass the administrative
process established under HRS § 46-4, HRS § 205-6, the MCC and
the MPC Rules, and instead, bring suit under HRS § 46-4(a) after
the CUP was issued and seek to invalidate it.
Our foremost obligation in construing HRS § 46-4(a) is
to ascertain and give effect to the legislative intent, and to
start with the language of the statute itself. Carmichael, 150
Hawai#i at 560, 506 P.3d at 224. We conclude the relevant
paragraph in HRS § 46-4(a) is ambiguous as to whether it
conferred concurrent jurisdiction on the Circuit Court under the
circumstances of this case. In other words, the pertinent
language is ambiguous as to whether an "owner or owners of real

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estate directly affected by [an ordinance]" could bypass the
administrative process prescribed by a county for zoning issues,
and instead, file a lawsuit after the prescribed agency
proceeding is completed and seek to invalidate a permit issued in
the agency proceeding. Given this ambiguity, we first note the
parties do not point to any pertinent legislative history and we
find none.
We thus examine the context surrounding the relevant
language in the statute. HRS § 46-4 is contained within Part I
of HRS Chapter 46, addressing the "General Jurisdiction and
Powers" of the counties, and HRS § 46-4 delegates extensive
authority to the counties related to zoning. The same paragraph
in HRS § 46-4(a), under which MLN members assert the right to
bring suit, first requires that county councils "shall prescribe
rules, regulations, and administrative procedures and provide
personnel it finds necessary to enforce this section and any
ordinance enacted in accordance with this section." Further, HRS
§ 46-4(a) also expressly provides that:
The powers granted herein shall be liberally construed
in favor of the county exercising them, and in such a manner
as to promote the orderly development of each county or city
and county in accordance with a long-range, comprehensive
general plan to ensure the greatest benefit for the State as
a whole. . . .

(Emphasis added.) This context provides guidance to our
analysis. See Omiya, 142 Hawai#i at 450, 420 P.3d at 381
(explaining that it is well established that statutes in pari
materia should be construed together).
As the State and A&B point out, MLN's construction of
HRS § 46-4(a) would lead to a disorderly situation where parties
could completely ignore administrative proceedings on whether a
special use permit should be issued, ignore requirements to
appeal for judicial review through an established administrative
review process and HRS § 91-14, and instead, separately file a
lawsuit at an indeterminate time and bring claims challenging
uses to land that had already been authorized through the special
permitting process.

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We conclude Pavsek is distinguishable from this case.
The plaintiffs in Pavsek brought suit in the circuit court
against, inter alia, the owners of three residential properties
and alleged the properties were being used for short-term rentals
in violation of land use ordinances. 127 Hawai#i at 392-93, 279
P.3d at 57-58. In Pavsek, there had been no administrative
proceedings, there was alleged non-permitted activity, and this
court held that plaintiffs - who lived on the same street as the
subject properties - had a private right of action under HRS
§ 46-4(a) to seek enforcement of a county ordinance. Id. at 398-
400, 279 P.3d at 64-65. However, this court also held that
adjudicating the plaintiffs' claims required resolution of
whether the defendants had violated land use ordinances, an issue
within the special competence of city agencies, and thus under
the primary jurisdiction doctrine, the plaintiffs were required
to petition the city agencies for a determination of the alleged
land use violations before proceeding with their lawsuit. Id. at
400-01, 279 P.3d at 65-66.
Here, unlike the plaintiffs in Pavsek, MLN challenges
land use that has been permitted under the CUP, where MLN members
had notice of the administrative proceedings, some of its members
actively participated in the administrative proceedings but did
not intervene, and where no appeal was pursued regarding the
final administrative decision to issue the CUP.
In Citizens Opposing Pollution v. ExxonMobil Coal
U.S.A., 962 N.E.2d 956 (Ill. 2012), the Illinois Supreme Court
read a statute in pari materia that provided both a right to
appeal in an administrative appeal process and a citizens suit
provision. In considering whether the plaintiffs could bring a
citizens suit to challenge a mining permit, when plaintiffs had
failed to appeal the final administrative decision on the permit
to the circuit court, the Illinois Supreme Court held that the
administrative review process was the exclusive route for circuit
court review. Id. at 963-65. The court noted, however, that "an
action to compel compliance with the Mining Act for nonpermitted
activity, or to enforce compliance with the terms of a permit,

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may be brought by way of an original action in the circuit
court[.]" Id. at 965.
The Illinois Supreme Court explained that:
Plaintiff's construction of section 8.10 [14] would eviscerate
and render meaningless the "shall" provision contained in
the first clause of the statute by making adherence to the
Administrative Review Law entirely optional and nonbinding
in the case of a final permit determination by [the Illinois
Department of Natural Resources (IDNR)]. This
interpretation would be inconsistent with the Administrative
Review Law, which specifically requires prompt judicial
review of such final administrative decisions.

Id. The court further explained:
Plaintiff's suggested construction of the statute would
require the circuit court to determine such highly regulated
mining operation and reclamation issues without an
administrative record to review. A contrary construction of
the statute would also impact legitimate reliance by a
permittee, and create significant uncertainty by allowing
the terms of a permit to be reopened and reconsidered at any
time, even years after a reclamation project has been
completed in accordance with a permit. We decline to
conclude that the legislature intended such an absurd result
in enacting section 8.05(a), [15] which would not only call

14
Section 8.10 (West 2008) of the Mining Act at issue in Citizens
Opposing Pollution provided:
Review under Administrative Review Law. All final
administrative decisions of the Department under this Act
shall be subject to judicial review pursuant to the
Administrative Review Law, as amended, and the rules adopted
under it, except that the remedies created by this Act are
not excluded or impaired by any provision of the
Administrative Review Law.

962 N.E.2d at 964.
15
As set forth in Citizens Opposing Pollution:
Section 8.05(a) [(West 2008)] of the Mining Act contains the
citizen suit provision relied upon by plaintiff. It states
as follows:

"Civil Actions. (a) Any person having an
interest which is or may be adversely affected
may commence a civil action on his own behalf to
compel compliance with this Act against any
governmental instrumentality or agency which is
alleged to be in violation of the provisions of
this Act or of any rule, order or permit issued
under this Act, or against any other person who
is alleged to be in violation of this Act or of
any rule, order or permit issued under this Act.
No action may be commenced under this subsection
(1) prior to 60 days after the plaintiff has
given notice in writing of the alleged violation
to the Department and to any alleged violator,
(continued...)

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into question the finality of mining permit decisions
throughout Illinois, but would undermine the role of IDNR in
the permit process.

Id. at 966 (citation omitted). Thus, in that case, where a
permit had been issued and no administrative appeal was taken,
the Illinois Supreme Court held that the trial court had properly
dismissed the action with prejudice. Id. at 962, 968.
In this case, HRS § 46-4(a) provides that county
councils shall establish rules, regulations and procedures for
enforcing zoning ordinances, while also providing that owners of
real estate directly affected by zoning ordinances may enforce
zoning ordinances in court lawsuits. Further, HRS § 46-4(b)
provides for judicial review from "[a]ny final order of a zoning
agency established under this section[.]" Importantly, the
legislature also expressly stated in HRS § 46-4(a) that the
powers granted in that statute "shall be liberally construed in
favor of the county exercising them, and in such a manner as to
promote the orderly development of each county or city and county
in accordance with a long-range, comprehensive general plan to
ensure the greatest benefit for the State as a whole." (Emphases
added.) If we adopted MLN's position, the administrative process
that HRS § 46-4(a) mandates the counties to prescribe would be
undermined and could be completely ignored in favor of court
action to invalidate a permit. Further, under MLN's position, a
court challenge to a permit could be filed at an indeterminate
time after the permit had been issued, which would create great
uncertainty rather than "promote the orderly development" of the
county. See HRS § 46-4(a).
Reading the relevant provisions of HRS § 46-4 in pari
materia, and under the circumstances in this case, we construe
the legislative intent as requiring the administrative review

15
(...continued)
or (2) if the State has commenced and is
diligently prosecuting a civil action to require
compliance with the provisions of this Act, or
any rule, order or permit issued under this
Act." 225 ILCS 720/8.05(a) (West 2008).
962 N.E.2d at 964.

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process and appeal from the administrative process as the
exclusive route for obtaining court review of the activity
permitted under the CUP. Pavsek is distinguishable because in
that case the plaintiffs challenged conduct that had not been
permitted under any administrative process.
Accordingly, the exhaustion of administrative remedies
doctrine applied to MLN's claims under HRS § 46-4 in Count I, and
MLN failed to exhaust its administrative remedies.
2. Counts II and IV: Declaratory Relief under HRS § 632-1
In Counts II and IV, MLN sought declaratory relief via
a determination that the CUP is void as a matter of law because
the intended uses at the Sports Park are not expressly permitted
by ordinance and violate the MCC and also that the Sports Park
does not qualify as a "regional park" under the MCC. MLN argues
the Circuit Court has original jurisdiction over these claims
under the declaratory relief statute, HRS § 632-1 (2016), and
that the statute confers broad authority on the Circuit Court to
hear these claims.
HRS § 632-1 generally allows for declaratory relief in
civil cases. Travelers Ins. Co. v. Hawaii Roofing, Inc., 64 Haw.
380, 386, 641 P.2d 1333, 1337 (1982). However, HRS § 632-1(b)
provides that "[w]here . . . a statute provides a special form of
remedy for a specific type of case, that statutory remedy shall
be followed[.]" (Emphasis added.) Thus, "where such a statutory
remedy exists, declaratory judgment does not lie." Punohu v.
Sunn, 66 Haw. 485, 487, 666 P.2d 1133, 1134 (1983) (citation
omitted).
In Punohu, plaintiffs initiated a declaratory relief
action in circuit court, seeking declaratory judgment that a
notice about reductions to their public assistance benefits
violated federal law and constitutional due process requirements.
Id. at 486, 666 P.2d at 1134. Previously, administrative
hearings had been held regarding the notice, in which the
reductions in benefits were upheld. Id. The Hawai#i Supreme
Court rejected plaintiffs' claim for declaratory relief because
an appeal under HRS § 91-14 was available from the underlying

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agency decision, in which the plaintiffs could have raised their
statutory and constitutional claims. Id. at 487, 666 P.2d at
1135. The Hawai#i Supreme Court stated:
the [administrative] hearing was a "contested case" under
the provisions of § 91–1(5), HRS, and as such, was
reviewable only in accordance with the provisions of §
91–14, HRS. Since the scope of review vested in the circuit
court in an appeal pursuant to § 91–14, HRS, is much more
limited than the court's plenary authority in an original
action commenced before it, it would be anomalous to permit
a declaratory judgment action to be substituted for an
appeal from an agency determination in a contested case.
Accordingly, we hold that the remedy of appeal provided by §
91–14, HRS, is a statutorily provided special form of remedy
for the specific type of case involved here and that a
declaratory judgment action, pursuant to § 632–1, HRS, did
not lie.

Id. (emphasis added). Thus, because HRS § 632-1 declaratory
relief was unavailable to the plaintiffs, the Hawai#i Supreme
Court instructed that the case be dismissed.16 Id. at 487-88,
666 P.2d at 1135.
Here, the Circuit Court's reliance on, inter alia,
Punohu was proper. Under HRS § 46-4(a), the county councils were
required to prescribe rules, regulations, and procedures to
enforce zoning. Under the MCC, MLN members could have intervened
in the Planning Commission hearing, and pursuant to HRS § 91-14,
MLN members could have appealed the issuance of the CUP. Thus,
HRS §§ 46-4(a) and 91-14 provide a special form of remedy for the
claims that MLN raises in Counts II and IV. The failure of MLN
members to intervene in the Planning Commission proceeding and
appeal from the issuance of the CUP under HRS § 91-14 precludes
declaratory relief under HRS § 632-1.
Thus, the Circuit Court did not have jurisdiction under
HRS § 632-1 and did not err in dismissing Counts II and IV for
failure to exhaust administrative remedies.

16
MLN cites County of Kaua#i v. Office of Information Practices, State
of Hawai#i, 120 Hawai#i 34, 200 P.3d 403 (App. 2009) to assert the Circuit
Court's reliance on Punohu was misplaced. However, it is County of Kaua #i
that is inapplicable because the relevant statute in that case, HRS § 92–12,
expressly permitted an original action in the circuit court, as opposed to
Punohu and other cases that concerned appeals of agency decisions. Id. at 44,
200 P.3d at 413.

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3. Counts III and VIII: Due Process Claims
In Counts III and VIII, MLN alleges violations to due
process rights under article I, section 5 of the Hawai#i
Constitution.
In Count III, MLN alleges the special use ordinance,
MCC § 19.30A.060(H), is unconstitutionally vague and ambiguous
because the language "playing fields, accessory buildings and
structures" fails to give the public notice of the intensity of
uses that may be permitted by the Planning Commission, thus
violating article I, section 5.
In Count VIII, MLN asserts a due process violation
because "the expedited special use process improperly avoids the
more thorough change in zoning process[,]" that DLNR was required
to seek amendments to the Wailuku-Kahului Community Plan and the
Maui Island Plan and a change in zoning from the Maui County
Council (County Council), that MLN members are property owners in
proximity to the Sports Park and have a property interest, and
that they were denied meaningful hearings before the County
Council.
MLN does not dispute the Circuit Court's ruling that
its constitutional claims could have been raised in the CUP
administrative proceeding and in an HRS § 91-14 appeal. See
Punohu, 66 Haw. at 486-87, 666 P.2d at 1134-35 (holding
constitutional due process claims were precluded in a declaratory
relief action because they could have been raised in an HRS § 91-
14 appeal from the agency decision); HRS § 91-14(g).17 As MLN

17
HRS § 91-14(g) (2012) provides,

(g) Upon review of the record the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
(continued...)

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correctly points out, however, the pertinent question is whether
the Planning Commission had exclusive original jurisdiction with
respect to these asserted due process claims or whether the
Circuit Court had concurrent jurisdiction over these claims.
As a general matter, claims based on constitutional
rights are subject to the exhaustion of administrative remedies
doctrine, unless an exception applies. Kellberg, 131 Hawai#i at
519, 531, 319 P.3d at 438, 450.18
In Kellberg, the case arose out of a planning
director's approval of a subdivision in the County of Hawai#i and
where the plaintiff was an adjacent landowner. 131 Hawai#i at
515, 319 P.3d at 434. The plaintiff did not appeal from a final
decision by the planning director and instead filed a complaint
in circuit court alleging, inter alia, due process violations.

17
(...continued)
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
(Emphasis added.)
18
See In re J.R. Simplot Co., 640 F.2d 1134, 1137 (9th Cir. 1981),
cert. denied, 455 U.S. 939 (1982) (holding that although the Occupational
Safety and Health Review Commission refused to address constitutional claims
during Occupational Safety and Health Administration proceedings, the
applicable statutory review procedure adequately assured judicial review of
any alleged constitutional violation, and thus, because the review procedure
provided an adequate remedy and contemplated exhaustion of administrative
remedies, the plaintiff had improperly sought relief directly in the federal
district court); see also RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056, 1061
(Alaska 2015) (holding that party was required to exhaust administrative
remedies with respect to state constitutional claims before seeking judicial
intervention); Salt Lake City Mission v. Salt Lake City, 184 P.3d 599, 602-03
(Utah 2008) (concluding that plaintiff that failed to appeal from planning
commission decision denying a conditional use permit failed to exhaust its
administrative remedies and its claims under the state constitution were
properly dismissed); Luck Bros., Inc. v. Agency of Transp., 99 A.3d 997, 999-
1001, 1003-04 (Vt. 2014) (noting exhaustion of administrative remedies is
often required even when a party asserts constitutional challenges to
administrative proceedings and concluding plaintiff's claims asserting a
property interest and a due process challenge to agency's process was subject
to exhaustion of administrative remedies); Farm Bureau Town & Country Ins. Co.
of Missouri v. Angoff, 909 S.W.2d 348, 352-53 (Mo. 1995) (en banc) (holding
that constitutional claims, that statutes violated due process for vagueness
and also appropriated property without due process, could be preserved and
raised during judicial review of administrative proceeding, and plaintiff was
required to exhaust administrative remedies); 2 Am. Jur. 2d Administrative Law
§ 455, Westlaw (database updated Oct. 2023) ("[t]he exhaustion requirement is
not rendered inoperable solely by the fact that a party applying for judicial
relief urges that there has been a violation of constitutional rights.").

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Id. at 519, 319 P.3d at 438. The due process claim asserted that
the plaintiff had a property interest related to the subdivision
as an adjacent landowner, that the County defendants had approved
the subdivision "without correcting patent defects" and without
providing any notice or due process to him, and that the
subdivision approval violated his right to due process under the
U.S. Constitution and article I, section 5 of the Hawai#i
Constitution. Id. In the circuit court and subsequently on
appeal, the parties litigated whether the case should be
dismissed for plaintiff's failure to exhaust administrative
remedies. Id. at 520, 527-34, 319 P.3d at 439, 446-53.
Notwithstanding the constitutional due process claims asserted by
plaintiff, the Hawai#i Supreme Court expressed that "generally
the doctrine of exhaustion of remedies requires an aggrieved
party to exhaust administrative remedies before seeking judicial
review." Id. at 531, 319 P.3d at 450 (citation omitted). In
other words, there was no indication that the exhaustion of
administrative remedies doctrine did not apply to the asserted
constitutional due process claims. The court further noted,
however, that "an aggrieved party need not exhaust administrative
remedies where no effective remedies exist[,]" and that "whenever
exhaustion of administrative remedies will be futile it is not
required." Id. (citations, brackets, and internal quotation
marks omitted). Analyzing the particular circumstances of that
case, the court held the plaintiff did not have an effective
administrative remedy because he was not made aware of the
relevant administrative decision until after the time to appeal
had ended. Id. at 531-34, 319 P.3d at 450-53.
"Failure to exhaust remedies is not an absolute bar to
judicial consideration and must be applied in each case with an
understanding of its purposes and of the particular
administrative scheme involved." 2 Am. Jur. 2d Administrative
Law § 454, Westlaw (database updated Oct. 2023); see Kellberg,
131 Hawai#i at 531, 319 P.3d at 450. In addition to futility,
excusing exhaustion of remedies may also occur when "the
plaintiff raises a substantial constitutional question which

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could not be resolved through the administrative process." 2 Am.
Jur. 2d Administrative Law § 454 (footnote omitted). "However,
the exhaustion requirement is not rendered inoperable solely by
the fact that a party applying for judicial relief urges that
there has been a violation of constitutional rights." Id. at
§ 455.
Here, MLN does not contest the Circuit Court's findings
that: on February 12, 2014, a "notice of public hearing was
mailed to all owners and lessees of record located within a five-
hundred-foot distance from the Property" (FOF 49-50); "[p]ersons
receiving actual notice of public hearing scheduled for March 25,
[2014,19] included individuals who would later become members and
officers of Plaintiff MLN" including Vice-President Harley
Manner, Member Mary Spencer, Treasurer Holden Gannon, President
David Potter, former president and current Director Tina Hoenig,
member Mark Hoenig, and member Neal Sorensen (FOF 55); five
future officers or members of MLN attended the March 25, 2014
hearing - Tina Hoenig, Dr. Manner, Dr. Spencer, Mr. Hoenig, and
Mr. Sorensen (FOF 60); Tina Hoenig testified at the March 25,
2014 hearing (FOF 62); Dr. Manner, who would later become MLN's
Vice-President, and Dr. Spencer heard the Planning Commission's
decision at the end of the March 25, 2014 hearing (FOF 66); and
"[a]t no time prior to or during the March 25, 2014 hearing did
any person file a petition to intervene in the CUP proceeding
[(FOF 63)]." Further, Dr. Spencer testified during the December
22, 2014 evidentiary hearing before the Circuit Court that she
testified at the March 25, 2014 hearing on the CUP application.
Thus, at least seven individuals who would become an
MLN member, director, or officer received notice of the public
hearing scheduled for March 25, 2014, five of them attended the
March 25, 2014 hearing, and two of them – Tina Hoenig and Mary
Spencer – actively participated in that hearing by testifying.
No one sought to intervene. Given their participation by

19
The Circuit Court's FOF 55 has a typographical error stating the
public hearing was on March 25, 2015.

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testifying in the Planning Commission hearing, Tina Hoenig and
Spencer could have appealed from the Planning Commission's
decision to issue the CUP. See In re Hawai#i Elec. Light Co.,
145 Hawai#i 1, 22, 445 P.3d 673, 694 (2019) ("Although an
aggrieved person must have participated in a contested case in
order to invoke judicial intervention, we have not 'conditioned
standing to appeal from an administrative decision upon formal
intervention in the agency proceeding.'") (citation omitted); see
also Life of the Land, Inc. v. Land Use Comm'n, 61 Haw. 3, 9, 594
P.2d 1079, 1083 (1979) (holding that Life of the Land had
standing to appeal from Land Use Commission's decision where its
representative submitted written comments to, and testified at
public hearing before, the commission).
On May 12, 2014, Tina Hoenig - MLN's founding member,
future president, and director – filed a notice of appeal
pursuant to HRS § 91-14 in the Circuit Court, docketed as Civil
No. 14-1-0315, challenging the CUP (FOF 76-77). However, a
little more than a month later, on June 20, 2014, Ms. Hoenig and
the County of Maui filed a stipulation to dismiss Civil No. 14-1-
0315 without prejudice (FOF 80). In this case, Ms. Hoenig was
not called as a witness in the evidentiary hearing addressing the
motion to dismiss and thus offered no evidence to explain her
reasons for agreeing to dismiss Civil No. 14-1-0315 (FOF 80). In
short, the only attempt to appeal from the Planning Commission's
decision to issue the CUP was dismissed shortly after it was
filed.
As discussed earlier, the statutes, ordinances and
regulations related to issuance of the CUP established "clearly
defined machinery for the submission, evaluation and resolution
of complaints by aggrieved parties." Kellberg, 131 Hawai#i at
536, 319 P.3d at 455 (emphasis and citation omitted). Here, the
agency procedure and the right to appeal the agency decision
provided an adequate remedy to address MLN's claims in Count III
and VIII. Unlike in Kellberg, individuals who would later become
officers, directors, and members of MLN were well aware of the
Planning Commission's hearing on the CUP, some attending and two

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testifying, and at least two of these individuals heard the
Planning Commission's decision at the end of the March 25, 2014
hearing. Given these circumstances, the exhaustion of
administrative remedies doctrine applied to MLN's claims in
Counts III and VIII.20
MLN further contends, however, that where there are
constitutional claims based on the effect of an agency decision,
as opposed to the substance of the decision, the exhaustion of
administrative remedies doctrine is not implicated, citing Leone
v. County of Maui, 128 Hawai#i 183, 192, 284 P.3d 956, 965 (App.
2012). MLN's argument is misplaced because Leone involved
regulatory takings claims and is distinguishable from this case.
In Leone, appellants owned properties zoned "Hotel-Multifamily,"
which permitted "a variety of economically beneficial uses,
including single-family residences." Id. at 187, 284 P.3d at
960. However, the parcels were designated "park" in the 1998
Kihei–Makena Community Plan which did not permit the construction
of single-family residences. Id. The parcels were also located
in a special management area, under the Coastal Zone Management
Act (CZMA), which imposed stringent permit requirements for
certain developments within special management areas. Id.
The appellants sought to construct single-family homes
on their properties, a process was initiated for changing the
community plan designation from "park" to "residential," but
"[s]everal commissioners advocated for prolonging the amendment
process as a deliberate strategy to preserve the status quo–a de
facto beach park on the privately-owned lots." Id. at 188, 284
P.3d at 961. Appellants also filed assessment applications
seeking a determination that their proposed use was exempt from
the special management area permit requirements, but the Director
of the Department of Planning of the County of Maui rejected the
applications because, inter alia, "the proposed use was
inconsistent with the properties' 'park' designation in the
Community Plan." Id.

20
We address infra MLN's claim that the futility exception applies.

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Thereafter, without exhausting administrative remedies
or appealing the director's decision to the planning commission,
the appellants filed inverse condemnation claims in the circuit
court. Id. at 188-89, 284 P.3d at 961-62. Their circuit court
action claimed that Maui County had engaged in regulatory takings
by depriving their properties of any economially viable use and
asserted equal protection and substantive due process violations.
Id. at 188-89, 284 P.3d at 961-62. Within the context of a
regulatory takings case, this court held that "where landowners
do not challenge the substance of the decision of the land-use
authority, but instead raise constitutional claims based on the
effect of the decision, the doctrines of exhaustion and primary
jurisdiction are not implicated." Id. at 192, 284 P.3d at 965
(emphases added). As noted in Leone, a "regulatory taking"
requires just compensation, and the appellants' contention in
Leone was that "in denying them the opportunity to build a
single-family residence, Maui County has deprived them of all
economically beneficial use of their property." Id. at 190, 284
P.3d at 963.
In the instant case, MLN does not assert a regulatory
takings claim. Instead, Counts III and VIII assert the CUP
issued by the Planning Commission is invalid. MLN's opening
brief argues that "to the extent the Planning Commission has
acted illegally and ultra vires in issuing the [C]UP, the [C]UP
is null and void as a matter of law." Hence, MLN's claims are
based on the substance and not the effect of the Planning
Commission's decision. Leone does not preclude application of
the exhaustion of administrative remedies doctrine in this case.
MLN also cites Waianae Coast, 64 Haw. 265, 639 P.2d
1097, to argue that its members' due process rights were violated
because the CUP essentially effectuated a change in zoning
without going through a rezoning process. However, MLN fails to
explain how Waianae Coast is relevant to whether the Circuit
Court had concurrent jurisdiction in this case to address MLN's
due process claims. Waianae Coast does not address the
exhaustion of administrative remedies doctrine or the primary

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jurisdiction doctrine.21 Therefore, MLN's reliance on Waianae
Coast is misplaced.
Given that Counts III and VIII present claims
challenging the validity of the CUP, there was an established
regulatory process for MLN members to intervene in the Planning
Commission proceeding and to seek judicial review by appealing
under HRS § 91-14. Under these circumstances, the Circuit Court
did not have concurrent jurisdiction and did not err in
dismissing the due process claims in Counts III and VIII for
failure to exhaust administrative remedies.
4. Count IX: Claim Based on Lack of Notice
In Count IX of the First Amended Complaint, MLN seeks
declaratory and other relief for DLNR's alleged failure to
provide adequate notice of its CUP application as required by MCC
§ 19.510.010(E) (2013 Supp. No. 38),22 which deprived MLN
homeowners of the opportunity to be informed of the Planning
Department's decision to require the developer to apply for a
CUP, rather than engage in the comprehensive change in zoning
process. We address MLN's claim to the extent that in Kellberg,
the Hawai#i Supreme Court held that the exhaustion of
administrative remedies doctrine may be excused based on a lack
of notice in certain circumstances. 131 Hawai#i at 532-33, 319
P.3d at 451-52.
In Kellberg, the relevant county code at the time did
not require any notice to adjoining property owners of pending

21
In Waianae Coast, the appellants had filed a petition with the LUC
requesting intervention and a contested case hearing, which the LUC denied.
Id. at 267, 639 P.2d at 1100. Appellants then challenged the LUC's decision
in the circuit court. Id. at 268, 639 P.2d at 1100.
22
MCC § 19.510.010 requires, in pertinent part:

19.510.010 - General application procedures.

. . . .
E. At the time of the filing of the application, the
applicant shall file a notice of application, which is
in a form prescribed by the planning director, and an
affidavit certifying that the notice of application was
mailed to all owners and lessees of record located
within a five-hundred-foot distance from the subject
parcel.

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subdivision applications or final approval of applications by the
planning director. Id. at 532, 319 P.3d at 451. By the time the
plaintiff learned of a final subdivision approval by the planning
director, the time for appeal to the county board of appeals had
already passed. Id. at 532-33, 319 P.3d at 451-52. The Hawai#i
Supreme Court did not expressly state that the futility exception
applied in Kellberg, but the supreme court nevertheless excused
application of the exhaustion of administrative remedies doctrine
where the plaintiff had no opportunity to receive notice of the
pending subdivision application or planning director's final
approval because the county code and county board of appeals
rules did not require such notice, and the plaintiff had no
meaningful opportunity to timely appeal the planning director's
decision. Id.
In this case, the Circuit Court found and it is
uncontested that at least seven individuals who would later
become members and officers of MLN received notice of the public
meeting for DLNR's CUP application. FOF 55. Moreover, the MLN
members and officers who testified at the evidentiary hearing
before the Circuit Court admitted that they received notice of
the hearing prior to the hearing date. FOF 56. However, none of
these individuals reviewed the Planning Commission rules, nor did
they contact a lawyer, the DLNR representative designated on the
notice, or the Planning Department. FOF 57. At least five
future officers, directors, and/or members of MLN attended the
Planning Commission's hearing. FOF 60. Based on FOF 62 and
testimony before the Circuit Court, Tina Hoenig, who would later
become President and a director for MLN, and Spencer, who would
become a member of MLN, testified at the Planning Commission
hearing. Two individuals who would become MLN members testified
they heard the Planning Commission's decision to approve the CUP.
FOFs 65-66. Finally, MLN does not dispute the Circuit Court's
COL 6, that although MLN was incorporated after the public
hearing, "[t]o the extent [MLN] claims to have succeeded to its
officers' and members' interests, [MLN] is subject to the notice

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that they received and is burdened by their failures to exhaust
administrative remedies."
Based on these uncontested findings, MLN members and
officers had notice that the Sports Park would be addressed
through a special use permit and not a change in zoning, but
failed to intervene in the CUP process or to maintain an appeal
from the Planning Commission's decision to issue the CUP. The
circumstances in this case are distinguishable from Kellberg.
The Circuit Court did not err in dismissing Count IX.
5. The Circuit Court Correctly Ruled That MLN
Failed to Show the Futility Exception Applied

MLN contends that even if the exhaustion of
administrative remedies doctrine applied, the Circuit Court erred
by ruling that the futility exception recognized in Kellberg was
inapplicable. Specifically, MLN asserts that any challenge
before the Planning Commission to process the Sports Park through
a CUP procedure, as opposed to a change in zoning, would have
been futile because the Planning Commission would have been
powerless to adjudicate these claims. MLN also contends it did
not have adequate notice of the Planning Commission proceedings.
"Ordinarily, futility refers to the inability of an
administrative process to provide the appropriate relief."
Kellberg, 131 Hawai#i at 531, 319 P.3d at 450 (citation omitted).
Likewise, "an aggrieved party need not exhaust administrative
remedies where no effective remedies exist." Id. (citation, and
brackets omitted). "The burden of proving that any particular
administrative remedy is futile rests with the litigant seeking
to bypass it." Id. at 531 n.22, 319 P.3d at 450 n.22 (citation
and brackets omitted).
The assertion that MLN was provided inadequate notice
has been addressed above and we reject that argument. With
regard to MLN's further argument, MLN fails to show that the
Planning Commission could not consider whether the CUP
application should have been denied in favor of seeking a change
in zoning. Indeed, MCC § 19.510.070(A), which the Planning
Commission was required to follow, provides that "[a] special use

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permit shall comply with the provisions of this section and with
the policies and objectives of the general plan and community
plans of the county, the Hawaii Revised Statutes, and the revised
charter of the county." Further, under MCC § 19.510.070(B), the
Planning Commission was required to find that eight criteria were
met before approving the CUP, including that "[t]he proposed
request meets the intent and purpose of the applicable
district[.]" MCC § 19.510.070(B)(3) (emphasis added).23 The
Planning Commission was thus required to find that the Sports
Park met the intent and purpose of the County's agricultural
zoning district for the property.
Moreover, if an appeal had been asserted or maintained
from the CUP approval, MLN could have sought judicial review
pursuant to HRS § 91-14 and challenged whether the Planning
Commission's decision was, inter alia, "[i]n excess of the
statutory authority or jurisdiction of the agency" or "[a]ffected
by other error of law[.]" HRS § 91-14(g).
We conclude MLN's assertion that it would have been
futile to exhaust its administrative remedies is without merit.
D. Count V: HEPA Claims

In Count V, MLN summarizes its allegations as follows:
236. As alleged in further detail below: (a) DLNR has
an obligation to supplement the Wai#ale [Final Environmental
Impact Statement (FEIS)] because the Sports Complex uses are
part of the Wai#ale project, and the Sports Complex
[Environmental Assessment] does not constitute as a [sic]
supplementation for an EIS; and (b) State Defendants and/or
County Defendants' actions or omissions constitute illegal
segmentation of a larger project because the Sports Complex
is part of a larger project, the Sports Development
Initiative, and/or the Sports Complex is part of a larger
plan to create a number of regional parks in Central Maui.

(Emphases added.)24 In short, Count V alleges that, due to the

23
MCC § 19.06.010 (2013 Supp. No. 38) sets out the types of zoning
"districts" that exist in the County of Maui, including an "Agricultural
district". In turn, MCC § 19.30A.060 (2013 Supp. No. 38) provides that
certain uses and structures are permitted in the agricultural district if a
special use permit is obtained pursuant to MCC § 19.510.070.
24
Count V contains numerous further paragraphs detailing the claim
summarized in paragraph 236.

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Sports Complex (which we refer to herein as the Sports Park), a
supplement to the Wai#ale FEIS was required and there was illegal
segmentation of the larger project.
The Circuit Court dismissed MLN's Count V claims on
grounds that MLN failed to exhaust administrative remedies by not
intervening in the CUP approval process and thereafter filing an
HRS § 91-14 appeal for judicial review of the Planning
Commission's decision. On appeal, MLN contends that exhaustion
of administrative remedies is inapplicable to its HEPA claims,
and that under HRS § 343-7 (2010) it has the right to raise
issues regarding environmental impact statements by bringing a
judicial proceeding. A&B counters that MLN's Count V HEPA claims
are barred because MLN could have raised the HEPA issues in the
Planning Commission's administrative proceedings, and because HRS
§ 343-7(b) (2010) sets time limitations for initiating a judicial
proceeding related to an environmental impact statement.25 A&B
further points to the uncontested conclusion by the Circuit Court
that the Planning Commission addressed HEPA compliance in its CUP
determination and made specific findings that "[t]he proposed
project is consistent with the environmental policies, goals, and
guidelines expressed in Chapter 343 and 344, HRS." See COL
65(h).
The primary focus of the First Amended Complaint is to
seek declaratory and injunctive relief related to the CUP issued
by the Planning Commission for the Sports Park. Indeed, the
Circuit Court made a determination that, except for Count VII
(public nuisance), the counts in MLN's First Amended Complaint

25
HRS § 343-7(b) provides, in relevant part:

Limitation of actions. . . .

(b) Any judicial proceeding, the subject of which is the
determination that a statement is required for a proposed
action, shall be initiated within sixty days after the
public has been informed of such determination pursuant to
section 343-3. Any judicial proceeding, the subject of
which is the determination that a statement is not required
for a proposed action, shall be initiated within thirty days
after the public has been informed of such determination
pursuant to section 343-3. . . .

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"constitute challenges to the validity of the CUP and its
approval." FOF 101 (emphasis added).26 MLN does not expressly
dispute this determination.
We conclude that, to the extent the Count V claims
constitute a challenge to the validity of the CUP, the claims
were properly dismissed for failure to exhaust administrative
remedies. Such claims seek declaratory relief that the CUP is
invalid on HEPA grounds, but as discussed above, MLN members did
not intervene in the Planning Commission proceedings from which
they could have sought judicial review. As found by the Circuit
Court and not challenged on appeal, the Planning Commission
considered whether the Sports Park complied with Chapter 343 and
determined that it was consistent with Chapter 343. MLN members
could have intervened in the Planning Commission proceedings and
could have appealed the issuance of the CUP under HRS § 91-14,
but did not.
However, we must also conduct an independent review of
the First Amended Complaint.
Our review of a motion to dismiss for lack of subject matter
jurisdiction is based on the contents of the complaint, the
allegations of which we accept as true and construe in the
light most favorable to the plaintiff. Dismissal is improper
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.

Casumpang v. ILWU, Local 142, 94 Hawai#i 330, 337, 13 P.3d 1235,
1242 (2000) (quoting Norris, 74 Haw. at 240, 842 P.2d at 637)
(brackets and internal quotation marks omitted).
MLN's argument on appeal as to Count V is minimal.
But, it does assert that the Planning Commission did not have
exclusive jurisdiction of its HEPA challenge. Rather, MLN argues
that the BLNR was the accepting authority for the EA prepared by
DLNR for the Sports Park, referencing paragraphs 96 to 102 of the
First Amended Complaint. MLN apparently contends the BLNR,

26
Although the Circuit Court set out this determination in a finding
of fact, we deem it a legal conclusion based on the Circuit Court's reading of
the First Amended Complaint. We are thus not bound by FOF 101. However, it
is noteworthy that MLN does not challenge the Circuit Court's reading of its
First Amended Complaint.

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rather than the Planning Commission, was the appropriate
authority to address HEPA issues related to the Sports Park.
Given the allegations in the First Amended Complaint
and MLN's arguments on appeal, to the extent MLN's Count V claims
seek relief other than invalidating the CUP, we conclude
dismissal of such claims on grounds that MLN failed to exhaust
administrative remedies was improper.
Regarding A&B's assertion that HRS § 343-7(b) applies
to bar MLN's Count V claims, that argument is based on whether
MLN's Count V claims are timely. The Circuit Court did not reach
the issue of whether the Count V claims were time-barred because
it based its dismissal on exhaustion of administrative remedies.
We likewise do not reach the question whether the Count V claims
are time-barred.
E. Count VI: Claims Pursuant to Article XI, Section 9
MLN contends that the Circuit Court has original
jurisdiction to hear its Count VI claims under HRS Chapters 46,
205, and 343 because they are "environmental quality laws"
cognizable under article XI, section 9 of the Hawai#i
Constitution. Article XI, section 9 provides:
Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any person
may enforce this right against any party, public or private,
through appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law.

Whether the exhaustion of administrative remedies
doctrine or the primary jurisdiction doctrine apply to claims
brought under article XI, section 9 is an issue of first
impression. Given the plain language and history of article XI,
section 9, as well as relevant case law, we hold that neither the
exhaustion of administrative remedies doctrine nor the primary
jurisdiction doctrine apply to claims brought under article XI,
section 9 of the Hawai#i Constitution.
As discussed below, the Hawai#i Supreme Court has
recognized that article XI, section 9 "has both a substantive and

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a procedural component." County of Hawaii v. Ala Loop
Homeowners, 123 Hawai#i 391, 409, 235 P.3d 1103, 1121 (2010),
abrogated on other grounds by Tax Found of Hawai#i v. State, 144
Hawai#i 175, 439 P.3d 127 (2019). Considering these components
for purposes of MLN's article XI, section 9 claims as defined by
HRS chapters 46 and 205, we hold that the Circuit Court does not
have jurisdiction pursuant to HRS § 632-1 given the legislature's
reasonable limitations on declaratory judgment actions. With
respect to MLN's article XI, section 9 claim as defined by HRS
Chapter 343, we hold: the Circuit Court also does not have
jurisdiction pursuant to HRS § 632-1 to the extent this claim
seeks to invalidate the CUP; but to the extent this claim seeks
relief other than invalidating the CUP, the Circuit Court has
jurisdiction.
1. Pertinent Case Law Regarding Article XI, Section 9 Claims
We first consider the contours of the rights
established under article XI, section 9, as previously determined
by the Hawai#i Supreme Court. In doing so, we review Ala Loop
and In re Application of Maui Electric Co., Ltd., 141 Hawai#i
249, 408 P.3d 1 (2017) (MECO) for context.
a. Ala Loop
In Ala Loop, the Hawai#i Supreme Court held that
article XI, section 9 "creates a private right of action to
enforce chapter 205 in the circumstances of this case[.]" 123
Hawai#i at 394, 235 P.3d at 1106. There, a dispute arose between
a charter school and neighboring residents about whether the
charter school was required to obtain a special permit to
operate. No permit had been issued in that case. The County of
Hawai#i filed a declaratory relief action, naming the charter
school and a community association as defendants; the community
association filed a cross-claim against the charter school
asserting the right to enforce provisions of HRS Chapter 205.
Id. at 393, 235 P.3d at 1105.
In recognizing the community association's private
right of action in that case, the Hawai#i Supreme Court expressed
that:

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[article XI, section 9] has both a substantive and a
procedural component. First, it recognizes a substantive
right "to a clean and healthful environment," with the
content of that right to be established not by judicial
decisions but rather "as defined by laws relating to
environmental quality." Second, it provides for the
enforcement of that right by "any person" against "any
party, public or private, through appropriate legal
proceedings, subject to reasonable limitations and
regulation as provided by law."

Id. at 409, 235 P.3d at 1121 (emphasis added) (footnote omitted).
The court further held that HRS Chapter 205 is a "law[] relating
to environmental quality" within the scope of enforcement rights
established by article XI, section 9, because it was a law
relating to the conservation, protection, and enhancement of
natural resources. Id. The court also relied on HRS § 607-25 as
reflecting the legislature's determination that chapter 205 is an
environmental quality law for purposes of article XI, section 9.
Id. at 410, 235 P.3d at 1122. Additionally, the court held that
article XI, section 9 was self-executing. Id. at 410-17, 235
P.3d at 1122-29.
As part of its analysis, the court recognizing that
article XI, section 9 "provides that the legislature has the
authority to impose 'reasonable limitations and regulation' on
potential litigants . . . who seek to bring private actions to
enforce laws relating to environmental quality." Id. at 417, 235
P.3d at 1129. However, the court rejected the charter school's
argument that HRS § 205-12 (1993),27 which provides enforcement
authority to the counties, precluded the community association's
private right of action under chapter 205. Id. at 417-18, 235
P.3d at 1129-30. The court reasoned that the charter school's
interpretation of HRS § 205-12 would
exceed the power granted to the legislature in article XI,
section 9 to impose "reasonable limitations and regulation"

27
HRS § 205-12 (1993) provides:
Enforcement. The appropriate officer or agency charged with
the administration of county zoning laws shall enforce
within each county the use classification districts adopted
by the land use commission and the restriction on use and
the condition relating to agricultural districts under
section 205–4.5 and shall report to the commission all
violations.

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on the right of private enforcement. The inclusion of the
word "reasonable" in that phrase clearly indicates that the
power to limit or regulate is not unfettered. The
abolishment of the private right altogether by HRS § 205–12,
on the theory that the county would enforce the same
underlying substantive interests, would not be a
"reasonable" limitation within the meaning of the provision.
Id. at 418, 235 P.3d at 1130. Relying on Standing Committee
Report No. 77, in 1 Proceedings of the Constitutional Convention
of 1978, at 690 (Standing Committee Report No. 77), the supreme
court expressed that:
the framers understood that private enforcement would
"complement" government enforcement, rather than be
supplanted by it. The clear import of the passage is that
"reasonable limitations and regulation" would encompass
matters such as statutes of limitations or procedural or
jurisdictional limitations. While such restrictions might
preclude a particular plaintiff from bringing suit in a
particular circumstance, the framers did not envision that
they would be used to eliminate private enforcement
altogether.
Id. (emphasis added). Notably, the court stated that the charter
school "has not suggested that exhaustion or primary jurisdiction
applies. Accordingly, we do not address whether the application
of those doctrines would constitute a reasonable limitation or
restriction under the facts of this case." Id. (emphases added).
Under the circumstances in Ala Loop, the supreme court
held the community association had a private right of action
under article XI, section 9 to enforce its chapter 205 claims
such that the circuit court had jurisdiction. Id. at 422, 235
P.3d at 1134. No agency proceeding had been held in that case
and no permit issued.
b. MECO
In MECO,28 the Hawai#i Supreme Court held that "under
the circumstances of this case, the petitioners asserted a
protectable property interest in a clean and healthful
environment as defined by environmental regulations [HRS chapter
269]; that [an] agency decision adversely affected this interest;

28
The opinion in MECO was issued after the Circuit Court's Final
Judgment was entered in this case and after initial briefing on appeal. This
court issued an order for the parties to file supplemental briefs addressing
whether and how MECO affects the issues in this case, particularly as to MLN's
article XI, section 9 claims and the doctrines of exhaustion of administrative
remedies and primary jurisdiction.

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and that a due process hearing was required given the importance
of the interest, the risk of an erroneous deprivation, and the
governmental interests involved." 141 Hawai#i at 253, 408 P.3d
at 5 (emphasis added).
The case arose from an application filed by Maui
Electric Company, Ltd. (Maui Electric) with the Public Utilities
Commission (PUC), seeking approval of a power purchase agreement
(PPA) with a third party. Id. at 253, 408 P.3d at 5. The Sierra
Club filed a motion to intervene or to participate in the
application proceedings, asserting a due process right to
participate in a hearing. Id. at 254, 408 P.3d at 6. The PUC
denied Sierra Club's motion to intervene or to participate, and
issued a Decision and Order granting the application to approve
the PPA. Id. at 255-56, 408 P.3d at 7-8. Sierra Club appealed
from the Decision and Order to the Intermediate Court of Appeals
(ICA), but the PUC and Maui Electric challenged the ICA's
jurisdiction on grounds that the appeal did not arise from a
contested case. Id. at 256, 408 P.3d at 8. After this court
dismissed the appeal for lack of jurisdiction, the Hawai#i
Supreme Court granted Sierra Club's application for writ of
certiorari. Id.
In addressing appellate jurisdiction, the Hawai#i
Supreme Court first noted that "[j]udicial review over an agency
appeal is authorized by HRS § 91-14" and further that "there are
four requirements for judicial review over an agency appeal: a
contested case hearing, finality, compliance with agency rule,
and standing." Id. at 258, 408 P.3d at 10 (emphasis added). As
to whether the PUC proceeding was a "contested case," the court
noted a contested case hearing is one that, inter alia, is
"required by law." Id. (citations omitted). "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. (emphasis added) (citations and internal
quotation marks omitted).
The Sierra Club asserted a hearing was required by,
inter alia, the due process clause in article I, section 5 of the

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Hawai#i Constitution. Id. at 258-60, 408 P.3d at 10-12. The
court thus considered whether the Sierra Club asserted a
protected property interest such that procedural due process
applied pursuant to the Hawai#i Constitution. See id. at 260,
408 P.3d at 12. The court explained:
Article XI, section 9 is self-executing, and it "establishes
the right to a clean and healthful environment, 'as defined
by laws relating to environmental quality.'" Ala Loop, 123
Hawai#i at 417, 235 P.3d at 1127. This substantive right is
a legitimate entitlement stemming from and shaped by
independent sources of state law, and is thus a property
interest protected by due process.
Although a person's right to a clean and healthful
environment is vested pursuant to article XI, section 9, the
right is defined by existing law relating to environmental
quality.

Id. at 261, 408 P.3d at 13 (emphasis added) (footnote omitted).
Sierra Club asserted a right to a clean and healthful
environment as defined by HRS chapter 269, titled Public
Utilities Commission. Id. The supreme court held that:
HRS Chapter 269 is a law relating to environmental quality
that defines the right to a clean and healthful environment
under article XI, section 9 by providing that express
consideration be given to reduction of greenhouse gas
emissions in the decision-making of the Commission.
Accordingly, we hold that Sierra Club has established a
legitimate claim of entitlement to a clean and healthful
environment under article XI, section 9 and HRS Chapter 269.

Id. at 264, 408 P.3d at 16.
Given its ruling that the Sierra Club was asserting a
protectable property interest, the Hawai#i Supreme Court next
addressed the procedures required by due process to protect the
property interest created by article XI, section 9 as defined by
chapter 269, and specifically, whether the Sierra Club was
entitled to intervene in the PUC hearing.29

29
The court expressed that:

In determining the procedures required to comply with
constitutional due process, we consider the following
factors: (1) the private interest which will be affected;
(2) the risk of an erroneous deprivation of such interest
through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; and (3) the governmental interest, including the
burden that additional procedural safeguards would entail.
(continued...)

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As part of its analysis of the risk of erroneous
deprivation, the majority in MECO rejected the dissent's position
that if Sierra Club did not have a constitutional right to
intervene in the PUC proceedings, it would not be deprived of any
recourse because it could file a declaratory judgment action.
Id. at 267, 408 P.3d at 19; see also id. at 277, 408 P.3d at 29
(Recktenwald, C.J., dissenting). As stated by the majority
opinion:
the dissent . . . takes the uncompromising position that the
exclusive procedural mechanism for protecting an interest
derived from article XI, section 9 is the private
declaratory action that the provision authorizes. Dissent
at 276–77, 408 P.3d at 28–29. The dissent's contention is
not supported by the wording of article XI, section 9, which
contains no such exclusivity language, nor by the due
process clause of our Constitution, whose protections are
not restricted by the right to pursue a declaratory action.
141 Hawai#i at 267, 408 P.3d at 19.
Thus, the Hawai#i Supreme Court held that, "under the
circumstances of this case, the protected property interest in a
clean and healthful environment asserted by Sierra Club
necessitated a hearing by the Commission to consider the impacts
of approving the Agreement on Sierra Club's members' right to a
clean and healthful environment[.]" Id. at 21, 408 P.3d at 269
(emphasis added). The court thus concluded the ICA had erred in
deciding there was no appellate jurisdiction over Sierra Club's
appeal. Id. at 23, 408 P.3d at 271.
2. MECO Does Not Mandate The Circuit Court
Had Jurisdiction Over MLN's Count VI Claims
In supplemental briefing in this case regarding how
MECO affects MLN's article XI, section 9 claims and the doctrines
of exhaustion of administrative remedies and primary
jurisdiction, MLN asserts it is not limited to only one forum in
asserting its constitutional claims. Rather, MLN contends that
"a court will always have concurrent jurisdiction over a
constitutional claim where that claim could have also been
brought in an administrative proceeding." We disagree.

29
(...continued)
Id. at 265, 408 P.3d at 17 (citations and quotation marks omitted).

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First, we note that the supreme court's holding in MECO
is not supportive of MLN's assertion. In MECO, the Hawai#i
Supreme Court held that Sierra Club had a procedural due process
right to intervene in the administrative hearing before the PUC.
Contrary to MLN's interpretation of that decision, the MECO court
did not hold that Sierra Club - the party asserting the article
XI, section 9 claim in that case - was entitled to both an
administrative hearing and a declaratory judgment action.
Rather, the opinion in MECO reflects that no declaratory judgment
action was filed. The majority and dissenting opinions in MECO
differed, inter alia, as to whether a declaratory judgment action
would have provided adequate procedural protection, as opposed to
an agency hearing. However, the court did not hold that both
types of proceedings were required in that case.
Second, we disagree with MLN given the Hawai#i Supreme
Court's decision in Punohu v. Sunn, 66 Haw. 485, 666 P.2d 1133,
which the County and A&B cite in their supplemental briefs. As
discussed previously, in Punohu, administrative hearings were
held regarding reduction of welfare benefits and instead of
appealing pursuant to HRS § 91-14, the benefit recipients filed
lawsuits for declaratory relief, including claims that their due
process rights were violated. The Hawai#i Supreme Court noted
that HRS § 632-1, relating to jurisdiction for declaratory
judgments, provides in part, "[w]here, however, a statute
provides a special form of remedy for a specific type of case,
that statutory remedy shall be followed[.]" 66 Haw. at 487, 666
P.2d at 1134. The court then held:
Since the scope of review vested in the circuit court in an
appeal pursuant to § 91–14, HRS, is much more limited than
the court's plenary authority in an original action
commenced before it, it would be anomalous to permit a
declaratory judgment action to be substituted for an appeal
from an agency determination in a contested case.
Accordingly, we hold that the remedy of appeal provided by §
91–14, HRS, is a statutorily provided special form of remedy
for the specific type of case involved here and that a
declaratory judgment action, pursuant to § 632–1, HRS, did
not lie.
. . .

Nothing prevented the appellees from raising, at the
[agency] hearing, their contentions with respect to the

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inadequacy of the notice and, at oral argument, we were
informed that they did so. Their remedy from an adverse
determination at that [agency] hearing was by way of appeal
pursuant to Chapter 91, HRS, and not by way of an
independent action for declaratory judgment. Accordingly,
the judgments below are reversed and the cases are remanded
to the circuit court with instructions to dismiss them.
Id. at 487, 666 P.2d at 1135 (emphases added).
Thus, under Punohu, where the beneficiaries had the
opportunity to raise their contentions in a contested case, and
an agency determination was made, the proper remedy was an
administrative appeal, even though the welfare beneficiaries
asserted due process violations related to their benefits. An
independent action for declaratory judgment was not allowed and
the case was dismissed. Based on the foregoing, we reject MLN's
assertion that under MECO a court will always have concurrent
jurisdiction over a constitutional claim that could have also
been raised in an agency proceeding.
3. Analysis for MLN's Article XI, Section 9 Claims
In Ala Loop, the Hawai#i Supreme Court recognized that
article XI, section 9 "has both a substantive and a procedural
component." 123 Hawai#i at 409, 235 P.3d at 1121 (emphasis
added).
First, it recognizes a substantive right "to a clean and
healthful environment," with the content of that right to be
established not by judicial decisions but rather "as defined
by laws relating to environmental quality." Second, it
provides for the enforcement of that right by "any person"
against "any party, public or private, through appropriate
legal proceedings, subject to reasonable limitations and
regulation as provided by law."

Id. (emphases added).
Given this framework, the first step in analysing
jurisdiction over a party's claims asserted under article XI,
section 9 requires a determination that a party's claims arise
under "laws relating to environmental quality." For purposes of
defining "laws relating to environmental quality" under article
XI, section 9, the Hawai#i Supreme Court has looked to HRS § 607-
25.30, 31 HRS § 607-25(e) authorizes recovery of attorney's fees

30
See Ala Loop, 123 Hawai#i at 410, 235 P.3d at 1122 (explaining that
HRS § 607-25 reflects the legislature's determination that HRS chapter 205 is
(continued...)

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and costs in private party civil actions when a party undertakes
development "without obtaining all permits or approvals required
by law from government agencies[.]"32
Second, once it is established that a party's claims
arise under a "law relating to environmental quality," the second
sentence in article XI, section 9 provides: "Any person may
enforce this right against any party, public or private, through
appropriate legal proceedings, subject to reasonable limitations
and regulation as provided by law." (Emphasis added.) Thus, a
second step in analyzing whether a court has jurisdiction over an
article XI, section 9 claim is to consider whether there are
"reasonable limitations and regulation as provided by law."
In this case, MLN contends it has asserted claims for
relief under HRS Chapter 46, 205, and 343, which are
"environmental quality laws," and thus such claims are cognizable
under article XI, section 9. The parties do not dispute that HRS
Chapters 46, 205, and 343 establish "laws relating to
environmental quality" within the meaning of article XI, section
9. Thus, there is no challenge to the substantive component of
MLN's article XI, section 9 claim.
Regarding the procedural component related to MLN's
article XI, section 9 claims, we must consider whether there are
"reasonable limitations and regulation as provided by law." This

30
(...continued)
a "law[] relating to environmental quality within the meaning of article XI,
section 9"); Protect and Preserve Kahoma Ahupua #a Ass'n 149 Hawai#i at 313, 489
P.3d at 417 (stating that HRS § 607-25 reflects the legislature's
determination that HRS Chapter 205A is a "law relating to environmental
quality" for the purposes of article XI, section 9).
31
HRS § 607-25(c)(2016) provides, in pertinent part:

For purposes of this section, the permits or approvals
required by law shall include compliance with the
requirements for permits or approvals established by
chapters 6E, 46, 54, 171, 174C, 180C, 183, 183C, 184, 195,
195D, 205, 205A, 266, 342B, 342D, 342F, 342H, 342J, 342L,
and 343 and ordinances or rules adopted pursuant thereto
under chapter 91.
32
We note that although this case involves DLNR and not a private
party suing another private party, we see no reason that HRS § 607-25 would
not be relevant here for determining the "laws relating to environmental
quality" under article XI, section 9.

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issue is grounded in the plain language and history of article
XI, section 9.
The Hawai#i Supreme Court has recognized that
"[a]rticle XI, section 9 provides that the legislature has the
authority to impose 'reasonable limitations and regulation' on
potential litigants . . . who seek to bring private actions to
enforce laws relating to environmental quality." Ala Loop, 123
Hawai#i at 417, 235 P.3d at 1129 (emphasis added). Further, the
most pertinent history regarding the procedural component of
article XI, section 9 is set out in a report from the 1978
Constitutional Convention's Committee on Environment,
Agriculture, Conservation and Land, which states in relevant
part:
Your Committee believes that a clean and healthful
environment is an important right of every citizen and that
this right deserves constitutional protection. The
definition of this right would be accomplished by relying on
the large body of statutes, administrative rules and
ordinances relating to environmental quality. Defining the
right in terms of present laws imposes no new legal duties
on parties, a point of fairness important to parties which
have invested or are investing large sums of money to comply
with present laws.

Developing a body of case law defining the content of
the right could involve confusion and inconsistencies. On
the other hand, legislatures, county councils and
administrative agencies can adopt, modify or repeal
environmental laws and regulation laws in light of the
latest scientific evidence and federal requirements and
opportunities. Thus, the right can be reshaped and redefined
through statute, ordinance and administrative rule-making
procedures and not inflexibly fixed.

Your Committee believes that this important right
deserves enforcement and has removed the standing to sue
barriers, which often delay or frustrate resolutions on the
merits of actions or proposals, and provides that
individuals may directly sue public and private violators of
statutes, ordinances and administrative rules relating to
environmental quality. The proposal adds no new duties but does
add potential enforcers. This private enforcement right
complements and does not replace or limit existing government
enforcement authority.
Your Committee intends that the legislature may
reasonably limit and regulate this private enforcement right
by, for example, prescribing reasonable procedural and
jurisdictional matters, and a reasonable statute of
limitations.

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Your Committee believes that this new section
adequately recognizes the right to a clean and healthful
environment and at the same time would prevent abuses of
this right. Concern was expressed that the exercise of this
right to a clean and healthful environment would result in a
flood of frivolous lawsuits. However, your Committee
believes that if environmental law enforcement by government
agencies is adequate in practice, then there should be few
additional lawsuits, given the barriers that litigation
costs present.
Moreover, your Committee is convinced that the
safeguards of reasonable limitations and regulations as
provided by law should serve to prevent abuses of the right
to a clean and healthful environment.
Standing Committee Report No. 77, at 689-90 (emphases added).
Given that article XI, section 9 empowers the
legislature to impose "reasonable limitations and regulation" to
enforce the rights under that provision, the question here is
whether the exhaustion of administrative remedies doctrine or the
primary jurisdiction doctrine can apply to limit enforcement of
MLN's claims under article XI, section 9. The Hawai#i Supreme
Court has recognized that "[c]ourts have 'developed two principal
doctrines to enable the question of timing [of requests for
judicial intervention in the administrative process] to be
answered: (1) primary jurisdiction; and (2) exhaustion of
administrative remedies.'" Kona Old, 69 Haw. at 92-93, 734 P.2d
at 168 (quoting B. Schwartz, Administrative Law § 8.23, at 485
(2d ed. 1984)); see also Kellberg, 131 Hawai#i at 527, 319 P.3d
at 446. Given that exhaustion and primary jurisdiction are
court-developed doctrines in Hawai#i, we conclude they do not
limit enforcement of article XI, section 9 claims. Thus, the
Circuit Court erred in dismissing MLN's article XI, section 9
claims pursuant to the exhaustion of administrative remedies
doctrine.
However, as recognized in Punohu, the legislature has
limited the jurisdiction of courts for purposes of declaratory
judgment actions under HRS § 632-1, the statute that authorizes
such actions. HRS § 632-1 provides: "[w]here, however, a statute
provides a special form of remedy for a specific type of case,

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that statutory remedy shall be followed[.]" Punohu, 66 Haw. at
487, 666 P.2d at 1134-35. Given HRS § 632-1, the Hawai#i Supreme
Court held that:
it would be anomalous to permit a declaratory judgment
action to be substituted for an appeal from an agency
determination in a contested case. Accordingly, we hold
that the remedy of appeal provided by § 91–14, HRS, is a
statutorily provided special form of remedy for the specific
type of case involved here and that a declaratory judgment
action, pursuant to § 632–1, HRS, did not lie.

Punohu, 66 Haw. at 487, 666 P.2d at 1135; see also Travelers Ins.
Co., 64 Haw. at 386, 641 P.2d at 1337 ("Although section 632-1
generally endorses declaratory relief in civil cases, it
nonetheless disallows such relief '(w)here . . . a statute
provides a special form of remedy for a specific type of
case.'"). The decision in Punohu was not based on exhaustion or
primary jurisdiction. Rather, it was based on the provisions of
HRS § 632-1, as adopted by the legislature.
Applied to this case, therefore, HRS § 632-1 would
preclude a declaratory judgment action because MLN had the
opportunity to raise its article XI, section 9 claims in the
contested case33 before the Planning Commission and seek judicial
review through an appeal provided by HRS § 91-14. However, we
must still determine whether, for purposes of article XI, section
9, HRS § 632-1 provides "reasonable limitations and regulation."
In Ala Loop, the Hawai#i Supreme Court held that HRS § 205-12
(1993) was not a "reasonable" limitation or regulation within the
meaning of article XI, section 9. The court held that HRS
§ 205-12 exceeded the power granted by article XI, section 9 to
the legislature, because it would abolish the right of private
enforcement altogether related to HRS chapter 205. Id. at 418,
235 P.3d at 1130.

33
The hearing before the Planning Commission was a "contested case,"
which is defined as "a proceeding in which the legal rights, duties, or
privileges of specific parties are required by law to be determined after an
opportunity for agency hearing." HRS § 91-1 (2016). MCC § 19.510.070
required the Planning Commission to review the application for the CUP and
"after a public hearing" the CUP could be approved if the eight criteria set
out in the provision were met.

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Here, we conclude that HRS § 632-1 provides reasonable
limitations and regulation of MLN's article XI, section 9 claims.
First, HRS § 632-1 did not preclude MLN from asserting its rights
under article XI, section 9 and thus from enforcing such rights.
Unlike HRS § 205-12, which was considered in Ala Loop, HRS § 632-
1 does not authorize only a government entity to ensure
compliance with a law relating to environmental quality. Ala
Loop, 123 Hawai#i at 418, 235 P.3d at 1130 ("The abolishment of
the private right altogether by HRS § 205–12, on the theory that
the county would enforce the same underlying substantive
interests, would not be a 'reasonable' limitation within the
meaning of the provision."). Rather, under HRS § 632-1, MLN
could have fully asserted its rights under article XI, section 9
in the contested case before the Planning Commission and,
pursuant to HRS § 91-14, obtain judicial review of the final
agency decision issuing the CUP. Further, in cases where there
is no agency decision from which an appeal under HRS § 91-14 can
be taken, HRS § 632-1 would not preclude a party from enforcing
its article XI, section 9 rights through a declaratory judgment
action. Indeed, in Ala Loop, where no permit was issued and no
agency hearing was held, the Hawai#i Supreme Court recognized a
party's right to bring the declaratory judgment action in that
case to enforce rights under article XI, section 9.
Second, HRS § 632-1 is consistent with the intent
behind article XI, section 9. As expressed in Standing Committee
Report No. 77, the "private enforcement right complements and
does not replace or limit existing government enforcement
authority. Your Committee intends that the legislature may
reasonably limit and regulate this private enforcement right by,
for example, prescribing reasonable procedural and jurisdictional
matters, and a reasonable statute of limitations." (Emphases
added.) In HRS § 632-1, the legislature authorized declaratory
judgment actions, but provided a jurisdictional limit where "a
statute provides a special form of remedy for a specific type of
case." Punohu recognized that HRS § 91-14, authorizing judicial
review from final decisions of an agency contested case, was such

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a statute providing for a special form of remedy. Here, this
legislatively created limitation allowed for participation in
agency action to enforce existing zoning requirements and to
decide whether approval of the CUP was consistent with
constitutional provisions, statutes and County plans, codes and
regulations, which "complements and does not replace or limit
existing government enforcement authority." Further, HRS § 632-1
provides for a reasonable jurisdictional limitation to filing
declaratory judgment actions, and such a jurisdictional limit was
contemplated in Standing Committee Report No. 77.
Third, the limitation and regulation under HRS § 632-1
is reasonable to ensure that, when parties have proper notice and
the opportunity to participate or intervene in an agency
contested case, they do not ignore the agency action in favor of
an alternative action at an unknown time. In this case, County
code provisions and administrative rules were in place to address
the issuance of a special use permit for property zoned as an
agricultural district under the County code. In approving the
CUP in this case, the Planning Commission determined that the
eight criteria in MCC § 19.510.070 were met. DLNR thus had its
CUP application approved and no appeal was taken from the
Planning Commission decision. The limitation in HRS § 632-1,
requiring that MLN seek judicial relief via the administrative
appeal process under HRS § 91-14 preserves the integrity of the
administrative process.
Fourth, HRS § 632-1 is akin to a legislative
codification of the exhaustion doctrine, in that it requires a
party to pursue available administrative remedies before seeking
relief in the courts. This is reasonable in that agencies often
have expert or specialized knowledge in certain areas that are
helpful in resolving issues, and agency proceedings allow the
parties to create a fuller record for judicial review.34

34
See U.S. Western Pac. R. Co., 352 U.S. 59, 64-65 (1956) ("[I]n cases
raising issues of fact not within the conventional experience of judges or
cases requiring the exercise of administrative discretion, agencies created by
Congress for regulating the subject matter should not be passed over.");
(continued...)

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We thus conclude that HRS § 632-1 provides for
reasonable limitations and regulation of article XI, section 9
claims. As noted above, MLN has grounded its article XI, section
9 claims on its allegations related to violations of HRS chapters
46, 205 and 343.
MLN's article XI, section 9 claims defined by HRS
chapter 46 and 205 challenge the validity of the CUP issued by
the Planning Commission and seek declaratory judgment
invalidating the CUP. The County code provisions and
administrative rules were in place to address the issuance of the
CUP for property zoned as an agricultural district under the
County code. In approving the CUP in this case, the Planning
Commission determined that the eight criteria in MCC § 19.510.070
were met. DLNR thus had its CUP application approved, and no
appeal was taken from the Planning Commission decision. The
limitation in HRS § 632-1, requiring that MLN seek judicial
relief via the administrative appeal process under HRS § 91-14,
preserves the integrity of the administrative process. This
legislatively created limitation allowed for members of MLN to
participate in the agency action to enforce existing zoning
requirements and to decide whether approval of the CUP was
consistent with constitutional provisions, statutes and County
plans, codes and regulations, which provided for a reasonable
limitation. Therefore, HRS § 632-1 precludes MLN's article XI,
section 9 claims as defined by HRS Chapters 46 and 205.
With regard to MLN's article XI, section 9 claim
defined by HRS chapter 343, we have recognized above that MLN's
HEPA claims appear to challenge the validity of the CUP and also
arguably seek broader relief. We conclude that, to the extent
MLN's article XI, section 9 claim defined by HRS chapter 343
seeks a declaratory judgment that the CUP is invalid, HRS § 632-1

34
(...continued)
Parisi v. Davidson, 405 U.S. 34, 37 (1972) (citations omitted) ("The basic
purpose of the exhaustion doctrine is to allow an administrative agency to
perform functions within its special competence—to make a factual record, to
apply its expertise, and to correct its own errors so as to moot judicial
controversies.").

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precludes that claim. To the extent that MLN's article XI,
section 9 claim defined by HRS chapter 343 seeks relief other
than to invalidate the CUP, such a claim is not precluded by HRS
§ 632-1.
F. The Stay/Deferral Order Pending
LUC determination of Count I.F. is moot
MLN argues that the Circuit Court erred in staying the
entire case and deferring a claim that the Sports Park uses
violated the June 21, 2012 LUC D&O, Count I(F), under the primary
jurisdiction doctrine. At a hearing on October 15, 2014, the
Circuit Court referred Count I(F) to the LUC based on the primary
jurisdiction doctrine, because there was a pending petition by
MLN before the LUC. The Circuit Court then stayed further
proceedings in the case under Pavsek. A little over a month
later, on November 25, 2014, the parties advised the Circuit
Court that the LUC had denied MLN's petition and the court
scheduled further hearings to proceed with this case.
The State and A&B assert that this issue is moot, given
the short duration of the stay and lack of any redress at this
juncture. Ultimately, the Circuit Court determined that Count
I.F. is subject to the exhaustion of administrative remedies
doctrine and dismissed Count I.F. with prejudice. We conclude
this issue is moot and no exception to the doctrine of mootness
applies.
The Hawai#i Supreme Court has recently clarified that
"mootness is an issue of justiciability, not an issue of subject
matter jurisdiction." State v. Hewitt, 153 Hawai#i 33, 42, 526
P.3d 558, 567 (2023). "[A] case is moot if the reviewing court
can no longer grant effective relief." Kaho#ohanohano v. State,
114 Hawai#i 302, 332, 162 P.3d 696, 726 (2007) (emphasis and
citation omitted).
A case is not moot . . . so long as the plaintiff continues
to suffer some harm that a favorable court decision would
resolve. If the requested remedies can be effectuated for
the plaintiff, the issues presented are still "live" for
judicial resolution.
Civil Beat Law Ctr. for the Pub. Int., Inc. v. City & Cty. of
Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57 (2019) (citation,
internal quotation marks, and brackets omitted).

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Here, after the LUC declined to address MLN's petition,
Count I(F) was ultimately dismissed with prejudice by the Circuit
Court for failure to exhaust administrative remedies. As
discussed above, we conclude the Circuit Court did not err in
dismissing Count I. Thus, there is no relief that this court can
provide on the question whether the Circuit Court properly stayed
the case for a little over a month to allow the LUC to address a
pending petition by MLN. The issue is therefore moot.
IV. CONCLUSION
For the reasons explained above, we affirm the Final
Judgment entered by the Circuit Court of the Second Circuit,
except to the extent that Count V (HEPA) and Count VI (the
article XI, section 9 claim defined by HRS Chapter 343), seek
relief other than to invalidate the CUP.
The case is remanded to the Circuit Court for further
proceedings consistent with this opinion regarding Count V (HEPA)
and Count VI (the article XI, section 9 claim defined by HRS
Chapter 343), to the extent those claims seek relief other than
to invalidate the CUP.

On the briefs:

Tom Pierce, /s/ Lisa M. Ginoza
(Tom Pierce, Attorney at Chief Judge
Law, LLLC)
and /s/ Keith K. Hiraoka
Peter N. Martin, Associate Judge
(Peter N. Martin, Attorney
at Law, LLLC) /s/ Karen T. Nakasone
for Plaintiff–Appellant Associate Judge

William J. Wynhoff,
Amanda J. Weston,
Deputy Attorneys General,
for Defendant-Appellee

Calvert G. Chipchase,
Christopher T. Goodin,
for Intervenor-Appellee

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