Hui Kako'O Aina Ho`Opulapula v. Blnr
| Citation | 143 P.3d 1230 |
| Decision Date | 21 September 2006 |
| Docket Number | No. 27159.,27159. |
| Parties | HUI KAKO`O AINA HO`OPULAPULA, a domestic non-profit corporation; Waimana Enterprises, Inc.; and Albert S.N. Hee, Appellants-Appellants, v. BOARD OF LAND AND NATURAL RESOURCES, State of Hawai`i; Department of Land and Natural Resources, State of Hawai`i; Hawai`i Electric Light Company, Inc., a Hawai`i corporation, Appellees-Appellees. |
| Court | Supreme Court of Hawai'i |
Dawn N.S. Chang, Honolulu, on the briefs, for appellants-appellants Hui Kako`o Aina Ho`opulapula.
Michele-Lynn E. Luke and Leshan D. Jayasekera (of Richards & Luke), Honolulu, on the briefs, for appellants-appellants Waimana Enterprises and Albert S.N. Hee.
Warren Price, III and Robert A. Marks (of Price Okamoto Himeno & Lum), and John T. Komeiji and Brian A. Kang (of Watanabe Ing & Komeiji), Honolulu, on the briefs, for appellee-appellee Hawaii Electric Light Company, Inc.
Sonia Faust and Linda L.W. Chow, Deputy Attorneys General, on the briefs, for appellees-appellees Board of Land and Natural Resources, Department of Land and Natural Resources, State of Hawai`i.
MOON, C.J., LEVINSON, J., and Circuit Judge CHAN, in Place of DUFFY, J., Recused; ACOBA, J., Concurring and Dissenting Separately, with whom Circuit Judge DEL ROSARIO, in Place of NAKAYAMA, J., Recused, Joins.
In this secondary appeal, appellants-appellants Waimana Enterprises, Inc. (Waimana), Albert S.N. Hee, and Hui Kako`o Aina Ho`opulapula (Hui Kako`o) [hereinafter, collectively, Appellants] appeal from the Circuit Court of the Third Circuit's February 4, 2005 final judgment1 entered in favor of appellees-appellees Hawaiian Electric Light Company, Inc. (HELCO), Department of Land and Natural Resources (DLNR), and Board of Land and Natural Resources (BLNR) [hereinafter, collectively, Appellees] and the circuit court's April 1, 2005 orders denying the Appellants' post-judgment motions for relief. Essentially, the circuit court dismissed Waimana's and Hee's appeal for lack of jurisdiction, concluding that Waimana and Hee [hereinafter, collectively, Waimana Parties] were collaterally estopped from litigating whether they have standing in the instant matter. As to Hui Kako`o, the circuit court ruled, inter alia, that Hui Kako`o lacked standing in the instant matter and that it failed to follow specific procedures promulgated by the DLNR in requesting a contested case hearing, thereby precluding judicial review pursuant to Hawai`i Revised Statutes (HRS) § 91-14(a) (1993), quoted infra.
On appeal, the Appellants claim, inter alia, that the circuit court erred in concluding that it lacked jurisdiction to review their appeal. For the reasons discussed below, we conclude that the Appellants' contentions lack merit inasmuch as a contested case hearing did not occur in the instant case, thereby precluding judicial review pursuant to HRS § 91-14(a). Accordingly, we affirm the circuit court's February 4, 2005 final judgment and April 1, 2005 orders denying the Appellants' post-judgment motions for relief.
The parties to the instant appeal, except for Hui Kako`o, have been involved in extensive litigation for more than a decade regarding HELCO's plans to expand the Keahole Generating Plant, an electric generating station, on the island of Hawai`i, resulting in several dispositions by this court. See, e.g., Hawaii Elec. Light Co. v. Dep't of Land & Natural Res., 102 Hawai`i 257, 75 P.3d 160 (2003) [hereinafter, HELCO]; Keahole Def. Coalition, Inc. v. Bd. of Land & Natural Res., 110 Hawai`i 419, 134 P.3d 585 (2006) [hereinafter, Waimana I]; Waimana Enters., Inc. v. Bd. of Land & Natural Res., No. 26519, 2006 WL 1491442 (mem.); Waimana Enters., Inc. v. Bd. of Land & Natural Res., No. 26559, 2006 WL 1469406 (mem.). As discussed more fully infra, the instant case concerns HELCO's request to the BLNR for a long-term water lease at the Keahole Generating Plant.
On February 24, 2004, HELCO sent a letter to the DLNR, requesting the issuance of "a long-term lease of water [from the Keauhou aquifer] for the use of brackish water for its industrial use and fire suppression needs at its Keahole Generating Plant site" on the island of Hawai`i. HELCO requested the sale of a long-term water lease at a public auction pursuant to HRS § 171-58(c) (1993).2 By letter dated March 8, 2004, the DLNR informed HELCO that the BLNR would consider HELCO's request at the BLNR's public meeting on March 12, 2004, which was subsequently placed on the agenda as "Item D-16."
At the March 12, 2004 meeting, a BLNR staff member recommended that the BLNR "authorize the sale of a water lease by public auction." At that point, counsel for Waimana Parties, Deborah Jackson, came forward to provide testimony to the BLNR. According to the minutes of that meeting, Jackson informed the BLNR that,
in December 2002[,3] her colleague, Michelle Luke[,] requested a contested case hearing on behalf of her clients[, i.e., Waimana Parties]. At that meeting[, i.e., a December 12, 2003 BLNR meeting,] the [BLNR] decided to grant [a revocable permit for water use to HELCO for the Keahole Generating Plant]. Ms. Jackson contends the [BLNR] issued HELCO a revocable permit based on a 1994 Environmental Impact Statement (EIS). She went on to inform the [BLNR that,] subsequent to their December 12, 2003 meeting[,] the [Land Use Commission (LUC)] ordered HELCO to prepare a new EIS. Because the new EIS has yet to be prepared, Ms. Jackson feels the [BLNR] should not render a decision on this matter today, instead[,] the [BLNR] should wait until the new EIS is prepared.
Consequently, Jackson requested the BLNR to defer "decision making at this time until the [new] EIS is completed." Jackson then informed the BLNR that, if "they are inclined to make a decision today[,] they should reject" HELCO's request for a long-term water lease. Finally, Jackson stated that, if the BLNR accepted HELCO's request, she will "ask for a contested case hearing."
Dickie Nelson, the vice-president of Hui Kako`o,4 next testified on behalf of Hui Kako`o against HELCO's request for a long-term water lease. The meeting minutes reveal Nelson stated that
there are 482 acres of land in Keahole of which 153 acres abut HELCO['s] power plant. He feels these lands should be made available to Native Hawaiians on [the Department of Hawaiian Home Land's (DHHL)] waitlist. He noted his organization[, i.e., Hui Kako`o], has serious concerns regarding the potential impacts that this water lease may have on their members['] rights to lease these lands. He feels there have not been adequate studies done on the impacts of the water [lease]. Mr. Nelson noted [that] Micah Kane[, the executive officer of DHHL,] spoke in support of this item on behalf of the DHHL and those individuals who already have homestead leases. In contrast[, Nelson] represents those individuals on the DHHL waitlist.
Nelson also requested the BLNR to "defer this matter until more information can be provided," stating further that, if a decision is made today, he would request a contested case hearing to receive more information.
Immediately thereafter, the BLNR convened in an "Executive Session" with deputy attorney general Yvonne Izu to discuss the Appellants' oral requests for a contested case hearing as well as the impact of the EIS. After less than ten minutes, the BLNR reconvened and stated that "a contested case hearing is not available." HELCO's request for a long-term water lease was thereafter unanimously approved by the BLNR.
On April 12, 2004, the Appellants jointly filed a notice of appeal with the circuit court pursuant to HRS § 91-14(a)5 and Hawai`i Rules of Civil Procedure Rule 72 (2005).6 The notice of appeal indicated that the Appellants were appealing from the BLNR's "action" taken at its March 12, 2004 meeting with respect to the authorization of the sale of the long-term water lease by public auction.
On July 13, 2004, Waimana Parties filed a "Motion for Stay of Decision Dated March 12, 2004." Essentially, Waimana Parties requested the circuit court to enter an order staying the issuance of the long-term water lease to HELCO pending resolution of the instant appeal.7 On July 19, 2004, Hui Kako`o similarly filed a "Motion for Stay of Decision Dated March 12, 2004," requesting the same relief as Waimana Parties. Waimana Parties subsequently joined in Hui Kakoo's motion on July 23, 2004, and Hui Kako`o joined in Waimana Parties' motion on August 4, 2004. A hearing on the motions for stay was held on August 11, 2004. At the conclusion of the hearing, the circuit court orally denied the motions.8
In the meantime, Hui Kako`o filed its opening brief with the circuit court on August 9, 2004. Hui Kako`o contended, inter alia, that the BLNR (1) erred in denying its oral request for a contested case hearing and (2) failed to comply with HRS § 171-58(c), see supra note 2, before authorizing the sale of the long-term water lease. On the same day, Waimana Parties filed their opening brief with the circuit court, raising, in essence, the same contentions as Hui Kako`o.
On August 26, 2004, HELCO filed a motion to dismiss Waimana Parties' appeal, in which the BLNR and the DLNR joined on September 3, 2004. HELCO asserted that, inasmuch as the circuit court had already ruled in the "1994 Remand Order"9 that Waimana lacked standing to challenge issues relating to the expansion of the Keahole Generating Plant, it follows that Waimana and Waimana's privy, Hee,10 are precluded from litigating the issue whether they have standing in the instant matter. Thus, HELCO maintained that the circuit court lacked appellate jurisdiction to consider Waimana Parties' present appeal.
On September 10, 2004, Hui Kako`o filed a memorandum in opposition to HELCO's motion to dismiss Waimana Parties' appeal. Hui Kako`o asserted that...
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