Pila‘a 400, LLC v. Bd. of Land & Natural Res., No. SCWC–28358.

CourtSupreme Court of Hawai'i
Writing for the CourtOpinion of the Court by POLLACK, J.
Citation320 P.3d 912,132 Hawai'i 247
Parties PILA‘A 400, LLC, Petitioners/Appellant–Appellant, v. BOARD OF LAND AND NATURAL RESOURCES and Department of Land and Natural Resources, State of Hawai‘i, Respondents/Appellees–Appellees.
Docket NumberNo. SCWC–28358.
Decision Date14 February 2014

132 Hawai'i 247
320 P.3d 912

PILA‘A 400, LLC, Petitioners/Appellant–Appellant,
v.
BOARD OF LAND AND NATURAL RESOURCES and Department of Land and Natural Resources, State of Hawai‘i, Respondents/Appellees–Appellees.

No. SCWC–28358.

Supreme Court of Hawai‘i.

Feb. 14, 2014.


320 P.3d 914

Wesley H.H. Ching and Kathleen M. Douglas, Honolulu, for petitioner.

William J. Wynhoff, for respondent Department of Land and Natural Resources.

Diane Erickson and Russell A. Suzuki, Honolulu, for respondent Board of Land and Natural Resources.

ACOBA, McKENNA, and POLLACK, JJ., with Circuit Judge TRADER, in Place of RECKTENWALD, C.J., Recused, with NAKAYAMA, J., Acting C.J., Concurring and Dissenting.

Opinion of the Court by POLLACK, J.

132 Hawai'i 249

This case requires us to consider whether Pila‘a 400, LLC (Pila‘a 400) was properly held responsible for remedial, restoration, and monitoring costs assessed against it by the Board of Land and Natural Resources (BLNR) for despoilment of state conservation land resulting from unauthorized land use by Pila‘a 400, which included significant harm to a near-pristine coral reef.

We hold that BLNR had jurisdiction to institute the enforcement action, the BLNR was not required to engage in rule-making before imposing a financial assessment for damages to state land against Pila‘a 400, and Pila‘a 400 was afforded a full opportunity to be heard at a contested case hearing following reasonable notice. Accordingly, we affirm the Judgment on Appeal of the Intermediate Court of Appeals (ICA).

I.

A.

Pila‘a 400 owns a 383–acre parcel of rural land (Property), located on the north shore of Kaua‘i.1 The Property is a level to gently sloping plateau broken by four gulches extending from Kuhio Highway and Koolau Road toward the shoreline. The plateau above and between the gulches naturally drains water and sediment along contours that form distinct geographic drainage areas.

At the makai2 terminus of the Property is Pila‘a Beach and Pila‘a Bay. Pila‘a Beach is a white sand beach approximately fifty to one hundred feet wide, bisected by Pila‘a Stream. Pila‘a Bay contains a well-developed fringing reef, extending from Ke‘ilu Point on the west to Kepuhi Point on the east. Wave action over the reef flushes the inner reef area, creating a lush environment for a wide variety of marine life. Pila‘a Bay's inner reef is one of only a few shallow reefs on the northeast coast of Kaua‘i protected from ocean swell by an outer reef. Prior to November

132 Hawai'i 250
320 P.3d 915

26, 2001, Pila‘'a Bay was well-known for its striking beauty and as an excellent site for swimming, snorkeling, fishing, and gathering edible seaweed. According to the DLNR, the reef at Pila‘a Bay was one of the "few remaining high value coral reef flats in the state that had largely escaped encroachment from development and stress from improper land practices." The reef was "an extremely valuable resource" with a wide range of reef habitats, abundant marine life, and almost fourteen percent coral cover.

Pila‘a Beach and Bay are public lands owned by the State of Hawai‘i, subject to several privately owned kuleana.3 The Department of Land and Natural Resources (DLNR) is responsible for managing, administering, and exercising control over all of the public land in the state, including water and coastal areas. The DLNR is "headed" by BLNR. Hawai‘i Revised Statutes (HRS) § 171–3(a) (2011).4 The BLNR is constitutionally mandated to conserve and protect Hawai‘i's natural resources.5 The BLNR defines "land" to include coastal areas and submerged land. Hawai‘i Administrative Rules (HAR) § 13–5–2 (1994).

Pila‘a Beach and Bay lie within a State Land Use Conservation District (Conservation District) as a strip of land ranging from 175 to 250 feet wide and running along the makai edge of the Property. The Conservation District is divided in two sections. The Conservation District land located mauka6 of the shoreline boundary is in the "limited" subzone,7 consisting of the white sand beach. The Conservation District land makai of the shoreline boundary consists of the near-shore submerged lands and is in the "resource" subzone.8 Regulated land use in a resource subzone includes the placement of fill on submerged land. HAR § 13–5–24. Pila‘a reef is a part of the resource subzone.

Sometime prior to November 26, 2001, Pila‘a 400 or its predecessors conducted extensive grading, filling, and other work on the Property. None of the work was authorized by permit. The unauthorized land use included: (1) large-scale grading on the plateau above the bay; (2) a vertical cut creating

132 Hawai'i 251
320 P.3d 916

a cliff forty to sixty feet in height within the Conservation District; (3) construction of a road along the base of the vertical cut; and (4) installation of a 30–inch pipe or culvert under the road that drained water and mud directly from the Property onto Pila‘a Beach.

On November 26, 2001, the Property experienced heavy rainfall typical of the area at that time of year. The consequent erosion of the recently graded and filled hillside on the Property resulted in a massive mudflow into the Conservation District. Mud flowing from the Property poured into Pila‘a Bay and covered land within the Conservation District in several feet of mud.

The November 26, 2001 mudflow severely damaged Pila‘a Bay and reef. A scientific assessment begun in June 2002 by the DLNR and continuing through September of that year noted several indications of significant damage: (1) the shallow areas of the bay suffered from chronic turbid conditions; (2) corals were bleached, dead, dying, and becoming overgrown by algae; and (3) approximately 2,943 square meters of live coral were destroyed by the November 26, 2001 mudflow and subsequent sedimentation. The assessment concluded that, although much of the sediment had been cleansed from the beach due to natural wave action, sediment and its negative impacts remained at Pila‘a. According to the assessment's conclusion, Pila‘a might never be returned to its pre-mudflow conditions.

B.

On January 28, 2002, pursuant to HRS Chapter 183C, the DLNR issued a Notice and Order (First Notice and Order) to Pflueger Properties, Limited Partnership (Pflueger Properties) for "illegal work conducted within the Conservation District at Pila‘a[,] Kilauea, Kauai, Hawaii."9 The First Notice and Order included the DLNR's initial assessment of potential unauthorized land uses in violation of state law.

We have determined that:

(1) The subject property, identified as tax map key 5–1–004:008 is in the Conservation District and is classified as Limited Subzone;

(2) The following uses were conducted on the subject premises: grading, grubbing,[10 ] cutting, and culvert construction;

(3) These uses were not authorized by the Department of Land and Natural Resources.

YOU ARE HEREBY ORDERED TO CEASE any further activity on the subject premises. Should you fail to cease such illegal activity immediately, you will be subject to fines up to $2,000 per day pursuant to Chapter 13–5, [HAR], in addition to administrative costs incurred by the Department and damages to State land.

(Footnote added).

On June 20, 2002, following a June 13, 2002 site inspection, the DLNR issued a second Notice and Order (Second Notice and Order) to Pflueger Properties for "Illegal Activity in the Conservation District." The Second Notice and Order required Pflueger Properties to submit a remedial Best Management Practices Plan for the affected conservation land and emphasized that the natural environment at Pila‘a Bay suffered "unauthorized despoliation" due to "almost unimpeded" sedimentation resulting from the illegal land uses conducted on the property.

[A] massive vertical bench was cut into the hillside and remains unprotected from erosion. Evidently, this was done to construct a new dirt road.... This road now serves as a conduit for water and sediments, which end up in the sea almost unimpeded. A small valley that terminates near the beach was filled with large quantities of excavated soil. This area remains partly unvegetated. This latter action resulted in the diversion of a small stream, which originates from a spring several meters up the valley.
132 Hawai'i 252
320 P.3d 917
This fill area is a serious source of sediments transported to the nearshore waters during periods of rainfall.

It was generally agreed that some immediate remedial actions could be taken, such as implementation of Best Management Practices (BMPs), to help abate sedimentation on nearshore waters.

.... [T]here is a need for immediate physical intervention to slow down runoff and sediments.

(Emphases added).

The Second Notice and Order also memorialized future remedial action the DLNR intended to take:

The landowner is reminded that these interim remedial actions in no way whatsoever,
...

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12 practice notes
  • Green Party of Haw. v. Nago, No. SCWC–14–0001313.
    • United States
    • Hawaii Supreme Court
    • July 19, 2016
    ...action is 138 Hawai'i 238378 P.3d 954 legislative or adjudicative. See Pila‘a 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 264, 320 P.3d 912, 929 (2014) ; In re Application of Hawaiian Elec. Co., 81 Hawai‘i 459, 466, 918 P.2d 561, 568 (1996) ; Shoreline Transp., Inc. v. Robert's To......
  • Kawashima ex rel. Situated v. State, SCAP-15-0000462
    • United States
    • Hawaii Supreme Court
    • June 28, 2017
    ...efforts to maintain accuracy in chemical testing for blood alcohol"); Pilaa 400, LLC v. Bd. of Land & Nat. Res. , 132 Hawai'i 247, 265, 320 P.3d 912, 930 (2014) (finding that there is "no statutory requirement to enact rules regarding the valuation of damage to reef or valuable marine resou......
  • Green Party of Haw. v. Nago, No. CAAP–14–0001313.
    • United States
    • Court of Appeals of Hawai'i
    • December 18, 2015
    ...within the meaning of HRS § 91–1(4). See 137 Hawai'i 65365 P.3d 994 Pila'a 400, LLC v. Bd. of Land & Natural Resources, 132 Hawai‘i 247, 320 P.3d 912 (2014). The supreme court noted that HRS § 183C–3 authorized, but did not require, the BLNR and the Department of Land and Natural Resources ......
  • Porter v. Queen's Med. Ctr., NO. CAAP-16-0000602
    • United States
    • Hawaii Court of Appeals
    • February 21, 2020
    ...under the arbitrary and capricious standard, pursuant to subsection (6). Pilaa 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 263, 320 P.3d 912, 928 (2014) (citation and brackets omitted). We review COLs that present mixed questions of fact and law "under the clearly erroneous standa......
  • Request a trial to view additional results
12 cases
  • Green Party of Haw. v. Nago, No. SCWC–14–0001313.
    • United States
    • Hawaii Supreme Court
    • July 19, 2016
    ...action is 138 Hawai'i 238378 P.3d 954 legislative or adjudicative. See Pila‘a 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 264, 320 P.3d 912, 929 (2014) ; In re Application of Hawaiian Elec. Co., 81 Hawai‘i 459, 466, 918 P.2d 561, 568 (1996) ; Shoreline Transp., Inc. v. Robert's To......
  • Kawashima ex rel. Situated v. State, SCAP-15-0000462
    • United States
    • Hawaii Supreme Court
    • June 28, 2017
    ...efforts to maintain accuracy in chemical testing for blood alcohol"); Pilaa 400, LLC v. Bd. of Land & Nat. Res. , 132 Hawai'i 247, 265, 320 P.3d 912, 930 (2014) (finding that there is "no statutory requirement to enact rules regarding the valuation of damage to reef or valuable marine resou......
  • Green Party of Haw. v. Nago, No. CAAP–14–0001313.
    • United States
    • Court of Appeals of Hawai'i
    • December 18, 2015
    ...within the meaning of HRS § 91–1(4). See 137 Hawai'i 65365 P.3d 994 Pila'a 400, LLC v. Bd. of Land & Natural Resources, 132 Hawai‘i 247, 320 P.3d 912 (2014). The supreme court noted that HRS § 183C–3 authorized, but did not require, the BLNR and the Department of Land and Natural Resources ......
  • Porter v. Queen's Med. Ctr., NO. CAAP-16-0000602
    • United States
    • Hawaii Court of Appeals
    • February 21, 2020
    ...under the arbitrary and capricious standard, pursuant to subsection (6). Pilaa 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 263, 320 P.3d 912, 928 (2014) (citation and brackets omitted). We review COLs that present mixed questions of fact and law "under the clearly erroneous standa......
  • Request a trial to view additional results

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