Kilakila ‘O Haleakala v. Board of Land and Natural Resources.Â
131 Haw. 193
| Haw. | 2013Background
- University of Hawai‘i (UH) applied for a conservation district use permit (CDUP) to build an advanced solar telescope on Haleakalā; the Board of Land and Natural Resources (BLNR) ultimately voted to grant the permit at a December 1, 2010 meeting.
- Kilakila ‘O Haleakalā (KOH), an organization asserting Native Hawaiian cultural and environmental interests, timely requested contested‑case hearings (oral and written) under BLNR rules before BLNR’s decision; BLNR did not grant or deny those requests before voting.
- KOH filed an HRS § 91‑14 agency appeal in circuit court seeking remand for a contested‑case hearing, a stay, and reversal of the permit; the circuit court dismissed for lack of jurisdiction because no contested case had occurred.
- The Intermediate Court of Appeals affirmed, applying the PASH/Kaleikini test and concluding the first prong (that the agency action stemmed from a contested case hearing) was unmet.
- The Hawai‘i Supreme Court held the case was not moot, concluded BLNR’s grant of the permit in the face of a pending, properly made contested‑case request was an effective denial (i.e., a final decision/order) under HRS § 91‑14, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case was moot after BLNR later granted a contested‑case hearing | KOH: not moot because it sought stay/reversal of permit and BLNR had not stayed or revoked permit | UH/BLNR: moot because BLNR later granted the contested‑case hearing KOH requested | Held: Not moot; permit remained in effect so appellate relief still possible |
| Whether BLNR’s December 1 vote was an appealable “final decision and order in a contested case” under HRS § 91‑14 when no formal contested case hearing had occurred | KOH: BLNR’s vote in the face of a pending request amounted to an effective denial and final agency action appealable under § 91‑14 | UH/BLNR: No; HRS § 91‑14 requires an actual contested case proceeding before judicial review | Held: BLNR’s vote constituted a final decision/order; circuit court had jurisdiction to hear KOH’s § 91‑14 appeal |
| Whether a contested‑case hearing was “required by law” before BLNR issued the permit | KOH: BLNR rules (HAR) and constitutional protections (Native Hawaiian rights/public trust/due process) required a hearing | UH: no statutory mandate; BLNR had discretion and later offered a hearing | Held: Agency rules (HAR §§ 13‑5‑25, 13‑5‑34, 13‑1‑28/29) required a hearing for this application; constitutional arguments addressed in concurrence but not necessary to majority decision |
| Standing to appeal under HRS § 91‑14 | KOH: alleged injury to traditional/customary, environmental, and aesthetic interests—sufficient under Hawai‘i precedents to meet injury‑in‑fact and lowered standing barriers for Native Hawaiian/environmental claims | UH: KOH insufficiently aggrieved; lacked required contested‑case participation | Held: KOH has standing; its allegations (accepted as true on jurisdictional review) satisfy injury‑in‑fact and PASH/Kaleikini prongs |
Key Cases Cited
- Kaleikini v. Thielen, 124 Hawai‘i 1, 237 P.3d 1067 (2010) (explains PASH test for § 91‑14 review and recognizes denial of contested‑case request as final agency action)
- Public Access Shoreline Hawai‘i v. Hawai‘i Cnty. Planning Comm’n, 79 Hawai‘i 425, 903 P.2d 1246 (1995) (establishes multi‑prong test for when agency action is reviewable under HRS chapter 91)
- Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai‘i 64, 881 P.2d 1210 (1994) (due process may require hearing when permit issuance affects others’ protected interests)
- Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, 94 Hawai‘i 31, 7 P.3d 1068 (2000) (Native Hawaiian rights are matters of public concern and standing barriers should be relaxed)
- In re Water Use Permit Applications (Waiahole I), 94 Hawai‘i 97, 9 P.3d 409 (2000) (public trust doctrine and who may vindicate it)