Kia'i Wai O Wai'Ale'Ale v. Board 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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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
28-JUN-2024
08:00 AM
Dkt. 42 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KIA#I WAI O WAI#ALE#ALE, an unincorporated association;
FRIENDS OF MĀHĀ#ULEPŪ, a nonprofit corporation,
Plaintiffs-Appellants/Appellees,
v.
BOARD OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI#I, Defendant-Appellee/Appellant,
and
KAUA#I ISLAND UTILITY COOPERATIVE, a domestic cooperative
association, Defendant-Appellee/Appellee

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.)

The Hawai#i Board of Land and Natural Resources (BLNR)
appeals from the Final Judgment for Kia#i Wai o Wai#ale#ale and
Friends of Māhā#ulepū entered by the Environmental Court of the
First Circuit on May 8, 2023.1 BLNR challenges the April 21,
2023 "Findings of Fact, Conclusions of Law and, [sic] Decision
and Order." We vacate the Decision and Order and reverse the
Final Judgment.
On August 11, 2003, BLNR issued a one-year revocable
Permit to Kaua#i Island Utility Cooperative (KIUC). The Permit
let KIUC use water from the north fork of the Wailua River and

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Waikoko Stream to operate two hydroelectric plants. KIUC
applied for a Hawaii Revised Statutes (HRS) § 171-58 long-term
water lease in 2004. KIUC's lease application remains pending.
BLNR has continued the Permit annually since 2003 under HRS
§ 171-55.2
BLNR held a public meeting on December 11, 2020, about
continuing the Permit for 2021. BLNR approved continuing the
Permit. On December 19, 2020, Kia#i Wai and Friends petitioned
BLNR for contested case hearings. Those petitions were agenda
item D-1 for BLNR's December 10, 2021 public meeting. BLNR
denied the petitions.
Agenda item D-2 for the 2021 public meeting included
continuation of the Permit for 2022. Kia#i Wai and Friends
orally requested a contested case hearing. BLNR denied the
request and approved the continuation for 2022.
Kia#i Wai and Friends appealed to the Environmental
Court on January 6, 2022. By letter dated October 25, 2022, KIUC
notified BLNR it would not seek another continuation of the
Permit. The court requested additional briefing on mootness.3
KIUC filed a brief. So did Kia#i Wai and Friends. BLNR took no
position.
The Decision and Order was entered on April 21, 2023.
The Environmental Court concluded the "capable of repetition, yet
evading review" exception to the mootness doctrine applied. It
held that BLNR violated Kia#i Wai's and Friends' due process
rights when it denied their contested case petitions. It vacated
BLNR's continuations of the Permit for 2021 and 2022. The Final

2
The Permit states it was issued "pursuant to [HRS] section 171-58"
but that statute doesn't apply; HRS § 171-55 (2011) does. Carmichael v. Bd.
of Land & Nat. Res., 150 Hawai#i 547, 562-63, 506 P.3d 211, 226-27 (2022).
3
The Environmental Court, sitting as an appellate court under
Hawaii Revised Statutes § 91-14, could consider matters outside the record
before BLNR if the parties do not challenge the accuracy of the documents or
facts that show mootness. Queen Emma Found. v. Tatibouet, 123 Hawai#i 500,
507 n.8, 236 P.3d 1236, 1243 n.8 (App. 2010) (citing Anderson v. Cain, 27 Haw.
415, 419 (Haw. Terr. 1923) (concluding that facts that do not appear on the
record, but which show that an appeal has been rendered moot, "may be proved
by extrinsic evidence")).

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Judgment was entered on May 8, 2023. BLNR appeals.4 In this
secondary appeal, we apply the standards of HRS § 91–14(g) to
BLNR's decisions to determine whether the Environmental Court was
right or wrong. Flores v. Bd. of Land & Nat. Res., 143 Hawai#i
114, 120, 424 P.3d 469, 475 (2018) (citation omitted).

I.

BLNR cites Community Associations of Hualalai, Inc. v.
Leeward Planning Commission, 150 Hawai#i 241, 500 P.3d 426
(2021), to argue that "petitions for contested case hearings must
assert 'injury in fact' standing." In that case the supreme
court stated that standing to appeal an agency's decision and
order in a contested case is evaluated "using the 'injury in
fact' test requiring: (1) an actual or threatened injury, which,
(2) is traceable to the challenged action, and (3) is likely to
be remedied by favorable judicial action." Id. at 258, 500 P.3d
at 443 (citation omitted).
Here, Kia#i Wai and Friends had property interests in a
clean and healthful environment, protected under article XI,
section 9 of the Hawai#i Constitution, as defined by HRS § 171-55
(2011) and HRS Chapter 343 (2010) (the Hawai#i Environmental
Policy Act), in the matters before BLNR. Sierra Club v. Bd. of
Land & Nat. Res., ___ Hawai#i ___, ___, ___ P.3d ___, ___, 2024
WL 1596193, at *10-11 (App. 2024). Their protected property
interests were potentially injured by BLNR's denial of their
petitions and requests for contested case hearings. That
potential injury could be remedied by favorable judicial action.
Kia#i Wai and Friends had standing to appeal to the Environmental
Court from BLNR's denials of their petitions and requests for
contested case hearings.

II.

To decide whether Kia#i Wai and Friends were entitled
to contested case hearings, the Environmental Court had to

4
KIUC is a nominal appellee. It did not file a brief.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

balance (a) the risk of an erroneous deprivation of Kia#i Wai's
and Friends' constitutionally protected property interests,
through the procedures actually used by BLNR and the probable
value, if any, of additional or alternative procedural safeguards
afforded by a contested case hearing, with (b) the governmental
interest, including the burden that a contested case hearing
would entail. Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82.
The record does not contain information about the procedures
actually used by BLNR for the 2020 public meeting concerning the
2021 continuation.
Hawai#i Rules of Civil Procedure Rule 72(d) required
that Kia#i Wai and Friends designate the material for the agency
to file in the circuit court in connection with the appeal.
Kia#i Wai and Friends' designation referred to BLNR's
"December 12, 2020 meeting[.]" BLNR's certificate accompanying
the transmittal of the record stated: "there are no records for a
December 12, 2020 board meeting as none was held on that
date[.]"5 Kia#i Wai and Friends did not move to supplement the
record. "The law is clear in this jurisdiction that the
appellant has the burden of furnishing the appellate court with a
sufficient record to positively show the alleged error."
Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553,
558 (1995). We are unable to balance the Flores factors because
the record does not include evidence of the procedures actually
used by BLNR for the 2020 public meeting. See Sierra Club, 2024
WL 1596193, at *13 (discussing procedures used by BLNR for public
meeting). The Environmental Court's conclusion that
constitutional due process required a contested case hearing on
continuing the Permit for 2021 was wrong because the record did
not include the information necessary for it to balance the
Flores factors.6

5
The meeting date was actually December 11, 2020.
6
Flores balancing is not required if a statute or rule requires a
contested case hearing. But where constitutional due process is implicated, a
court must explain how it balanced the agency's actual procedures and the
governmental interest, including the burden that a contested case hearing
(continued...)

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

III.

We decline to decide whther Kia#i Wai's and Friends'
due process rights were violated by BLNR's denial of their
requests for a contested case hearing on the 2022 continuation
because the sole issue over which we have jurisdiction — whether
BLNR should have held contested case hearings on the 2021 and
2022 continuations — is moot and no exceptions to the mootness
doctrine apply.
In Hawai#i, mootness is an issue of justiciability.
State v. Hewitt, 153 Hawai#i 33, 42, 526 P.3d 558, 567 (2023).
It is properly invoked when "events subsequent to the judgment of
the trial court have so affected the relations between the
parties that the two conditions for justiciability relevant on
appeal — adverse interest and effective remedy — have been
compromised." Lathrop v. Sakatani, 111 Hawai#i 307, 313, 141
P.3d 480, 486 (2006) (citations omitted). That is so in this
case. The 2021 and 2022 continuations have expired; a remand for
BLNR to hold contested case hearings for those years would be
meaningless.
Kia#i Wai and Friends argued that the capable-of-
repetition-yet-evading-review, public-interest, and collateral-
consequences exceptions to the mootness doctrine applied.
Capable of repetition, yet evading review means that a court will
not dismiss a case for mootness where a governmental action would
evade review because the passage of time would prevent anyone
from remaining subject to the action for the time necessary to
complete a lawsuit challenging it. Hamilton ex rel. Lethem v.
Lethem, 119 Hawai#i 1, 5, 193 P.3d 839, 843 (2008). In

6
(...continued)
would entail, against the probable value of additional or alternative
procedural safeguards afforded by a contested case hearing. Flores, 143
Hawai#i at 126-27, 424 P.3d at 481-82. Here, the Environmental Court recited
the ability to cross-examine witnesses and present rebuttal evidence as
procedural safeguards afforded by a contested case hearing, but it did not
explain how they would have provided additional safeguards to Kia#i Wai or
Friends under the circumstances of this case. Nor did it consider the
governmental interest, including the burden that a contested case hearing
would entail under the circumstances of this case. See Sierra Club, 2024 WL
1596193, at *13-16 (balancing Flores factors).

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Carmichael v. Board of Land & Natural Resources, 150 Hawai#i 547,
561, 506 P.3d 211, 225 (2022), an appeal from a revocable permit
continuation fell under this exception. In Carmichael, the
permit did not expire and the permittee would likely request
continuations every year pending a decision on its water lease
application. In this appeal, KIUC allowed its Permit to expire.
KIUC stated, and Kia#i Wai and Friends do not dispute, that KIUC
will not make expensive repairs to its water transmission system
unless a long-term water lease is approved. In the unlikely
event KIUC applies for a new revocable permit, Kia#i Wai and
Friends may request a contested case hearing based on the
circumstances existing at that time. Under the circumstances
existing at this time, the capable-of-repetition-yet-evading-
review exception does not apply.
The factors for analyzing the public-interest exception
are: (1) the public or private nature of the question presented;
(2) the desirability of an authoritative determination for future
guidance of public officers; and (3) the likelihood of future
recurrence of the question. Carmichael, 150 Hawai#i at 561, 506
P.3d at 225. The specific issue in this appeal — whether BLNR
should have held contested case hearings on the 2021 and 2022
continuations — is not likely to recur because KIUC allowed the
Permit to expire and is unlikely to apply for a new one. The
public-interest exception does not apply.
The collateral-consequences exception applies when it
is reasonably possible that prejudicial collateral consequences
will occur because of the challenged action, so that a decision
can afford the litigant some practical relief in the future.
Hamilton, 119 Hawai#i at 8, 193 P.3d at 846. Kia#i Wai and
Friends argued it was "more probable than not that KIUC will
continue to unlawfully divert Waikoko and fail to repair and
restore structures that are creating erosion[.]" But the Permit
expired; KIUC is no longer permitted to divert Waikoko; and the
record indicates that KIUC's water transmission system cannot
function without expensive repairs. KIUC is unlikely to seek a
new permit. In the unlikely event that KIUC does apply for a new

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

permit, Kia#i Wai and Friends may request a contested case
hearing based on the circumstances existing at that time. Under
the circumstances existing at this time, the collateral-
consequences exception does not apply.

IV.

The Environmental Court exceeded its jurisdiction by
concluding that "the failure of [BLNR] to issue findings of fact
and conclusions of law made it impossible to determine whether
[continuation of the Permit] 'served the best interests of the
State' pursuant to HRS §[ ]171-58(c)[.]"7 BLNR's decisions to
continue the Permit for 2021 and 2022 were made in public
meetings, not contested cases. The Environmental Court did not
have jurisdiction to review the propriety of those decisions in
this HRS § 91-14 appeal. Sierra Club, 2024 WL 1596193, at *8-9.
For these reasons, the circuit court's April 21, 2023
"Findings of Fact, Conclusions of Law and, [sic] Decision and
Order" is vacated and the May 8, 2023 "Final Judgment" is
reversed.
DATED: Honolulu, Hawai#i, June 28, 2024.

On the briefs:
/s/ Katherine G. Leonard
Colin J. Lau, Acting Chief Judge
Miranda C. Steed,
Deputy Attorneys General, /s/ Keith K. Hiraoka
State of Hawai#i, Associate Judge
for Defendant-Appellee/
Appellant Board of /s/ Clyde J. Wadsworth
Land and Natural Resources, Associate Judge
State of Hawai#i.

Lance D. Collins,
Bianca Isaki,
for Plaintiffs-Appellants/
Appellees Kia#i Wai o
Wai#ale#ale and Friends
of Māhā#ulepū.

7
HRS § 171-58 (2011) didn't apply to continuation of the Permit;
HRS § 171-55 did. Carmichael, 150 Hawai#i at 562-63, 506 P.3d at 226-27.

7