Hawaii Electric Light Co., Inc. v. DLNR
| Citation | 102 Haw. 257,75 P.3d 160 |
| Decision Date | 08 July 2003 |
| Docket Number | No. 21422,No. 21369.,21422,21369. |
| Parties | HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawai`i corporation, Appellant-Appellee, v. DEPARTMENT OF LAND AND NATURAL RESOURCES, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, State of Hawai`i; Department of Hawaiian Home Lands, State of Hawai`i; Waimana Enterprises, Inc., a Hawai`i corporation; and Mahi Cooper, Appellees-Appellees. and Peggy Ratliff and Keahole Defense Coalition, Appellees-Appellants. and Department of Hawaiian Home Lands, State of Hawai`i, Appellee-Appellant in No. 21422. Waimana Enterprises, Inc., a Hawai`i corporation, Cross-Appellant-Appellee, v. Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, State of Hawai`i; Department of Hawaiian Home Lands, State of Hawai`i; Hawaii Electric Light Company, Inc., a Hawai'i corporation; and Mahi Cooper, Cross-Appellees-Appellees. and Peggy Ratliff and Keahole Defense Coalition, Cross-Appellees-Appellants. and Department of Hawaiian Home Lands, State of Hawai`i, Cross-Appellee-Appellant in No. 21422. Peggy Ratliff, Cross-Appellant-Appellant, v. Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, State of Hawai`i; Department of Hawaiian Home Lands, State of Hawai`i; Hawai`i Electric Light Company, Inc., a Hawai`i corporation; Waimana Enterprises, Inc., a Hawai`i corporation; and Mahi Cooper, Cross-Appellees-Appellees . Mahi Cooper, Cross-Appellant-Appellee, v. Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, State of Hawai`i; Department of Hawaiian Home Lands, State of Hawai`i; and Waimana Enterprises, Inc., a Hawai`i corporation, Cross-Appellees-Appellees. and Peggy Ratliff and Keahole Defense Coalition, Cross-Appellees-Appellants . Hawai`i Electric Light Company, Inc., a Hawai`i corporation, Plaintiff-Appellee, v. Peter Young, in his capacity as Chairman of the Board of Land and Natural Resources, State of Hawai`i; Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, Defendants-Appellees. and John Does 1-10; Jane Does 1-10; Doe Corporations, PArtnerships, Governmental Units or Other Entities 1-20, Defendants. and Keahole Defense Coalition and Peggy Ratliff, Intervenors-Appellants . Waimana Enterprises, Inc., a Hawai`i corporation, Plaintiff-Appellee, v. Rodney Maile, Hearing Officer for the Department of Land and Natural Resources; Peter Young, Chairman of the Board of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, State of Hawai`i, Defendants-Appellees. and Peggy Ratliff, Defendant-Appellant. Joy Hanson; Brad Houser; Alice Goo; Dr. Nathalie Tucker; Russell Wertz; Keichi Ikeda; Irma Gilger; Jerry Rothstein; Linday Bradley, Plaintiffs-Appellees, v. State of Hawai`i, Department of Land and Natural Resources, and Office of Environmental Quality Control, Defendants-Appellees. and John Does 1-10; Jane Does 1-10; Doe Corporations, Partnerships, Governmental Units or Other Entities 1-20, Defendants . Waimana Enterprises, Inc., a Hawai`i corporation, Appellant-Appellee, v. Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, as the Executive Head of the Department of Land and Natural Resources, State of Hawai`i; Hawaii Electric Light Company, Inc., a Hawai`i corporation; and Mahi Cooper, Appellees-Appellees. and Peggy Ratliff, Appellee-Appellant, . Waimana Enterprises, Inc., a Hawai`i corporation, Plaintiff-Appellee, v. Peter Young, in his capacity as Chairman of the Board of Land and Natural Resources, State of Hawai`i; State of Hawai`i, Department of Land and Natural Resources; State of Hawai'i, Office of Environmental Quality Control, Defendants-Appellees. and John Does 1-10; Doe Corporations, Partnerships, Governmental Units or Other Entities 1-10, Defendants . |
| Court | Supreme Court of Hawai'i |
Michael Matsukawa, on the briefs, for Defendant-Appellant/Appellee-Appellant & Appellee/Cross-Appellee/Cross-Appellant/ Intervenor-Appellant Peggy Ratliff; and Intervenor-Appellant Keahole Defense Coalition.
Galen C.K. Leong, Wayne Nasser and Keith Yonamine, Honolulu, on the briefs (Ashford & Wriston), for Appellant/Cross-Appellee-Appellee, Department of Hawaiian Home Lands, State of Hawai`i.
Benjamin A. Kudo, Wesley M. Fujimoto, Lori Ann K. Koseki, Stacy E. Uehara, & Naomi S. Uyeno, Honolulu, on the briefs, (Dwyer Imanaka Schraff Kudo Meyer & Fujimoto) for Appellant-Appellee, Hawaii Electric Light Company.
Mahi Cooper, Appellee/Cross-Appellee/Cross-Appellant-Appellee, pro se.
Sandra-Ann Y.H. Wong, on the briefs, for Plaintiff-Appellee/Appellant Waimana Enterprises, Inc.
Randall Y.K. Young, Deputy Attorney General, State of Hawai`i, on the briefs, for Defendants-Appellees, Department of Land and Natural Resources, Board of Land and Natural Resources, Chair of the Board of Land and Natural Resources and Hearing Officer for the Department of Land and Natural Resources.
On the briefs: Stephen D. Whittaker and David W. Lacy (Whittaker & Lacy) for Amicus Curiae Na Leo Pohai.
Paul H, Achitoff, Honolulu, David L. Henkin, D. Kapua'ala Sproat, on the briefs, (Earthjustice Legal Defense Fund) for Amicus Curiae Sierra Club.
MOON, C.J., LEVINSON, and ACOBA, JJ., Circuit Judge BLONDIN, Assigned in place of NAKAYAMA, J., Recused, and Circuit Judge POLLACK, Assigned by reason of vacancy.
We hold that under Hawai`i Revised Statutes (HRS) § 171-5 (1993) any action by the Board of Land and Natural Resources (the Board or the BLNR) requires a majority vote of all the members to which the Board is statutorily entitled. Thus, four votes are necessary for the Board to take any action. See HRS § 171-4 (1993) (). Consequently, we also hold that because the Board failed to render four votes either approving or rejecting a Conservation District Use Application (application) in this case, the HRS § 183-41 (1993)5 180-day default provision allowed the applicant to subject its land to the use applied for.
On August 26, 1992, Appellant-Appellee Hawaiian Electric Light Company (HELCO) submitted an application, CDUA HA-487A, to modernize and expand an electric generating station located on 14.9 acres of state conservation land at Keahole, North Kona, Hawaii. Land uses within a conservation district are governed by the Board pursuant to HRS § 183-41. In order to propose a change in land use, land owners must submit an application to the Board, which then, after "notice and hearing[,]" may adopt "rules governing the use of the land within the boundaries of the conservation district." HRS § 183-41(c)(2). HRS § 183-41(a) further directs, however, that "if within one hundred eighty days after receipt of the application the department shall fail to give notice, hold a hearing, and render a decision" the "owner may automatically put the owner's land to the use or uses requested in the owner's application."
Following a hearing on HELCO's application, two tenants of neighboring Keahole Agricultural Park, Mahi Cooper (Cooper) and Peggy Ratliff (Ratliff); a business competitor, Waimana Enterprises Inc. (Waimana);6 and the State of Hawai'i Department of Land and Natural Resources (Department or DLNR) asked for a contested case hearing.
The Board approved the contested case hearing, but attempts to schedule it were accompanied by requests from HELCO to extend the 180-day period. HELCO apparently had determined that it needed to complete an environmental impact statement (EIS)7 prior to the Board's review of the application. When HELCO finally completed the EIS and submitted it to the Board, the time allowed for review of the application had nearly expired. Other efforts to meet the statutory deadline were frustrated by incidental problems. For example, the Board's first hearings officer, Rodney Maile, disqualified himself from the hearing. BLNR's second hearings officer, Glenn Nagata, fell seriously ill. Accordingly, the Board proceeded to vote on the application without holding a contested case hearing, operating on the assumption that no further time extensions could be granted.
On May 13, 1994, the Board voted on a DLNR staff member's motion to deny HELCO's application without prejudice. HRS § 171-5 governs actions of the Board and states, in pertinent part, that (Emphasis added.) On the vote to adopt the DLNR's staff's recommendation to deny the application without prejudice, the vote was two in favor, three against, and one recusing. On the vote to grant the application, there was no one in favor, two against, one recusing, and three not voting.
In four separate cases, which were later consolidated, several parties appealed the Board's vote to the third circuit court (the court),8 pursuant to HRS § 91-14 (1993)9 (). On November 9, 1994, the court invalidated the votes of the Board and held that: 1) because the Board failed to garner four votes to either approve or to reject HELCO's application, the Board took no "action" on the application;10 and 2) it would be a denial of procedural due process to allow HELCO to automatically expand the Keahole generating station while there were requests for contested cases still pending that the Board had not acted upon. The court then...
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