Mauna Kea Ainaina Hou v. Green

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JUN-2024
07:57 AM
Dkt. 168 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

MAUNA KEA AINAINA HOU, KEALOHA PISCIOTTA;
PAUL K. NEVES; CLARENCE KU CHING; KALIKO KANAELE;
CINDY FREITAS; WILLIAM FREITAS; LANNY ALAN SINKIN,
Petitioners-Appellants,
v.
JOSHUA B. GREEN, M.D., Governor, State of Hawai‘i; 1
ANNE E. LOPEZ, Attorney General, State of Hawai‘i; 2
DAWN N.S. CHANG, Chair, Board of Land and Natural Resources;
RILEY SMITH, Board of Land and Natural Resources;
DOREEN NĀPUA CANTO, Board of Land and Natural Resources;
KAREN ONO, Board of Land and Natural Resources;
AIMEE KELI‘I BARNES, Board of Land and Natural Resources;
VERNON CHAR, Board of Land and Natural Resources;

1 Pursuant to Hawai‘i Rules of Evidence (HRE) Rule 201 and Hawai‘i
Rules of Appellate Procedure (HRAP) Rule 43(c)(1), we take judicial notice
that Joshua B. Green, M.D. is the current Governor of the State of Hawai‘i,
and he is automatically substituted as Respondent-Appellee in place of David
Ige.

2 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial
notice that Anne E. Lopez is the current Attorney General, State of Hawai‘i,
and she is automatically substituted as Respondent-Appellee in place of Clare
E. Connors.
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WESLEY "KAIWI" YOON, Board of Land and Natural, Resources; 3
MITCH ROTH, Mayor, County of Hawai‘i; 4
DAVID LASSNER, President, University of Hawai‘i;
THIRTY METER TELESCOPE INTERNATIONAL OBSERVATORY (TIO),
Respondents-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 19-1-0177)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Presiding Judge, Circuit Court Judges To‘oto‘o and
Kawashima, in place of Leonard, Acting Chief Judge, Hiraoka,
Wadsworth, McCullen and Guidry, JJ., all recused)

This is the third appeal arising out of challenges to
Board of Land and Natural Resources (BLNR)'s approval of a
Conservation District Use Permit (CDUP) for the construction of
the Thirty Meter Telescope (TMT) on Mauna Kea. 5 Following the
Hawaiʻi Supreme Court's 2018 affirmance of BLNR's 2017 order
granting the CDUP (2017 Order Granting CDUP), BLNR issued a
notice authorizing TMT construction to proceed, which Appellants

3 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial
notice that Dawn N.S. Chang, Riley Smith, Doreen Nāpua Canto, Karen Ono,
Aimee Keli‘i Barnes, Vernon Char, and Wesley "Kaiwi" Yoon are the current
members of the Board of Land and Natural Resources, and they are
automatically substituted as Respondents-Appellees in place of Suzanne Case,
Stanley H. Roehrig, James A. Gomes, Thomas Oi, Samuel "Ohu" Gon III, and
Christopher Yuen.

4 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial
notice that Mitch Roth is the current Mayor for the County of Hawai‘i, and he
is automatically substituted as Respondent-Appellee in place of Harry Kim.

5 The two prior appeals stemmed from the 2011 contested case
hearing at issue in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res. (Mauna
Kea I), 136 Hawaiʻi 376, 385, 363 P.3d 224, 233 (2015), and the 2016-2017
contested case hearing at issue in Matter of Conservation Dist. Use
Application HA-3568 (Mauna Kea II), 143 Hawaiʻi 379, 387, 431 P.3d 752, 760
(2018).
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challenged via a petition for injunctive relief. This appeal
arises out of the dismissal of the petition.
Petitioners-Appellants Mauna Kea Ainaina Hou; Kealoha
Pisciotta; Paul K. Neves; Clarence Ku Ching (Ching); Kaliko
Kanaele; Cindy Freitas; William Freitas; and Lanny Alan Sinkin
(collectively, Appellants) appeal from the: (1) "Order Granting
Respondent State of Hawaii's Motion to Dismiss Petitioners'
First Amended Petition for Declaratory Judgments, Preliminary
and Permanent Injunction, Filed July 12, 2019, Filed July 29,
2019"; (2) "Order Granting Respondent TMT International
Observatory LLC's Motion to Dismiss First Amended Petition for
Declaratory Judgments, Preliminary and Permanent Injunction
Filed July 12, 2019, Filed July 29, 2019"; (3) "Order Granting
Respondent Harry Kim, Mayor, County of Hawaiʻi's Motion to
Dismiss Petitioners' First Amended Petition for Declaratory
Judgments, Preliminary and Permanent Injunction, Filed July 12,
2019, Filed July 29, 2019" (collectively, Orders Granting
Dismissal); and (4) "Order Denying Petitioners' Motion for Leave
to File Second Amended Petition, Filed August 5, 2019" (Order
Denying Motion to Amend), all filed and entered by the Circuit
Court of the Third Circuit (Circuit Court) 6 on October 17, 2019.
On appeal, Appellants contend 7 that the Circuit Court
erred by (1) dismissing the petition by "applying res judicata
and collateral estoppel principles" to the Appellants' argument
regarding "the applicability of the 1977 Mauna Kea Plan," and
(2) denying Appellants' motion to amend the petition because the
amendments would be futile.

6 The Honorable Greg K. Nakamura presided.

7 We have restated and consolidated Appellants' points of error for
clarity.
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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 affirm.
Following the Hawaiʻi Supreme Court's affirmance of
BLNR's 2017 Order Granting CDUP in Mauna Kea II, on June 19,
2019, BLNR issued Respondent-Appellee TMT International
Observatory LLC (TMT LLC) a notice authorizing TMT construction
to proceed (Notice to Proceed).
On July 12, 2019, Appellants filed a "First Amended
Petition for Declaratory Judgments, Preliminary and Permanent
Injunction" (Petition for Injunction) against Respondents-
Appellees State of Hawaiʻi (State), BLNR, County of Hawaiʻi
(County), the University of Hawaiʻi (UH), and TMT LLC
(collectively, Appellees). Appellants requested the Circuit
Court to find that Appellees "failed to comply with the
requirement to post the security equivalent of the construction
contract cost for the [TMT], as required by the 1977 Mauna Kea
Plan," before initiating the TMT construction.
On July 29, 2019, TMT LLC, the State, and the County
all moved to dismiss the Petition for Injunction (collectively,
Motions to Dismiss). 8 TMT LLC, the State, UH, and the County
argued that Appellants' claims were barred by res judicata and
collateral estoppel because Appellants were parties to the
second contested case hearing in Mauna Kea II, during which the
applicability of the 1977 Mauna Kea Plan was already litigated.
Appellants opposed the Motions to Dismiss.

8 The State, County, and UH joined TMT LLC's Motion to Dismiss.
The County joined the State's Motion to Dismiss.

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On August 6, 2019, Appellants filed a non-hearing
Motion for Leave to File Second Amended Petition (Motion to
Amend), requesting to add two new theories supporting their
contention that security in the form of a performance bond was
required under Hawaii Revised Statutes (HRS) § 103D-324 (HRS
Chapter 103D amendment) and under the public trust doctrine
(public trust amendment).
On August 23, 2019, the Circuit Court conducted a
hearing on the Motions to Dismiss and granted the motions,
ruling that Appellants' claim alleging noncompliance with the
required posting of a construction bond was barred "because of
res judicata and collateral estoppel principles." 9
On October 17, 2019, the Circuit Court filed its
Orders Granting Dismissal and its Order Denying Motion to Amend
concluding the two amendments would be "futile." The Circuit
Court denied the HRS Chapter 103D amendment because the chapter
"applie[d] to procurement contracts made by governmental bodies"
and that "there [wa]s no allegation in the proposed [filing]
that a 'governmental body' [wa]s entering into a contract for
the construction of the [TMT]." The Circuit Court denied the
public trust amendment because the Mauna Kea II footnote upon
which Appellants relied, 143 Hawaiʻi at 402 n.29, 431 P.3d at 775
n.29, "did not . . . impose a performance bond requirement based

9 While the Motions to Dismiss were filed pursuant to Hawaiʻi Rules
of Civil Procedure (HRCP) Rule 12(b)(6) for failure to state a claim upon
which relief could be granted, the Circuit Court noted that both sides
submitted materials that went outside of the pleadings, and considered the
Motions to Dismiss as motions for summary judgment. See Wong v. Cayetano,
111 Hawaiʻi 462, 476, 143 P.3d 1, 15 (2006) ("[A] motion seeking dismissal of
a complaint is transformed into a [HRCP] Rule 56 motion for summary judgment
when the circuit court considers matters outside the pleadings." (citation
omitted)).

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upon public trust principles[,]" but rather, "left it to the
discretion of the [BLNR] to determine what to require in order
to assure site restoration at no cost to the State." Appellants
timely appealed.
(1) The Circuit Court did not err by granting summary
judgment based on res judicata and collateral
estoppel. 10
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445
P.3d 701, 706 (2019) (citation omitted). "Summary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Id. (cleaned up).
Res judicata is reviewed de novo under the right/wrong
standard. Dannenberg v. State, 139 Hawaiʻi 39, 50, 383 P.3d
1177, 1188 (2016). "Res judicata prohibits the relitigation of
all grounds . . . which might have been properly litigated in
the prior action . . . ." Id. at 59, 383 P.3d at 1197 (citation
omitted).
Res judicata is applicable when: (1) the claim or cause
of action in the present action is identical to the one
decided in the prior adjudication; (2) there was a final
judgment on the merits in the prior adjudication; and (3)
the parties to the present action are the same or in
privity with the parties in the prior action.[11]

Id. (footnote added) (cleaned up).

10 Appellants do not present any argument challenging the Circuit
Court's application of collateral estoppel, and such challenge is waived.
See HRAP Rule 28(b)(7) ("Points not argued may be deemed waived.").

11 Appellants make no argument challenging their privity with the
parties in the contested case for the 2017 Order Granting CDUP. We do not
address it. See HRAP Rule 28(b)(7).
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Appellants argue that res judicata did not apply
because the "two findings of fact made by the BLNR" in its 2017
Order Granting CDUP were "insufficient to support the contention
that the [bond] issue was fully and fairly litigated in the
contested case"; that there were "no conclusions of law on the
bond issue" in its Order Granting CDUP; and "[t]here [wa]s no
final judgment on the question of the 1977 Plan's continued
viability." Appellants also argue that they presented evidence
and argument as to "whether later plans 'superseded' the 1977
Plan," and as such, there were "fact disputes that should have
foreclosed a [sic] summary judgment."
The record reflects the following pertinent findings
of fact (FOFs) in the 2017 Order Granting CDUP:

361. Petitioner Ching posited that the TMT Project has not taken
proper steps to ensure funding of the project. Ching cites
Section II(C) of the Mauna Kea Plan (1997), which provides that
"[n]o application or any proposed facility shall have final
approval without the applicant having first filed with [BLNR],
adequate security equal to the amount of the contract to construct
the telescope facilities, support facilities and to cover any
other direct or indirect costs attributed to the project[.]"
Ching argues that, to comply with the foregoing, a bond in the
amount of the contract to construct the project (and ancillary
facilities) must be posted before the CDUA [(Conservation District
Use Application)] can be approved. Ex. B.19a at 6-7; Ex. B.17g;
Vol. 29, Tr. 1/24/17 at 215:9-21.

362. The Mauna Kea Plan (1977) is a "policy guide" and "a policy
framework for the management of Mauna Kea." Ex. B.17g at 6, 16.
The Plan indicates that it is "conceptual" and must be reviewed
and updated as time goes on, and circumstances change. Id. at 16.
It was the first "master plan" for Mauna Kea and consists of 17
pages. It has obviously been superseded by the much more detailed
and extensive planning efforts that are described elsewhere in
these findings of fact.

(Emphases added.) Appellants did not challenge these pertinent
findings when they appealed the 2017 Order Granting CDUP to the
Hawaiʻi Supreme Court in Mauna Kea II. See Mauna Kea II, 143
Hawaiʻi at 421, 431 P.3d at 794 (Pollack, J., concurring)

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(explaining that BLNR's finding that the "1977 Mauna Kea Plan
has 'obviously been superseded by the much more detailed and
extensive planning efforts'" was "not raised on appeal");
Eastern Savings Bank, FSB v. Esteban, 129 Hawaiʻi 154, 159, 296
P.3d 1062, 1067 (2013) (stating that the remedy for
"[u]nsatisfied litigants" is to "appeal through available
channels[,]" but "they cannot, even if the first suit may appear
to have been decided wrongly, file new suits" (citation
omitted)); Kelly v. 1250 Oceanside Partners, 111 Hawaiʻi 205,
227, 140 P.3d 985, 1007 (2006) (noting that unchallenged
findings are binding).
The findings in the 2017 Order Granting CDUP support
the Circuit Court's conclusion here, applying res judicata to
bar the identical argument made by Appellants in this case that
the 1977 Plan required a construction bond. See Dannenberg, 139
Hawaiʻi at 59, 383 P.3d at 1197. The 2017 Order Granting CDUP
affirmed in Mauna Kea II also constitutes "a final judgment on
the merits in the prior adjudication[.]" Id. (citation
omitted). Thus, the Circuit Court did not err by granting
summary judgment in favor of Appellees based on res judicata and
collateral estoppel. See Villaver, 145 Hawaiʻi at 34, 445 P.3d
at 706.
(2) The Circuit Court did not err by denying the
Motion to Amend based on the futility of the
amendments.
"Orders denying motions for leave to amend a complaint
are reviewed for an abuse of discretion." Seki ex rel. Louie v.
Hawaii Government Employees Ass'n, AFSCME Local No. 152, AFL-
CIO, 133 Hawaiʻi 385, 400, 328 P.3d 394, 409 (2014) (citation
omitted). HRCP Rule 15(a)(2) provides, inter alia, that "leave
[to amend] shall be freely given when justice so requires."
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In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.—the leave sought should, as the
rules require, be "freely given."

TRI-S Corp. v. W. World Ins. Co., 110 Hawaiʻi 473, 490, 135 P.3d
82, 99 (2006) (emphasis added) (citation omitted).
Regarding Appellants' proposed HRS Chapter 103D
amendment, Appellants argue that "HRS § 103D requires [TMT LLC]
to post a surety[,]" as the "State may end up acquiring the TMT
project"; and because "DLNR leased the land to [UH,]" which, in
turn, subleased the land to TMT LLC, "the responsibility and
costs to remove the TMT structures and restore the land will
fall on the State." This argument lacks merit.
HRS § 103D-324(a)(1) (2012) requires a "performance
bond . . . in an amount equal to one hundred per cent of the
price specified in the contract[.]" HRS § 103D-102(a) (2012),
entitled "Application of this chapter," states: "This chapter
shall apply to all procurement contracts made by governmental
bodies . . . ." (Emphasis added.) "Governmental body" is
defined as "any department, commission, council, board, bureau,
authority, committee, institution, legislative body, agency,
government corporation, or other establishment or office of the
executive, legislative, or judicial branch of the State,
including the office of Hawaiian affairs, and the several
counties of the State." HRS § 103D-104 (2012).
Here, Appellants acknowledge in their Opening Brief
that TMT LLC is "a private corporation." HRS Chapter 103D only
applies to procurement contracts by "governmental bodies." The
Circuit Court did not abuse its discretion in denying the Motion

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to Amend based on futility, and concluding that HRS Chapter 103D
only "applies to procurement contracts made by governmental
bodies[,]" and that "there is no allegation" by Appellants that
"a 'governmental body' is entering into a contract for the
construction of the [TMT]." See Seki ex rel. Louie, 133 Hawaiʻi
at 400, 328 P.3d at 409; TRI-S Corp., 110 Hawai‘i at 490, 135
P.3d at 99.
Regarding Appellants' proposed public trust amendment,
Appellants argue that the Hawaiʻi Supreme Court in Mauna Kea II
"identified" the construction bond "as necessary" and
"requir[ed] [TMT LLC] to post a surety sufficient to guarantee
funding for the restoration of the lands, should [TMT LLC] lack
sufficient funds to do so." Appellants claim BLNR's issuance of
the Notice to Proceed without requiring the construction bond
breached BLNR's duty "to comply with all constitutional and
public trust obligation [sic]." Appellants rely on footnote 29
in Mauna Kea II to support their argument, which states:

FOF 360 states that "[TMT LLC] has already received
substantial funds and will undertake additional fundraising
efforts once a decision has been made as to the project
approval." Although the BLNR addressed funding of
decommissioning after completion, it is unclear whether
other than an agreement from [TMT LLC] to perform, the BLNR
has adequately ensured that buildings or equipment will not
be left behind and the areas used by TMT will be restored
in the event full funding is not obtained for completion of
construction or insufficient funds for decommissioning are
available. Its duties as trustee require that it do so.
The BLNR has discretion under Special Condition 43 to
impose "[o]ther terms and conditions" on the CDUP.
Therefore, the BLNR should ensure that the areas used by
TMT will be restored to their natural states at no cost to
the State, whether through requiring an appropriate
performance bond or through imposing funding and/or other
requirements.

143 Hawaiʻi at 402 n.29, 431 P.3d at 775 n.29 (emphases added).

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The above language requires BLNR to impose terms and
conditions on the CDUP to ensure proper restoration of the areas
used by TMT at no cost to the State, due to BLNR's "duties as
trustee." Id. The language, however, affords BLNR discretion
to determine how this requirement should be satisfied, and
suggests conditions as follows: "whether through requiring an
appropriate performance bond or through imposing funding and/or
other requirements." Id. (emphases added). The language does
not inflexibly mandate a construction bond, as Appellants
contend. We conclude that the Circuit Court did not abuse its
discretion by denying the Motion to Amend based on futility, and
by concluding that the Hawaiʻi Supreme Court's footnote "left it
to the discretion of the [BLNR] to determine what to require in
order to assure site restoration at no cost to the State" rather
than "impos[ing] a performance bond requirement based upon
public trust principles[.]" See Seki ex rel. Louie, 133 Hawaiʻi
at 400, 328 P.3d at 409; TRI-S Corp., 110 Hawaiʻi at 490, 135
P.3d at 99.
For the foregoing reasons, the (1) "Order Granting
Respondent State of Hawaii's Motion to Dismiss Petitioners'
First Amended Petition for Declaratory Judgments, Preliminary
and Permanent Injunction, Filed July 12, 2019, Filed July 29,
2019"; (2) "Order Granting Respondent TMT International
Observatory LLC's Motion to Dismiss First Amended Petition for
Declaratory Judgments, Preliminary and Permanent Injunction
Filed July 12, 2019, Filed July 29, 2019"; (3) "Order Granting
Respondent Harry Kim, Mayor, County of Hawaiʻi's Motion to
Dismiss Petitioners' First Amended Petition For Declaratory
Judgments, Preliminary and Permanent Injunction, Filed July 12,
2019, Filed July 29, 2019"; and (4) "Order Denying Petitioners'
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Motion for Leave to File Second Amended Petition, Filed
August 5, 2019," all filed and entered by the Circuit Court of
the Third Circuit on October 17, 2019, are affirmed.
DATED: Honolulu, Hawai‘i, June 26, 2024.
On the briefs:
/s/ Karen T. Nakasone
Gary C. Zamber,
Presiding Judge
for Petitioners-Appellants.

Lerisa L. Heroldt, /s/ Fa‘auuga To‘oto‘o
Deputy Corporation Counsel Circuit Court Judge
for Respondent-Appellee MITCH
/s/ James S. Kawashima
ROTH, MAYOR, COUNTY OF HAWAI‘I
Circuit Court Judge
William J. Wynhoff,
Deputy Attorney General
For Respondent-Appellee STATE
OF HAWAI‘I

Ross T. Shinyama,
for Respondent-Appellee
TMT INTERNATIONAL OBSERVATORY
LLC

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