Ho'oponopono O Mākena v. Maui Planning Commission

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAY-2025
08:06 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

HO‘OPONOPONO O MĀKENA, an unincorporated association, MAUI
TOMORROW FOUNDATION, a non-profit corporation, and SIERRA CLUB
OF HAWAI‘I, a non-profit corporation, Plaintiffs-Appellees,
v.
MAUI PLANNING COMMISSION, COUNTY OF MAUI, Defendant-Appellant,
WAILEA RESORT SF-S PARTNERS, LP, a foreign limited partnership,
Defendant-Appellee, and DOES 1-27, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant Maui Planning Commission, County

of Maui (Commission) appeals from the Circuit Court of the

Second Circuit's (circuit court) "Order Granting Plaintiffs[-

Appellees' Hoʻoponopono O Mākena, Maui Tomorrow Foundation, and

Sierra Club of Hawaiʻi's (collectively, Plaintiffs)] Non-Hearing
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Motion for Award of Fees and Costs" (Order),1 filed June 27,

2022.

In June 2021, Plaintiffs filed a "Complaint for

Declaratory and Injunctive Relief" (Complaint) against the

Commission and Defendant-Appellee Wailea Resort SF-S Partners,

LP (Wailea),2 regarding Wailea's residential development project

(Project) on the Island of Maui. The eight-count Complaint

challenged the sufficiency of the Final Environmental Assessment

(FEA) that Wailea had prepared pursuant to Hawaii Revised

Statutes (HRS) Chapter 3433 and the Commission's issuance of a

Finding of No Significant Impact (FONSI). Plaintiffs

subsequently moved for summary judgment on all counts. The

circuit court granted the motion as to counts IV (improper

segmentation) and VIII (injunctive relief), and denied the

remaining counts as moot.

The circuit court entered summary judgment in favor of

Plaintiffs, and against the Commission and Wailea. The circuit

court's "Amended Order Granting Summary Judgment in Favor of

Plaintiffs and Denying Summary Judgment in Favor [sic]

1 The Honorable Kirstin Hamman presided.

2 Wailea has not appealed the circuit court's Order, or its
underlying Judgment, and is a nominal appellee.

3 Plaintiffs challenged, inter alia, the scope of the FEA, which
segmented the Project from the developments of subsidiary companies owned by
Wailea's parent company, Ledcor Development, LP.

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Defendants," (Amended Order) filed April 11, 2022, stated in

relevant part,

As to Count IV, the [circuit court] ruled that
[Wailea's] [FEA] regarding development of 23.1 acres of
land located at Tax Map Key (TMK): 2:2-1-008:145 within the
ahupuaʻa of Paeahu, within the District of Makawao, Moku of
Honuaʻula, Island of Maui, Hawaiʻi to construct 57 homes and
related infrastructure developments, through a condominium
property regime known as the [Wailea] project improperly
segmented the [Wailea] project from the larger program of
which it is a part. Because the scope of the action in the
environmental assessment was not properly placed before the
[Commission] to consider, the [Commission] did not have
sufficient information to enable it to consider fully the
factors required for an environmental assessment and was
not able to take a "hard look" at the environmental
factors. Therefore, the [Commission's] [FONSI] was clearly
erroneous.

Because [the circuit court] finds as a matter of law
the [FEA] is insufficient because the project is improperly
segmented, the [circuit court] need not address the other
issues raised by the Plaintiff[s]. Therefore, although the
[circuit court] grants both Plaintiffs' motions for summary
judgment, the additional relief requested in Counts I, II,
III, V, VI, and VII of the Complaint is denied as moot.

As to Count VIII, the [circuit court] ruled that
injunctive relief was warranted[.]

. . . .

Therefore, IT IS HEREBY ORDERED, ADJUDGED and DECREED
that:
(1) Plaintiffs' Motion for Summary Judgment on Counts
I, II, III and VI of the Complaint, filed August 9, . . .
2021, is GRANTED;

(2) Plaintiff[s'] Motion for Summary Judgment on
Counts IV, V, VII and VIII of the Complaint[,] filed
August 9, . . . 2021, is GRANTED;

(3) Plaintiffs' request for injunctive relief under
Count VIII is GRANTED . . . as follows: The [Commission] is
enjoined from issuing any additional permits to [Wailea]
that rely on the acceptance of the [FEA] and determination
of a [FONSI];

(4) [Wailea's] Cross-Motion for Summary Judgment on
Counts I, II, III and VI of the Complaint, filed October 5,
2021, and the [Commission's] Joinder therein, filed October
12, 2021, are DENIED;

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(5) [Wailea's] Cross-Motion for Summary Judgment on
Counts IV, V, VII and VIII of the Complaint, filed October
5, 2021, and the [Commission's] Joinder therein, filed
October 12, 2021, are DENIED; and

(6) There are no remaining claims or issues to be
resolved.

(Emphasis added.)

Plaintiffs then filed "Plaintiff's Motion for an Award

of Fees and Costs" (Motion), against the Commission and Wailea

"jointly and severally," pursuant to HRS § 607-9 (2016) and the

private attorney general doctrine. The circuit court granted

the Motion and entered the Order. The Commission appealed the

Order.

On appeal, the Commission raises two points of error,

contending that the circuit court abused its discretion by

awarding fees and costs: (1) "jointly and severally" against the

Commission as to Count IV; and (2) against the Commission as to

any of the remaining counts that were denied as moot.

We review the circuit court's grant or denial of

attorneys' fees and costs under the abuse of discretion

standard. Kamaka v. Goodsill Anderson Quinn & Stifel,

117 Hawaiʻi 92, 105, 176 P.3d 91, 104 (2008). Upon careful

review of the record, briefs, and relevant legal authorities,

and having given due consideration to the arguments advanced and

the issues raised by the parties, we address the Commission's

points of error as follows.

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The Commission contends that Plaintiffs did not

prevail on summary judgment against the Commission because "the

sole [Count] IV on which liability was ruled in this case does

not pertain to any alleged conduct of the [Commission]." In its

Amended Order, the circuit court ruled with regard to Count IV

that, the FEA "improperly segmented [the Project] from the

larger program of which it is a part." Given this, "the

[Commission] did not have sufficient information to enable it to

consider fully the factors required for an environmental

assessment," and, therefore, "the [Commission's] [FONSI] was

clearly erroneous."

Improper segmentation of a project occurs when,

pursuant to Hawaii Administrative Rules (HAR) § 11-200.1-10,4

"[a] group of actions [that] shall be treated as a single

action" are improperly "segmented" into component parts. Rules

4 Pursuant to HAR § 11-200.1-10:

A group of actions shall be treated as a single
action when:
(1) The component actions are phases or increments of a
larger total program;
(2) An individual action is a necessary precedent to a
larger action;
(3) An individual action represents a commitment to a
larger action; or
(4) The actions in question are essentially identical and a
single EA or EIS will adequately address the impacts of
each individual action and those of the group of
actions as a whole.

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like HAR § 11-200.1-10 "are meant to keep applicants or agencies

from escaping full environmental review by pursuing projects in

a piecemeal fashion." Sierra Club v. Dep't of Transp.,

115 Hawaiʻi 299, 338, 167 P.3d 292, 331 (2007). For purposes of

environmental review,

The proposed action must be described in its entirety and
cannot be broken up into component parts which, if each is
taken separately, may have minimal impact on the
environment. Segmenting a project in this incremental way
to avoid the preparation of an environmental impact
statement is against the law.

Id. (citation omitted).

Pursuant to HRS chapter 343 and HAR chapter 11-200.1,

either a government agency or an "applicant" may request

approval of an "action." HRS § 343-5 (2022). An applicant is

defined as "any person who, pursuant to statute, ordinance, or

rule, officially requests approval for a proposed action."

HRS § 343-2 (2022). This case involves an applicant action, in

which Wailea submitted an improperly segmented FEA to the

Commission.

Because this is an applicant action, the Commission

acted as the "the agency initially receiving and agreeing to

process the request for [environmental review] approval." HRS

§ 343-5(e) (2022). The dispositive question here is whether

attorneys' fees may be awarded against the Commission, acting

solely in the capacity of the agency receiving the request for

environmental approval, for its review of an applicant's

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improperly segmented FEA and erroneous issuance of a FONSI.

There is nothing in the record that indicates the parties

presented argument on, or that the circuit court considered,

this question.5 And the parties do not cite to, nor are we aware

of, any legal authority supporting the proposition that an

agency acting solely in its regulatory capacity can be held

liable for attorneys' fees based on its actions in reviewing and

approving an applicant's submission.6

We therefore vacate the Order and remand to the

circuit court to address in the first instance whether

Plaintiffs could be awarded attorneys' fees against an agency

that reviewed an applicant's improperly segmented FEA and

erroneously issued a FONSI.

Moreover, because the Order is silent as to the legal

authority for its award of attorneys' fees, we further instruct

the circuit court on remand to expressly identify that legal

authority. Plaintiffs' Motion cited HRS § 607-9 and the private

attorney general doctrine as the legal authority for its

request. HRS § 607-9 pertains only to costs, and does not

5 Plaintiffs' Motion was filed as a non-hearing motion, such that
the record regarding Plaintiffs' fees request consists of the motion papers
and Order.

6 We note that in Sierra Club v. Dep't of Transp., 120 Hawai‛i 181,
202 P.3d 1226 (2009), the Hawai‛i Supreme Court held that attorneys' fees may
be awarded against an agency that itself proposed an action under HRS chapter
343. Here, the question is whether attorneys' fees can be awarded against an
agency that reviewed an applicant's FEA, and issued a FONSI, pursuant to HRS
chapter 343.

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support Plaintiffs' request for fees. To the extent that the

circuit court awarded fees pursuant to the private attorney

general doctrine, the circuit court failed to make findings

necessary for application of the three-part test for determining

whether Plaintiffs were entitled to such fees. The three-part

test requires the court to assess:

(1) the strength or societal importance of the public
policy vindicated by the litigation, (2) the necessity for
private enforcement and the magnitude of the resultant
burden on the plaintiff, and (3) the number of people
standing to benefit from the decision.

Kaleikini v. Yoshioka, 129 Hawaiʻi 454, 462, 304 P.3d 252, 260

(2013) (cleaned up).

In the absence of such findings, we conclude that the

record is insufficient for us to determine whether the circuit

court abused its discretion in awarding attorneys' fees "jointly

and severally" against the Commission. See In re Elaine Emma

Short Revocable Living Tr. Agreement Dated July 17, 1984,

147 Hawaiʻi 456, 465, 465 P.3d 903, 912 (2020) ("When the lower

court has failed to issue the requisite findings of fact to

enable meaningful appellate review, it is not the function of

the appellate court to conduct its own evidentiary analysis.")

(cleaned up). If the circuit court on remand awards fees

against the Commission pursuant to the private attorney general

doctrine, the circuit court shall make such findings of fact and

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conclusions of law necessary for appellate review of the three-

part private attorney general doctrine test.

For the foregoing reasons, we vacate the Order and

remand to the circuit court for further proceedings consistent

with this summary disposition order.

DATED: Honolulu, Hawaiʻi, May 15, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Brian A. Bilberry,
Deputy Corporation Counsel, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Bianca Isaki and /s/ Kimberly T. Guidry
Christina Lizzi, Associate Judge
for Plaintiffs-Appellees.

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