CourtListener 10778122

Gesamter Gesetzestext

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JAN-2026
07:50 AM
Dkt. 49 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

FRIENDS OF MĀHĀ‘ULEPŪ, a nonprofit corporation, and
SAVE KŌLOA, a nonprofit corporation,
Petitioners/Appellants-Appellants,
v.
KAUA‘I PLANNING COMMISSION, County of Kaua‘i, 5425 PAU A LAKA,
LLC, a limited liability corporation, and MERIDIAN PACIFIC, (fka
Kiahuna Po‘ipū Golf Resort, LLC), Respondents/Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

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

Petitioners/Appellants-Appellants Friends of Māhāʻulepū

and Save Kōloa (collectively, Appellants) appeal from the

Circuit Court of the Fifth Circuit's 1 (circuit court): (1)

October 10, 2024 "Respondent/Appellee[-Appellee] Kauaʻi Planning

Commission, County of Kauaʻi's [(the Commission)] Findings of

Fact [(FOFs)], Conclusions of Law [(COLs)], Decision and Order

1 The Honorable Kathleen N.A. Watanabe presided.
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Re: Agency Appeal, Filed December 28, 2023" (Order), and (2)

October 22, 2024 "Final Judgment." The Order and Final Judgment

affirmed the Commission's December 22, 2023 "Decision and Order

of the [Commission]" (Commission's Decision and Order) approving

Defendants/Appellees-Appellees 5425 Pau A Laka, LLC and Meridian

Pacific's (collectively, Pau A Laka) master drainage plan (MDP).

Pau A Laka is building a residential resort (the

Development Project) on land it owns in Kōloa, Kauaʻi. The land

once belonged to Kiahuna Poipu Golf Resort LLC. In 2006, the

Commission granted Kiahuna Poipu Golf Resort LLC's application

for a Class IV Zoning Permit Z-IV-2006-27, Use Permit U-2006-26,

and Project Development Use Permit P.D.U.-2006-25 (collectively,

the Permits). The Permits applied to the land where the

Development Project is being constructed, plus adjoining land

then owned by Kiahuna Poipu Golf Resort LLC and currently owned

by others.

Relevant here, the Permits included Permit Condition

26, which provided that,

Prior to building permit approval, [Pau A Laka] shall
submit a[n] [MDP] for all lands mauka of [Poʻipū] Road
rezoned under Moana Corporation Ordinance No. PM-31-79 for
[Commission] review and approval, including [Kāneiʻolouma]
Heiau.

(Emphasis added.)

In 2023, Pau A Laka retained Esaki Surveying and

Mapping, Inc. to prepare an MDP that would comply with Permit

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Condition 26. Pau A Laka submitted the MDP for the Commission's

"review and approval." 2 Appellants filed a petition to intervene

(Petition to Intervene), in which they sought a contested case

on the matter of the MDP's compliance with Permit Condition 26.

Appellants alternatively requested that the Commission deny Pau

A Laka's request for approval of its MDP. At its December 12,

2023 meeting, the Commission heard testimony from the public and

parties, and reviewed Appellants' Petition to Intervene and the

opposing papers, the Planning Department Director's report, and

the recommendation and comments from DPW. The Commission denied

Appellants' Petition to Intervene, and found the MDP satisfied

Permit Condition 26.

Appellants appealed the Commission's Decision and

Order to the circuit court. The circuit court affirmed.

Appellants raise the following points of error on

secondary appeal, contending that the circuit court erred in

affirming the Commission's Decision and Order because: (1)

Appellants were entitled to a contested case on the "review and

approval" of the MDP; (2) Appellants had standing to intervene

as to the Commission's "review and approval" of the MDP; and (3)

the requirements of Permit Condition 26 were not met.

2 Prior to the submission of the MDP to the Commission, Pau A Laka
submitted a draft MDP to the Kauaʻi County Department of Public Works (DPW).
The draft MDP was revised several times in response to comments by DPW.

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We review secondary appeals de novo, and apply the

standards set forth in Hawaii Revised Statutes (HRS) § 91-14(g)

(Supp. 2016) 3 to determine whether the circuit court's

determinations were right or wrong. Flores v. Bd. of Land &

Nat. Res., 143 Hawaiʻi 114, 120, 424 P.3d 469, 475 (2018). 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 resolve

Appellants' points of error as follows.

(1) Appellants contend that they were entitled to a

contested case because the Commission's review and approval of

the MDP implicated their asserted constitutional rights to a

3 HRS § 91-14(g) 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:

(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.

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clean and healthful environment, and to engage in traditional

and customary Native Hawaiian practices. 4 In their Petition to

Intervene, Appellants assert their right to "utilize areas

within, adjacent, and near to the subject property" for the

exercise of traditional and customary practices, the "protection

of endangered species endemic to the South Shore of Kauaʻi," and

"support[] and protect[] historic and culturally significant

sites, including Kānei[ʻ]olouma [Heiau]." Appellants contend

that their "cultural practices could be adversely impacted by

improper drainage precautions and other uses of the property,"

and "[f]urther blasting on the property, including to create

detention or retention basins, may further impair underground

hydrogeological flows to Kānei[ʻ]olouma."

A contested case is statutorily defined as "a

proceeding in which the legal rights, duties, or privileges of

specific parties are required by law to be determined after an

opportunity for agency hearing." HRS § 91-1 (Supp. 2017). "A

contested case hearing is required by law when it is required

by: (1) statute; (2) administrative rule; or (3) constitutional

4 Haw. Const. art. XI, § 9 ("Each person has the right to a clean
and healthful environment, as defined by laws relating to environmental
quality, including control of pollution and conservation, protection and
enhancement of natural resources."); Haw. Const. art. XII, § 7; Kiaʻi Wai o
Waiʻaleʻale v. Bd. of Land & Nat. Res., 157 Hawaiʻi 303, 323, 576 P.3d 816, 836
(2025) ("[T]he right to exercise native Hawaiian customs and traditions under
article XII, section 7 [is] a property interest for which due process
protections applie[s].") (citations omitted).

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due process." Flores, 143 Hawaiʻi at 124, 424 P.3d at 479

(citation omitted). "If a party demonstrates a constitutionally

protected property interest affected by a government agency's

decision, that party has a due process right to notice and an

opportunity to be heard at a meaningful time and in a meaningful

manner." Sierra Club v. Bd. of Land & Nat. Res., 156 Hawaiʻi

382, 394-95, 575 P.3d 472, 484-85 (2025) (citation omitted).

In determining whether a constitutional due process

right exists,

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.

Flores, 143 Hawaiʻi at 125, 424 P.3d at 480 (emphasis added)

(cleaned up).

With regard to the second step of the above test,

[D]etermination of the specific procedures required to
satisfy due process requires an additional 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.

Kiaʻi Wai o Waiʻaleʻale, 157 Hawaiʻi at 322, 576 P.3d at 835

(emphasis added) (cleaned up).

Our review of Appellants' contention is informed by

what the MDP is. The MDP is a compilation of drainage

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information for, as Permit Condition 26 specifies, "all lands

mauka of [Poʻipū] Road rezoned under Moana Corporation Ordinance

No. PM-31-79." These lands include the Development Project and

six other projects to which Pau A Laka asserts no ownership

and/or development interest. For these developments, the MDP

sets forth the following information: location, project

description, zoning, project status, engineer, runoff, and

detention/retention basins.

The MDP evaluates the impact of "existing drainage

conditions" and "the existing and proposed drainage facilities"

for all the land included in Moana Corporation Ordinance No. PM-

31-79, explaining that, "[t]he existing and proposed

detention/retention features are built and designed to detain

proposed development runoff to the existing and pre-development

flow rates for both a 2-year, 24-hour storm event and a 100-

year, 24-hour storm event." Consequently, "there would be no

adverse impact to . . . Kānei[ʻ]olouma Heiau, which is contained

outside of the Petition area."

The MDP also "summarizes the mitigative measures

already completed or measures that should be implemented to

comply with the County of Kauaʻi Storm Water Runoff System

Manual." The MDP observes that the "flooding problem [within

Kāneiʻolouma Heiau]" is likely caused by the drainage of water

from the mauka subdivision -- i.e., Weliweli Houselots

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subdivision, a development that is not owned by Pau A Laka. The

MDP suggests that "[o]ne option to mitigate runoff from Weliweli

Houselots subdivision is to expand the detention basin(s) that

would need to be constructed as part of development on [Tax Map

Key] (4) 2-8-14: 19." In presenting that option, the MDP

clarifies that, "the final design of the detention basin is

subject to County review and approval before any development in

this area can commence."

The MDP's treatment of potential mitigation measures

illustrates what the MDP is not. The MDP is not a permit

application, nor does it seek approval for Pau A Laka to take

any action related to drainage. Simply put, the MDP does not

change the status quo. The MDP integrated, within a single

document, the existing drainage for all land subject to Moana

Corporation Ordinance No. PM-31-79, including Pau A Laka's

Development Project. As such, the Commission's review and

approval of the MDP did not affect the "legal rights, duties, or

privileges" asserted by the Appellants.

(2) Appellants contend that they have standing to

intervene as to the Commission's "review and approval" of Pau A

Laka's MDP. They assert standing to intervene based on alleged

injuries caused by Pau A Laka's alleged environmental harm and

interference with their right to engage in Native Hawaiian

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traditional and customary practices. As the Hawaiʻi Supreme

Court has noted,

Establishing that a contested case took place does not end
the inquiry into justiciability. [Plaintiff] must also
show that it is entitled to request a review of the agency
determination. In order to establish standing, a plaintiff
must have suffered an actual or threatened injury; the
injury must be fairly traceable to the defendant's actions;
and a favorable decision would likely provide relief for
the plaintiff's injury. Environmental plaintiffs must meet
this three-part standing test but need not assert an injury
that is different in kind from an injury to the public
generally.

In re Maui Elec. Co., 141 Hawaiʻi 249, 270, 408 P.3d 1, 22 (2017)

(emphasis added) (cleaned up).

Appellants have not demonstrated that they suffered an

"actual or threatened injury" that is "fairly traceable" to the

Commission's review and approval of the MDP, such that "a

favorable decision would likely provide relief for [Appellants']

injury." As we concluded in section (1), supra, the

constitutional rights that Appellants assert were not implicated

by the Commission's review and approval of the MDP. We

therefore conclude that the Commission was not wrong in

determining that Appellants lacked standing to intervene.

(3) Appellants contend that the circuit court erred in

affirming the Commission's Decision and Order on the merits --

i.e., the Commission's approval of the MDP as compliant with

Permit Condition 26, and its dismissal on mootness grounds of

the contested case on Pau A Laka's request to modify Permit

Condition 26.

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In section (1), supra, we concluded that the

Appellants were not entitled to a contested case over the

Commission's review and approval of the MDP. We therefore

conclude that the circuit court lacked jurisdiction over

Appellants' HRS § 91-14 appeal of the Commission's Decision and

Order because there was no decision and order in a contested

case, or what should have been a contested case, from which to

appeal. See Sierra Club, 156 Hawaiʻi at 398, 575 P.3d at 488;

see also Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm'n,

79 Hawaiʻi 425, 431, 903 P.2d 1246, 1252 (1995) (to meet the

requirements of HRS § 91-14, "the proceeding that resulted in

the unfavorable agency action must have been a 'contested case'

hearing") (citation omitted).

For the foregoing reasons, we vacate the circuit

court's Order and Final Judgment, and remand with instructions

for the circuit court to dismiss Appellants' appeal for lack of

jurisdiction.

DATED: Honolulu, Hawaiʻi, January 22, 2026.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Bianca K. Isaki,
Ryan D. Hurley, /s/ Sonja M.P. McCullen
Lance D. Collins, Associate Judge
for Petitioners/Appellants-
Appellants. /s/ Kimberly T. Guidry
Associate Judge
Chris Donahoe,
for Respondent/Appellee-
Appellee.