Ka Paakai O Kaaina v. LAND USE COM'N, No. 21124.

CourtSupreme Court of Hawai'i
Citation7 P.3d 1068,94 Haw. 31
Docket NumberNo. 21124.
PartiesKA PA`AKAI O KA`AINA, an association of Ka Lahui Hawai`i, a Hawaiian nation, Kona Hawaiian Civic Club, a Hawai`i nonprofit corporation, and Protect Kohanaiki Ohana, a Hawai`i nonprofit corporation, Ka Lahui Hawai`I, Kona Hawaiian Civic Club and Protect Kohanaiki Ohana, Plaintiffs-Appellants/Appellants v. LAND USE COMMISSION, STATE OF HAWAI`I; Office of State Planning, State of Hawai`i; County of Hawai`i Planning Department; Ka`Upulehu Developments, now known as Hualalai Development Company, a Delaware Corporation, Appellees/Appellees, and Plan To Protect, a Hawai`i nonprofit corporation, Appellees/Cross-Appellants/Appellants/Appellants. Plan To Protect, Appellant/Cross-Appellants, v. State of Hawai`i, Land Use Commission, Appellees/Appellees
Decision Date11 September 2000

Michael J. Matsukawa, on the briefs for Plaintiff-Appellant/Appellant Ka Pa`akai O Ka `Aina, an association of Ka Lahui Hawai`i, Kona Hawaiian Civic Club and Protect Kohanaiki Ohana.

Jon S. Itomura and Russell A. Suzuki, Deputy Attorneys General, on the briefs for Appellee/Appellee Land Use Commission.

Robert D.S. Kim and John P. Powell, kailua Kona, on the briefs, for Appellee/Cross-Appellant/ Appellant/Appellant Plan to Protect, Inc.

Frederick Giannini, Deputy Corporation Counsel, Hilo, on the briefs, for Appellee/Appellee County of Hawai`i.

R. Ben Tsukazaki, Hilo, Of Counsel: Menezes, Tsukazaki, Yeh & Moore, Hilo and Michael W. Gibsen and James K. Mee, Of Counsel: Ashford & Wriston, Honolulu, on the briefs, for Petitioner-Appellee Kaupulehu Developments.


Opinion of the Court by RAMIL, J.

This consolidated appeal1 arises from the Land Use Commission's (LUC) grant of a petition to reclassify approximately 1,009.086 acres of land in the ahupua`a2 of Ka'&umacrp&umacrlehu on the Big Island of Hawai`i from a State Land Use "Conservation District" to a State Land Use "Urban District." Plaintiff-appellant/appellant Ka Pa`akai O Ka `Aina, an association of Ka L&amacrhui Hawaii (Ka L&amacrhui), Kona Hawaiian Civic Club (KHCC), and Protect Kohanaiki Ohana (PKO) (collectively "Ka Pa`akai" or the "Coalition") and Appellee/cross-appellant/ appellant/appellant Plan to Protect (PTP) appeal from the third circuit court's September 30, 1997 judgment affirming the Land Use Commission's (LUC) June 17, 1996 findings of fact, conclusions of law, decision, and order granting Kaupulehu Developments' (KD) petition for land use boundary reclassification.

On appeal, Ka Pa`akai contends that the circuit court erred in: (1) failing to address errors that Ka Pa`akai assigned to the LUC's decision below; (2) concluding that the LUC could consider the Department of Land and Natural Resources' (DLNR) comments; (3) ruling that the LUC properly "delegated" its authority to KD and KD's landlord; (4) ruling that the LUC's findings were supported by reliable, probative, and substantial evidence; (5) concluding that the LUC's decision complied with Hawai`i Revised Statutes (HRS) § 205-17 (1993); and (6) determining that Ka Pa`akai failed to make a convincing showing that the LUC's decision was unjust or prejudicial to Ka Pa`akai.

PTP argues that: (1) the LUC failed to discharge its obligation to ensure that legitimate customary and traditional practices of native Hawaiians be protected to the extent feasible; (2) the LUC's findings dealing with the demand for the project are clearly erroneous in light of KD's failure to establish that, without the fee title, its proposed project would not be economically viable; (3) the LUC's decision was erroneous or entailed an abuse of discretion in light of KD's failure to provide a concise statement of the means by which the project will be financed; and (4) the LUC's findings that KD's management plan and the landlord's "ahupua`a plan" would reasonably protect cultural resources are clearly erroneous because these plans were presented only in conceptual form.

In addition to challenging Ka Pa`akai's and PTP's contentions, KD, the LUC, and the County of Hawai`i (the County) allege that neither Ka Pa`akai nor PTP possessed standing to appeal the LUC's decision under HRS § 91-14 (1993).3

For the reasons explained below, we hold that: (1) the circuit court did not err in concluding that Ka Pa`akai and PTP had standing to appeal under HRS § 91-14; (2) the LUC did not err in relying on KD's financial disclosure; (3) the LUC did not err in relying on the comments of the DLNR; and (4) the circuit court did not err in failing to specifically rule on four of Ka Pa`akai's points of error on appeal. We hold, however, that the LUC's findings of fact and conclusions of law are insufficient to determine whether it fulfilled its obligation to preserve and protect customary and traditional rights of native Hawaiians. The LUC, therefore, must be deemed, as a matter of law, to have failed to satisfy its statutory and constitutional obligations.

We therefore vacate the LUC's grant of KD's petition for land use boundary reclassification and remand to the LUC for the limited purpose of entering specific findings and conclusions, with further hearing if necessary, regarding: (1) the identity and scope of "valued cultural, historical, or natural resources" in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources—including traditional and customary native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist.

This court—in seeking to maintain a careful balance between native Hawaiian rights and private interests—has made clear that the State and its agencies are obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible. Public Access Shoreline Hawai`i v. Hawai`i County Planning Commission (hereinafter "PASH"), 79 Hawaii 425, 450 n. 43, 903 P.2d 1246, 1271 n. 43 (1995), certiorari denied, 517 U.S. 1163, 116 S.Ct. 1559, 134 L.Ed.2d 660 (1996). Today, we provide an analytical framework, discussed below, to help ensure the enforcement of traditional and customary native Hawaiian rights while reasonably accommodating competing private development interests. This urgent need to reach a better balance is underscored by the Hawai`i State legislature's recent finding that, "although the Hawai[`]i State Constitution and other state laws mandate the protection and preservation of traditional and customary rights of native Hawaiians," those rights have not been adequately preserved or protected:

[T]he past failure to require native Hawaiian cultural impact assessments has resulted in the loss and destruction of many important cultural resources and has interfered with the exercise of native Hawaiian culture. The legislature further finds that due consideration of the effects of human activities on native Hawaiian culture and the exercise thereof is necessary to ensure the continued existence, development, and exercise of native Hawaiian culture.

Act 50, H.B. NO. 2895, H.D. 1, 20th Leg. (2000).4


On December 13, 1993, KD filed a petition for boundary amendment with the LUC to reclassify approximately 1,009.086 acres in the ahupua`a of Ka`&umacrp&umacrlehu, North Kona, State of Hawaii, from a State Land Use "Conservation District" to a State Land Use "Urban District" (hereinafter the "petition area"). The entire petition area is situated within Hawaii County's Special Management Area.5

Owned by Kamehameha Schools/Bishop Estate (KS/BE) and leased to KD, the crescent-shaped petition area is located at the base of the western slopes of Hualalai and consists largely of p&amacrhoehoe6 and `a'&amacr7 lava flows. Two well-known physical features of the petition area associated with native Hawaiian culture and history are the coastal point known as Kalaeman&omacr and the historic 1800-1801 Ka`&umacrp&umacrlehu Lava Flow (the "1800-1801 lava flow"), which covers about one-half of the petition area. Among the well-known individuals associated with the area are King Kamehameha I, Kame`eiamoku, and his twin brother, Kamanawa.8

KD seeks to develop the "Kaupulehu Resort Expansion" (hereinafter the "Resort Expansion" or the "proposed development"), a luxury development consisting of 530 single family homes, 500 low-rise multi-family units, a 36-hole golf course, an 11-acre commercial center, a 3-acre recreation club, a golf clubhouse, and other amenities for the development's residents.

On January 13, 1994, and by written order filed on January 31, 1994, the LUC required KD to prepare an environmental impact statement (EIS), pursuant to HRS chapter 343 and Hawai`i Administrative Rules (HAR) chapter 11-200. On September 22, 1994, and by order dated October 5, 1994, the LUC accepted KD's final EIS for the proposed project.

On October 26, 1994, PTP petitioned to intervene in the proceedings, citing its interests, as recreational users of the petition area, in the protection of its natural environment, its scenic, aesthetic, historic, and biological resources—the "Kona Nightingales" and the unique scenic resource of the Ka`&umacrp&umacrlehu lava flow and the Kalaeman&omacr area. The LUC granted PTP's intervention status on November 25, 1994.9

On November 28, 1994, Ka Lahui and KHCC separately filed petitions to intervene and requested a contested case hearing. Two days later, PKO filed a similar petition. All three groups asserted that their native Hawaiian members' traditional gathering, religious, and cultural practices would be adversely affected by the proposed development. On December 1, 1994, and by written order dated December 20, 1994, the LUC consolidated the petitions and granted the groups' requests for...

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