Mālama Kakanilua v. Board of Land and Natural Resources. Consolidated with CAAP-22-0000067.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAR-2025
10:26 AM
Dkt. 77 SO

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

NO. CAAP-XX-XXXXXXX
MĀLAMA KAKANILUA, a domestic nonprofit corporation,
CLARE APANA and KANILOA KAMAUNU,
Plaintiffs-Appellants-Appellants, v.
BOARD OF LAND AND NATURAL RESOURCES; ADMINISTRATOR
OF THE STATE HISTORIC PRESERVATION DIVISION, Department
of Land and Natural Resources, State of Hawai#i,
Appellees-Appellees, and ARCHAEOLOGICAL
SERVICES HAWAII LLC, a foreign limited liability company,
Defendant-Appellee-Appellee
(CASE NO. 2CCV-XX-XXXXXXX)

and
NO. CAAP-XX-XXXXXXX
MĀLAMA KAKANILUA, a domestic nonprofit corporation,
CLARE APANA and KANILOA KAMAUNU,
Petitioners-Appellants-Appellants, v.
BOARD OF LAND AND NATURAL RESOURCES; ADMINISTRATOR
OF THE STATE HISTORIC PRESERVATION DIVISION, Department
of Land and Natural Resources, State of Hawai#i,
Appellees-Appellees, and ARCHAEOLOGICAL
SERVICES HAWAII LLC, a foreign limited liability company,
Respondent-Appellee-Appellee
(CASE NO. 2CCV-XX-XXXXXXX)

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

MARCH 21, 2025

HIRAOKA, PRESIDING JUDGE, WADSWORTH AND NAKASONE, JJ.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY HIRAOKA, J.

These appeals involve archaeological permits issued by

the Department of Land and Natural Resources' State Historic

Preservation Division (SHPD) to Archaeological Services Hawaii

LLC (ASH LLC). Mālama Kakanilua, Clare Apana, and Kaniloa

Kamaunu (collectively, Mālama) appeal from: (1) the January 31,

2022 Final Judgment for the Board of Land and Natural Resources

(BLNR), the Administrator of SHPD, and ASH LLC in Judiciary

Information Management System (JIMS) case no. 2CCV-XX-XXXXXXX;

and (2) the February 17, 2022 Final Judgment for BLNR, the

Administrator, and ASH LLC in JIMS 2CCV-XX-XXXXXXX. Both

judgments were entered by the Circuit Court of the Second

Circuit.1 We hold: (1) in the contested case on ASH LLC's 2020

permit, BLNR erroneously placed the burden on Mālama to prove

ASH LLC failed to comply with its permit conditions for calendar

years 2015-2017; and (2) Mālama were entitled to a contested case

on ASH LLC's 2021 permit because of BLNR's procedural error in

the contested case for the 2020 permit. We vacate the Final

Judgment in JIMS 2CCV-XX-XXXXXXX and the Final Judgment in JIMS

2CCV-XX-XXXXXXX and remand for entry of a judgment for Mālama and

against BLNR, the Administrator, and ASH LLC in each case.2

1
The Honorable Blaine J. Kobayashi and the Honorable Kirstin M.
Hamman presided.
2
An archaeological permit is "valid only for the calendar year for
which it is issued[.]" Hawaii Administrative Rules § 13-282-3(b) (eff. 2003).
The permits at issue have expired, but the capable of repetition, yet evading
review and public interest exceptions to the mootness doctrine apply. See
(continued...)

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I. BACKGROUND

No archaeological firm may alter a historic property in

the state of Hawai#i without a permit from the Department of Land

and Natural Resources (DLNR). Hawaii Administrative Rules (HAR)

§ 13-282-3(a) (eff. 2003). "Historic property" means "any

building, structure, object, district, area, or site, including

heiau and underwater site, which is over fifty years old." HAR

§ 13-282-2 (eff. 2003).

ASH LLC applied for an archaeological permit for the

2020 calendar year. Mālama requested a contested case hearing.

BLNR granted the request and appointed a hearing officer. The

hearing officer conducted a seven-day public hearing and

submitted proposed findings of fact and conclusions of law and a

recommended decision to BLNR on November 30, 2020. On

January 16, 2021, Mālama submitted a copy of a March 21, 2018

letter from SHPD to ASH LLC about the status of 39 archaeological

monitoring reports for calendar years 2015, 2016, and 2017.

Mālama's submission stated the letter had been requested from
SHPD "over four months ago" but was "not provided until now."

BLNR heard oral argument on January 22, 2021. On

February 4, 2021, BLNR issued an order adopting the hearing

officer's findings, conclusions, and recommended decision

2
(...continued)
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5-7, 193 P.3d 839, 843-45
(2008).

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(Contested Case Order).3 BLNR approved ASH LLC's permit

application. Mālama appealed the Contested Case Order, creating

JIMS 2CCV-XX-XXXXXXX. On January 6, 2022, the circuit court

entered findings of fact, conclusions of law, and a decision and

order affirming the Contested Case Order.4 Mālama filed this

secondary appeal, creating CAAP-XX-XXXXXXX.

Meanwhile, ASH LLC applied for a 2021 permit. Mālama

requested a contested case hearing. The Administrator

recommended that BLNR deny Mālama's request. BLNR considered

ASH LLC's application and Mālama's request during a public

meeting on April 9, 2021 (two months after the Contested Case

Order for the 2020 permit was issued). After hearing testimony,

BLNR denied Mālama's request and approved ASH LLC's application

(2021 Decision). Mālama appealed, creating JIMS 2CCV-XX-XXXXXXX.

On February 8, 2022, the circuit court entered findings of fact,

conclusions of law, and a decision and order affirming the 2021

Decision. Mālama filed this secondary appeal, creating CAAP-22-

0000067.

We consolidated the appeals.

3
BLNR made only typographical and other non-substantive changes to
the hearing officer's findings of fact and conclusions of law.
4
A circuit court reviewing an agency decision acts as an appellate
court. It shouldn't make its own findings of fact; it decides whether the
agency's findings of fact were clearly erroneous based on the evidence before
the agency. Sierra Club v. Bd. of Land & Nat. Res., 154 Hawai#i 264, 284, 550
P.3d 230, 250 (App. 2024), cert. granted, No. SCWC-XX-XXXXXXX, 2024 WL 3378462
(Haw. July 11, 2024).

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II. POINTS OF ERROR

Mālama state four points of error, which we reorder and

paraphrase: (1) SHPD, not BLNR, should have conducted the

contested case hearing on ASH LLC's application for the 2020

permit and decided Mālama's contested case hearing request for

the 2021 permit; (2) BLNR exceeded its statutory authority and

acted on unlawful procedure when it approved the 2020 permit;

(3) Mālama were entitled to a contested case hearing on the 2021

permit application; and (4) BLNR erred by concluding ASH LLC had

a principal investigator "on staff," by not requiring ASH LLC's

principal investigator to answer questions about his employment,

and by not allowing Mālama to conduct discovery of ASH LLC's

principal investigator's work records.

III. STANDARDS OF REVIEW

Our review of the circuit court's decisions are

secondary appeals; we must determine whether the circuit court's

decisions were right or wrong by applying the standards in Hawaii

Revised Statutes (HRS) § 91–14(g) to BLNR's decisions based on

the record before BLNR. Flores v. Bd. of Land & Nat. Res., 143

Hawai#i 114, 120, 424 P.3d 469, 475 (2018).

HRS § 91–14(g) (2012 & Supp. 2021), titled "Judicial

review of contested cases[,]" provides in relevant part:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

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(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

"Under HRS § 91-14(g), conclusions of law are

reviewable under subsections (1), (2), and (4); questions

regarding procedural defects under subsection (3); findings of

fact under subsection (5); and an agency's exercise of discretion

under subsection (6)." Flores, 143 Hawai#i at 121, 424 P.3d at

476 (cleaned up).

Whether an agency followed proper procedures in its

decision-making is a question of law, which we review de novo.

Sierra Club v. Dep't of Transp., 115 Hawai#i 299, 315, 167 P.3d

292, 308 (2007).

IV. DISCUSSION

A. BLNR was authorized to conduct the contested
case hearing and to decide Mālama's request
for a contested case.

Mālama contend that SHPD, not BLNR, was authorized to

conduct the contested case hearing on the 2020 permit and decide

Mālama's request for a contested case hearing on the 2021 permit

application. Mālama's contention is not correct. SHPD is a

division of DLNR. HRS § 6E-3 (2009 & Supp. 2021). HAR § 13-1-28

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(eff. 2009) applies to all DLNR contested cases. It provides:

"When required by law, the board shall hold a contested case

hearing[.]" HAR § 13-1-28(a) (emphasis added). "Board" means

BLNR. HAR § 13-1-2(a) (eff. 2009).

Mālama argue that a circuit court order in another case

(the 2019 Order) is the law of this case, and therefore SHPD must

conduct a contested case hearing. The 2019 Order required a

contested case hearing on ASH LLC's permit application for

calendar year 2019. It is not the law of the case in this appeal

involving permits for 2020 and 2021. See Ditto v. McCurdy, 98
Hawai#i 123, 128, 44 P.3d 274, 279 (2002) (stating that "the law

of the case concept applies to single proceedings, and operates

to foreclose re-examination of decided issues either on remand or

on a subsequent appeal").

Mālama also argue we should give preclusive effect to

the 2019 Order. Res judicata, or claim preclusion, "prohibits a

party from relitigating a previously adjudicated cause of

action." Pendleton v. Ass'n of Apartment Owners of Kahala
Towers, 153 Hawai#i 126, 135, 527 P.3d 462, 471 (App. 2023). The

party asserting claim preclusion must show that the claim decided

in the previous suit is identical to the one presented in the

action in question. Id. The 2019 Order did not decide that

SHPD, rather than BLNR, must conduct the proceeding; that issue

was not before the circuit court.

Collateral estoppel, or issue preclusion, "applies to a

subsequent suit between the parties or their privies on a

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different cause of action and prevents the parties or their

privies from relitigating any issue that was actually litigated

and finally decided in the earlier action." Pendleton, 153

Hawai#i at 135, 527 P.3d at 471. Whether BLNR or SHPD was to

conduct the contested case hearing was neither litigated nor

decided by the 2019 Order. Mālama's preclusion argument is not

persuasive.

We hold that BLNR, not SHPD, was authorized by statute

and administrative rule to decide the contested case on ASH LLC's

application for its 2020 permit, and to decide Mālama's request

for a contested case hearing on ASH LLC's application for its

2021 permit.

B. BLNR's decision on the 2020 permit was made
upon unlawful procedure inconsistent with
BLNR's constitutional duty.

Mālama contend BLNR exceeded its statutory authority

and acted on unlawful procedure when it approved the 2020 permit.

We held above that BLNR was authorized by statute and

administrative rule to decide the contested case on ASH LLC's

2020 permit application. We review de novo whether BLNR followed

the appropriate procedure in so doing. Sierra Club, 115 Hawai#i
at 315, 167 P.3d at 308.

Mālama argue — and BLNR, the Administrator, and ASH LLC

don't contest — that Mālama have a property interest in

protecting iwi kupuna (native Hawaiian burials) under

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article XII, section 7 of the Hawai#i Constitution.5 ASH LLC's

activities under an archaeological permit could impact Mālama's

constitutionally protected interest. See Kaleikini v. Thielen,

124 Hawai#i 1, 26, 237 P.3d 1067, 1092 (2010) (recognizing that

article XII, section 7 of the Hawai#i Constitution protects

cultural and religious beliefs about protecting iwi kupuna); cf.
Kaleikini v. Yoshioka, 128 Hawai#i 53, 59-60, 283 P.3d 60, 66-67

(2012) (discussing Honolulu rail project draft programmatic

agreement for handling iwi kupuna). Article XII, section 7

"places an affirmative duty on the State and its agencies to

preserve and protect traditional and customary native Hawaiian

rights, and confers upon the State and its agencies 'the power to

protect these rights and to prevent any interference with the

exercise of these rights.'" Ka Pa#akai O Ka#Aina v. Land Use
Comm'n, 94 Hawai#i 31, 45, 7 P.3d 1068, 1082 (2000) (emphasis

added) (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the

Constitutional Convention of 1978, at 639 (1980)).

Mālama's opposition to ASH LLC's permit application

alleged that "ASH fails to perform its archaeological services

5
Article XII, section 7 of the Hawai#i Constitution provides:
The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence,
cultural and religious purposes and possessed by ahupua#a
tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the
right of the State to regulate such rights.
"Ahupua#a" is a "[l]and division usually extending from the uplands to the
sea[.]" Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 9 (1986).

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work in compliance with the conditions set forth in HAR [§] 13-

282-3." HAR § 13-282-3 provides, in relevant part:

(f) Each permit shall contain the following conditions:
(1) The permittee shall submit, within one month of the
conclusion of any field work, a brief report on
findings to consist of:
(A) A map locating all sites studied, to be on a
portion of the relevant United States Geological
Survey standard 1:24,000 topographic map; and
(B) A table listing each site, its major
architectural features, its probable function,
and the nature of work at each site (mapping,
description, surface collection, test
excavation).
(2) The permittee shall submit a minimum of two copies of
a report or paper on any archaeological work to the
SHPD.

(3) The permittee shall ensure all personnel are capable
of adequately conducting the necessary work to
accomplish any scopes of work.

(4) The permittee shall comply with all applicable
statutes, ordinances, rules and regulations of the
federal, state and county governments[.]

BLNR found:

64. [Mālama] also contend that ASH did not properly
perform other types or scopes of archaeological work
such as monitoring[] grubbing and grading work[,] and
failed to properly manage and care for iwi kupuna that
was discovered in the course of its work. [Mālama]
reported incidents at projects where ASH was involved
at which alleged improper monitoring, insufficient
monitors or absence of monitors at sites where
grading, excavation or other earthwork was being
performed. [Mālama] also reported incidents relating
to the care and handling of iwi kupuna where they
assert that ASH personnel were improperly handling iwi
kupuna. The Hearing Officer finds from the record and
evidence presented in this matter insufficient
evidence to support or prove such claims and
assertions by a preponderance of the evidence.

65. HAR [§ 13-282-3(f)] sets forth certain conditions
attached to the issuance of archaeological permits.
[Mālama] contend that ASH has failed to perform its
archaeological services work in compliance with
certain of those conditions set forth in HAR §[ ]13-
282-3(f) such as the following:

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(1) The permittee shall submit, within one month
of the conclusion of any field work, a brief
report on findings to consist of:

(A) A map locating all sites studied, to
be on a portion of the relevant United States
Geological Survey standard 1:24,000 topographic
map; and
(B) A table listing each site, . . . its
probable function, and the nature of work at
each site (mapping, description, surface
collection, test excavation).
(2) The permittee shall submit a minimum of two
copies of a report or paper on any archeological
work to SHPD.

. . . .
66. [Mālama] assert that ASH has not been timely in its
submissions of reports to SHPD and that ASH has not
filed reports as required by HAR [§ 13-282-
3(f)]. . . .
67. The record presented in this case reflects that
reports have been submitted to SHPD by ASH and ASH
acknowledges that some reports have not been submitted
or were submitted late. The record in this case does
not present information sufficient to identify,
distinguish or establish which kind of report(s) were
submitted or which kind of report(s) have not been
submitted. Reports required by HAR [§ 13-282-3(f)(1)]
are required to be submitted "within one month of the
conclusion of any field work" however, the record
presented does not reflect whether field work has been
concluded so that it can be determined whether and how
many reports are due or overdue. The reports
referenced in HAR [§ 13-282-3(f)(2)] do not have a
specified timeframe for when reports pertaining to
"any archeological work" is to be submitted. The
record in this case does not present information
sufficient to assess the materiality and significance
of an asserted "late" report or the absence of a
report. From the limited information presented on the
status of submission or non-submission of reports, the
Hearing Officer finds insufficient information to
support a conclusion that there has been a material
failure on the part of ASH to file reports in
accordance with the requirements of HAR [§ 13-282-
3(f)(1)] or HAR [§ 13-282-3(f)(2)].

68. . . . The Hearing Officer finds from the record and
evidence presented in this matter insufficient
evidence to establish or prove [Mālama]'s claims and
assertions that ASH failed to perform its
archaeological services work in compliance with the
conditions set forth in HAR §[ ]13-282-3(f).

(Emphasis added) (underscoring omitted).

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After the hearing officer submitted his recommended

decision but before BLNR heard oral argument, Mālama submitted a

copy of SHPD's March 21, 2018 letter to Jeff Pantaleo, ASH LLC's

then-principal investigator. SHPD's letter referred to ASH LLC's

overdue response to SHPD's February 2, 2018 "request for

information regarding the status of each SHPD-approved

archaeological monitoring plan (AMP) prepared under your SHPD-

issued archaeological permit for the period 2015-2017." Two

spreadsheets were enclosed. One listed 37 "AMPs submitted under

your permit during this period, for which SHPD has no record of

receiving an archaeological monitoring report (AMR) for SHPD for

review and acceptance." SHPD requested, for each of the

37 monitoring plans:

(1) The status of the archaeological fieldwork, i.e.
whether the project has not occurred, is currently
ongoing, or monitoring has been completed w/date of
completion; or

(2) Whether the project moved forward without ASH
conducting archaeological monitoring; and

(3) If the project is finished, provide a submittal fee
sheet documenting when the archaeological monitoring
report was submitted to SHPD for review.

The other spreadsheet listed two of ASH LLC's draft

monitoring reports for which SHPD had requested, but not

received, revised drafts for review.

SHPD requested ASH LLC's response in 30 days. The

record contains no response from ASH LLC. During the contested

case hearing ASH LLC's owner Lisa Rotunno-Hazuka admitted that

ASH LLC submitted four or five monitoring plans for projects in

the Mauna Lani district but only one monitoring report in 2018,

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and that in some projects, years have gone by without ASH LLC

submitting required monitoring reports. She admitted "it is our

error in being behind." But, she added, "we are not the only

firm that has not turned in all monitoring reports."

The SHPD Administrator testified that "review of

reports" is "the principal means" SHPD uses to check whether

archaeologists are following the law. He then said,

the problem we have is that for the most part we are never
-- we don't know when the work is completed. So we know
every year a number of projects which we never get reports
on, we don't know whether that's because the report was
never prepared or the project never moved forward, and we
just -- we simply don't have the resources to follow up to
make determinations on why we haven't received a monitoring
report after we approved the monitoring plan.

When asked about consequences of not receiving reports,

he replied:

At the moment there's very little consequence. As I
said, we have very little capacity to tell whether a report
is simply overdue or whether the underlying project that
would have lead to the monitoring never occurred.

On this record we conclude the hearing officer — and

thereby, BLNR — erred by placing the burden on Mālama to prove

that ASH LLC did not comply with its HAR § 13-282-3(f) permit

conditions. See In re Kukui (Molokai), Inc., 116 Hawai#i 481,

509, 174 P.3d 320, 348 (2007) (holding that Commission on Water

Resource Management's conclusion that "no evidence was presented"

to show that rights of native Hawaiians would be adversely

affected erroneously shifted the burden of proof to parties

opposing permit).

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BLNR has an affirmative duty to preserve and protect

traditional and customary native Hawaiian rights, Ka Pa#akai O

Ka#Aina, 94 Hawai#i at 45, 7 P.3d at 1082, such as protecting iwi

kupuna. BLNR acknowledges that "if ASH violated the terms of its

permit, the Board still retains the discretion to revoke it or

not issue a new permit." A permittee's failure to comply with

the HAR § 13-282-3(f) conditions for previous permits may be good

cause to deny another permit, depending on the circumstances.

The Administrator testified that "review of reports" is "the

principal means" SHPD uses to see if archaeologists are following

the law, but SHPD doesn't "have the resources" or has "very

little capacity" to do its job. After being made aware of SHPD's

March 21, 2018 letter to ASH LLC questioning the status of 39

archaeological monitoring reports for 2015-2017, BLNR should have

required ASH LLC to prove its compliance with HAR § 13-282-3(f)

for at least those three permit years, or to show good cause for

noncompliance. Having not made that inquiry, BLNR breached its

affirmative duty to preserve and protect traditional and

customary native Hawaiian rights to protect iwi kupuna. Cf.
Kauai Springs, Inc. v. Plan. Comm'n of Cnty. of Kaua#i, 133

Hawai#i 141, 173, 324 P.3d 951, 983 (2014) (holding that county

planning commission "is duty-bound to place the burden on the

applicant to justify the proposed water use in light of the

[public] trust purposes").

ASH LLC argues that "[w]ithout evidence of which

reports were overdue, or the effect of the overdue reports,

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[BLNR] did not abuse its discretion by holding that there

was insufficient evidence that ASH materially or significantly

breached any permit conditions in a way which would justify

denying them a permit." ASH LLC should have the evidence needed

to prove it complied with permit conditions, or had good reasons

for not complying. BLNR erroneously placed the burden on Mālama

to show that ASH LLC's purported failures to comply "abridge or

deny their traditional and customary . . . rights." In re

Wai#ola O Moloka#i, Inc., 103 Hawai#i 401, 442, 83 P.3d 664, 705

(2004). BLNR should have required that ASH LLC show good cause

for its failures to comply with its permit conditions, and

provide information sufficient for BLNR to make the minimum

findings to ensure that Mālama's customary and traditional

practices were protected to the extent feasible, before approving

the application for another permit. The Contested Case Order was

thus made upon unlawful procedure inconsistent with BLNR's duty

under Haw. Const. art. XII, § 7. HRS § 91–14(g)(1), (3). The

circuit court was wrong to affirm it.

C. Mālama were entitled to a contested case
hearing on the calendar year 2021 permit
application.

Mālama contend they were entitled to a contested case

hearing on ASH LLC's application for its 2021 permit. SHPD's

submittal to BLNR on ASH LLC's permit application stated:

We expect that [Mālama] will ask for a contested case as to
the permit. Assuming (without agreeing) that [Mālama] have
an interest entitled to due process protection, [they] are
nevertheless not entitled to another contested case.
Determination of what process is due requires examination

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and balancing of three factors: "(1) the private interest
which will be affected; (2) the risk of an erroneous
deprivation of such interest through the procedures actually
used, and the probable value, if any, of additional or
alternative procedural safeguards; and (3) the governmental
interest, including the burden that additional procedural
safeguards would entail." [Flores v. Bd. of Land & Nat.
Res.], 143 Hawai#i 114, 126–27, 424 P.3d 469, 481–82 (2018).
Under the circumstances presented here, due process does not
require any additional procedures to safeguard [Mālama]'s
interests. Most especially, petitioners have already
received a complete contested case hearing as to ASH's 2020
request.

(Emphasis added.)

Apana submitted written testimony supporting Mālama's

request. Apana, Kamaunu, Noelani Ahia (a member of Mālama

Kakanilua's board), and Cecily Riley spoke at BLNR's public

meeting in support of the request. A BLNR member moved to accept

the staff recommendation to deny the contested case hearing

request. The member stated:

Just briefly, the -- what we've heard mostly on this
contested case request is that folks are dissatisfied with
the result of the first contested case hearing. They have a
judicial appeal on that. So that gives them due process
with respect to how the first contested case hearing was
conducted. And I just -- it seems to me that the -- that
the interests of people who are concerned about iwi which I
greatly respect and are very important, are protected by the
SHPD, the burial councils and all those legal means that
exist to protect iwi that are not being -- are not dealt
with by the question of having contested case hearings over
the licensing of architectural -- archaeological firms.

BLNR members voted unanimously to deny Mālama's request

for a contested case.

BLNR must hold a contested case hearing when required

by law. HRS § 91-1 (Supp. 2021). A contested case is "required

by law" when one is required by constitutional due process.

Flores, 143 Hawai#i at 124, 424 P.3d at 479. Mālama argue they

had a constitutional due process right to a contested case

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hearing. The supreme court has articulated a two-step analysis

for determining whether a party has a constitutional due process

right to a contested case:

First, this court considers whether the particular interest
which claimant seeks to protect by a hearing is "property"
within the meaning of the due process clauses of the federal
and state constitutions. Second, if this court concludes
that the interest is "property," this court analyzes what
specific procedures are required to protect it.

Id. at 125, 424 P.3d at 480 (cleaned up).

As discussed above, Mālama have a constitutionally

protected property interest in protecting iwi kupuna. Once a

party shows it has a constitutionally protected property

interest, the second step involves a balancing test to determine

whether a contested case is required to protect it. The factors

to be balanced are:

(1) the private interest which will be affected; [and]

(2) the risk of an erroneous deprivation of such interest
through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; [against]

(3) the governmental interest, including the burden that
additional procedural safeguards would entail.

Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82 (reformatted).

Here, BLNR's Contested Case Order (on ASH LLC's

application for its 2020 permit) was issued on February 4, 2021,

just two months before BLNR's April 9, 2021 public meeting where

Mālama's request for a contested case on ASH LLC's application

for its 2021 permit was considered. But these cases aren't like

Flores, where the supreme court believed

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there is no risk of erroneous deprivation, because Flores
has already been afforded a full opportunity to participate
in a contested case hearing and express his views and
concerns on the matter, and he has not persuaded us that the
provision of an additional contested case hearing is
necessary to adequately safeguard against erroneous
deprivation in this case.

143 Hawai#i at 127, 424 P.3d at 482.

Here, the Contested Case Order was made upon unlawful

procedure inconsistent with BLNR's affirmative duty under Haw.

Const. art. XII, § 7. Preventing another erroneous deprivation

of Mālama's constitutionally protected property interest

outweighs the burden another contested case may place on BLNR.

Mālama were entitled to a contested case hearing on the calendar

year 2021 permit application under the circumstances presented

here. The circuit court was wrong to affirm BLNR's denial of

Mālama's request for a contested case hearing.

We need not decide Mālama's fourth point of error.

V. CONCLUSION

In the contested case over ASH LLC's calendar year 2020

permit, BLNR erroneously shifted the burden to Mālama to prove

that ASH LLC didn't comply with its HAR § 13-282-3(f) permit

conditions for calendar years 2015-2017. That was not consistent

with BLNR's affirmative duty to preserve and protect traditional

and customary native Hawaiian rights to protect iwi kupuna under

article XII, section 7 of the Hawai#i Constitution. Because of

this, Mālama were entitled to a contested case on ASH LLC's

calendar year 2021 permit application. We vacate the Final

Judgment in JIMS 2CCV-XX-XXXXXXX and the Final Judgment in JIMS

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2CCV-XX-XXXXXXX. We remand for entry of judgments for Mālama and

against BLNR, the Administrator, and ASH LLC in both cases. Both

permits having expired, no remand to BLNR is necessary.

On the briefs:
/s/ Keith K. Hiraoka
Lance D. Collins, Presiding Judge
Bianca Isaki,
for Appellants-Appellants /s/ Clyde J. Wadsworth
Mālama Kakanilua, Clare Associate Judge
Apana and Kaniloa Kamaunu.
/s/ Karen T. Nakasone
Julie H. China, Associate Judge
Linda L.W. Chow,
Lauren K. Chun,
Deputy Attorneys General,
State of Hawai#i,
for Appellees-Appellees
Board of Land and
Natural Resources and
Administrator of the
State Historic Preservation
Division, Department of Land
and Natural Resources,
State of Hawai#i.

Paul L. Horikawa,
for Appellee-Appellee
Archaeological Services Hawaii LLC.

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