KRB, LLC v. State

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-DEC-2024
08:02 AM
Dkt. 149 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

KRB, LLC, a Hawaii limited liability company,
Plaintiff-Appellee/Cross-Appellant, v.
STATE OF HAWAII, DEPARTMENT OF LAND AND NATURAL RESOURCES;
DAWN N.S. CHANG, in her capacity as the Director of the
Department of Land and Natural Resources;
STATE OF HAWAII, DEPARTMENT OF AGRICULTURE; SHARON HURD,
in her capacity as the Director of the Department of Agriculture;
STATE OF HAWAII, DEPARTMENT OF HEALTH; KENNETH S. FINK, M.D.,
in his capacity as the Director of the Department of Health,
Defendants-Appellants/Cross-Appellees, and
JOHN DOES 1-20; JANE DOES 1-20; DOE PARTNERSHIPS 1-20;
DOE CORPORATIONS 1-20; and DOE GOVERNMENTAL UNITS 1-100,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC151000127)

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

Defendants-Appellants/Cross-Appellees State of Hawai i,

Department of Land and Natural Resources, Dawn N.S. Chang, in her

capacity as the Director of the Department of Land and Natural

Resources, State of Hawai i, Department of Agriculture, and

Sharon Hurd, in her capacity as the Director of the Department of
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Agriculture,1 (collectively, the State) appeal from the May 5,

2023 Amended Final Judgment (Amended Judgment), entered by the

Circuit Court of the Fifth Circuit (Circuit Court).2 The State

challenges the October 27, 2021 Findings of Fact [(FOFs)],

Conclusions of Law, and Order Re: Attorney's Fees and Costs

(Attorney's Fees Order).3

Plaintiff-Appellee/Cross-Appellant KRB, LLC, a Hawai i

limited liability company (KRB), cross-appeals and challenges the

Circuit Court's October 27, 2021 Findings of Fact, Conclusions of

Law, and Order (Order After Trial).

The State raises two points of error on appeal,

contending that the Circuit Court erred in entering the

Attorney's Fees Order because: (1) sovereign immunity bars an

award of attorney's fees and costs in this case; and (2) KRB was

not entitled to fees and costs under the private attorney general

doctrine.

KRB raises four points of error, contending that the

Circuit Court erred when it: (1) failed to conclude that the

State created a public nuisance; (2) did not apply the public

trust doctrine and conclude that the State violated the

protections of the Hawai i Constitution article XI, sections 1

and 7; (3) did not recognize KRB's water rights to use the

1
As the current directors of their departments, pursuant to Hawai i
Rules of Appellate Procedure Rule 43(c)(1), Dawn N.S. Chang and Sharon Hurd
are substituted for the previously-named parties to this case.
2
The Honorable Randal G.B. Valenciano presided.
3
The Amended Judgment was entered pursuant to an April 14, 2023
Order for Temporary Remand. The State's Notice of Appeal from the Attorney's
Fees Order was filed on November 24, 2021.

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Kainahola Stream (Stream) to cultivate taro; and (4) ordered an

inadequate remedy.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, we resolve the

parties' points of error as follows, beginning with the issues

raised by KRB:

KRB's Appeal

(1) KRB argues that the Circuit Court erred in not

finding that the State created a public nuisance. KRB points to

the Circuit Court's findings that the State has not provided for

any maintenance of the Stream, and that as a result, the Stream

is not in a condition suitable to carry off storm waters, and the

lack of Stream maintenance has caused an unsanitary condition

upon KRB's property.

The Hawai i Supreme Court has defined a nuisance,

stating:
A nuisance has been variously defined to mean
"that which unlawfully annoys or does damage to another,
anything that works hurt, inconvenience, or damage, anything
which annoys or disturbs one in the free use, possession, or
enjoyment of his property or which renders its ordinary use
or physical occupation uncomfortable, and anything wrongfully
done or permitted which injures or annoys another in the
enjoyment of his legal rights."

Littleton v. State, 66 Haw. 55, 67, 656 P.2d 1336, 1344 (1982)

(quoting 58 Am. Jur. 2d Nuisances § 1 at 555 (1971)).

The supreme court has defined a public nuisance as

follows:
A nuisance, to be a public nuisance, must be in a public
place, or where the public frequently congregate, or where
members of the public are likely to come within the range of
its influence; for, if the act or use of property be in a
remote and unfrequented locality, it will not, unless malum

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in se, be a public nuisance. If the nuisance affects a
place where the public has a legal right to go, and where
the members thereof frequently congregate, or where they are
likely to come within its influence, it is a public
nuisance.

Id., at 67, 656 P.2d at 1344-45 (citations omitted).

In a pretrial summary judgment order, the Circuit Court

concluded that the State was not in compliance with Hawai i

Revised Statutes (HRS) § 46-11.5 (2012),4 and this failure to

comply had created a private nuisance to KRB. Although KRB

argues that the Circuit Court erred in not finding, after trial,

that the State also created a public nuisance, KRB's argument is

devoid of citation to findings or evidence in the record

demonstrating the public nature of the nuisance. We decline to

adopt KRB's rationale that because the Stream is public waters,

the Circuit Court erred in failing to find that the State's lack

of maintenance constitutes a public, as opposed to a private,

nuisance in this case.

4
HRS § 46-11.5 provides:

§ 46-11.5 Maintenance of channels, streambeds,
streambanks, and drainageways. Notwithstanding any law to
the contrary, each county shall provide for the maintenance
of channels, streambeds, streambanks, and drainageways,
whether natural or artificial, including their exits to the
ocean, in suitable condition to carry off storm waters; and
for the removal from the channels, streambeds, streambanks,
and drainageways and from the shores and beaches any debris
which is likely to create an unsanitary condition or
otherwise become a public nuisance; provided that to the
extent any of the foregoing work is a private responsibility
the responsibility may be enforced by the county in lieu of
the work being done at county expense, and any private
entity or person refusing to comply with any final order
issued by the county shall be in violation of this chapter
and be liable for a civil penalty not to exceed $500 for
each day the violation continues; provided further that it
shall be the responsibility of the county to maintain all
channels, streambeds, streambanks, and drainageways unless
such channels, streambeds, streambanks, and drainageways are
privately owned or owned by the State, in which event such
channels, streambeds, streambanks, and drainageways shall be
maintained by their respective owners.

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(2) KRB argues that the Circuit Court erred in not

concluding that the State violated its duties under the public

trust doctrine. KRB references FOFs 15-19, which include

findings, inter alia, that the State's property is overgrown with

hau bush, guinea grass, and other vegetation that obstructs the

flow of the Stream. KRB argues that the State violated the

public trust doctrine by failing to maintain the "purity and

flow" of the Stream and by failing to protect the use of the

Stream for the cultivation of taro.

The State, in turn, argues that the public trust

doctrine does not obligate the State to maintain the artificial

flow of water created by Lihue Plantation's past dredging and

that the restoration of the natural wetlands should take priority

over the maintenance of a watercourse altered for private

interests.

The supreme court summarized the scope and enumerated

four protected trust purposes as follows:
"The public trust doctrine applies to all water
resources without exception or distinction." [In re Water
Use Permit Apps. (Waiāhole I)], 94 Hawai i [97,] 133, 9 P.3d
[409,] 445 [(2000)].

We have recognized four types of water uses, or
"purposes," protected by the state water resources trust:
(1) maintenance of waters in their natural state;
(2)domestic water use, in particular, drinking water;
(3) the exercise of traditional and customary Native
Hawaiian water rights; and (4) the reservation of water
enumerated by the Water Code. Kauai Springs [Inc. v. Plan
Comm'n,] 133 Hawai i [141,] 172, 324 P.3d [951,] 982 [(2014)]
(first citing Waiāhole I, 94 Hawai i at 136-37, 9 P.3d at
448-50; and then citing [In re Wai ola O Moloka i, Inc.],
103 Hawai i [401,] 431, 83 P.3d [664,] 694 [(2004)]). We
rejected, on the other hand, private commercial uses as not
protected by the public trust. Waiāhole I, 94 Hawai i at
138, 9 P.3d at 450. We have acknowledged the public trust
"may allow grants of private interests in trust resources
under certain circumstances"; nonetheless, it has "never been
understood to safeguard rights of exclusive use for private
commercial gain." Id.

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Surface Water Use Permits Apps., Integration of Appurtenant Rts.

& Amends. To Interim Instream Flow Standards, 154 Hawai i 309,

339, 550 P.3d 1167, 1197 (2024).

On the record before us, we conclude that there is

substantial evidence in the record to support the Circuit Court's

findings and conclusions that, in sum, rejected KRB's conflation

of the State's violation of its duties under HRS § 46-11.5 and a

violation of the public trust. We cannot conclude that the

Circuit Court clearly erred in rejecting KRB's public trust

doctrine claims.

(3) KRB argues that the Circuit Court erred by not

recognizing its water rights under the Kuleana Act of 1850,

specifically the right to use the Stream to cultivate taro. In

essence, KRB contends that it is entitled to water rights under

both riparian and appurtenant doctrines, relying on Reppun v. Bd.

of Water Supply, 65 Haw. 531, 656 P.2d 57 (1982).

In general, "our local system of water rights is 'based

upon and is an outgrowth of ancient Hawaiian customs and methods

of Hawaiians in dealing with the subject of water.'" Id. at 539,

656 P.2d at 63 (quoting Territory v. Gay, 31 Haw. 376, 395

(1930)). In discussing the Great Mahele, the supreme court

explained:
HRS § 7–1 was originally enacted in 1850 as section 7 of
what has come to be known as the Kuleana Act. The first six
sections of the Act enabled the common people of Hawaii to
secure fee simple title to the lands they actually
cultivated. The seventh section contained the rights that
were to accompany a commoner's tenancy.

Id. at 549, 656 P.2d at 69.

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In McBryde Sugar Co. v. Robinson, the supreme court

considered the point at which Hawai i law overturned prior

misinterpretations of Hawaiian traditions regarding water rights.

54 Haw. 174, 186–87, 504 P.2d 1330, 1339 (1973); Reppun, 65 Haw.

at 545, 656 P.2d at 67 ("In McBryde meaning was given to

[riparian rights] for the first time when we ruled that the

[Kuleana Act], at the time of its passage, imposed the 'natural

flow' doctrine of riparianism upon the waters of the Kingdom.").

In McBryde, the supreme court rejected the concept of private

ownership of water, holding, inter alia, that the Kuleana Act

imposed the "natural flow" doctrine of riparianism upon the

waters of the State. 54 Haw. at 197-98, 504 P.2d at 1344. The

supreme court described riparian rights as "the right [of a

riparian owner] to use water flowing [in a natural watercourse]

without prejudicing the riparian rights of others and the right

to the natural flow of the stream without substantial diminution

in the shape and size given it by nature." Id. at 198, 504 P.2d

at 1344. Accordingly, the court in Reppun held "riparian rights

in Hawai i are a product of the people's statutory rights to

'flowing' and 'running'" water embodied in the Kuleana Act. 65

Haw. at 549, 656 P.2d at 69.

In addition, the supreme court recognized rights

appurtenant to the land based on the historical use of water

attached at the time of its conversion to fee simple ownership.

Reppun, 65 Haw. at 551, 656 P.2d at 71. As such, when land

allotted by the Mahele was confirmed to the awardee by the Land

Commission or when Royal Patent was issued based on such award,

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such conveyance of the parcel of land carried with it the

appurtenant right to water for domestic purposes such as taro

growing. Id.

The supreme court, in addressing the issue of riparian

rights, has held that landowners are entitled to use water from a

stream for reasonable purposes, such as irrigation for taro

farming. Id. at 553-54, 656 P.2d at 72. In Reppun, the supreme

court moved away from the strict "natural flow" doctrine, instead

adopting the "reasonable use" theory, stating:
[W]e are convinced the exclusive purpose of the
statutory imposition of riparian rights in this
jurisdiction was to enable tenants of ahupuaas to make
productive use of their lands and that our
interpretation of these rights must proceed in
conformity with this purpose. And while the statute
creating riparian rights may indeed have been intended
to engraft the "natural flow" version of riparianism
onto the waters of our land as found in McBryde, the
continued satisfaction of the framers' intent requires
that the doctrine be permitted to evolve in accordance
with changing needs and circumstances.

Id. at 553, 656 P2.d at 72.

Accordingly, the supreme court held that "a riparian

owner must demonstrate actual harm to his own reasonable use of

those waters." Id.

KRB argues that the State's failure to maintain the

Stream obstructed its reasonable use of the water. The State

counters that while the Stream's condition might slow drainage

during stormwater events, the flooding does not impede KRB's

ability to grow taro, as found by the Circuit Court. The State

also argues that KRB failed to present sufficient evidence

regarding the natural flow of the stream. In essence the Circuit

Court, as the trier-of-fact, found that KRB's claim for riparian

rights falls short under the reasonable use standard.
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Although KRB argues that the condition of the Stream

impairs its ability to cultivate taro, the Circuit Court found,

based on credible witness testimony, that KRB could still grow

taro despite the present conditions. Specifically, the testimony

of KRB's kalo expert, Wayne Tanji, confirmed that flooding only

affected taro cultivation if waters remained above the tops of

the plants for more than twenty-four hours, a condition not shown

to have occurred here. KRB's tenant, Ben Pierce (who lives on

the property and raises livestock there), testified that flooding

on the property occurred infrequently and drained within hours.

KRB invites us to give different weight to various evidence than

did the Circuit Court. However, as the supreme court has often

stated, "it is within the province of the trier of fact to weigh

the evidence and to assess the credibility of the witnesses, and

this court will refrain from interfering in those

determinations[.]" Ass'n of Apartment Owners of Wailea Elua v.

Wailea Resort Co., Ltd., 100 Hawai i 97, 117-18, 58 P.3d 608,

628-29 (2002) (internal quotation marks and citation omitted).

We conclude that the Circuit Court did not clearly err when it

found KRB has not demonstrated that the State's lack of

maintenance has caused KRB to lose income from being unable to

grow taro on its property.

KRB further argues that the overgrowth of hau bush and

the resulting excess and unusable water impedes its historical

and present-day taro cultivation, thus violating its appurtenant

rights. The State argues that KRB failed to quantify the amount

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of water necessary for taro cultivation, which is essential to

establish a violation of appurtenant rights here.

The supreme court in Reppun held that, while the

landowner has the burden of establishing the quantity of water to

which they were entitled, a means of approximation based on

historical use can be used. 65 Haw. at 554, 656 P.2d at 72.

Here, there is no dispute that appurtenant water rights attached

to KRB's property, as these rights were conveyed through Land

Commission Awards and a Royal Patent. Nevertheless, the burden

was on KRB to demonstrate at least an approximate amount of water

historically used, and a measurable deprivation of that right,

which it failed to do. See id. at 554, 656 P.2d at 72. Based on

the evidence before the Circuit Court, we cannot conclude that

the Circuit Court clearly erred in rejecting KRB's claim that the

State violated its riparian and appurtenant rights.

(4) KRB argues that the Circuit Court erred in

determining the proper remedy because the court did not (a)

specifically order the State to remove the hau bush to allow the

Stream to utilize its "historical channel," which would create

"proper conditions" for KRB to cultivate taro, and (b) award

damages to KRB.

With respect to KRB's request for injunctive relief,

the Order After Trial states, in relevant part:
5. [KRB's] claim for injunctive relief is granted and
the State is hereby ordered to comply with HRS § 46-11.5.

6. No later than October 5, 2021, the State must
present this Court with a plan as to how it will come into
compliance with HRS § 46-11.5.

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An injunction is insufficient when the trial court

fails to "mold its decree and the relief granted to satisfy the

requirements of the case and conserve the equities of the

parties[,]" in violation of Hawaii Rules of Civil Procedure

(HRCP) Rule 65(d).5 Moffat v. Speidel, 2 Haw. App. 334, 335, 631

P.2d 1205, 1206 (1981), (citing Fleming v. Napili Kai, Ltd., 50

Haw. 66, 430 P.2d 316 (1967)); see also Ching v. Case, 145

Hawai i 148, 184, 449 P.3d 1146, 1182 (2019).

At the risk of speculating here, it appears that the

October 27, 2021 Order After Trial may have been formulated at an

earlier date, with the intention that a more specific form of

relief would arise out of the plan that the State was ordered to

provide to the Circuit Court by October 5, 2021. However, the

record does not appear to contain such a plan (and the parties

have not referenced one), and no more specific injunctive relief

was crafted by the Circuit Court. We decline to hold that the

Circuit Court erred by failing to specifically order the State to

remove the hau bush to allow the Stream to utilize its

"historical channel," as there is insufficient factual or legal

grounds presented to provide such relief on appeal. We

nevertheless conclude that the injunctive relief set forth in the

5
HRCP Rule 65 provides, in relevant part:

Rule 65. INJUNCTIONS.

. . . .

(d) Form and scope of injunction or restraining
order. Every order granting an injunction and every
restraining order shall set forth the reasons for its
issuance; shall be specific in terms; shall describe in
reasonable detail, and not by reference to the complaint or
other document, the act or acts sought to be restrained[.]

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Order After Trial does not comport with HRCP Rule 65(d) and that

this case must be remanded to the Circuit Court for entry of a

more specific order describing the relief, in reasonable detail,

to satisfy the requirements of the case and conserve the equities

of the parties.

KRB also argues that the Circuit Court erred in denying

the request for money damages because it did not properly weigh

the testimony of witnesses who testified as to KRB's inability to

grow taro, monetary losses, and the overgrowth on the State's

property as the cause.6 We conclude, however, that the Circuit

Court's decision to deny an award of damages was based on its

factual determinations, which were supported by credible

testimony presented at trial. See, e.g., Quedding v. Arisumi

Bros., Inc., 66 Haw. 335, 339, 661 P.2d 706, 709–10 (1983)

(holding that the amount of a damages award is a matter

exclusively within the province of the trier of fact); Schefke v.

Reliable Collection Agency, Ltd., 96 Hawai i 408, 436, 32 P.3d

52, 80 (2001) (concluding that a jury verdict of punitive damages

must be "palpably not supported by the evidence" to warrant

reversal). Therefore, we reject KRB's argument that it is

entitled to appellate relief with respect to its request for

damages.

The State's Appeal

As stated in the Attorney's Fees Order, the Circuit

Court found that KRB was entitled to attorney's fees and costs

6
KRB's request for damages, as described in its answering brief, was
based entirely on its alleged inability to grow taro.

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based on the private attorney general doctrine. The State argues

that the Circuit Court erred in awarding attorney's fees and

costs because (a) sovereign immunity bars an award of attorney's

fees and costs here; and (b) even if the State had waived its

immunity with respect to KRB's claims, KRB is not entitled to

fees and costs under the private attorney general doctrine.

"'[T]he sovereign State is immune from suit for money

damages, except where there has been a clear relinquishment of

immunity and the State has consented to be sued.'" Kaleikini v.

Yoshioka, 129 Hawai i 454, 467, 304 P.3d 252, 265 (2013) (quoting

Bush v. Watson, 81 Hawai i 474, 481, 918 P.2d 1130, 1137 (1996)).

"[A]n award of costs and fees to a prevailing party is inherently

in the nature of a damage award." Sierra Club v. Dep't of

Transp. of State of Haw. (Sierra Club II), 120 Hawai i 181, 226,

202 P.3d 1226, 1271 (2009) (quoting Fought & Co., Inc. v. Steel

Eng'g & Erection, Inc., 87 Hawai i 37, 51, 951 P.2d 487, 501

(1998)). Therefore, an award of attorney's fees and costs must

be grounded in "a clear relinquishment of the State's

immunity[.]" Id. (citation omitted).

KRB argues that the State waived its sovereign immunity

for KRB's "tort-based claims" pursuant to HRS chapter 662, as

well as HRS §§ 661-1(1) (Supp. 2023) and 46-11.15.

HRS § 661–1(1) waives the State's sovereign immunity

with respect to claims against the State "founded upon any

statute."7 The limited waiver in HRS § 661-1(1) "does not itself

7
HRS § 661-1 provides, in relevant part:

(continued...)
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create a substantive right enforceable against the State of

Hawai i for money damages." Garner v. State, Dep't of Educ., 122

Hawai i 150, 160, 223 P.3d 215, 225 (App. 2009). The underlying

statute must clearly and unequivocally mandate a waiver. See

Taylor–Rice v. State, 105 Hawai i 104, 109–10, 94 P.3d 659,

665–66 (2004) (holding that the State is immune from money

damages unless there is a "clear relinquishment" of sovereign

immunity and consent to be sued); see also Kalima v. State, 111

Hawai i 84, 108–09, 137 P.3d 990, 1014–15 (2006).

Accordingly, as applicable to this case, there must be

a clear relinquishment of the State's immunity in HRS § 46-11.5.

We consider this issue in light of the supreme court's

application of these principles.

In Sierra Club II, the Department of Transportation

(DOT) raised the defense of sovereign immunity against a claim

for attorney's fees and costs. 120 Hawai i 181, 221, 202 P.3d

1226, 1266 (2009). The supreme court concluded that the DOT

(...continued)
§ 661-1 Jurisdiction. The several circuit courts of
the State and, except as otherwise provided by statute or
rule, the several state district courts, subject to appeal
as provided by law, shall have original jurisdiction to hear
and determine the following matters, and, unless otherwise
provided by law, shall determine all questions of fact
involved without the intervention of a jury:

(1) All claims against the State founded upon any
statute of the State; upon any rule of an
executive department; upon article I, section
20, of the Hawaii State Constitution; or upon
any contract, expressed or implied, with the
State, and all claims that may be referred to
any such court by the legislature; provided that
no action shall be maintained, nor shall any
process issue against the State, based on any
contract or any act of any state officer that
the officer is not authorized to make or do by
the laws of the State, nor upon any other cause
of action than as herein set forth[.]

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waived its sovereign immunity through specific language in HRS

§ 343-7 (1993).8 Id. at 226-28, 202 P.3d at 1271-73. The court

determined that HRS § 343-7 constituted a waiver of sovereign

immunity because it imposed specific requirements and procedures

on the DOT, provided for judicial review of the DOT's decisions,

and created a private right of action, allowing individuals and

groups like Sierra Club to challenge the DOT's actions in court.

Id. at 227-28, 202 P.3d at 1272-23. The supreme court emphasized

that while the HRS § 343-7 does not explicitly waive sovereign

8
HRS §343-7 stated:

§343-7 Limitation of actions. (a) Any judicial
proceeding, the subject of which is the lack of assessment
required under section 343-5, shall be initiated within one
hundred twenty days of the agency's decision to carry out or
approve the action, or, if a proposed action is undertaken
without a formal determination by the agency that a
statement is or is not required, a judicial proceeding shall
be instituted within one hundred twenty days after the
proposed action is started. The council or office, any
agency responsible for approval of the action, or the
applicant shall be adjudged an aggrieved party for the
purposes of bringing judicial action under this subsection.
Others, by court action, may be adjudged aggrieved.

(b) Any judicial proceeding, the subject of which is
the determination that a statement is required for a proposed
action, shall be initiated within sixty days after the
public has been informed of such determination pursuant
to section 343-3. Any judicial proceeding, the subject
of which is the determination that a statement is not
required for a proposed action, shall be initiated within
thirty days after the public has been informed of such
determination pursuant to section 343-3. The council or
applicant shall be adjudged an aggrieved party for the
purposes of bringing judicial action under this subsection.
Others, by court action, may be adjudged aggrieved.

(c) Any judicial proceeding, the subject of which
is the acceptance of an environmental impact statement
required under section 343-5, shall be initiated within
sixty days after the public has been informed pursuant
to section 343-3 of the acceptance of such statement.
Affected agencies and persons who provided written comment
to such statement during the designated review period shall
be adjudged aggrieved parties for the purpose of bringing
judicial action under this subsection; provided the
contestable issues shall be limited to issues identified
and discussed in the written comment[.]

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immunity, the clear intent and purpose of the statute is to

subject the DOT to judicial oversight and accountability. Id. at

227-28, 202 P.3d at 1271-72.

In Kaleikini, the supreme court held that HRS § 6E-

13(b)(2009)9 does not contain a waiver of the State's immunity.

129 Hawai i at 468, 304 P.3d at 266. The court distinguished HRS

§ 343-7 from HRS § 6E-13(b), noting that:
a waiver of the State's sovereign immunity cannot similarly
be implied from HRS § 6E-13(b). This is because HRS § 6E-
13(b) (2009) allows suit to be brought only for restraining
order or injunctive relief . . . It is well settled that a
provision allowing for declaratory or injunctive relief is
not a waiver of the State's sovereign immunity, but rather
an exception to the sovereign immunity doctrine for which no
waiver is necessary.

Id. (citing Sierra Club II, 120 Hawai i at 229 n.30, 202 P.3d at

1274 n.30)).

While HRS § 46-11.5 imposes a duty on the State to

maintain certain areas, the statute does not contain any language

expressly or impliedly waiving the State's sovereign immunity or

authorizing the award of damages. Like in Kaleikini, where the

supreme court determined that HRS § 6E-13 did not waive the

State's sovereign immunity because it only provided for

injunctive relief, we conclude here that HRS § 46-11.5 does not

9
HRS § 6E-13 (2009) provides, in relevant part:

§ 6E-13 Injunctive relief

. . . .

(b) Any person may maintain an action in the trial
court having jurisdiction where the alleged violation
occurred or is likely to occur for restraining orders or
injunctive relief against the State, its political
subdivisions, or any person upon a showing of irreparable
injury, for the protection of an historic property or a
burial site and the public trust therein from unauthorized
or improper demolition, alteration, or transfer of the
property or burial site.

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include a clear waiver of immunity for, inter alia, attorney's

fees. See id. Accordingly, we cannot conclude that HRS § 661-

1(1) supports an award of attorney's fees and costs in this case.

The State also argues that KRB is not entitled to an

award pursuant to HRS 662-12 (2016) 10 because KRB recovered no

monetary damages for tort claims against the State.

Under HRS § 662-12, attorney's fees are permissible

when a plaintiff obtains a judgment under the State Tort

Liability Act, but attorney's fees must be paid out of the

recovery and are limited to 25% of the amount recovered. Here,

the Circuit Court did not award money damages, instead granting

injunctive relief. Because there was no monetary recovery, the

Circuit Court had no "amount recovered" from which to calculate

or pay attorney's fees. Accordingly, we conclude that HRS § 662-

12 does not support an award of attorney's fees and costs against

the State in this case.

The Circuit Court nevertheless awarded attorney's fees

and costs under the private attorney general doctrine. We need

not reach the State's arguments that the Circuit Court erred in

so doing because absent a clear waiver of sovereign immunity,

attorney's fees and costs cannot be awarded against the State

10
HRS § 662-12 provides:

§ 662-12 Attorney's fees. The court rendering a
judgment for the plaintiff pursuant to this chapter or the
attorney general making a disposition pursuant to section
662-11 may, as a part of such judgment, award, or
settlement, determine and allow reasonable attorney's fees
which shall not, however, exceed twenty-five per cent of the
amount recovered and shall be payable out of the judgment
awarded to the plaintiff; provided that such limitation
shall not include attorney's fees and costs that the court
may award the plaintiff as a matter of its sanctions.

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under the private attorney general doctrine. See, e.g., Nelson

v. Hawaiian Homes Comm'n, 130 Hawai i 162, 169, 307 P.3d 142

(2013) (application of the private attorney general doctrine is

subject to the defense of sovereign immunity). Accordingly, we

conclude that the Circuit Court erred in awarding KRB attorney's

fees and costs based on the private attorney general doctrine.

For these reasons, the Circuit Court's May 5, 2023

Amended Judgment is vacated. The Circuit Court's October 27,

2021 Order After Trial is affirmed in part and vacated in part,

as set forth above. The Circuit Court's October 27, 2021

Attorney's Fees Order is reversed. This case is remanded to the

Circuit Court for further proceedings consistent with this

Summary Disposition Order.

DATED: Honolulu, Hawai i, December 23, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Mark M. Murakami,
Joanna C. Zeigler, /s/ Keith K. Hiraoka
Clint K. Hamada, Associate Judge
(Damon Key Leong Kupchak
Hastert) /s/ Clyde J. Wadsworth
for Plaintiff-Appellee/Cross- Associate Judge
Appellant.

Andrew D. Goff,
Bryan C. Yee,
Deputy Attorneys General
Department of the Attorney
General
for Defendants-Appellants/
Cross-Appellees

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