Hui Ho'opulapula Nā Wai o Puna v. Department of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-JUN-2025
07:57 AM
Dkt. 98 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HUI HO#OPULAPULA NĀ WAI O PUNA, Plaintiff-Appellant/
Cross-Appellee, v. DEPARTMENT OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI#I and BOARD OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI#I, Defendants-Appellees/Cross-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Hui Ho#opulapula Nā Wai O Puna appeals, and the Board
of Land and Natural Resources (BLNR) and Department of Land and
Natural Resources (DLNR) (together, State) cross-appeal, from the
Amended Final Judgment entered by the Circuit Court of the First
Circuit.1 The circuit court ruled it did not have subject matter
jurisdiction over the case. The parties challenge different
aspects of the January 9, 2023 Findings of Fact, Conclusions of
Law, and Order Granting Defendant's Motion for Summary Judgment
and Denying Plaintiff's Motion for Summary Judgment. We hold the
circuit court had subject matter jurisdiction, vacate the Amended
Final Judgment, and remand for further proceedings.

1
The Honorable John M. Tonaki presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Background

The Hui sued the State on May 4, 2022. It sought
declarations that (1) BLNR violated Hawaii Revised Statutes (HRS)
§ 171-55 and its Haw. Const. art. XI, §§ 1, 7 public trust duties
by continuing a one-year revocable permit (RP 7340) issued to
Kaua#i Island Utility Cooperative (KIUC) for calendar year 2022,
and (2) the continued RP 7340 was "legally invalid and void."2
It also sought "any necessary and appropriate injunctive relief."
The Hui and the State filed cross-motions for summary
judgment. The Hui's motion argued that BLNR's continuation of
RP 7340 was invalid because BLNR failed to make findings of fact
and conclusions of law; failed to require KIUC to show an actual
need for stream water; continued the permit for the sake of
KIUC's interest in obtaining a long-term water lease; and
abdicated its legal duties by not making an independent inquiry
or analysis of protection and mitigation measures.
The State's motion argued that the Hui failed to
exhaust its administrative remedies by formally requesting a
contested case hearing on KIUC's application to continue RP 7340;
the Hui's claims were barred under the primary jurisdiction
doctrine; and the Hui was afforded due process.
The cross-motions were heard on November 30, 2022. The
circuit court took them under advisement. The court entered
findings of fact, conclusions of law, and an order denying the
Hui's motion for summary judgment and granting the State's motion
for summary judgment on January 9, 2023. The court found:

10. On December 10, 2021, [BLNR] considered whether
to continue RP 7340 at its publicly noticed meeting.
11. During the meeting, [BLNR] took testimony from
KIUC, members of the Hui, and other members of the public
concerning continuation of RP 7340.

2
The HUI did not name KIUC, the permittee, as a defendant. The
State asserted failure to name indispensable parties as an affirmative
defense, but the State didn't move for relief under Hawai#i Rules of Civil
Procedure Rule 19 (Joinder of Persons Needed for Just Adjudication).

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12. [BLNR] voted to renew RP 7340 without first
entering any findings of fact and conclusions of law
supporting permit renewal, and without issuing any findings
that continuing the permit was in the best interests of the
State for the 2022 calendar year, and whether continuing the
permit complies with the public trust doctrine[.]

13. [BLNR] also denied the Hui's oral request for a
contested case hearing.

14. [The Hui] did not avail itself of the statutory
process for judicial review of a decision in a contested
case provided for under Hawaii Administrative Rules
§ 13-1-29 and [HRS §] 91-14.
15. Instead, [the Hui] filed an original complaint
for declaratory and injunctive relief in the Environmental
Court of the First Circuit, in which [it] seeks invalidation
of permit RP 7340 issued by the Board on December 10, 2021
for the year 2022.

The court concluded:

3. In order to seek judicial review of [BLNR]'s
continuation of RP 7340, it was a requirement that [the Hui]
institute proceedings for review in the circuit court or, if
applicable, the environmental court, within thirty days
after the preliminary ruling or within thirty days after
service of the certified copy of the final decision and
order of the agency. H.R.S. § 91-14(b).

4. Where a statutory avenue for appeal of an agency
decision is available, an original action for declaratory
judgment does not lie. Ko#olau Agr. Co. v. Commission on
Water Res. Mgmt., 83 Haw. 484[], 492-93 (1996).

5. [The Hui]'s failure to proceed under the
statutory process for review of an agency decision under
H.R.S. Chapter 91 divests the court of authority to issue an
order for declaratory and injunctive relief.

A judgment for BLNR and against the Hui was entered on
January 25, 2023. This appeal and cross-appeal followed. The
Amended Final Judgment for the State and against the Hui was
entered on November 29, 2023, on a temporary remand.

Standards of Review

A circuit court's decisions on motions for summary
judgment, statutory interpretation, and subject matter
jurisdiction are reviewed de novo under the right/wrong standard.

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Tax Found. of Haw. v. State, 144 Hawai#i 175, 185–86, 439 P.3d
127, 137–38 (2019).

Discussion

The circuit court concluded it did not have subject
matter jurisdiction over the Hui's declaratory judgment action;
it did not reach the merits of the Hui's claims. Hawai#i Rules
of Civil Procedure (HRCP) Rule 12(h)(3) requires dismissal when
subject matter jurisdiction is lacking.3 The circuit court
should have entered an order dismissing the case rather than an
order granting summary judgment and a judgment. Mobley v.
Kimura, 146 Hawai#i 311, 325 n.23, 463 P.3d 968, 982 n.23 (2020)
(stating that when circuit court dismissed complaint for failure
to meet tort threshold, its order should have indicated a
"dismissal" rather than a grant of "partial summary judgment").
(1) The Hui contends the circuit court erred by
concluding that its "failure to proceed under the statutory
process for review of an agency decision under [HRS] Chapter 91
divests the court of authority to issue an order for declaratory
and injunctive relief."4 The argument has merit.
The circuit court relied on Ko#olau Agricultural Co. v.
Commission on Water Resource Management, 83 Hawai#i 484, 927 P.2d
1367 (1996). There, the Commission on Water Resource Management
(CWRM) had designated five aquifers as water management areas
under the State Water Code, HRS Chapter 174C. Ko#olau Ag sued
CWRM for a declaration that CWRM misapplied the statutory
designation criteria. CWRM moved to dismiss. The circuit court
granted the motion. Ko#olau Ag appealed. It "recharacterize[d]
its claims as allegations of improper rulemaking" and argued the

3
HRCP Rule 12(h)(3) (eff. 2000) provides: "Whenever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of
the subject matter, the court shall dismiss the action."
4
The Hui's statement of the points of error does not identify the
circuit court's denial of the Hui's motion for summary judgment as error.

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circuit court had jurisdiction under HRS § 91-7, which provided
for declaratory judgments "as to the validity of an agency
rule[.]" Id. at 489, 927 P.2d at 1372. The supreme court
dismissed the argument, noticing that Ko#olau Ag actually sought
"invalidation of the [water management area] designation." Id.
The supreme court then analyzed HRS § 174C-46. That
statute made CWRM's water management area designations "final
unless judicially appealed." Id. at 487, 927 P.2d at 1370. The
supreme court held that by enacting HRS § 174C-46,

the legislature obviously intended an appeal as the
exclusive means of obtaining judicial review of a [water
management area] designation decision. It is well
established that where a statutory avenue for appeal of an
agency decision is available, an original action for
declaratory judgment does not lie.

Id. at 492–93, 927 P.2d at 1375–76 (emphasis added).
Here, BLNR's decision to continue KIUC's revocable
permit was made under HRS § 171-55 in a public meeting. See
Carmichael v. Bd. of Land & Nat. Res., 150 Hawai#i 547, 563, 506
P.3d 211, 227 (2022) (stating that "HRS § 171-55 potentially
authorized the BLNR to continue the revocable permits"). HRS
§ 171-55 (2011) provided:

Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein on
a month–to–month basis by direct negotiation without public
auction, under conditions and rent which will serve the best
interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board. A permit on a month–to–month basis may
continue for a period not to exceed one year from the date
of its issuance; provided that the board may allow the
permit to continue on a month–to–month basis for additional
one year periods.

Unlike HRS § 174C-46 (at issue in Ko#olau Ag), HRS
§ 171-55 does not create a statutory avenue for appealing BLNR's
decision to continue a permit. The Hui could not have appealed
BLNR's decision under HRS § 91-14 because it was made during a

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public meeting, not after a contested case.5 Such decisions are
subject to declaratory judgments under HRS § 632-1, provided the
other statutory elements are met; the HRS § 632-1(b) proviso that
"[w]here however, a statute provides a special form of remedy for
a specific type of case, that statutory remedy shall be followed"
doesn't apply here.
For example, in Carmichael, BLNR approved continuations
of permits under HRS § 171-55 in a public meeting. Carmichael
sued for a declaration that preparation of an environmental
assessment under the Hawai#i Environmental Policy Act, HRS
Chapter 343 (HEPA) was required. The supreme court declared:
"Given the significant environmental impact of the permitted
action, the BLNR's authority to issue revocable permits is
subject to the environmental review requirements of HEPA." 150
Hawai#i at 553, 506 P.3d at 217. The supreme court was obligated
to ensure it had jurisdiction over the case and to dismiss the
appeal on its own if it concluded it lacked jurisdiction. See
Ditto v. McCurdy, 103 Hawai#i 153, 157, 80 P.3d 974, 978 (2003).
No issue of jurisdiction was raised at any level of the
proceeding, indicating that courts have jurisdiction over
declaratory judgment actions concerning BLNR decisions under HRS
§ 171-55.
The circuit court erred by concluding it did not have
jurisdiction over the Hui's action for declaratory and injunctive
relief.6
(2) The State contends the circuit court erred by
making finding of fact no. 12, "finding that [BLNR] did not issue
findings that continuing the permit was in the best interests of
the state or about whether the permit complies with the public

5
The Hui could have appealed BLNR's denial of a formal request for
a contested case hearing under HRS § 91-14, Kaleikini v. Thielen, 124 Hawai#i
1, 26, 237 P.3d 1067, 1092 (2010), but requesting a contested case is not a
prerequisite to seeking declaratory relief under HRS § 632-1.
6
We express no opinion whether KIUC is a necessary or indispensable
party to the action below under HRCP Rule 19.

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trust doctrine" after concluding it had no jurisdiction over the
Hui's lawsuit.
A court deciding a motion for summary judgment for lack
of subject matter jurisdiction may resolve factual disputes over
the existence of jurisdiction. Cf. Yamane v. Pohlson, 111
Hawai#i 74, 81, 137 P.3d 980, 987 (2006) (discussing procedure on
HRCP Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction). Here, finding of fact no. 12 was one of six
findings (nos. 10-15) material to the circuit court's conclusions
of law nos. 3-5 — that it lacked subject matter jurisdiction
because the Hui didn't take the steps necessary to appeal BLNR's
decision under HRS § 91-14.
The Hui incorrectly characterizes finding of fact
no. 12 as a conclusion of law. The circuit court found:

12. [BLNR] voted to renew RP 7340 without first
entering any findings of fact and conclusions of law
supporting permit renewal, and without issuing any findings
that continuing the permit was in the best interests of the
State for the 2022 calendar year, and whether continuing the
permit complies with the public trust doctrine[.]

This was not a conclusion of law. It was not even a
mixed finding and conclusion. It makes no legal conclusion about
BLNR's duties when making decisions during public meetings, or
about whether BLNR breached a legal duty under the circumstances
of this case.7

7
The Hui relies on Carmichael to argue that if BLNR doesn't "render
specific findings of fact and conclusions of law" it doesn't "comply with HRS
§ 171-55 or its public trust obligations." But see Frankel v. Bd. of Land &
Nat. Res., 155 Hawai#i 358, 379, 564 P.3d 1157, 1178 (App. 2025) ("[E]ven in
the absence of explicit public trust findings in the agency's decision, the
decision may nonetheless be upheld if the public record reflects an
application of the public trust principles." (emphasis added) (citing In re
Maui Elec. Co., 150 Hawai#i 528, 540, 506 P.3d 192, 204 (2022)), application
for cert. filed, No. SCWC-XX-XXXXXXX (Haw. May 2, 2025); Sierra Club v. Bd. of
Land & Nat. Res., 154 Hawai#i 264, 282 n.19, 550 P.3d 230, 248 n.19 (App.
2024) ("We note that for decisions made during a public meeting, rather than
after a contested case hearing, BLNR could refer to its staff submittals or
other evidence in the meeting record to support its decision. The meeting
record and minutes should be sufficient for an appellate court to track the
agency's steps."), cert. granted, No. SCWC-XX-XXXXXXX, 2024 WL 3378462 (Haw.
July 11, 2024).

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Conclusion

The circuit court's Amended Final Judgment, entered on
November 29, 2023, is vacated. This case is remanded to the
circuit court for further proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawai#i, June 6, 2025.

On the briefs:
/s/ Katherine G. Leonard
Isaac H. Moriwake, Acting Chief Judge
Leinā#ala L. Ley,
for Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Colin J. Lau,
Miranda C. Steed, /s/ Clyde J. Wadsworth
Deputy Attorneys General, Associate Judge
Department of the Attorney
General, State of Hawai#i,
for Defendants-Appellees.

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