Paulette Ka‘anohiokalani Kaleikini v. Thielen

• Decision Date: 18 August 2010
• Docket Number: No. 28491.,28491.
• Citation: 237 P.3d 1067,124 Hawai'i 1
• Parties: Paulette Ka‘anohiokalani KALEIKINI, Petitioner/Appellant-Appellant, v. Laura H. THIELEN, 1 in her official capacity as Chairperson of the Board of Land and Natural Resources, Board of Land and Natural Resources, and the Department of Land and Natural Resources, Respondent/Appellees-Appellees.
• Court: Hawaii Supreme Court

124 Hawai'i 1

237 P.3d 1067

Paulette Ka‘anohiokalani KALEIKINI, Petitioner/Appellant-Appellant,

v.Laura H. THIELEN, ¹ in her official capacity as Chairperson of the Board of Land and Natural Resources, Board of Land and Natural Resources, and the Department of Land and Natural Resources, Respondent/Appellees-Appellees.

No. 28491.

Supreme Court of Hawai‘i.

Aug. 18, 2010.

COPYRIGHT MATERIAL OMITTED.

David Kimo Frankel (Moses K.N. Haia, III, with him on the application, of Native Hawaiian Legal corporation), for petitioner/appellant-appellant.

Linda L.W. Chow, Deputy Attorney General, for respondent/appellee-appellee.

MOON, C.J., NAKAYAMA, and DUFFY, JJ.; ACOBA, J., and RECKTENWALD, J., concurring separately.

Opinion of the Court by MOON, C.J.

On November 4, 2009, this court accepted a timely application for a writ of certiorari filed by petitioner/ appellant-appellant Paulette Ka‘’ anohiokalani Kaleikini on September 28, 2009, requesting that this court review the Intermediate Court of Appeals' (ICA) July 9, 2009 order dismissing as moot the appeal from the Circuit Court of the First Circuit's ² March 16, 2007 order and April 4, 2007 final judgment. Therein, the circuit court dismissed Kaleikini's notice of agency appeal on the basis that it lacked subject matter jurisdiction. Oral argument was held on December 17, 2009.

Briefly stated, the O‘ahu Island Burial Council (OIBC) approved a burial treatment plan submitted by developer General Growth Properties (GGP), involving the disinterment of Native Hawaiian burial remains or “iwi” discovered at GGP's project site at the Ward Village Shops. Thereafter, Kaleikini, pursuant to Hawai‘i Revised Statutes (HRS) § 6E-43 (1993), quoted infra, requested a contested case hearing, which was denied by respondents/appellees-appellees Peter Young, in his official capacity as Chairperson of the BLNR, ³ the BLNR, and the Department of Land and Natural Resources (DLNR) [hereinafter, collectively, DLNR]. Kaleikini then sought judicial review of DLNR's denial; however, the circuit court dismissed, sua sponte, her agency appeal and an accompanying motion for stay, ruling that it lacked subject matter jurisdiction. Although the circuit court recognized that Kaleikini was seeking review of DLNR's denial of her request for a contested case hearing, it seemingly felt constrained by existing case law to rule that it lacked jurisdiction under HRS chapter 91 because no agency contested case had occurred. Kaleikini appealed, and the ICA, thereafter, dismissed her appeal as moot, reasoning that “the remedy sought by Kaleikini-[ i.e.,] a determination that the circuit court had jurisdiction to review the denial of Kaleikini's request for a contested-case hearing-[was] no longer necessary[.]” ICA's Order at 3.

On application, Kaleikini essentially argues that the ICA erred in dismissing her appeal as moot. As discussed more fully infra, we agree with the ICA that Kaleikini's direct appeal was moot; however, unlike the ICA, we hold that Kaleikini's appeal falls within the public interest exception to the mootness doctrine. Additionally, in addressing the merits of Kaleikini's appeal, we hold that the circuit court erred in dismissing Kaleikini's agency appeal for a lack of subject matter jurisdiction because Kaleikini met the requirements of HRS § 91-14 (1993 and Supp. 2008), quoted infra. Accordingly, we vacate the ICA's order dismissing Kaleikini's appeal for mootness and remand the case to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

To understand the context of the instant appeal, including the ICA's reasoning, we took judicial notice of a separate, but closely related appeal, i.e., Kaleikini v. Thielen, No. 29675. See State v. Kotis, 91 Hawai‘i 319, 341 n. 25, 984 P.2d 78, 100 n. 25 (1999) (stating that “an appellate court may, in its discretion, take judicial notice of files or records of a case on appeal”) (citations and original brackets omitted). We recognize, however, that, although “a [c]ourt may take judicial notice of each document in the [c]ourt's file, it may ... take judicial notice of [only ] the truth of facts asserted in documents[,] such as orders, judgments[,] and findings of fact [ (FOFs ) ] and conclusions of law [ (COLs ) ] because of the principles of collateral estoppel, res judicata, and the law of the case.” Id. at 342, 984 P.2d at 101 (emphasis added) (format altered) (original brackets omitted). Thus, for purposes of this opinion, the factual and procedural background presented below has been drawn from the record on appeal in the instant case ( i.e., Civ. No. 07-1-0068) and, to the extent allowed by this court's holding in Kotis, emphasized above, the record on appeal in the related case ( i.e., Civ. No. 07-1-0067).

A. Factual and Procedural Background

On September 13, 2006, a public hearing was held before the OIBC, pursuant to HRS chapter 92 (governing public agency meetings and records) and Hawai‘i Administrative Regulations (HAR) § 13-300-33 (2009), ⁴ on a proposed burial treatment plan submitted to OIBC by GGP, seeking permission to remove iwi discovered by GGP at the Ward Village Shops project area. According to the minutes of the meeting, GGP indicated that it was seeking “to relocate the iwi into an area where they would be safe” and that “the construction plans for the project [did] not allow for a lot of redesign.” Kaleikini, who was present at the meeting, is a recognized “cultural descendant” to the iwi found at the Ward Village Shops project. ⁵ Kaleikini maintained that, as a Native Hawaiian cultural practitioner, one of the critical tenets of Native Hawaiian traditional and customary practices is to ensure that iwi remain undisturbed and that they receive proper care and respect.

Kaleikini presented testimony against the proposed burial treatment plan at the OIBC meeting. More specifically, the meeting minutes indicate that Kaleikini asserted that GGP should have made a “better” attempt to redesign the project so that the iwi could be preserved in place. Ultimately, the OIBC approved the burial treatment plan by a vote of 6-3 with one “kanalua” (an undecided vote or a vote to abstain).

On October 12, 2006, Kaleikini sent a letter to DLNR, requesting that a contested case hearing be held, pursuant to HRS chapter 91, to review the OIBC's September 13, 2006 decision to relocate the iwi at the Ward Village Shops Project. Therein, Kaleikini alleged that she was entitled to a contested case hearing pursuant to, inter alia, HRS § 6E-43 ⁶ and HAR §§ 13-300-51 (2009) ⁷ and 13-300-52 (2009). ⁸ Additionally, Kaleikini stated that the [OIBC]'s determination adversely affected her because she was “a recognized cultural descendant ... and a possible lineal descendant to the previously identified [iwi] at the Ward Village [Shops] project site” and that the OIBC did not (1) “ consult with [Kaleikini] and ‘ohana (recognized descendants), as [required pursuant to HAR § 13-300-36 (2009) (governing the criteria for evaluating requests to preserve or relocate Native Hawaiian burial sites) ]” and (2) “ adequately evaluate, consider[,] and apply the criteria set forth in HAR [§ ] 13-300-36 [.]” Kaleikini also asserted that she “believe[d] that certain [OIBC] members [did] not meet the criteria required to become a member of the [OIBC] as listed in HAR [§ ]13-300-22(b)(2) [ (2009) (requiring that Council members “[p]ossess an understanding of Hawaiian culture, history, customs, practices, and[,] in particular, beliefs and practices relating to the care and protection of Native Hawaiian burial sites and ancestral remains and burial goods”) ] and [that] their decision to relocate was based on their inadequate cultural understanding of the care and protection of ancestral burials.” Finally, Kaleikini contended that she was entitled to a contested case hearing because her “constitutional rights as a native Hawaiian”-specifically, those rights contained in article XII, section 7 of the Hawai‘i Constitution ⁹ were “adversely affected by the relocation of [the iwi].”

On December 12, 2006, DLNR denied Kaleikini's request for a contested case hearing via letter, stating that:

The law permits an aggrieved person to administratively appeal burial council determinations. A request for a contested case will be approved when valid grounds for such requests are present. The reasons underlying your appeal of OIBC's prior determinations are neither factually nor legally sufficient to warrant a contested case proceeding. Accordingly, your request for a contested case is denied.

On January 10, 2007, Kaleikini filed a notice of agency appeal with the circuit court, seeking review of DLNR's December 12, 2006 denial of her request for a contested case hearing [hereinafter, the agency appeal case]. On the same day, Kaleikini filed a separate complaint in Civ. No. 07-1-0067-01, the previously mentioned related case, seeking declaratory relief and an injunction to prevent the imminent removal of the iwi from the Ward Village Shops project area [hereinafter, the dec action]. In her six-count complaint, brought against GGP, Young, BLNR, and DLNR, Kaleikini sought, inter alia, (1) a declaration that DLNR's denial of Kaleikini's request for a contested case hearing was without basis and invalid and (2) an order requiring that a contested case hearing be held.

1. Agency Appeal Case

On February 21, 2007, Kaleikini filed a motion for a stay in the agency appeal, seeking to prevent DLNR from granting final approval of GGP's “[b]urial [t]reatment [p]lan, which would allow the immediate disinterment of human remains discovered on the project site, until a decision on the merits of [the] agency appeal [was] issued by [the circuit court].” ¹⁰ A hearing was held on Kaleikini's motion for a stay on February 22, 2007. At the outset of the hearing, the circuit court stated that:

I do know and appreciate from [Kaleikini] ... that you have filed a...