Sierra Club v. Castle & Cooke Homes Hawai‘i, Inc.

• Decision Date: 23 December 2013
• Docket Number: No. SCWC–11–0000625.,SCWC–11–0000625.
• Citation: 320 P.3d 849,132 Hawai'i 184
• Court: Hawaii Supreme Court
• Parties: SIERRA CLUB, Petitioner/Appellant–Appellee, v. CASTLE & COOKE HOMES HAWAI‘I, INC.; and The Land Use Commission of the State of Hawai‘i, Respondents/Appellees–Appellants, and Office of Planning, State of Hawai‘i; Department of Planning and Permitting; and Neighborhood Board No. 25, Respondents/Appellees–Appellees.

132 Hawai'i 184

320 P.3d 849

SIERRA CLUB, Petitioner/Appellant–Appellee,

v. CASTLE & COOKE HOMES HAWAI‘I, INC.; and The Land Use Commission of the State of Hawai‘i, Respondents/Appellees–Appellants,andOffice of Planning, State of Hawai‘i; Department of Planning and Permitting; and Neighborhood Board No. 25, Respondents/Appellees–Appellees.

No. SCWC–11–0000625.

Supreme Court of Hawai‘i.

Dec. 23, 2013.

Robert D. Harris, for petitioner.

Marissa H.I. Luning, for respondent Land Use Commission of the State of Hawai‘i.

Benjamin M. Matsubara, Curtis T. Tabata, and Wyeth M. Matsubara, Honolulu, for respondent Castle & Cooke Homes Hawai‘i, Inc.

NAKAYAMA, ACOBA, JR., McKENNA, and POLLACK, JJ., with RECKTENWALD, C.J., concurring and dissenting separately.

Opinion of the Court by POLLACK, J.

This case requires us to consider whether the Hawai‘i State Senate's express rejection of a board member's nomination for a second term effectively disqualifies the member from continuing to serve on the board and from voting on matters of critical importance to the community.

On April 26, 2010, the Senate rejected Duane Kanuha's (Kanuha) nomination for a second term as a commissioner on the Respondent/ Appellee–Appellant state Land Use Commission (LUC), based in part on the finding that Kanuha lacked the requisite knowledge and experience to qualify as the designated member with expertise on Hawaiian land usage. More than four months after the Senate's rejection, Kanuha continued to participate in the LUC's consideration of a significant development project involving the reclassification of agricultural land for urban use. At that time, the Petitioner/Appellant–Appellee Sierra Club (Sierra Club) filed an action to disqualify Kanuha from serving on the LUC as of the date of his rejection and to invalidate any actions Kanuha had taken with respect to the development project. The LUC denied the action and, that same day, deliberated on and voted to approve the subject reclassification. Despite the Senate's finding that he was unqualified to continue serving as an LUC member, Kanuha participated in the LUC's vote and the LUC's subsequent vote to approve the written findings, conclusions, and decision and order approving the project. The decision and order would not have been approved without Kanuha's vote.

For the reasons set forth herein, we conclude that in light of the Senate's rejection of Kanuha's nomination for a second term, Kanuha was not a valid holdover member of the LUC under Hawai‘i Revised Statutes (HRS) § 26–34 when he voted on the reclassification. Kanuha also did not qualify as a de facto member of the LUC given the Senate's express rejection of his nomination. Without Kanuha's disqualified vote, the LUC lacked the requisite number of votes to approve the reclassification. Accordingly, we reverse the judgment of the Intermediate Court of Appeals (ICA) and affirm the judgment of the Circuit Court of the First Circuit (circuit court).

I.

Kanuha was nominated by the governor for a four-year term as a LUC commissioner on April 12, 2005. 2005 Senate Journal, at 586 (Governor's Message 630). His nomination was confirmed by the Senate on April 27, 2005. 2005 Senate Journal, at 770.

On July 3, 2007, Respondent/Appellee–Appellant Castle & Cooke Homes Hawai‘i, Inc. (Castle & Cooke) filed a Petition for Land Use District Boundary Amendment with the LUC. Subsequently on May 16, 2008, Castle & Cooke filed an Amended Petition for Land Use District Boundary Amendment Verification (Reclassification Petition),² seeking to amend the land use district boundary to reclassify approximately 767 acres in Waipi‘o and Waiawa, O‘ahu, from an agricultural to urban district. The petition involved two geographic areas referred to as Koa Ridge Makai, consisting of approximately 576.435 acres of land in Waipio, and Castle & Cooke Waiawa, consisting of approximately 191.214 acres of land in Waiawa.

The petition was filed pursuant to HRS § 205–4 (governing district boundary amendments to land areas greater than fifteen acres) and Hawai‘i Administrative Rules (HAR) § 15–15 (governing LUC rules). The boundary amendment and reclassification was requested as part of a proposal for the two-phase development of 5,000 residential units, mixed-use village center, hotel, medical center, commercial properties, light industrial, elementary schools, parks, churches, recreation centers, open space, and roadways. The development was expected to span more than ten years, with Koa Ridge Makai projected to be completed by 2020 and Castle & Cooke Waiawa projected to be completed by 2024.

The LUC held several evidentiary hearings on the Reclassification Petition, during which it received numerous oral and written testimonies from the public, both in support of and in opposition to the Project.

While the LUC was still in the process of considering the Reclassification Petition, Kanuha's first term expired on June 30, 2009. See 2005 Senate Journal, at 586 (Governor's Message 630). He continued to serve as a LUC commissioner as a holdover member.

On December 4, 2009, the LUC voted to approve the Sierra Club's petition to intervene in the matter.³

On March 3, 2010, the governor nominated Kanuha to serve a second term as a LUC commissioner. 2010 Senate Journal, at 283 (Governor's Message 338). The Water, Land, Agriculture, and Hawaiian Affairs committee prepared a report on Kanuha's nomination. S. Stand. Comm. Rep. No. 3208, 2010 Senate Journal, at 1332. The committee stated that Kanuha "is presently a member of the [LUC], and is the designated member with substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural practices."⁴ Id. However, the committee found that Kanuha had "limited experience with traditional Hawaiian land usage and knowledge." Id.

The committee further noted that it had been referred a total of four nominees to the LUC during the 2010 regular session, consisting of three current LUC commissioners and a fourth nominee, a "civil litigation attorney with no experience in land issues." Id.

Despite its concerns, the committee recommended that the Senate consent to Kanuha's nomination. Id.

On April 26, 2010, the full Senate considered Kanuha's nomination for a second term. 2010 Senate Journal, at 564. During the floor discussion on Kanuha's nomination, Senators Hee and Hemmings spoke in opposition to the nomination, citing Kanuha's lack of expertise as a cultural practitioner. 2010 Senate Journal, at 561–64. Senator Hemmings in particular argued that the Senate had "no choice" but to reject Kanuha's nomination in order to comply with HRS § 205–1, which requires one member of the LUC to have "substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices":

Through it all in all of the discussion, one clear factor cannot be denied: We passed a law requiring a cultural practitioner. The Governor has not followed it. This nominee, by his own admission, is not a cultural practitioner. We have no choice but to vote ‘no’ in order to stay compliant with the law as it is written and, more importantly, with the moral integrity of this body to stay consistent with what we voted for.

2010 Senate Journal, at 564 (emphasis added).

After completion of the floor discussion, the Senate voted to reject Kanuha's nomination by a vote of 14–9, with two Senators excused. Id.

More than four months after the Senate's vote to reject his nomination for a second term, Kanuha continued to participate in the LUC's consideration of the Reclassification Petition. On September 8, 2010, the Sierra Club filed a Motion to Disqualify Duane Kanuha, Nunc Pro Tunc, as of April 26, 2010 (Motion to Disqualify) with the LUC.⁵ The Sierra Club argued that Kanuha's capacity to be a holdover member under HRS § 26–34 was terminated on April 26, when the Senate declined to confirm his nomination for re-appointment. The Sierra Club requested that the LUC issue an order providing that Kanuha was not a commissioner as of April 26, 2010, and that any actions taken by Kanuha with respect to the Reclassification Petition since that time be deemed invalid.

The LUC convened for a meeting on September 23, 2010, to consider the Motion to Disqualify and the Reclassification Petition. The LUC voted 6–0 to deny the Motion to Disqualify, with Kanuha and one other commissioner abstaining from voting. Prior to voting on the Reclassification Petition, the LUC Chairman informed the commissioners that if a decision was reached that day, the LUC staff would be directed to draft findings of fact, conclusions of law, and a decision and order reflecting the decision. Those findings and conclusions would "be further deliberated" at the next hearing. The LUC then voted to approve the Reclassification Petition by a vote of 7–1, with Kanuha voting in favor of approval and one commissioner being excused.

The LUC convened again on October 15, 2010 to deliberate on the proposed "Findings of Fact, Conclusions of Law, Decision and Order" (Decision and Order) prepared by the staff following the prior meeting. The commissioners proposed and deliberated on multiple amendments to the conditions in the proposed order.⁶ The LUC, including Kanuha, voted 6–0 to approve the Decision and Order, as amended by the discussion during the meeting.

The Sierra Club filed an appeal with the circuit court on November 10, 2010, challenging the Decision and Order. The Sierra Club argued that Kanuha's capacity to continue serving as a commissioner was terminated by the Senate's rejection of his nomination for a second term.⁷ Thus, Kanuha should not have been permitted to vote on the Reclassification Petition, and the petition should have been denied because the October 15 LUC vote approving the Decision and Order failed to receive the requisite six affirmative votes. The Sierra Club asked the circuit court to stay the order granting the amendment of the land use district boundaries and to stay ...