Keahole Defense Coalition v. Blnr
| Decision Date | 18 May 2006 |
| Docket Number | No. 26305.,26305. |
| Citation | 134 P.3d 585 |
| Parties | KEAHOLE DEFENSE COALITION, INC., a Hawai`i nonprofit corporation; Peggy J. Ratliff and Mahi Cooper, Appellants-Appellees v. BOARD OF LAND AND NATURAL RESOURCES, State of Hawai`i; Department of Land and Natural Resources, State of Hawai`i; Hawaii Electric Light Company, Inc., a Hawai`i corporation, Department of Hawaiian Home Lands, State of Hawai`i, Appellees-Appellees and Waimana Enterprises, Inc., a Hawai`i corporation, Appellee-Appellant (Civ. No. 02-1-0068K) Department of Hawaiian Home Lands, State of Hawai`i, Appellant-Appellee v. Department of Land and Natural Resources, State of Hawai`i; Board of Land and Natural Resources, State of Hawai`i; Hawaii Electric Light Company, Inc., a Hawai`i corporation, Peggy J. Ratliff, Mahi Cooper, Keahole Defense Coalition, Inc., a Hawai`i nonprofit corporation, Appellees-Appellees and Waimana Enterprises, Inc., a Hawai`i corporation, Appellee-Appellant (Civ. No. 02-1-0079K). |
| Court | Hawaii Supreme Court |
Michele-Lynn E. Luke and Deborah S. Jackson (Richards & Luke), Honolulu, on the briefs, for Appellee-Appellant Waimana Enterprises, Inc.
Michael J. Matsukawa, on the briefs, for Appellants-Appellees Keahole Defense Coalition, Inc., Peggy J. Ratliff, and Mahi Cooper.
A. Sonia Faust and Linda L.W. Chow, Deputy Attorneys General, on the briefs, for Appellees-Appellees Department of Land and Natural Resources, State of Hawai`i, and Board of Land and Natural Resources, State of Hawai`i.
Warren Price III and Robert A. Marks (Price Okamoto Himeno & Lum) and John T. Komeiji and Brian A. Kang (Watanabe Ing Kawashima & Komeiji), Honolulu, on the briefs, for Appellee-Appellee Hawaii Electric Light Company, Inc.
Wayne Nasser, Kevin W. Herring and Mi Yung C. Park (Ashford & Wriston), Honolulu, on the briefs, for Appellant-Appellee Department of Hawaiian Home Lands, State of Hawai`i.
MOON, C.J., LEVINSON, ACOBA, JJ., Circuit Judge DEL ROSARIO for NAKAYAMA, J., recused, and Circuit Judge CHAN for DUFFY, J., recused; with Circuit Judge DEL ROSARIO concurring separately and with whom ACOBA, J., joins.
We hold that Appellee-Appellant Waimana Enterprises, Inc. (Waimana) lacked standing to challenge the decision of Appellee-Appellee Board of Land and Natural Resources (BLNR) regarding a time extension that it granted to Appellee-Appellee Hawaii Electric Light Company, Inc. (HELCO) to complete construction of HELCO's Keahole power station inasmuch as Waimana was barred by collateral estoppel and does not have a sufficient property interest to have suffered a due process violation under the Fourteenth Amendment to the United States Constitution1 or article I, section 5 of the Hawai`i Constitution,2 and, thus, the circuit court of the third circuit (the court),3 did not abuse its discretion in vacating its November 7, 2002 final judgment reversing the decision of the BLNR. For the foregoing reasons, the court's November 28, 2003 first amended final judgment, vacating the October 3, 2002 order reversing the decision of the BLNR and November 7, 2002 final judgment, is affirmed.
This appeal arises from a dispute, spanning more than a decade, over plans by HELCO to expand the Keahole Generating Station on the Island of Hawai`i.4 See Hawaii Elec. Light Co. v. Dep't of Land & Natural Res., 102 Hawai`i 257, 75 P.3d 160 (2003) [hereinafter, HELCO]. On August 26, 1992, HELCO filed a conservation district use application (CDUA) with BLNR. The CDUA was designated as CDUA HA-487A. Following a hearing on CDUA HA-487A, Waimana, Appellee-Appellee Department of Land and Natural Resources (DLNR), and Appellants-Appellees Mahi Cooper (Cooper) and Peggy Ratliff (Ratliff) requested contested case hearings. See id. at 262, 75 P.3d at 165. On May 13, 1994, while the requests for contested case hearings were pending,5 BLNR voted on a DLNR staff member's recommendation to deny CDUA HA-487A without prejudice. Id. BLNR apparently took the vote without holding a contested case hearing in order to meet the May 18, 1994 deadline for acting upon the CDUA.6 See id. The vote was two in favor of denial, three against, and one recusal. Id. On the vote to grant the application, no one voted in favor, two voted against, with one recusal and three not voting. Id. On May 17, 1994, Waimana appealed to the court. This appeal was docketed as Civ. No. 94-123K. On May 29, 1994, the court granted Waimana's motion for stay of agency action, staying any legal effect of the May 13, 1994 "non-action" of BLNR regarding approval/disapproval of CDUA HA-487A, including any claim that the CDUA was automatically granted.
On November 9, 1994, the court issued an order invalidating BLNR's votes7 and remanding CDUA HA-487A back to BLNR (the 1994 remand order). In the 1994 remand order, the court concluded that "[i]n this instance, in the absence of a relevant statute or rule, the BLNR is `required by law' to hold a contested case hearing upon these third party requests provided that Waimana, Cooper, and Ratliff have constitutionally protected interests which entitle them to a contested case hearing by constitutional due process[.]" The court then determined that "[b]y failing to provide Cooper and Ratliff with a contested case hearing, the BLNR denied these parties their constitutional right to due process, and, consequently, they were prejudiced." But as to Waimana, the court rendered the following conclusions of law:
(5) Although Waimana argues it is a native Hawaiian-controlled entity whose economic interests, environmental interests and interests in ceded lands are at stake and that, therefore, it has constitutionally protected property interests, ... the court concludes otherwise; as an entity neither physically located near the site of HELCO's proposed expansion nor whose purpose is to protect environmental or Hawaiian interests, Waimana's interest in contesting the CDUA appears to be purely economic, an interest which the DLNR recognized in recommending Waimana's intervention in the CDUA process:
[Waimana] is an energy company. It has conducted studies and obtained a lease for development of a generator station at an alternative site, Kawaihae, that may be superior to the Keahole site. Expansion of the Keahole generating station may suppress development of [Waimana's] project.
(6) Waimana does not have a due process right to a contested case hearing because its economic interest does not constitute "property" within the meaning of the due process clauses of the federal and state constitutions; . . .;
(7) Therefore, the fact that the BLNR admitted Waimana as a party to the case and granted it a contested case hearing did not constitute a determination that [Waimana] had a property interest protectable under the Fourteenth amendment;
(8) Not having a right to a contested case hearing by statute, rule or by the constitution, Waimana lacks standing to file this Appeal pursuant to [Hawai`i Revised Statutes (HRS)] Section 91-14(a)[.]
(Emphases added.) The court further concluded that
[a]lthough Cooper and Ratliff are designated as Appellees in this Appeal, their interests are aligned with Appellant Waimana in contesting the agency's actions ... [and, thus, i]n order to avoid dismissal of Cooper's and Mahi's interests due to [Waimana's] dismissal from this action, the Court confers standing on Cooper and Ratliff as "de facto Appellants," considering that they are pro se parties and that there would appear to be little or no prejudice to the other parties by granting them such status[.]
Waimana did not appeal the 1994 remand order; it did not challenge the court's determination that it lacked standing. On remand to BLNR, however, Waimana was made a party to the contested case by stipulation among all of the parties. HELCO, 102 Hawai`i at 262, 75 P.3d at 165. The 1994 remand order was incorporated in a December 5, 1997 final judgment, which stated as follows:
Judgment is entered in favor of Appellant Waimana Enterprises, Inc. and Appellees Peggy Ratliff and Mahi Cooper and against Appellees Department of Land and Natural Resources, Board of Land and Natural Resources and Hawaii Electric Company, Inc., remanding the Conservation District Use Application HA-487A to the Board of Land and Natural Resources for further hearing consistent with the [c]ourt's November 9, 1994 Order.
Judgment is entered nunc pro tunc to November 9, 1994 and is limited to the disposition of issues before the [c]ourt as of November 9, 1994.
Following the contested case hearing that was held over a five-day period in November 1995, the hearing officer recommended that the CDUA be denied. Id. BLNR denied CDUA HA-487A based on a three-to-two vote. Id. at 264, 75 P.3d at 167. On May 17, 1996, HELCO appealed to the court. Id. On May 22, 1996, Cooper, Ratliff, and Waimana filed separate notices of appeal. Id. "On January 2, 1997, the court ruled that the failure to deny the application by four votes constituted non-action on the part of the Board and, by operation of HRS § 183-41, HELCO could put the Keahole conservation land to use as requested in the application[.]"8 Id.
In tandem with litigation over what then became CDUP (conservation district use permit) HA-487A, Appellant-Appellee Keahole Defense Coalition (KDC) maintained a separate action, filed in the court on February 5, 1997, against the Department of Health (DOH), BLNR, and HELCO. This action, docketed as Civ. No. 97-00017K, sought to compel enforcement of various environmental regulations on HELCO's expansion project.
HELCO's construction deadline under CDUP HA-487A expired on April 26, 1999. On March 25, 2002, following an evidentiary hearing in which HELCO, Appellee-Appellee Department of Hawaiian Home Lands (DHHL), Cooper, Ratliff, KDC, and Waimana participated,9 BLNR granted HELCO a time extension to complete construction of improvements at the...
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