Sierra Club v. Board of Land and Natural Resources. Dissenting Opinion by Nakasone, J. Consolidated with CAAP-22-0000519.

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-APR-2024
08:00 AM
Dkt. 176 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

SIERRA CLUB, Appellant-Appellee/Cross-Appellee, v.
BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellee/Cross-
Appellee; COUNTY OF MAUI, Appellee-Appellee/Cross-Appellant;
and ALEXANDER AND BALDWIN, INC. and EAST MAUI IRRIGATION
COMPANY, LLC, Appellees-Appellants/Cross-Appellees
NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

and

SIERRA CLUB, Appellant-Appellee, v.
BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellant;
ALEXANDER AND BALDWIN, INC., EAST MAUI IRRIGATION COMPANY, LLC,
and COUNTY OF MAUI, Appellees-Appellees
NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

APRIL 12, 2024

LEONARD, ACTING CHIEF JUDGE, AND HIRAOKA, J.,
WITH NAKASONE, J., DISSENTING
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY HIRAOKA, J.

In 2000 the Hawai#i Board of Land and Natural Resources

(BLNR) issued four Permits to Alexander & Baldwin, Inc. (A&B) and

its subsidiary, East Maui Irrigation Company, LLC (EMI). The

Permits let A&B and EMI divert water from streams in East Maui to

Central and Upcountry Maui. Each permit was valid for one year.

BLNR has continued the Permits annually, while a contested case

on A&B and EMI's application for a 30-year water lease is

pending. BLNR considered renewing the Permits for 2021 during a

public meeting on November 13, 2020. The Sierra Club requested a

contested case hearing. BLNR denied the request and voted to

continue the Permits.

Sierra Club appealed. The County of Maui (a major user

of the diverted water) intervened. The Environmental Court of

the First Circuit ordered BLNR to hold a contested case hearing

and reserved jurisdiction to modify the Permits.1 The court

later reduced the amount of water A&B and EMI could divert. The

court also awarded attorneys fees and costs to Sierra Club.
BLNR, A&B, EMI, and the County filed these secondary

appeals. We hold: (1) the Environmental Court had jurisdiction

over Sierra Club's appeal from BLNR's denial of a contested case

hearing, and exceptions to the mootness doctrine applied, but it

did not have jurisdiction over Sierra Club's appeal from BLNR's
decision to continue the Permits; (2) constitutional due process

1
The Honorable Jeffrey P. Crabtree presided.

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did not require a contested case under the circumstances

presented here; (3) the Environmental Court erred by modifying

the conditions under which BLNR continued the Permits; and

(4) Sierra Club was not entitled to attorneys fees or costs.

I. BACKGROUND

For 138 years, A&B and EMI have owned and operated a

ditch system that diverts surface water from East Maui to Central

and Upcountry Maui for agricultural, domestic, and other uses.

See Maui Tomorrow v. Bd. of Land & Nat. Res., 110 Hawai#i 234,
236, 131 P.3d 517, 519 (2006). A&B's and EMI's original water

leases from the State of Hawai#i have expired. A&B and EMI

applied for a 30-year water lease in 2001. BLNR granted requests

by Maui Tomorrow and Nā Moku #Aupuni #o Ko#olau Hui for a

contested case on the long-term lease application. The County,

Maui Land & Pineapple Co., Inc., and the Hawaii Farm Bureau

Federation are also participating in the contested case. The

contested case remains pending before BLNR.

BLNR issued the Permits to A&B and EMI in 2000. Maui
Tomorrow, 110 Hawai#i at 236-37, 131 P.3d at 519-20. BLNR has

continued the Permits annually since 2001. See Carmichael v. Bd.

of Land & Nat. Res., 150 Hawai#i 547, 554-55, 506 P.3d 211, 218-

19 (2022). The Permits engendered much litigation.2 The

2
We take judicial notice of the court files in Sierra Club v. Bd.
of Land & Nat. Res., 1CC191000019, No. CAAP-XX-XXXXXXX; Sierra Club v. Bd. of
Land & Nat. Res., 1CCV-XX-XXXXXXX, No. CAAP-XX-XXXXXXX; and Sierra Club v. Bd.
of Land & Nat. Res., 1CCV-XX-XXXXXXX, No. CAAP-XX-XXXXXXX, No. CAAP-24-
0000114. See Rule 201, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised
Statutes (2016); Uyeda v. Schermer, 144 Hawai#i 163, 172, 439 P.3d 115, 124
(continued...)

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continuations for 2019 and 2020 were the subject of Sierra Club

v. Board of Land and Natural Resources, 1CC191000019, No. CAAP-

XX-XXXXXXX (the 2019 Sierra Club Lawsuit). In that case, Sierra

Club sued BLNR, A&B, EMI, the County, and others3 for declaratory

and injunctive relief, alleging violation of Hawaii Revised

Statutes (HRS) Chapters 343 (Environmental Impact Statements) and

205A (Coastal Zone Management) by all defendants, and breach of

public trust duties4 by BLNR. After a jury-waived trial, the

2
(...continued)
(2019) ("The most frequent use of judicial notice of ascertainable facts is in
noticing the contents of court records." (citation omitted)). However:
a distinction must be carefully drawn between taking
judicial notice of the existence of documents in the Court
file as opposed to the truth of the facts asserted in those
documents. Factual allegations, conclusions, and findings,
whether authored by the court, by the parties or their
attorneys, or by third persons, should not be noticed to
prove the truth of the matters asserted even though the
material happens to be contained in court records. A court
may only take judicial notice of the truth of facts asserted
in documents such as orders, judgments, and findings of fact
and conclusions of law because of the principles of
collateral estoppel, res judicata, and the law of the case.

Uyeda, 144 Hawai#i at 172, 439 P.3d at 124 (cleaned up).

We deny A&B and EMI's request that we judicially notice the truth
of the findings of fact entered on April 6, 2021, in 1CC191000019, because
that case is on appeal. We also deny A&B and EMI's request that we judicially
notice documents filed in proceedings before the Commission on Water Resource
Management (CWRM); but CWRM documents contained in the record of proceedings
before BLNR, and therefore in the record for these appeals, are properly
before us without judicial notice.
3
The others are Mahi Pono, LLC, and Mahi Pono Holdings, LLC.
4
Article XI, section 1 of the Hawai#i Constitution provides:
For the benefit of present and future generations, the State
and its political subdivisions shall conserve and protect
Hawaii's natural beauty and all natural resources, including
land, water, air, minerals and energy sources, and shall
promote the development and utilization of these resources
in a manner consistent with their conservation and in
furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State
(continued...)

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circuit court entered a judgment against Sierra Club. Sierra

Club's appeal is pending as No. CAAP-XX-XXXXXXX.

These appeals concern BLNR's decisions to (1) deny

Sierra Club's request for a contested case hearing on continuing

the Permits for 2021, and (2) continue the Permits for 2021.

They were made during BLNR's regular meeting on November 13,

2020. The published agenda for that meeting stated:
Meeting materials are available for public review in advance
of the meeting at:
http://www.dlnr.hawaii.gov/meetings
Considering the evolving COVID-19 situation, protecting the
health and welfare of the community is of utmost concern.
As such, the meeting will be held remotely, with board
members, staff and applicants participating via online
meeting venue.
The meeting will be livestreamed at:

http://youtube.com/c/boardoflandandnaturalresourcesdlnr

TESTIMONY:
Interested persons can submit written testimony in advance
of each meeting that will be distributed to Board Members
prior to the meeting. Written testimony must be submitted
no later than 24 hours prior to the meeting to ensure time
for Board Members to review it. Late written testimony will
be retained as part of the record, but we cannot assure
Board Members will receive it with sufficient time for
review prior to decision-making. Submit written testimony
to blnr.testimony@hawaii.gov.

To provide live oral/video testimony during the online
meeting, email your request to blnr.testimony@hawaii.gov at
least 24 hours in advance, with your name, phone number,
email address, computer identification name (check your
device settings), and the agenda item on which you would
like to testify. Once your request has been received, you
will receive an email with the Zoom link via which to
testify. You will need a computer with internet access,
video camera and microphone to participate. If you require
access by phone only, please indicate that in your email
request. Testimony will be limited to a maximum of three
(3) minutes per person per agenda item.

4
(...continued)
for the benefit of the people.
Article XI, section 1 of the Hawai#i Constitution "adopt[s] the public trust
doctrine as a fundamental principle of constitutional law in Hawai#i." In re
Water Use Permit Applications, 94 Hawai#i 97, 132, 9 P.3d 409, 444 (2000).

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. . . .
In some of the matters before the Board, a person may wish
to request a contested case hearing. If such a request is
made before the Board's decision, then the Board will
consider the request first — before considering the merits
of the item before it. A person who wants a contested case
may also wait until the Board decides the issue, then
request the contested case after the decision. It is up to
you. Any request must be made in writing within ten days.
If no request for contested case is made, the Board will
make a decision. The Department will treat the decision as
final and proceed accordingly.

Continuation of the Permits was item D-8 on the agenda.

The record has over 13,000 pages of material presented to BLNR on

item D-8, including staff submissions, maps, charts, reports,

written testimony, a draft environmental impact statement,

information from the Maui Department of Water Supply and the

Commission on Water Resource Management (CWRM), and other

resource material.

Sierra Club submitted 14 pages of written testimony

containing "a summary of recommendations for improving the staff

submittal followed up [by] an in-depth analysis and explanation

to justify our detailed recommendations to" BLNR. Sierra Club

argued that 15 changes "must be made to the proposed revocable

permits if any are issued[.]" Sierra Club also provided "key

facts" it felt had been omitted from the staff submittal.

Sierra Club requested a contested case hearing one day

before BLNR's meeting. No written order disposing of the request

appears in the record. We take judicial notice of the meeting

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Minutes.5 They indicate BLNR went into executive session to

consider the request. When the public session resumed:
Member [Chris] Yuen motioned to deny the request for the
contested case. Member [Vernon] Char seconded the motion.
Unanimous ([Suzanne] Case, Char, [Tommy] Oi, [Kaiwi] Yoon)
noting Member[] [Sam] Gon recused himself and Member [Jimmy]
Gomes not present.

The audio recording of the meeting doesn't contain an explanation

for BLNR's decision.6

A Department of Land and Natural Resources (DLNR) Land

Division employee presented the staff submittal. CWRM

representatives presented information about instream flow

standards7 and answered BLNR board members' questions about

habitat, CWRM's role on streams not in use, water diversion

changes to achieve interim instream flow standards (IIFS),8 and

water waste. A DLNR Division of Forestry and Wildlife (DOFAW)

representative addressed water diversion structures fostering

mosquito breeding, prioritization of structures creating ponding,

flora and fauna, and diversion upgrades.

5
Available at https://dlnr.hawaii.gov/wp-content/uploads/2021/
01/Minutes-201113.pdf (https://perma.cc/G8NG-3VHK) (last visited on Mar. 19,
2024).
6
Available at https://files.hawaii.gov/dlnr/meeting/audio/
Audio-LNR-201113.m4a, at 3:37:23 to 3:39:58 (permalink unavailable) (last
visited on Mar. 19, 2024).
7
"'Instream flow standard' means a quantity or flow of water or
depth of water which is required to be present at a specific location in a
stream system at certain specified times of the year to protect fishery,
wildlife, recreational, aesthetic, scenic, and other beneficial instream
uses." HRS § 174C-3 (2011).
8
"'Interim instream flow standard' means a temporary instream flow
standard of immediate applicability, adopted by [CWRM] without the necessity
of a public hearing, and terminating upon the establishment of an instream
flow standard." HRS § 174C-3 (emphasis added).

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BLNR then heard public testimony. According to the

Minutes, BLNR heard from:
Randy Cabral (Hawaii Farm Bureau) in support. Jerome
Kekiwi, opposed to the renewal. Caleb Rowe and Jeff
Pearson, County of Maui BWS [(Board of Water Supply)], in
support. Warren Watanabe (Maui County Farm Bureau), in
support, Dick Mayer, would like to see conditions in place
to have the [environmental impact statement] completed.
Norman Franco, provided testimony for government control.
Kaniloa Kamaunu, does not feel that the applicant has any
rights to the water. David Frankel [(Sierra Club)] opposes
the submittal and stands by his written testimony. Wayne
Tanaka (OHA) [(Office of Hawaiian Affairs)] opposes. Albert
Perez (Maui Today) opposes. Lucienne de Naie, (Haiku
Association) would like to see more communication between
Mahi Pono and the communities that are affected by the
diversion of water. Phyliss Shimabukuro-Geiser (DOA)
[(Hawai#i Department of Agriculture)] supports the
submittal. David Smith DOFAW, noted that they are
interested in the [watershed] and recreational aspects of
the area.

(Emphasis added.)

The audio recording of the meeting contains over 18

minutes of argument by Frankel.9 Proceedings on item D-8 lasted

over three hours. BLNR then unanimously approved continuation of

the Permits subject to these conditions:
1. Old conditions remain in effect to the extent they are
consistent with new conditions.

2. Include a representative of the Huelo Community
Association to the interim discussion group first
authorized in 2018.
3. [A&B and EMI] shall look into supplying the Maui
Invasive Species Committee with water, and if
feasible, and despite it not being an agricultural
use, be considered a reasonable and beneficial and
permitted use under the [Permits].

9
Available at https://files.hawaii.gov/dlnr/meeting/audio/
Audio-LNR-201113.m4a, at 5:13:00 to 5:31:45 (permalink unavailable) (last
visited on Mar. 19, 2024).

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4. Regarding staff recommendation #5,[10] in reviewing
efficiency upgrades to their system, [A&B and EMI are]
to work with the Maui Fire Department to determine
what their exact needs are.
5. Statement of intent- the Board intends to deal with
the question of the restoration of the non-IIFS
streams and efficiency upgrades to the system no later
than the time when the Board considers going out to
auction with the final lease.

(Bold added.)

The "old conditions" were summarized in the DLNR staff

submittal:
1. Require the holdover of the revocable permits to
incorporate the June 20, 2018 CWRM order. There shall
be no out of watershed diversions from the streams
listed as full restoration streams in the CWRM order,
and the timing for stopping the diversions shall be in
accordance with the aforesaid CWRM order.

2. There shall be no waste of water. All water diverted
shall be put to beneficial agricultural use or
municipal use.

3. Any amount of water diverted under the revocable
permits shall be for reasonable and beneficial use and
always in compliance with the amended interim instream
flow standards (IIFS).

4. The holdover shall comply with all conditions required
by the CWRM's Amended IIFS decision.
5. [A&B and EMI] shall provide a specific report on the
progress regarding the removal of diversions and
fixing of the pipe issues before the end of the
holdover period.
6. [A&B and EMI] shall cleanup trash from revocable
permit areas starting with areas that are accessible
and close to streams.
7. The revocable permits shall be subject to any existing
or future reservations of water for the Department of
Hawaiian Home Lands (DHHL).

8. Establish an interim committee to discuss water usage
issues in the license area. The committee shall

10
DLNR staff recommendation no. 5 was:
[A&B and EMI] shall submit to [DLNR] a plan for their
proposed upgrades, including an implementation timeline, to
the irrigation system intended to address CWRM's concerns no
later than June 30, 2021.

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consist of five members, representing Alexander &
Baldwin, Farm Bureau, Office of Hawaiian Affairs, the
Native Hawaiian Legal Corporation and the County of
Maui. The interim committee shall meet once a month
for the first quarter, then at least quarterly
thereafter, more often as useful.

9. [A&B and EMI] shall provide quarterly written reports
to the Board containing the following information:
a. The amount of water used on monthly basis,
including the monthly amount of water delivered
for: the County of Maui Department of Water
Supply (DWS) and the County of Maui Kula
Agricultural Park; diversified agriculture;
industrial and non-agricultural uses, and
reservoir/fire protection/hydroelectric uses.
Also, provide an estimate of the system loss for
the EMI ditch system and the A&B field system.
Diversified agricultural uses shall also provide
information as to location, crop, and user of
the water. Industrial and non-agricultural uses
shall specify the character and purpose of water
use and the user of the water.
b. For each stream that is subject to the CWRM
order, a status update as to the degree to which
the flow of each stream has been restored, and
which artificial structures have been removed as
required by CWRM.

c. Update on removal of trash, unused man-made
structures, equipment and debris that serve no
useful purpose, including documenting any
reports of such items received from [DLNR],
other public or private entities and members of
the general public and action taken by [A&B and
EMI] to remove the reported items.

d. The method and timeline for discontinuing the
diversion of water from Waipio and Hanehoi
streams into Ho#olawa stream, including status
updates on implementation.
10. [A&B and EMI] may not divert an amount of water
exceeding an average of 45 million gallons per day
(mgd), averaged annually, for all permits combined,
further subject to all water diverted shall be for
reasonable and beneficial uses.
11. For RP S-7266, the area identified as the Hanawī
Natural Area Reserve shall be removed from the
revocable permit premises. Additionally, A&B/EMI
shall continue discussions with DOFAW to identify
additional forest reserve lands to be removed from the
license areas to be implemented in connection with the
issuance of a water lease, if any, or sooner.
12. Require Mahi Pono to advise any third-party lessees
that their decisions be based on a month to month
revocable permit for water use until a lease is
completed.

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13. For the streams in the revocable permit area that have
not had interim instream flow standards set, [A&B and
EMI] shall continue to clean up and remove debris from
the permit areas and staff shall inspect and report
every three months on the progress of the clean-up.
For the purposes of clean-up, debris shall not include
any structures and equipment currently used for the
water diversions.
14. Staff is to inspect the streams and report on whether
those lands could be developed for agricultural uses,
including the viability of agricultural land or water
leases.

(Emphasis added; footnotes omitted.)

Sierra Club appealed BLNR's decisions to the circuit

court. The appeal was assigned to the Environmental Court.11

The County intervened as an appellee. On May 28, 2021, the

Environmental Court entered its Interim Decision on Appeal. The

Interim Decision stated:
2. The court concludes the Sierra Club's due
process rights were violated, because a contested case
hearing was required before the BLNR voted on November 13,
2020 to extend A&B's revocable permits.

. . . .

7. HRS [§] 91-14(g) defines what this court can
order. Since the court concludes Sierra Club had a property
interest protected by due process rights under the Hawai#i
Constitution as defined by laws relating to environmental
quality, and since the court concludes those rights were
prejudiced because of the BLNR's denial of a contested case
hearing, the court may "reverse or modify" the BLNR's
decision per HRS 91-14(g). Here, the court has no record or
briefing to objectively decide on any specific modification
of the permits. At the same time, the court does not wish
to create unintended consequences or chaos by vacating the
permits without knowing the practical consequences of such
an order, especially when in seven months (absent further
legal developments) there will likely be another hearing to
extend the existing [Permits] and new [Permits] will likely
replace the existing [Permits]. Therefore:
A. The court hereby orders BLNR to hold a
contested case hearing on the Revocable Permits which were
approved by BLNR on or about 11/13/20. The contested case
hearing(s) shall be held as soon as practicable. This order

11
The environmental courts are divisions of the circuit courts.
HRS § 604A-1(a) (2016).

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is effective immediately. Pursuant to HRS 91-14(g)(i)[sic],
the court reserves jurisdiction[] and expects to appoint a
master or monitor to ensure prompt compliance with this
order. The parties are invited to agree on a master or
monitor, or promptly (no later than June 7, 2021) submit
three names each to the court; and

B. The court hereby orders that the Revocable
Permits approved on or about 11/13/20 be vacated. However,
the effective date of this order is hereby stayed and the
court reserves jurisdiction to consider any additional
requests from the parties on whether or not the court should
modify the existing permits, and how, or whether the court
should leave the existing permits in place until their
current expiration date. If no such further requests are
filed by 4:00 p.m. on Wednesday, June 30, 2021, the stay
ordered in this paragraph is lifted without further action
by the court. In that event, the Revocable Permits approved
on or about 11/13/20 shall automatically be vacated without
further order of this court, at 4:00 p.m. on Wednesday,
June 30, 2021. If such further requests are filed, then the
stay remains in place and the court reserves jurisdiction
until further order while the court considers the requests.

(Emphasis added; strikeouts reflect clarifications made by minute

order after entry of the Interim Decision.)

BLNR moved for partial reconsideration of the Interim

Decision, entry of an appealable judgment or leave to file an

interlocutory appeal, and a stay of enforcement of the Interim

Decision. A&B and EMI filed a partial joinder and asked for the

Permits to remain in effect until they expired at the end of

2021. The County joined in the motion and partial joinder.
Sierra Club opposed the motions and asked for changes to the

Permits. The Environmental Court denied BLNR's motion and the

joinders.

The Environmental Court entered its Ruling and Order

Modifying Permits on July 30, 2021. It stated:
8. The permits at issue are hereby modified as
follows: the stream diversions covered by the permits at
issue are hereby limited to no more than 25 million gallons
of water per day (averaged monthly) from east Maui streams.
This limit shall remain in place until the anticipated
contested case hearing is held and a decision rendered, or

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until further order of the court. This should be more than
enough water to allow all users the water they require,
while hopefully reducing apparent or potential waste. Any
provision of the permits at issue contrary to the
modification in this paragraph is hereby vacated.
. . . .

10. The court retains jurisdiction to further modify
the permits at issue if necessary. This retention of
jurisdiction will last until a contested case hearing is
held on the permits at issue. If it appears to any party
that the court's modification may or is leading to any
shortage of water for the County, for Mahi Pono, or for
other recognized beneficiaries,[12] that party is welcome to
immediately contact the court so that an expedited process
can be set to hear and address any problems immediately.

(Emphasis added; original bolding and underscoring omitted.)

The Environmental Court entered its Findings of Fact,

Conclusions of Law and Order on August 23, 2021. It stated:
D. BLNR shall hold a new hearing on the permits at
issue as soon as practicable. It shall be a contested case
hearing assuming a proper request is made.
E. The court retains limited jurisdiction to
further modify the permits at issue if necessary. This
retention of limited jurisdiction will last until further
order of the court, or until the contested case hearing on
the permits concludes and a decision or order is issued. If
it appears to any party that the court's modification [of
the Permits] may or is leading to any shortage for the
County, for Mahi Pono, or for other recognized
beneficiaries, that party may immediately contact the court
so that an expedited process can be set to hear and address
any problems immediately.

The Environmental Court later issued a supplemental

order extending the end date for the Permits "from December 31,

2021 until the earlier of (1) May 1, 2022, (2) the date on which

[BLNR] renders a substantive decision on the continuation of the

[Permits] for calendar year 2022, or (3) further order of" the

12
Mahi Pono and "recognized beneficiaries" of the Permits other than
the County were not parties to the appeal before the Environmental Court.

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court. The court also awarded Sierra Club attorneys fees and

costs, apportioned between A&B, EMI, and the County.

BLNR held a contested case hearing on the 2021 and 2022

continuations during December 2021. BLNR entered a decision and

order on June 30, 2022. It continued the Permits, subject to

23 conditions. Sierra Club appealed. The Environmental Court

entered a judgment against Sierra Club. Sierra Club's secondary

appeal is pending as No. CAAP-XX-XXXXXXX.

The Environmental Court waited until BLNR issued its

decision and order in the contested case before entering the

Final Judgment below on July 27, 2022. A&B and EMI filed a

notice of appeal, resulting in No. CAAP-XX-XXXXXXX. The County

filed a cross-appeal. BLNR filed its own appeal, resulting in

No. CAAP-XX-XXXXXXX. We consolidated the appeals. BLNR, A&B,

EMI, and the County variously argue that the Environmental Court

erred by: (1) concluding that a contested case hearing was

required; (2) modifying the Permits; (3) denying BLNR's motion

for entry of an appealable judgment or for leave to file an
interlocutory appeal; and (4) awarding attorneys fees and costs

to Sierra Club.

II. STANDARDS OF REVIEW

A. Subject Matter Jurisdiction

We review the existence of subject matter jurisdiction

de novo under the right/wrong standard. In re Kanahele, 152

Hawai#i 501, 509, 526 P.3d 478, 486 (2023).

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B. Agency Appeals

Our review of the Environmental Court's decisions on

Sierra Club's appeal from BLNR's decisions is a secondary appeal;

we apply the standards of HRS § 91–14(g) to BLNR's decisions to

determine whether the Environmental Court was right or wrong.

See Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424

P.3d 469, 475 (2018). Our review is confined to the record

before BLNR. HRS § 91–14(f) (Supp. 2022).

HRS § 91–14 (2012 & Supp. 2022), titled "Judicial

review of contested cases," 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;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
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.

C. Constitutional Law

We review questions of constitutional law de novo,

under the right/wrong standard. Carmichael, 150 Hawai#i at 560,

506 P.3d at 224.

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D. Award of Attorneys Fees and Costs

We review an award of attorneys fees and costs for

abuse of discretion. Pub. Access Trails Haw. v. Haleakala Ranch

Co., 153 Hawai#i 1, 21, 526 P.3d 526, 546 (2023).

III. DISCUSSION

A. The Environmental Court had jurisdiction over
Sierra Club's appeal from the denial of its
request for a contested case hearing, and
exceptions to the mootness doctrine apply;
the Environmental Court did not have
jurisdiction over Sierra Club's appeal from
BLNR's decision to continue the Permits.

We must first determine whether the Environmental Court

had subject matter jurisdiction over Sierra Club's appeal. See
State v. Diaz, 128 Hawai#i 215, 222, 286 P.3d 824, 831 (2012)

(noting that an appellate court has an independent obligation to

ensure jurisdiction over each case). Subject matter jurisdiction

may be examined at any stage of an action. Kanahele, 152 Hawai#i

at 509, 526 P.3d at 486.

Sierra Club appealed to the circuit court under HRS

§ 91-14, which applies to "a final decision and order in a
contested case[.]" The denial of a proper request for a

contested case is a "final decision and order" appealable under

HRS § 91-14. Kaleikini v. Thielen, 124 Hawai#i 1, 26, 237 P.3d

1067, 1092 (2010). Sierra Club's request for a contested case

hearing complied with Hawaii Administrative Rules (HAR) § 13-1-29

(eff. 2009) ("Request for hearing"). The Environmental Court (a

division of the circuit court) had jurisdiction over Sierra

Club's appeal from BLNR's denial of a contested case hearing.

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It seems that most of the issues presented by these

appeals (except for the award of attorneys fees and costs) are

moot. BLNR complied with the Environmental Court's Interim

Decision, conducted a contested case hearing, and approved the

continuation of the Permits for 2021 (and 2022). Sierra Club's

secondary appeal is pending as No. CAAP-XX-XXXXXXX. The 2021

continuation period has ended. But "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).

The "capable of repetition, yet evading review" and "public

interest" exceptions to the mootness doctrine apply here, for the

reasons explained in Carmichael, 150 Hawai#i at 560-62, 506 P.3d
at 224-26.

BLNR's decision to continue the Permits for 2021 was

made during a public meeting after BLNR denied Sierra Club's

request for a contested case hearing. To "determine whether

there was a final decision and order in a contested case from

which a direct appeal to circuit court can be taken[,]" we must
determine whether the proceeding was "a 'contested case' or

simply an agency meeting." Bush v. Hawaiian Homes Comm'n, 76

Hawai#i 128, 133 & n.2, 870 P.2d 1272, 1277 & n.2 (1994).

During oral argument, Sierra Club's counsel represented

that the Hawai#i Supreme Court has held all "sunshine" meetings

(apparently referring to meetings held under the Sunshine Law,

HRS § 92-3) to be contested case hearings. Counsel cited E&J

Lounge Operating Co. v. Liquor Commission, 118 Hawai#i 320, 189

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P.3d 432 (2008), Mahuiki v. Planning Commission, 65 Haw. 506, 654

P.2d 874 (1982), Mortensen v. Board of Trustees of the Employees'

Retirement System, 52 Haw. 212, 473 P.2d 866 (1970), and Life of

the Land, Inc. v. Land Use Commission, 61 Haw. 3, 594 P.2d 1079

(1979).

Counsel is wrong. E&J Lounge concerned a liquor

license application; a contested case was required by statute —

HRS §§ 281-52 and 281-57. 118 Hawai#i at 349-50, 189 P.3d at

461-62. In Mahuiki a contested case on the application for a

special management area use permit was also required by statute,

HRS § 205A-29. 65 Haw. at 513, 654 P.2d at 879 (citing Chang v.
Planning Comm'n, 64 Haw. 431, 436, 643 P.2d 55, 60 (1982) (noting

that the "state Coastal Zone Management Act . . . specifically

make[s] HRS [§] 91-9 and planning commission contested case

procedures applicable to proceedings on SMA use permit

applications" (citing HRS § 205A-29 (a)))). In Mortensen a

statute — HRS § 88-73 — required a contested case hearing by the

Board of Trustees of the Hawai#i Employees' Retirement System on
state employees' applications for accidental disability

retirement benefits. 52 Haw. at 217-18, 473 P.2d at 870. And

Life of the Land concerned Land Use Commission proceedings to

reclassify land from agricultural to urban; a contested case was

required by the statute in effect at the time, HRS § 205-11. See

Life of the Land v. Land Use Comm'n, 63 Haw. 166, 169 & n.2, 623

P.2d 431, 436 & n.2 (1981). And in Kaleikini, cited in Sierra

Club's brief, HRS § 6E–43 and HAR § 13-300-51 required a

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contested case hearing by the O#ahu Island Burial Council where a

written petition met the procedural requirements of the

administrative rules. 124 Hawai#i at 19-20, 237 P.3d at 1085-86.

The dissent cites Kilakila #O Haleakala v. Board of

Land and Natural Resources, 131 Hawai#i 193, 317 P.3d 27 (2013),

for the proposition that the Environmental Court had jurisdiction

over Sierra Club's appeal from BLNR's decision to continue the

Permits. In Kilakila #O Haleakala the supreme court held that

HAR § 13-5-40(a)(4) required a hearing on the conservation

district use application, but "no formal contested case hearing

was actually held before the BLNR voted to grant the permit[.]"

Id. at 201-02, 317 P.3d at 35-36. The supreme court held that

BLNR's decision to approve the application was a final decision

and order in what should have been a contested case within the

meaning of HRS § 91-14. Id. at 203, 317 P.3d at 37.

Here, Sierra Club concedes that no statute or rule

required a contested case on continuation of the Permits. We

explain below that Sierra Club's right to constitutional due
process was not violated by BLNR's denial of its request for a

contested case hearing. There having been no requirement for a

contested case, the Environmental Court had no jurisdiction over

Sierra Club's HRS § 91-14 appeal from BLNR's decision to continue

the Permits.13

13
Our holding does not leave Sierra Club without a potential remedy
to challenge a BLNR decision continuing a revocable permit under HRS § 171-55
(2011). HRS § 91-14(a) (2012) provides that "nothing in this section shall be
deemed to prevent resort to other means of review, redress, relief, or trial
de novo, including the right of trial by jury, provided by law." Potential
(continued...)

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B. Constitutional due process did not require
that BLNR conduct a contested case hearing.

BLNR must hold a contested case hearing when required

by law. See HRS § 91-1 (Supp. 2022) ("'Contested case' means 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." (emphasis added)). A contested

case is "required by law" when one is required by: (1) statute;

(2) administrative rule; or (3) constitutional due process.

Flores, 143 Hawai#i at 124, 424 P.3d at 479. Sierra Club

concedes that a contested case was not required by statute or

administrative rule; it asserts a constitutional due process

right.

The supreme court has articulated a 2-step analysis for

determining whether a party has a constitutional due process

right to a contested case:
First, this court considers whether the particular interest
which claimant seeks to protect by a hearing is "property"
within the meaning of the due process clauses of the federal
and state constitutions. Second, if this court concludes
that the interest is "property," this court analyzes what
specific procedures are required to protect it.

Flores, 143 Hawai#i at 125, 424 P.3d at 480 (cleaned up).

Once a party shows it has a constitutionally protected

property interest, the second step involves a balancing test to

determine whether a contested case is required to protect it.

13
(...continued)
remedies could include an action for declaratory or injunctive relief. See,
e.g., Carmichael. Sierra Club sought those remedies in the 2019 Sierra Club
Lawsuit, concerning the Permit continuations for 2019 and 2020.

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The factors to be balanced are:
(1) the private interest which will be affected; [and]
(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; [against]

(3) the governmental interest, including the burden that
additional procedural safeguards would entail.

Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82 (reformatted)

(citation omitted).

1. The interest Sierra Club sought to protect
before BLNR was a constitutionally protected
property interest.

A&B, EMI, and BLNR argue that Sierra Club did not have

a constitutionally protected property interest at issue before

BLNR.14 Sierra Club argues that its property interest is

"founded upon two independent sources of law: [a]rticle XI

section 9 of the state constitution and constitutionally

protected public trust rights."

Article XI, section 9 of the Hawai#i Constitution

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.

(Emphasis added.) "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

14
The County doesn't address this issue.

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environmental quality." In re Application of Maui Elec. Co., 141

Hawai#i 249, 261, 408 P.3d 1, 13 (2017). Sierra Club argues that

HRS Chapters 171 (Public Lands, Management and Disposition of),

343 (Environmental Impact Statements), and 205A (Coastal Zone

Management) are the laws relating to environmental quality that

defined its right to a clean and healthful environment at issue

in the BLNR proceeding.

HRS Chapter 171. Sierra Club cites HRS § 171-55 as a

law relating to environmental quality that defines the right

applicable here.15 HRS § 171-55 (2011) provided:
Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein on
a month-to-month basis by direct negotiation without public
auction, under conditions and rent which will serve the best
interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board. A permit on a month-to-month basis may
continue for a period not to exceed one year from the date
of its issuance; provided that the board may allow the
permit to continue on a month-to-month basis for additional
one year periods.

(Emphasis added.)

A&B and EMI argue that HRS § 171-55 "does not reference

any environmental provision let alone define any right to a clean
and healthful environment." But HRS § 171-55 requires that BLNR

continue the Permits "under conditions . . . which will serve the

best interests of the State[.]" That includes conditions that

ensure a clean and healthful environment by controlling pollution

15
Sierra Club also cites HRS § 171-58, but that statute doesn't
apply to BLNR's decisions to continue the Permits. Carmichael, 150 Hawai#i at
562-63, 506 P.3d at 226-27.

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and conserving, protecting, and enhancing natural resources.

Haw. Const. art. XI, § 9.

The conditions BLNR placed on continuing the Permits

did just that: incorporation of the CWRM order prohibiting out-

of-watershed diversions from streams listed as full restoration

streams; no water waste; compliance with CWRM's amended IIFS and

all conditions required by CWRM's Amended IIFS decision; removal

of diversions and fixing of pipe issues; trash cleanup from areas

covered by the Permits; reporting on monthly amounts of water

used, stream flow restoration and artificial structure removal

required by CWRM, and removal of trash, unused man-made

structures, equipment, and debris that serve no useful purpose;

identification of forest reserve land to be removed from the

license areas; and limiting the amount of water that could be

diverted. These conditions reflect some of the observations and

concerns expressed in the declarations submitted in support of

Sierra Club's request for a contested case hearing. HRS § 171-55

— the law under which BLNR continued the Permits — is a law

relating to environmental quality that defined Sierra Club's

members' constitutional right to a clean and healthful

environment in the matter before BLNR.

HRS Chapter 343. Sierra Club also relies upon the

Hawai#i Environmental Policy Act (HEPA). In Carmichael the

supreme court held that BLNR's authority to continue the Permits

was subject to HEPA's environmental review requirements. 150

Hawai#i at 553, 506 P.3d at 217. The supreme court did not hold

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that an environmental assessment was required before the Permits

could be continued; rather, it remanded the case to the circuit

court to determine whether A&B's "actions" under the Permits are

exempt from HEPA's environmental-review process under HRS § 343-

6(a)(2) and related administrative rules.16 Id. at 571, 506 P.3d

at 235. HEPA is a law relating to environmental quality and,

under Carmichael, HEPA is also a law that defined Sierra Club's

members' constitutional right to a clean and healthful

environment in the matter before BLNR.

HRS Chapter 205A. The Coastal Zone Management Law did

not provide authority for BLNR's continuation of the Permits.

Sierra Club relies on HRS § 205A-4(b) (2017), which provides:
The objectives and policies of this chapter and any
guidelines enacted by the legislature shall be binding upon
actions within the coastal zone management area by all
agencies, within the scope of their authority.

BLNR is an "agency" for purposes of HRS Chapter 205A.

See HRS § 205A-1 (2017). BLNR is bound by the Coastal Zone

Management objectives and policies when, for example, it

determines the shoreline under HRS § 205A-42, or establishes

16
HRS § 343-6 (2010) provided:

(a) After consultation with the affected agencies,
the [environmental advisory] council shall adopt, amend, or
repeal necessary rules for the purposes of this chapter in
accordance with chapter 91 including, but not limited to,
rules that shall:

. . . .

(2) Establish procedures whereby specific types of
actions, because they will probably have minimal
or no significant effects on the environment,
are declared exempt from the preparation of an
environmental assessment[.]

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shoreline setbacks under HRS § 205A-43, or enforces its HRS

Chapter 183C conservation district rules under HRS § 205A-43.6

(2017). But HRS Chapter 205A did not provide authority for BLNR

to continue the Permits. Although "HRS ch. 205A is a law

'relating to environmental quality' for the purposes of article

XI, section 9[ of the Hawai#i Constitution,]" Protect & Pres.

Kahoma Ahupua#a Ass'n v. Maui Plan. Comm'n, 149 Hawai#i 304, 313,

489 P.3d 408, 417 (2021), it did not effect BLNR's authority to

continue the Permits, and thus did not define Sierra Club's

members' constitutional right to a clean and healthful

environment in the matter before BLNR.

The Public Trust. Sierra Club argues that its property

right is also founded upon the public trust. See Haw. Const.
art. XI, § 1. Our courts have never held being a beneficiary of

the public trust to be a cognizable property interest warranting

due process protection. See Keahole Def. Coal., Inc. v. Bd. of

Land & Nat. Res., 110 Hawai#i 419, 434, 134 P.3d 585, 600 (2006)

("The plain language of [Haw. Const. art. XII, § 417] does not

directly support [the claimant]'s contention that it is deprived

of a property right and [the claimant] has not directed this

court to any case law or statutory authority to support its

17
Haw. Const. art. XII, § 4 provides:

The lands granted to the State of Hawaii by Section 5(b) of
the Admission Act and pursuant to Article XVI, Section 7, of
the State Constitution, excluding therefrom lands defined as
"available lands" by Section 203 of the Hawaiian Homes
Commission Act, 1920, as amended, shall be held by the State
as a public trust for native Hawaiians and the general
public.
(Emphasis added.)

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interpretation[.]"), abrogated on other grounds by Tax Found. of

Haw. v. State, 144 Hawai#i 175, 439 P.3d 127 (2019). In

Carmichael, the supreme court held that the "best interests of

the State" provision of HRS § 171-55 triggered "BLNR's obligation

as a public trustee." 150 Hawai#i at 564, 506 P.3d at 228. But

Carmichael was a direct appeal from a lawsuit for declaratory and

injunctive relief; it was not a secondary appeal from an agency

decision, and the supreme court did not decide whether the

plaintiffs in that case had a constitutionally protected property

interest under article XI, section 1 of the Hawai#i Constitution

or the public trust doctrine. And in Ko#olau Agric. Co. v.
Comm'n on Water Res. Mgmt., 83 Hawai#i 484, 495-96, 927 P.2d

1367, 1378-79 (1996), the supreme court held that a CWRM water

management area designation proceeding — which involved water, a

public trust natural resource — need not be conducted as a

contested case.

We hold that HRS § 171-55 and HEPA are laws that

defined Sierra Club's constitutionally protected interest in a
clean and healthful environment in the matter pending before

BLNR. Although those statutes defined Sierra Club's protected

interest in the matter before BLNR, neither require a contested

case when BLNR decides whether to renew a temporary revocable

permit under HRS § 171-55. That distinguishes this case from

those cited by Sierra Club, where contested cases were required

by statute or rule. That also distinguishes this case from

Kilakila #O Haleakala, cited by the dissent.

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We must now balance (a) the risk of an erroneous

deprivation of Sierra Club's constitutionally protected interest,

through the procedures actually used by BLNR and the probable

value, if any, of additional or alternative procedural

safeguards, with (b) the governmental interest, including the

burden that additional procedural safeguards would entail.

Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82.

2. BLNR's procedures for the November 13, 2020
meeting, Sierra Club's participation in the
trial of the 2019 Sierra Club Lawsuit, and
the short period of the permit continuances
provided reasonable protection from the risk
of an erroneous deprivation of Sierra Club's
constitutionally protected interest.

Due process is "not a fixed concept requiring a

specific procedural course in every situation." Davis v. Bissen,
___ Hawai#i ___, ___, ___ P.3d ___, ___, 2024 WL 934690, at *11

(Mar. 5, 2024) (quoting Sandy Beach Def. Fund v. City Council of

City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261

(1989)). It "calls for such procedural protections as the

particular situation demands," with its basic elements being
"notice and an opportunity to be heard at a meaningful time and

in a meaningful manner." Id.

BLNR's Rules of Practice and Procedure are in HAR

title 13, subtitle 1, chapter 1. They are to be "construed to

secure the just, speedy, and cost-effective determination of

every proceeding." HAR § 13-1-1 (eff. 2009). They let

interested persons submit written and oral testimony including

data, views, or arguments on agenda items in board meetings. HAR

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§ 13-1-11.1 (eff. 2009). Required pleadings, applications,

submittals, petitions, reports, maps, exceptions, briefs,

memoranda, and other papers shall be filed with BLNR. HAR § 13-

1-12 (eff. 2009).

BLNR followed the Rules for its November 13, 2020

public meeting. An agenda was published and material was

available to the public on DLNR's website before the meeting. A

link to upload written testimony was provided. An email address

to sign up to present oral testimony was provided. Information

about requesting a contested case hearing was provided. Sierra

Club was informed of the action being considered by BLNR, and the

procedures available to challenge it. Sierra Club had adequate

notice, the first element of due process. See Davis, ___ Hawai#i
at ___, ___ P.3d at ___, 2024 WL 934690, at *12.

Sierra Club also had an opportunity to be heard at a

meaningful time and in a meaningful manner. It submitted written

testimony and argument (as did many other stakeholders). The

audio recording of the meeting has over 18 minutes of oral
argument by Sierra Club's attorney. The portion of the meeting

concerning continuation of the Permits lasted over three hours.

BLNR received over 13,000 pages of material about the Permits

from many sources, including Sierra Club. DLNR and CWRM

representatives gave presentations. BLNR heard oral testimony

from 14 people opposing and supporting the continuations. BLNR

conditioned continuation of the Permits upon A&B and EMI

complying with several conditions, many of which addressed

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concerns that had been expressed by Sierra Club. Sierra Club's

members' constitutional property right to a clean and healthful

environment was reasonably protected.

Sierra Club argues that it was deprived of due process

because a contested case hearing would have allowed it to cross-

examine witnesses. As the dissent points out, a contested case

hearing is similar in many respects to a trial before a judge.

Mauna Kea Anaina Hou v. Bd. of Land and Nat. Res., 136 Hawai#i

376, 380, 363 P.3d 224, 228 (2015). The 2019 Sierra Club Lawsuit

was tried during August and September 2020, just two months

before the November 13, 2020 BLNR meeting. Sierra Club could and

should have cross-examined witnesses during the trial, and

included the information it obtained in its written and oral

submissions to BLNR. Sierra Club has not identified any other

facts it would have been able to elicit during cross-examination

in a contested case hearing.

The dissent quotes the Environmental Court's findings

and conclusions that "the permits at issue covered the year after

the trial" of the 2019 Sierra Club Lawsuit, and that Sierra Club

had "new evidence on the permit renewals — information and issues

which apparently arose after the trial." Respectfully, if Sierra

Club obtained new information in the two months between the end

of the trial and BLNR's meeting, it should have been included in

its written and oral submissions to BLNR. If the new information

was obtained after BLNR's meeting, it could not have formed the

basis for Sierra Club's contested case hearing request. The

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Environmental Court — which was sitting as an appellate court —

exceeded its statutory authority and acted outside of its

discretion if it considered information not in the record before

BLNR. HRS § 91–14(f) (Supp. 2016).

The short one-year duration of the continuations also

safeguard Sierra Club's ability to quickly present new issues,

evidence, or arguments, or changing circumstances that could

affect its members' ongoing interest in a clean and healthful

environment. Information Sierra Club obtained after the

November 13, 2020 BLNR meeting could have been presented to BLNR

when it considered the next year's continuations.18
On this record, we hold that BLNR's rules and

procedures for its November 13, 2020 meeting, Sierra Club's

participation in the 2020 trial of the 2019 Sierra Club Lawsuit,

and the short duration of the Permit continuations provided

reasonable protection from the risk of an erroneous deprivation

of Sierra Club's members' protected interest in a clean and

healthful environment.

18
The contested case hearing on the 2021 and 2022 Permit
continuations was held in December 2021. Sierra Club's secondary appeal from
BLNR's decision is pending as No. CAAP-XX-XXXXXXX.

BLNR met on November 10, 2022, to consider continuing the Permits
for 2023. Sierra Club again requested a contested case. BLNR denied the
request. BLNR approved continuing the Permits for 2023. Sierra Club
appealed, resulting in 1CCV-XX-XXXXXXX. The Environmental Court remanded for
BLNR to conduct a contested case hearing, and modified the conditions for
continuation of the Permits. A&B and EMI's appeal is docketed as No. CAAP-24-
0000113. BLNR's appeal is docketed as No. CAAP-XX-XXXXXXX.
BLNR met on December 7 and 8, 2023, to consider continuing the
Permits for 2024. See https://dlnr.hawaii.gov/wp-content/uploads/2023/12/
Agenda-231207.pdf (https://perma.cc/76JH-X8GH) (last visited Mar. 28, 2024).
The minutes of the meeting are not yet available, and we do not know whether
Sierra Club requested another contested case.

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3. The governmental interests and burdens that a
contested case proceeding would entail
outweighed the marginal additional protection
it could provide to Sierra Club.

We must balance the interests of all parties when

deciding whether constitutional due process requires a contested

case in any particular situation. As to the governmental

interests, we consider not only the State's administrative and

fiscal burdens directly imposed by a contested case; we also

consider the burden and impact on the County, including its

ability to provide water to communities served by its water

systems that rely on water diverted under the Permits.

Contested cases impose "fiscal and administrative

burdens on the state[,]" In re Applications of Herrick, 82

Hawai#i 329, 345, 922 P.2d 942, 958 (1996), and "contested-case

proceedings are generally more costly, time consuming, and

burdensome than public hearings[,]" E&J Lounge, 118 Hawai#i

at 343 n.32, 189 P.3d at 455 n.32 (citing E&J Lounge Operating

Co. v. Liquor Comm'n, 116 Hawai#i 528, 549, 174 P.3d 367, 388

(App. 2007), vacated, 118 Hawai#i 320, 189 P.3d 432 (2008)). The
Hawai#i Administrative Procedure Act requires that parties to

contested cases be given written notice by registered or

certified mail with return receipt requested, or by publication.

HRS § 91-9.5 (2012). The agency must make findings of fact and

conclusions of law. HRS § 91-12 (2012).19 If the agency

19
In Carmichael, the supreme court held that "BLNR must make
findings sufficient to enable an appellate court to track the steps that the
agency took in reaching its decision." 150 Hawai#i at 567, 506 P.3d at 231
(cleaned up). Carmichael was a direct appeal from a lawsuit for declaratory
(continued...)

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officials who are to make the final decision haven't heard and

examined all the evidence (which commonly occurs when the

officials are volunteers, as are BLNR members, see HRS § 171-4(f)

(Supp. 2014)), no final decision can be made until a proposed

decision containing a statement of reasons and a determination of

each issue of fact or law necessary to the decision has been

served on each party adversely affected. HRS § 91–11 (2012).

The affected parties then have the right to file exceptions and

present argument to the officials who will render the final

decision. Id. These requirements impose significant fiscal and

administrative burdens upon BLNR, and upon DLNR staff.

Citing Flores, 143 Hawai#i at 127 & n.7, 424 P.3d at

482 & n.7, the dissent notes that if a future contested case

hearing would overlap a previous hearing, due process would not

mandate a repetitive hearing in light of the "duplicative

administrative burden" on the State. Here, Sierra Club and the

State completed a lengthy — and most likely expensive — trial

over the Permit continuations for 2019 and 2020 just two months
before BLNR met to consider the 2021 continuations. This weighs

against requiring the State to conduct a contested case hearing

under the circumstances of this case.

19
(...continued)
and injunctive relief; it was not an appeal under HRS § 91-14, and the supreme
court did not cite HRS § 91-12 as authority for requiring that BLNR make
findings of fact. Carmichael was decided on March 3, 2022. When BLNR met on
November 13, 2020, there was no statute, rule, or judicial precedent requiring
that BLNR make written findings to support decisions made during public
meetings. We note that for decisions made during a public meeting, rather
than after a contested case hearing, BLNR could refer to its staff submittals
or other evidence in the meeting record to support its decision. The meeting
record and minutes should be sufficient for an appellate court to track the
agency's steps.

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A contested case on continuation of the Permits would

also place a burden on another government entity — the County —

and on more than 35,000 people living and working in Upcountry

Maui who rely on diverted water provided by the County's

Department of Water Supply. The Permits authorized delivery of

8.6 million gallons of water per day to County water treatment

facilities that provide the majority of water to Upcountry Maui.

Carmichael, 150 Hawai#i at 553, 506 P.3d at 217. The County's

Upcountry Water System serves the communities of Kula, Ha#ikū,

Makawao, Pukalani, Hāli#imaile, Waiakoa, Kēōkea, Waiohuli,

#Ulupalakua, Kanaio, Olinda, Ōma#opio, Kula Kai, and Pūlehu. By

2030, the population of these communities is expected to grow to

more than 43,000 people. The County also provides water diverted

under the Permits to the Kula Agricultural Park, which contains

31 farm lots ranging in size from 7 to 29 acres. If a contested

case on continuing the Permits is not concluded before the

Permits expire, the County will have to devote significant time

and resources to provide tens of thousands of Maui residents with

alternate access to water, with no guarantee of success. BLNR

found, in the contested case on A&B and EMI's 2001 long-term

water lease application:
If Upcountry Maui's main source of water supply were
curtailed, the deficit could not be made up by other
portions of [the County]'s water system because the
Upcountry system is separate and distinct from the water
systems serving other regions of Maui. Cutting off
Upcountry Maui's main public water supply completely would
result in a public health crisis and economic catastrophe.

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(Emphasis added.) These burdens distinguish this case from

Davis, where the supreme court held that a hearing conducted

after the houseless plaintiffs' personal property was impounded,

thus eliminating any further danger to public health and safety,

"would not have significantly burdened the County." ___ Hawai#i

at ___, ___ P.3d at ___, 2024 WL 934690, at *13.

Balancing the minimal additional protection a contested

case would have provided to Sierra Club under the circumstances

of this case against the annual fiscal and administrative burdens

a contested case would impose on BLNR and the County (and

potentially on those living or working in Upcountry Maui), we

hold that Sierra Club was not denied constitutional due process

by BLNR's denial of its request for a contested case hearing.

Sierra Club's members' interest in a clean and healthful

environment would be more appropriately addressed in the ongoing

contested case on A&B and EMI's 2001 long-term water lease

application, rather than an unnecessarily burdensome — and

potentially annual — contested case on the short-term Permits.

C. The Environmental Court erred by modifying
the conditions BLNR placed upon continuation
of the Permits for 2021.

The Environmental Court cited HRS § 91-14(g) as

authority for its modification of BLNR's conditions for

continuing the Permits for 2021. HRS § 91-14(g) allows a circuit

court to "modify the decision and order" of an agency in a

contested case from which an appeal is taken. The Environmental

Court did not have jurisdiction over Sierra Club's appeal from

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BLNR's decision to continue the Permits for 2021, because that

decision was not made in a contested case and did not need to be

made after a contested case hearing.

Sierra Club argues that the Environmental Court had

equitable jurisdiction under HRS § 604A-2(b) to modify BLNR's

conditions. The statute provides:

(a) The environmental courts shall have exclusive,
original jurisdiction over all proceedings, including
judicial review of administrative proceedings . . .
authorized under chapter 91, arising under . . . title 12;

. . . .

(b) In any case in which it has jurisdiction, the
environmental courts shall exercise general equity powers as
authorized by law.

HRS § 604A-2 (2016 & Supp. 2018) (emphasis added).

HRS Title 12 deals with Conservation and Resources and

includes HRS § 171-55. The Environmental Court has exclusive

jurisdiction over appeals from BLNR's decisions in contested

cases to continue temporary revocable permits under HRS § 171-55.

But BLNR's decision to continue the Permits for 2021 was made

during a public meeting, not a contested case hearing. The

Environmental Court did not have equitable power to modify BLNR's

conditions because it did not have jurisdiction over Sierra

Club's appeal from BLNR's decision to continue the Permits.

The dissent cites the supreme court's statement in

Carmichael that on remand, "the circuit court should continue to

exercise its equitable power as it pertains to the municipal —

and residential — water needs of the upcountry Maui community."

150 Hawai#i at 572, 506 P.3d at 236. Carmichael was a civil
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action for declaratory and injunctive relief over which the

circuit court had original jurisdiction. That is why it was

authorized, under HRS § 604A-2(b), to exercise equitable power.

Even if the Environmental Court had jurisdiction under

HRS § 91-14, the procedure it used to modify BLNR's conditions

exceeded its statutory authority. Our government
is one in which the sovereign power is divided and allocated
among three co-equal branches. Thus, we have taken the
teachings of the Supreme Court to heart and adhered to the
doctrine that the use of judicial power to resolve public
disputes in a system of government where there is a
separation of powers should be limited to those questions
capable of judicial resolution and presented in an adversary
context. And, we have admonished our judges that even in
the absence of constitutional restrictions, they must still
carefully weigh the wisdom, efficacy, and timeliness of an
exercise of their power before acting, especially where
there may be an intrusion into areas committed to other
branches of government.

Tax Found. of Haw., 144 Hawai#i at 190, 439 P.3d at 142 (emphasis

added).

Administrative agencies are part of the Executive

branch. A circuit court reviewing an agency's final decision and

order in a contested case under HRS § 91-14 acts as an appellate

court. Diamond v. Dobbin, 132 Hawai#i 9, 24, 319 P.3d 1017, 1032

(2014). Its review is confined to the record that was before the

agency. HRS § 91–14(f). It does not make findings of fact; it

determines whether the agency's findings of fact were clearly

erroneous in view of the reliable, probative, and substantial

evidence in the record. HRS § 91–14(g)(5); Diamond, 132 Hawai#i

at 24, 319 P.3d at 1032. It reviews the agency's conclusions of

law de novo, under the right/wrong standard. HRS § 91–14(g)(1),

(2), and (4); Kilakila #O Haleakala v. Bd. of Land & Nat. Res.,

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138 Hawai#i 383, 395-96, 382 P.3d 195, 207-08 (2016). Where

mixed questions of fact and law are presented, a circuit court

must defer to an agency's expertise and experience in its field

and must not substitute its judgment for that of the agency.

Dole Haw. Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424,

794 P.2d 1115, 1118 (1990). A court "cannot consider the weight

of the evidence to ascertain whether it weighs in favor of the

administrative findings, or review the agency's findings of fact

by passing upon the credibility of witnesses or conflicts in

testimony, especially the finding of an expert agency in dealing

with a specialized field." Sierra Club v. D.R. Horton-Schuler
Homes, LLC, 136 Hawai#i 505, 522, 364 P.3d 213, 230 (2015)

(cleaned up).

If a circuit court concludes that additional evidence

is material to the agency's decision and there were good reasons

why the parties did not present the evidence to the agency, it

may order that the evidence be presented to the agency, and allow

the agency to modify its findings, decision, and order. HRS
§ 91–14(e) (2012). It can then review the agency's modified

findings, conclusions, and decision and order, if necessary,

under the appropriate appellate standards of review.

The Interim Decision stated that the Environmental

Court "has no record or briefing to objectively decide on any

specific modification of the permits." Yet, the Order Modifying

Permits made a finding that limiting the stream diversions "to no

more than 25 million gallons of water per day" "should be more

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than enough water to allow all users the water they require,

while hopefully reducing apparent or potential waste." The

Environmental Court in effect eliminated the 8.6 million gallons

of water per day diverted to the County for use by Upcountry Maui

residents, plus 11.4 million more gallons per day, based on its

own findings of fact, and on information that was never presented

to BLNR. The Environmental Court substituted its judgment for

that of BLNR, an expert agency dealing with a specialized field.

In so doing, the court exceeded its authority under HRS § 91-14.

See D.R. Horton-Schuler Homes, LLC, 136 Hawai#i at 522, 364 P.3d
at 230.

We hold that a circuit court's authority under HRS

§ 91-14(g) to modify an agency's decision and order in a

contested case is limited to correcting conclusions of law that

were wrong, either because the findings of fact upon which the

conclusions were based were clearly erroneous, the wrong law was

applied, or the right law was applied incorrectly. The circuit

court is not authorized to make its own findings of fact. Nor is
it authorized to substitute its judgment about the application of

public policy to the facts for that of the agency, which is

constitutionally delegated that power.

D. Sierra Club was not entitled to recover
attorneys fees or costs under the private
attorney general doctrine.

In Hawai#i litigants are responsible for their own

attorneys fees and costs unless an award is allowed by statute,

court rule, agreement, stipulation, or precedent. Sierra Club v.

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Haw. Dep't of Transp., 120 Hawai#i 181, 218, 202 P.3d 1226, 1263

(2009) (Superferry). One such precedent is the private attorney

general doctrine, upon which Sierra Club relied in both of its

motions for fees and costs.

Sierra Club correctly asserts that the private attorney

general doctrine
is an equitable rule that allows courts in their discretion
to award [attorney's] fees to plaintiffs who have vindicated
important public rights. Courts applying this doctrine
consider three basic factors: (1) the strength or societal
importance of the public policy vindicated by the
litigation, (2) the necessity for private enforcement and
the magnitude of the resultant burden on the plaintiff,
[sic] (3) the number of people standing to benefit from the
decision.

Superferry, 120 Hawa#i at 218, 202 P.3d at 1263. In Superferry,

Sierra Club was awarded attorneys fees because "Sierra Club

prevailed on the merits of the claim requiring preparation of an

[environmental assessment] pursuant to HRS chapter 343" and was

"responsible for establishing the principle of procedural

standing in environmental law in Hawai#i and clarifying the

importance of addressing the secondary impacts of a project in

the environmental review process pursuant to HRS chapter 343."
Id. at 217, 220, 202 P.3d at 1262, 1265.

In the other case cited by Sierra Club, Honolulu

Constr. & Draying Co. v. Dep't of Land & Nat. Res., 130 Hawai#i

306, 310 P.3d 301 (2013) (Irwin Park), Scenic Hawai#i defeated

Aloha Tower Development Corporation's petition to expunge a

restriction in the State's deed for Irwin Park. The supreme

court held that "an organization may seek to vindicate public

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policy through litigation on discrete issues, so long as the

resolution of the litigation in favor of the organization

vindicates a public policy goal, and that policy satisfies the

first prong of the test." Id. at 315, 310 P.3d at 310. The

important public policy goal vindicated in Irwin Park was

"preserving public parks and historic sites." Id.

Sierra Club argues that it vindicated the important

public policy of requiring a contested case hearing before BLNR

could continue the Permits, and significantly reduced the amount

of water A&B and EMI could divert under them. Here we hold a

contested case was not required before BLNR decided whether to

continue the Permits for 2021, and the Environmental Court did

not have jurisdiction to modify the conditions BLNR imposed upon

the continuations. Sierra Club did not vindicate any important

public policy. It was not entitled to an award of attorneys fees

or costs under the private attorney general doctrine.

We need not decide whether the Environmental Court

erred by denying BLNR's motion for entry of an appealable

judgment or for leave to file an interlocutory appeal.

IV. CONCLUSION

Sierra Club was not constitutionally entitled to a

contested case hearing under the circumstances presented here;

the Environmental Court did not have jurisdiction over Sierra

Club's appeal from BLNR's decision to continue the Permits for

2021 or to modify the conditions under which the Permits were

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continued; and Sierra Club was not entitled to attorneys fees or

costs.

The Environmental Court's May 28, 2021 Interim Decision

on Appeal; July 30, 2021 Order Modifying Permits; August 23, 2021

Findings of Fact, Conclusions of Law and Order; December 27, 2021

supplemental order extending the end date for the Permits; and

February 2, 2022 and July 12, 2022 orders awarding Sierra Club

attorneys fees and costs are vacated. The July 27, 2022 Final

Judgment is reversed. BLNR's decision to deny Sierra Club's

request for a contested case hearing is affirmed.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
David Kimo Frankel,
for Appellant-Appellee/ /s/ Keith K. Hiraoka
Cross-Appellee and Associate Judge
Appellant-Appellee
Sierra Club.

Mariana Löwy-Gerstmar,
Kristin K. Tarnstrom,
Deputies Corporation Counsel,
County of Maui,
for Appellee-Appellee/
Cross-Appellant and
Appellee-Appellee County of Maui.

David Schulmeister,
Trisha H.S.T. Akagi,
Mallory T. Martin,
for Appellees-Appellants/
Cross-Appellees and
Appellees-Appellees Alexander
and Baldwin, Inc. and East Maui
Irrigation Co., LLC.

Julie H. China,
Linda L.W. Chow,
Melissa D. Goldman,
Deputy Attorneys General,
State of Hawai#i,

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for Appellee-Appellee/Cross-Appellee
and Appellee-Appellant Board of Land
and Natural Resources.

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DISSENTING OPINION by Nakasone, J.

While I agree with the Majority in Part III.B.I., I
respectfully dissent from the remainder of the Majority's
Opinion, as to the application of the second and third Sandy
Beach due process factors in Part III.B.2. and III.B.3., and as
to Part III.A. and III.C. regarding jurisdiction. I would hold
that the Environmental Court did not err in concluding that a
contested case hearing was required by due process under the
specific circumstances of this case, and that it had jurisdiction
over Sierra Club's appeal of BLNR's decision to grant the
continuation of the Permits and to modify the Permits. Because I
would affirm the Environmental Court on these issues, I also
dissent from Part III.D. (denying recovery of attorney's fees and
costs under the private attorney general doctrine).
Due process required a contested case hearing.
Regarding the second Sandy Beach factor, evaluating
"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[,]" I would hold
that this factor weighed in favor of a contested case hearing.
Sandy Beach Def. Fund v. City Council of City & Cnty. of
Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). Sierra
Club set forth the issues it sought to challenge in its petition
for a contested case before BLNR. While the November 13, 2020
public meeting provided an opportunity for Sierra Club to be
heard, this format did not permit a meaningful opportunity to
challenge the permit applicant by cross-examination of the
applicant's witnesses' testimony under oath. There was risk of
erroneous deprivation even though the duration of the Permits was
short, where the Permits had been continued annually for twenty
years with no prior contested case hearing ever having been
conducted on the constitutional interests Sierra Club sought to
protect in this case.

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In Carmichael v. Bd. of Land & Nat. Res., the Hawai#i
Supreme Court explained that "when appraising the legislative
history of Hawaii Revised Statutes (HRS) chapter 171 as a whole,
it is clear that BLNR's power to issue and continue revocable
permits under HRS § 171-55 was intended to be narrowly
exercised." 150 Hawai#i 547, 564, 506 P.3d 211, 228 (2022). In
construing the "best interests of the State" language in HRS §
171-55 (2011), the supreme court cautioned that BLNR performs as
a public trustee of the State's water resources, and "is duty
bound to demonstrate that it has properly exercised the
discretion vested in it by the constitution and the statute."
Id. at 566, 506 P.3d at 230 (cleaned up).
A contested case hearing is similar in many respects to a
trial before a judge: the parties have the right to present
evidence, testimony is taken under oath, and witnesses are
subject to cross-examination. It provides a high level of
procedural fairness and protections to ensure that decisions
are made based on a factual record that is developed through
a rigorous adversarial process.

Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai#i
376, 380, 363 P.3d 224, 228 (2015). Given the significant amount
of the public trust resource of water at issue, the importance of
Sierra Club's asserted constitutionally protected interest, and
the substantive economic and environmental issues raised by
Sierra Club in its petition, the trial-like protections of a
contested case hearing would guard against the risk of erroneous
deprivation.
Appellees Alexander & Baldwin, Inc. (A&B) and East Maui
Company, Limited (EMI) (collectively, Appellees) and BLNR argued
below to the Environmental Court, and again in this appeal, that
Sierra Club already had the opportunity to litigate "virtually
identical" issues in the 2020 trial (2020 Trial) on the 2019
Lawsuit. I do not agree that Sierra Club's participation in the
2020 Trial was an adequate alternative procedural safeguard,
where the Environmental Court judge, who was the same judge that
presided over the 2020 Trial, specifically found otherwise. See
Sandy Beach, 70 Haw. at 378, 773 P.2d at 261. The Environmental

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Court found that this case involved "some significantly different
facts" from the 2020 Trial; that "the permits at issue covered
the year after the trial" and "[t]hings change with time"; that
Sierra Club had "new evidence on the permit renewals --
information and issues which apparently arose after the trial";
and that "[t]he new information and issues are relevant and are
not insignificant." Finding of Fact (FOF) 9, Conclusion of Law
(COL) 7. While the parties disagree on the Environmental Court's
characterization of what issues or evidence were "new" or not, I
cannot conclude that this particular finding and mixed
factual/legal determination was clearly erroneous. For the
reasons above, I would conclude the second Sandy Beach factor
weighs in favor of a contested case hearing.
Regarding the third Sandy Beach factor on the
"governmental interest, including the burden that additional
procedural safeguards would entail[,]" 70 Haw. at 378, 773 P.2d
at 261, this case is distinguishable from Flores v. Bd. of Land &
Nat. Res., 143 Hawai#i 114, 424 P.3d 469 (2018), upon which the
Appellees and BLNR rely. In Flores, the supreme court held that
the petitioner was not entitled to a second contested case
hearing on the Mauna Kea telescope sublease, when he had already
participated in a prior contested case hearing on the Mauna Kea
telescope Conservation District Use Permit regarding the impact
of telescope construction on his constitutionally protected
cultural rights. Id. at 127-28, 424 P.3d at 482-83. Here, the
specter of floodgates of contested case hearings creating annual
fiscal and administrative burdens for every future water permit
continuation is speculative and premature, since we cannot
presume that a contested case hearing will be requested in every
similar case, or that BLNR would be required by due process to
grant such in every case. The concern over the possibility of an
increase in future contested case hearing requests is not a basis
to deny a contested case hearing in this particular case. Each
request must be evaluated under the Sandy Beach factors to
determine whether, under the particular context and circumstances

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presented, due process requires a contested case hearing in that
case. Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82. Under
Flores, depending on the circumstances, if the interests in a
future contested case hearing "would appear to overlap entirely"
with a previously conducted contested case hearing, then due
process would not mandate a repetitive hearing in light of the
"duplicative administrative burden" on the State. Id. at 127,
127 n.7, 424 P.3d at 482, 482 n.7. Even when a hearing is
granted, the contested case hearing officer retains discretion to
"avoid unnecessary or repetitive evidence" by "limit[ing] the
number of witnesses, the extent of direct or cross examination or
the time for testimony upon a particular issue." HAR § 13-1-
32(h) (2009). Finally, in light of Carmichael's clarification
that BLNR must issue FOFs and COLs to support a "best interests
of the State" determination to grant a permit continuation under
HRS § 171-55, 150 Hawai#i at 566-67, 506 P.3d at 230-31, and
because FOFs and COLs are also required in contested case
hearings, see HRS § 91-12 (2012) and HAR § 13-1-38 (2009), I
would conclude that the administrative burden is not duplicative.
For these reasons, I would conclude the third Sandy Beach factor
weighs in favor of a contested case hearing.

The Environmental Court had jurisdiction over
BLNR's decision to grant the Permits, and also had
jurisdiction to modify the Permits.
I would hold that the Environmental Court had
jurisdiction over BLNR's decision to continue the Permits because
both the denial of the contested case hearing and BLNR's
subsequent decision to grant the continuation of the Permits
constitute a "final decision . . . in a contested case" that
qualifies for judicial review under HRS § 91-14(g) (2012 & 2022
Supp.). See Cmty. Ass'n of Hualalai, Inc. v. Leeward Plan.
Comm'n (Hualalai), 150 Hawai#i 241, 256, 500 P.3d 426, 441 (2021)

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(citing Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm'n
(PASH), 79 Haw. 425, 431, 903 P.2d 1246, 1252 (1995)). In
Hualalai, the Hawai#i Supreme Court explained that a "final
decision" under HRS § 91-14(g) "can take the form of an agency's
formal denial of a party's request for a contested case
hearing[.]" Id. (citing Kaleikini v. Thielen, 124 Hawai#i 1, 26,
237 P.3d 1067, 1092 (2010)). "An agency's failure to deny or
grant a party's request for a contested case hearing followed by
agency action that effectively ends the proceeding may also
constitute a final decision." Id. (citing Kilakila #O Haleakala
v. Bd. of Land & Nat. Res. (Kilakila), 131 Hawai#i 193, 202-03,
317 P.3d 27, 36-37 (2013)).
Here, BLNR denied the request for a contested case,
then subsequently voted to grant the continuation of the Permits.
In its appeal to the Environmental Court, the Sierra Club
requested the Environmental Court reverse both of BLNR's
decisions, i.e. the denial of contested case hearing and the
granting of the continuation of the Permits. Similarly, the
petitioners in Kilakila appealed both BLNR's decision approving
the permit in that case and the lack of decision either granting
or denying the request for contested case hearing. 131 Hawai#i
at 202, 317 P.3d at 36. The Kilakila court held that a contested
case hearing should have been held; vacated the circuit court's
order granting the dismissal of the petitioners' appeal; and
"remand[ed] to the circuit court for further proceedings
consistent with this opinion regarding [petitioners'] request for
stay or reversal of the conservation district use permit granted
by BLNR . . . ." Id. at 206, 317 P.3d at 40. The circuit court
in Kilakila had jurisdiction over BLNR's decision on the permit,

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even though no contested case hearing had been held. See id. In
addition, HRS § 91-14(i) further provides: "[w]here a court
remands a matter to an agency for the purpose of conducting a
contested case hearing, the court may reserve jurisdiction and
appoint a master or monitor to ensure compliance with its
orders." Thus, I would conclude that the Environmental Court had
jurisdiction over BLNR's decision to continue the Permits here
under HRS § 91-14(g); and that the Environmental Court correctly
concluded in COL 12 that it had jurisdiction to "reverse or
modify" BLNR's decision, where the denial of a contested case
hearing had prejudiced Sierra Club's substantial rights. See HRS
§ 91-14(g), (i); Kilakila, 131 Hawai#i at 202, 317 P.3d at 36.
Because the Environmental Court had jurisdiction under
HRS § 91-14 and HRS § 604A-2(a) (2016 & 2022 Supp.), I would also
conclude that it had equitable jurisdiction under HRS § 604A-
2(b)'s mandate that the Environmental Court "shall exercise
general equity powers as authorized by law."20 In lieu of
vacating the Permits, the Environmental Court modified them to
limit the amount of water diverted,21 invoking its equity powers
to avoid "unintended consequences or chaos by vacating the
[P]ermits" and to "not risk a vacuum which causes hardship to
those on Maui who rely on the water at issue." See COL 14. The
Environmental Court also invoked its "inherent equitable

20
There is no Hawai#i precedent to guide the lower courts on
the interpretation and application of this unique provision conferring equity
powers on the Environmental Court.
21
The Environmental Court arrived at the 25 million gallons of
water per day limit after providing opportunity for input to all the parties,
but only receiving input from one. See FOF 13 ("The Sierra Club was the only
party which offered the court concrete and specific options and support for
how to modify the defective permits and not leave a vacuum until BLNR conducts
a contested case hearing.").

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powers"22 under HRS § 603-21.9 (2016), which states that circuit
courts "shall have power" to make orders, and "do such other acts
and take such other steps as may be necessary . . . for the
promotion of justice in matters pending before them." Equity
jurisprudence is flexible and adaptable to the situation
presented, allowing a court to "mold its decrees to do justice
amid all the vicissitudes and intricacies of life." Fleming v.
Napili Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316, 319 (1967)
(citation and internal quotation marks omitted). "The principles
upon which [equity] proceeds are eternal; but their application
in a changing world will necessarily change to meet changed
situations." Id. (citation and internal quotation marks
omitted). I would hold that the Environmental Court did not
abuse its equitable power under HRS § 604A-2(b) and HRS § 603-
21.9, after receiving input from the parties, in fashioning the
relief it deemed appropriate to the situation at hand, by
modifying the Permits. See Carmichael, 150 Hawai#i at 572, 506
P.3d at 236 (remanding to the circuit court in an injunctive
relief action and stating that "the circuit court should continue
to exercise its equitable power as it pertains to the
municipal-and [sic] residential-water needs of the upcountry Maui
community"); Fleming, 50 Haw. at 70, 430 P.2d at 319.

/s/ Karen T. Nakasone
Associate Judge

22
In its order, the Environmental Court cited Richardson v.
Sport Shinko (Waikiki Corp.), 76 Hawai#i 494, 507, 880 P.2d 169, 182 (1994),
and Jenkins v. Wise, 58 Haw. 592, 598, 574 P.2d 1337, 1342 (1978), which
concern the exercise of a circuit court's inherent powers under HRS § 603-
21.9.

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