Carlisle v. One (1) Boat

• Decision Date: 17 November 2008
• Docket Number: No. 26995.,26995.
• Parties: Peter B. CARLISLE, in his official capacity as the Prosecuting Attorney of the City and County of Honolulu, on behalf of the State of Hawai`i, Respondent/Petitioner-Appellant, v. ONE (1) BOAT, 18.5 Feet With Fiberglass Hull, Blue and White In Color, Registration No. Ha 2709 D, Hull Identification No. GLA72495M77G, With Trailer, Serial No. TUD051894HDNWP, and Gas Engine With Winch System (Estimated Value: $4,000.00); One (1) Evinrude Brand Outboard Engine, 112 Horsepower, Serial No. G04072044, and One (1) Evinrude Brand Outboard Engine, 30 Horsepower, Serial No. G03586474 (Estimated Value: $1,000.00); Two (2) Monofilament Gill Nets, Each Approximately 1500 Feet in Length (Estimated Value: $3,000.00) (Aggregate Estimated Value $8,000.00), Defendant, and Dang Van Tran and Sang Tran, Petitioners/Interested Persons-Appellees.
• Court: Hawaii Supreme Court

195 P.3d 1177

119 Haw. 245

Peter B. CARLISLE, in his official capacity as the Prosecuting Attorney of the City and County of Honolulu, on behalf of the State of Hawai`i, Respondent/Petitioner-Appellant, v. ONE (1) BOAT, 18.5 Feet With Fiberglass Hull, Blue and White In Color, Registration No. Ha 2709 D, Hull Identification No. GLA72495M77G, With Trailer, Serial No. TUD051894HDNWP, and Gas Engine With Winch System (Estimated Value: $4,000.00); One (1) Evinrude Brand Outboard Engine, 112 Horsepower, Serial No. G04072044, and One (1) Evinrude Brand Outboard Engine, 30 Horsepower, Serial No. G03586474 (Estimated Value: $1,000.00); Two (2) Monofilament Gill Nets, Each Approximately 1500 Feet in Length (Estimated Value: $3,000.00) (Aggregate Estimated Value $8,000.00), Defendant, and Dang Van Tran and Sang Tran, Petitioners/Interested Persons-Appellees.

No. 26995.

Supreme Court of Hawai`i.

November 17, 2008.

Bryan Y.Y. Ho, Honolulu, for petitioners/interested persons appellees.

Charlotte J. Duarte, Deputy Prosecuting Attorney, for respondent/petitioner-appellant.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by MOON, C.J.

On June 26, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioners/interested persons-appellees Dang Van Tran (Dang) and Sang Tran (Sang) [hereinafter, collectively, the Trans] on May 27, 2008, requesting this court review the Intermediate Court of Appeals' (ICA) March 17, 2008 judgment on appeal, entered pursuant to its published opinion in Carlisle v. One Boat, 118 Hawai`i 107, 185 P.3d 855 (Haw.Ct.App.2008). Therein, the ICA vacated the Circuit Court of the First Circuit's (1) February 1, 2002 order<sup>1</sup> granting the Trans' motion to dismiss the verified petition for forfeiture of property filed by respondent/petitioner-appellant Peter Carlisle, in his official capacity as the Prosecuting Attorney of the City and County of Honolulu, on behalf of the State of Hawai`i (the State); (2) December 6, 2004 judgment entered in favor of the Trans; and (3) January 20, 2005 order granting in part and denying in part the Trans' motion to strike the judgment or, in the alternative, to amend the judgment to correct errors and enter the judgment nunc pro tunc.² One Boat, 118 Hawai`i at 119, 185 P.3d at 867. Oral argument was held on September 4, 2008.

Briefly stated, the events giving rise to the State's verified petition, seeking judicial forfeiture, centers around the surveillance of fishing boats in waters off the Wai`anae coast by Department of Land and Natural Resources (DLNR) officers. While on patrol, the officers observed individuals on a boat, later determined to be owned by the Trans, pulling up a gill net. After boarding the Trans' boat and conducting an investigation, the DLNR officers seized the boat and other items based on an alleged illegal taking of stony coral, in violation of Hawai`i Administrative Regulations (HAR) § 13-95-70 (1998), quoted infra, and the illegal taking of live rocks, in violation of HAR § 13-95-71 (1998), quoted infra, that were found in the gill net. Ultimately, the circuit court—on motion by the Trans—dismissed the State's verified petition, finding that (1) the State's petition failed to state a claim upon which relief could be granted and (2) the circuit court lacked subject matter jurisdiction over the forfeiture claims. The circuit court's order of dismissal was filed on February 1, 2002; however, no judgment was entered in the case until December 6, 2004—two years and ten months later. The State appealed, and the ICA, as previously stated, vacated the circuit court's dismissal.

On application, the Trans' contention of error is based upon: (1) the ICA's lack of appellate jurisdiction inasmuch as "[the State] failed to timely perfect [its] right to appeal [the circuit court]'s ruling," and (2) their assertion that the circuit court correctly determined there was no specific statutory authorization for the forfeiture claims of the state.

Based on the following discussion, we hold that, although the ICA had jurisdiction to entertain the State's appeal, it erred in vacating the circuit court's orders and judgment inasmuch as the relevant statutes and administrative regulations do not provide the required specific statutory authorization for the State's forfeiture claims. Therefore, we reverse the ICA's March 17, 2008 judgment on appeal and affirm the circuit court's February 1, 2002 order, December 6, 2004 judgment, and January 20, 2005 order.

I. BACKGROUND

A. Proceedings Before the Circuit Court

1. The State's Verified Petition for Forfeiture

On March 29, 2001, the State filed a verified petition, seeking forfeiture of property in which the Trans had an interest, to wit: (1) one 18.5 foot fiberglass hull boat with trailer, and gas engine with winch system (estimated value of $4,000.00); (2) one Evinrude brand 112 horsepower outboard engine and one Evinrude brand 30 horsepower outboard engine (estimated value of $1,000.00); and (3) two monofilament gill nets (estimated value of $3,000) [hereinafter, collectively, the property]. As indicated by the ICA, the State alleged the following facts in its petition:

[O]n the night of October 14, 2000, at around 9:00 p.m., [DLNR], Division of Conservation and Resource Enforcement (DOCARE) officers, while on patrol in a DOCARE boat, observed two males in a brightly lit vessel fishing with a large gill net off the Wai`anae coast of the island of O`ahu. During their surveillance, the officers witnessed Kalani Baldarama (Baldarama) pulling up a gill net and Dang operating the vessel. The officers then proceeded to the vessel. When the officers arrived, they saw Dang and Baldarama pulling up a net without a diver in the water to assist in retrieval of the net.

According to the DOCARE officers, once they arrived at [the Trans]' boat, they identified themselves and stated their intention to conduct an inspection of the boat. Two of the DOCARE officers boarded [the Trans]' boat while the third officer remained alongside in the DOCARE boat. The officers told Dang and Baldarama to continue to retrieve the net and requested that they not remove any coral from the net or the boat, as the officers needed to determine whether the coral was alive.

The DOCARE officers stated that Dang became angry at this request and told the officers that if the net was tangled he would send his diver down. The officers responded that a diver should have been in the water to prevent damage to the coral and it was evident that coral had already been damaged and removed from the water. While the net was in the process of being pulled in, Baldarama put on his scuba gear and descended to untangle the net and release regulated fish.

The officers stated that[,] even with Baldarama in the water to untangle the net from the bottom, the DOCARE officers on [the Trans]' boat witnessed several "large" pieces of live coral stuck in the net. According to the officers, Dang attempted to throw back into the water some of the coral stuck in the net and became "enraged" when officers prevented him from doing so. During this encounter, the officers had to physically restrain Dang in order to prevent him from removing the coral stuck in the net.[³]

Shortly thereafter, Dang calmed down, but began to complain of chest pains and shortness of breath. The officers then escorted [the Trans]' boat to shore and arranged for an ambulance to pick up Dang to take him for treatment. Shortly thereafter, Dang's son, Sang, arrived at the harbor and notified the officers that he was the registered owner of the boat. The officers informed Sang that the boat, the nets, a trailer, the coral found in the nets, and other items left on the boat were being seized as evidence.

The petition further alleged that under the forfeiture provisions codified in [Hawai`i Revised Statutes (HRS) ] Chapter 712A, [the Trans]' property was subject to seizure and forfeiture because the offenses Dang allegedly committed, "Intentional Taking of Live Coral," in violation of [HAR] § 13-95-70,[⁴] and "Intentional Taking of Live Rock," in violation of HAR § 13-95-71,[⁵] were "covered offenses" pursuant to HRS § 712A-4(a) [(Supp. 2000), quoted infra]. The petition alleged that pursuant to HRS § 712A-5 [(1993 and Supp.2000), quoted infra], probable cause existed for the seizure and forfeiture of [the Trans]' property as "it was used or intended for use, including without limitation, in the commission of, attempt to commit, or conspiracy to commit a covered offense, or which facilitated or assisted in such activity[.]"

One Boat, 118 Hawai`i at 109-110, 185 P.3d at 857-58 (footnotes and original ellipsis omitted). On June 4, 2001, the Trans timely filed an answer to the State's petition, essentially denying the allegations in the petition and asserting, among other defenses, a lack of subject matter jurisdiction and the failure of the petition to state a claim upon which relief could be granted. Additionally, on the same day, the Trans filed a notice of claim, contending that the property had been wrongfully seized and was not subject to forfeiture.

2. The Trans' Motion to Dismiss

Thereafter, on November 30, 2001, the Trans filed a motion to dismiss the verified petition, arguing that the petition was subject to dismissal due to (1) a lack of subject matter jurisdiction and (2) failure of the petition to state a claim upon which relief could be granted.

a. the relevant law

Preliminarily, we first set forth the relevant statutes relating to (1) HAR §§ 13-95-70 and 13-95-71 and (2) forfeiture pursuant to Chapter 712A. Both regulations, see supra notes 4 and 5, were authorized and implemented pursuant to HRS § 187A-5 (1993), which provides that, "[s]ubject to [C]hapter 91, [DLNR] shall adopt, amend, and repeal rules for and concerning the protection and propagation of introduced and transplanted aquatic life, or the conservation and...