Sierra Club 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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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
30-APR-2025
09:09 AM
Dkt. 104 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NO. CAAP-XX-XXXXXXX
SIERRA CLUB, Appellant-Appellee,
v.
BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellee,
and
ALEXANDER & BALDWIN, INC., and EAST MAUI IRRIGATION
COMPANY, LLC, Appellees-Appellants,
and
COUNTY OF MAUI, Appellee-Appellee

and
NO. CAAP-XX-XXXXXXX
SIERRA CLUB, Appellant-Appellee,
v.
BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellant,
and
ALEXANDER & BALDWIN, INC., and EAST MAUI IRRIGATION
COMPANY, LLC, COUNTY OF MAUI, Appellees-Appellees

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, and Hiraoka, J., with Nakasone,
J., concurring in part and dissenting in part)

Alexander & Baldwin, Inc. (A&B), East Maui Irrigation
Company, LLC (EMI), and the Hawai#i Board of Land and Natural
Resources (BLNR) appeal from the January 29, 2024 Final Judgment
for Sierra Club entered by the Environmental Court of the First
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Circuit.1 They challenge the Environmental Court's July 14, 2023
"Decision on Appeal and Order," and A&B and EMI challenge the
January 4, 2024 "Order Granting Sierra Club's Motion For
Attorney's Fees from Alexander & Baldwin, Inc. and East Maui
Irrigation Company, LLC, Filed October 10, 2023" (Fee Order). We
reverse.
These appeals arise from one of several cases filed by
Sierra Club challenging BLNR's decisions to continue revocable
one-year Permits allowing A&B and EMI to divert water from East
Maui streams. We summarized the background in Sierra Club v. Bd.
of Land & Nat. Res., 154 Hawai#i 264, 550 P.3d 230 (App. 2024)
(Sierra Club I), cert. granted, No. SCWC-XX-XXXXXXX, 2024 WL
3378462 (Haw. July 11, 2024). This appeal arises from the 2023
Permits. BLNR considered A&B's and EMI's applications to
continue the Permits for 2023 during a public meeting on
November 10, 2022. Sierra Club's representatives testified and
requested a contested case hearing. BLNR denied the request and
approved the applications.
Sierra Club filed a Petition for a contested case
hearing on November 21, 2022. The Petition incorporated the
record of the contested case hearing on continuation of the
Permits for 2021 and 2022. BLNR considered the Petition on
December 9, 2022. DLNR's staff submittal noted that Sierra Club
participated in the 2020 Trial for the 2019 and 2020 Permits
"just a few months prior to the [BLNR]'s November 13, 2020
decision" on the 2021 Permits; Sierra Club participated in "a
contested case hearing" on the 2021 and 2022 Permits; and Sierra
Club testified on "the same issues raised in their present
request" at BLNR's November 10, 2022 public meeting. BLNR denied
the Petition.
Sierra Club appealed to the Environmental Court. The
Environmental Court entered the Decision on Appeal, the Fee
Order, and the Final Judgment. These appeals followed.

1
The Honorable Jeffrey P. Crabtree presided.

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Our review of the Decision on Appeal is a secondary
appeal; we must determine whether the Decision on Appeal was
right or wrong by applying the standards of HRS § 91–14(g) to
BLNR's decisions. Flores v. Bd. of Land & Nat. Res., 143 Hawai#i
114, 120, 424 P.3d 469, 475 (2018). Under HRS § 91-14(g) (2012 &
Supp. 2023) we may affirm the decision of the agency, remand the
case with instructions for further proceedings, or reverse or
modify the decision and order if the substantial rights of the
appellant may have been prejudiced because the administrative
findings, conclusions, decisions, or orders (1) violate
provisions of the constitution or a statute, (2) are beyond the
agency's statutory authority or jurisdiction, (3) used unlawful
procedure, (4) were affected by other error of law, (5) were
clearly erroneous, or (6) were arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion. Our review is confined to the record
before BLNR. HRS § 91–14(f).
(1) A&B, EMI, and BLNR contend the Environmental Court
erred by concluding Sierra Club was entitled to a contested case
hearing.
(a) BLNR argues Sierra Club lacked standing to
petition for a contested case. "[W]hile the basis for standing
has expanded in cases implicating environmental concerns . . .
plaintiffs must still satisfy the injury-in-fact test." Sierra
Club v. Haw. Tourism Auth., 100 Hawai#i 242, 251, 59 P.3d 877,
886 (2002). Under the injury-in-fact test, Sierra Club had to
show (1) it suffered an actual or threatened injury because of
BLNR's conduct; (2) the injury is fairly traceable to BLNR's
actions; and (3) a favorable decision would likely provide relief
for the injury. Id. at 250, 59 P.3d at 885. The Petition stated
that Sierra Club's members live along the streams being diverted
and use the streams and the water residentially, agriculturally,
recreationally, culturally, and spiritually; A&B and EMI's
diversion of water harms their use of the streams and water, and
BLNR's denial of the applications would likely provide them

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relief. Sierra Club established standing to petition for a
contested case.
(b) A&B, EMI, and BLNR argue that constitutional due
process did not require a contested case hearing. In Sierra
Club I we held that Hawaii Revised Statutes (HRS) § 171-55 and
the Hawai#i Environmental Policy Act, HRS Chapter 343, are laws
that defined Sierra Club's constitutionally protected interest in
a clean and healthful environment in the matter pending before
BLNR. 154 Hawai#i at 280, 550 P.3d at 246. Here, as in Sierra
Club I, we must balance the risk that Sierra Club could be
erroneously deprived of its protected interest, and the probable
value of any additional or alternative procedural safeguards,
against the governmental interest, including the burden that
additional procedural safeguards would entail. Id. at 277, 550
P.3d at 243 (citing Flores, 143 Hawai#i at 126-27, 424 P.3d at
481-82).
A&B, EMI, and BLNR argue that Sierra Club participated
in the trial on the 2019 and 2020 Permits and the contested case
hearing on the 2021 and 2022 Permits, and presented testimony and
evidence at BLNR's public meeting on the 2023 Permits and the
hearing on the Petition — all of which involved issues identical
to those Sierra Club sought to re-litigate. Sierra Club argues
that a contested case hearing on the 2023 Permits would be "for a
different year"; there was "new evidence"; it should have an
opportunity to cross-examine witnesses about the "new evidence";
and a hearing "would allow BLNR to fulfill [its] duties" under
the Hawai#i Constitution. BLNR contends that despite Sierra
Club's claim to have new evidence, it has "consistently failed to
actually provide any such evidence, instead citing exclusively
and extensively to evidence presented to [BLNR] in the
previously-litigated matters."
In Flores, the supreme court held that Flores was not
entitled to a contested case hearing on the Mauna Kea telescope
sublease because he had participated in an earlier contested case
hearing on the conservation district use permit application. 143

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Hawai#i at 127-28, 424 P.3d at 482-83. The court noted, "Flores
d[id] not clarify the extent to which, if BLNR held a contested
case hearing . . . he would put forth evidence and arguments
materially different from that which he already proffered at the
[previous] contested case hearing."). Id. at 127, 424 P.3d at
482. The court held that "[t]o require BLNR to hold another
contested case hearing in such circumstances would require BLNR
to shoulder duplicative administrative burdens and comply with
additional procedural requirements that would offer no further
protective value." Id.
In Sierra Club I, we held that Sierra Club's
participation in the 2020 trial over the 2019 and 2020 Permits
that occurred "just two months" before the November 2020 meeting
on the 2021 Permits, and the short duration of the Permits,
"provided reasonable protection from the risk of an erroneous
deprivation of Sierra Club's constitutionally protected
interest." 154 Hawai#i at 280, 550 P.3d at 246. We also noted
that Sierra Club included no new information it had obtained in
the two months after the 2020 trial in its written and oral
submissions to BLNR for the November 2020 meeting. Id. at 281,
550 P.3d at 247.
Here, in addition to the 2020 trial and BLNR's 2020
public meeting discussed in Sierra Club I, Sierra Club has
participated in a contested case hearing on the 2021 and 2022
Permits, and presented evidence and testimony at BLNR's 2022
public meeting and 2022 hearing on the Petition. BLNR's June 30,
2022 contested case order on the 2021 and 2022 Permits was issued
just four months before its public meeting on the 2023 Permits
and its hearing on Sierra Club's Petition. BLNR considered the
same issues about water usage and loss, alternative resources
such as groundwater, mitigation measures such as placing liners
in reservoirs, and a pending CWRM decision, Sierra Club raises
here.
As in Sierra Club I, Sierra Club did not include the
"new data and facts" that "should have been included in its

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written and oral submissions to BLNR." 154 Hawai#i at 281, 550
P.3d at 247. Rather, Sierra Club "incorporate[d]" previous
testimony and "the entire record" of the 2021-2022 contested case
hearing, noted there were "new" report(s), but did not indicate
how the new evidence was "materially different from that which
[it] already proffered" in the previous proceedings. See Flores,
143 Hawai#i at 127, 424 P.3d at 482. On this record, we conclude
that Sierra Club was afforded multiple full and fair
opportunities to participate, which "provided reasonable
protection from the risk of an erroneous deprivation of Sierra
Club's constitutionally protected interest." See Sierra Club I,
154 Hawai#i at 280, 550 P.3d at 246.
We discussed the governmental interests and burdens
that a contested case proceeding would entail in Sierra Club I,
154 Hawai#i at 281-83, 550 P.3d at 247-49. We again conclude
that the minimal additional protection a contested case would
have provided to Sierra Club under the circumstances of this case
are outweighed by the fiscal and administrative burdens a
contested case would impose on BLNR, the County of Maui, and
potentially on those living or working in Upcountry Maui. Id.
We hold that Sierra Club was not denied constitutional due
process by BLNR's denial of its Petition for a contested case
hearing on the 2023 Permits.
(2) A&B, EMI, and BLNR contend the Environmental Court
erred by modifying the 2023 Permits. The Environmental Court did
not have jurisdiction over Sierra Club's appeal from BLNR's
decision to continue the Permits for 2023 because it was not made
in a contested case, and did not need to be made in a contested
case. Sierra Club I, 154 Hawai#i at 283, 550 P.3d at 249. Even
if the Environmental Court had jurisdiction under HRS § 91-14 or,
as the dissent in Sierra Club I concluded, Sierra Club had been
entitled to a contested case hearing, the procedure the
Environmental Court used to modify the 2023 Permits exceeded its
statutory authority. Id. The Environmental Court acted outside

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of its jurisdiction and authority when it modified the 2023
Permits.
(3) A&B and EMI contend the Environmental Court erred
by awarding Sierra Club its attorney's fees. Sierra Club
vindicated no important public policy. It was not entitled to an
award of attorneys fees or costs under the private attorney
general doctrine. Sierra Club I, 154 Hawai#i at 285, 550 P.3d at
251; cf. Ass'n of Owners of Kalele Kai v. Yoshikawa, 149 Hawai#i
417, 420, 493 P.3d 939, 942 (2021) ("an award of attorneys' fees
is inappropriate where the underlying judgment is vacated").
For these reasons, we reverse the Environmental Court's
July 14, 2023 Decision on Appeal; January 4, 2024 Fee Order;
January 29, 2024 Final Judgment; and the additional orders
challenged by A&B and EMI. Sierra Club's March 12, 2025 Motion
for Retention of Oral Argument is denied.
DATED: Honolulu, Hawai#i, April 30, 2025.

On the briefs:
/s/ Katherine G. Leonard
Trisha H.S.T. Akagi, Acting Chief Judge
Christopher T. Goodin,
for Alexander & Baldwin, /s/ Keith K. Hiraoka
Inc. and East Maui Irrigation Associate Judge
Company, LLC.

Julie H. China,
Melissa D. Goldman,
Danica L. Swenson,
Deputy Attorneys General,
State of Hawai#i,
for Board of Land and
Natural Resources.

David Kimo Frankel,
for Appellant-Appellee
Sierra Club.

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CONCURRING IN PART AND DISSENTING IN PART BY NAKASONE, J.

I agree with the Summary Disposition Order (SDO) under
the circumstances of this case, and write separately only to
express my dissent to the subsection (2) paragraph that holds the
Environmental Court lacked jurisdiction to modify the Permits.
See Sierra Club I, 154 Hawai#i at 288, 550 P.3d at 254 (Nakasone,
J., dissenting) (holding the Environmental Court correctly
concluded "it had jurisdiction 'to reverse or modify' BLNR's
decision, where the denial of a contested case hearing had
prejudiced Sierra Club's substantial rights" (citations
omitted)). Here, the record reflects the Environmental Court
modified the Permits to avoid "chaos or unintended consequences"
pending the BLNR conducting the contested case hearing that the
Court held "was constitutionally required." Because the SDO
concludes that a contested case hearing was not constitutionally
required, I would hold the Environmental Court's modification of
the Permits was error for this reason.
DATED: Honolulu, Hawai#i, April 30, 2025.

/s/ Karen T. Nakasone
Associate Judge

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