Dailey v. Department of Land and Natural Resources

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-MAY-2024
08:13 AM
Dkt. 43 SO

NO. CAAP-XX-XXXXXXX

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

ELIZABETH DAILEY AND MICHAEL DAILEY, Appellants-Appellants,
v.
DEPARTMENT OF LAND AND NATURAL RESOURCES;
BOARD OF LAND AND NATURAL RESOURCES,
Appellees-Appellees

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

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

This secondary agency appeal arises out of an alleged
unauthorized seawall located on the seaward side of a Mokulē‘ia

ocean-front residence owned by Appellants-Appellants Elizabeth
Dailey (Elizabeth) and her son, Michael Dailey (Michael)
(collectively, the Daileys), 1 which was brought before Appellee-

1 On November 17, 2023, after the Daileys filed their Opening
Brief, Michael filed a "Suggestion of Death of Elizabeth Dailey" (Suggestion
of Death) stating that Elizabeth died "on or about May 3, 2023," and
requesting "that the appeal may proceed in [Michael's] name, as the remaining
Appellant."
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Appellee the Board of Land and Natural Resources (BLNR) for
enforcement under conservation district laws. The issue before
us is whether dismissal of the Daileys' agency appeal for lack
of jurisdiction was proper.
The Daileys appeal from the May 5, 2023 "Findings of
Fact [(FOFs)], Conclusions of Law [(COLs)], and Order Granting
[BLNR's] Motion to Dismiss Appeal" (Dismissal Order) and the
June 6, 2023 Final Judgment, filed and entered by the Circuit
Court of the First Circuit (Environmental Court). 2
On appeal, the Daileys contend that the Environmental
Court erred: (1) "in its interpretation and application" of
Hawaii Revised Statutes (HRS) § 183C-9 3 "when it granted [BLNR]'s

2 The Honorable Jeffrey P. Crabtree presided.

3 HRS Chapter 183C contains laws pertaining to the "Conservation
District," which encompasses "State marine waters seaward of the shoreline .
. . ." Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 522, 403 P.3d
277, 299 (2017). HRS § 183C-9 (2011 & 2016 Supp.), entitled "Contested
cases," sets forth the right to appeal a contested case under the chapter
"directly to the supreme court" as follows:

(a) Chapter 91 shall apply to every contested case
arising under this chapter except where chapter 91
conflicts with this chapter, in which case this chapter
shall apply. Any other law to the contrary
notwithstanding, including chapter 91, any contested
case under this chapter shall be appealed from a final
decision and order or a preliminary ruling that is of
the nature defined by section 91-14(a) upon the record
directly to the supreme court for final decision,
except for those appeals heard pursuant to this chapter
arising in whole or in part from part III of chapter
205A . . . .

(b) The court shall give priority to contested case
appeals of significant statewide importance over all
other civil or administrative appeals or matters and
shall decide these appeals as expeditiously as
possible.

(Emphases added.) HRS § 183C-9 excepts "appeals heard pursuant to this
chapter arising in whole or in part from part III of chapter 205A . . . ."
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motion to dismiss," challenging COLs 42-47, 49; and (2) in
applying HRS § 183C-9(a) "without exception" and "refus[ing] to
transfer the appeal to the Hawaii Supreme Court," challenging
COLs 50-51. 4
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.
The Daileys' seawall, originally constructed in the
"mid-to-late 1960s to 1970" to protect their "land and home from
high surf damage and beach erosion[,]" rebuilt in "2005/2006"
through "2006/2007" "without any approvals or permits" following
2005 damage to the seawall from the winter swell, generated
substantial activity and litigation with Appellee-Appellee
Department of Land and Natural Resources, Office of Conservation
and Coastal Lands (DLNR). See FOFs 2-17. 5
The current appeal arises out of BLNR's June 16, 2022
"Findings of Fact, Conclusions of Law, and Decision and Order"
(BLNR 2022 Decision), issued following a September 27, 2021
contested case hearing conducted on remand. The BLNR 2022
Decision found that the Daileys violated HRS §§ 183C-4(b), 6 and

HRS Chapter 205A deals with "Coastal Zone Management," and Part III of the
chapter deals with "Shoreline Setbacks."

4 The Daileys' first two points of error (POEs) are consolidated,
as both challenge the propriety of the dismissal.

The Daileys' POEs do not indicate whether and how they preserved
the alleged errors. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule
28(b)(4)(iii)(requiring each point to include "where in the record . . . the
alleged error was brought to the attention of the court").

5 Unchallenged FOFs are binding. Okada Trucking Co., Ltd. v. Bd.
of Water Supply, 97 Hawaiʻi 450, 459, 40 P.3d 73, 82 (2002).

6 HRS § 183C-4(b) (2011 & 2016 Supp.), entitled "Zoning;
amendments," states in pertinent part: "No use except a nonconforming use as
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various rules within the Hawai‘i Administrative Rules (HAR)
Chapter 13-5, 7 by "demolishing a nonconforming 8 rock pile and
reconstructing it into an unauthorized and unpermitted seawall
in the Conservation District on or about December of 2006
through February of 2007. The seawall and remnants of the rock
pile have persisted as a continuing violation since those
dates." (Footnote added.)
On July 15, 2022, the Daileys appealed the BLNR 2022
Decision to the Environmental Court.
On November 28, 2022, BLNR filed a Motion to Dismiss,
which DLNR joined. BLNR and DLNR argued that the Environmental
Court lacked "subject matter jurisdiction" because HRS § 183C-9
required "a chapter 91 appeal of conservation district matters
under HRS chapter 183C" to be appealed directly to the Hawai‘i

Supreme Court. The Daileys opposed dismissal.
Following a February 8, 2023 hearing, the
Environmental Court issued a written ruling granting BLNR's
Motion to Dismiss, and subsequently filed the May 5, 2023
Dismissal Order that is the subject of this appeal.
The Environmental Court framed the issue before it as
"whether this appeal should have been filed straight to the
Hawaii Supreme Court" under HRS § 183C-9, and noted that the

defined in section 183C-5, shall be made within the conservation district
unless the use is in accordance with a zoning rule."

7 HAR Chapter 13-5 consists of "rules regarding the regulation of
conservation district lands" authorized by HRS Chapter 183C. Pila‘a 400, LLC
v. Bd. of Land & Nat. Res., 132 Hawai‘i 247, 265, 320 P.3d 912, 930 (2014).

8 In the BLNR 2022 Decision, BLNR defined a "nonconforming
structure" as one that "can be legally [] repaired in some circumstances,
without permits."

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Daileys had relied on the prior version of HRS § 183C-8 9
permitting appeals to the circuit court to establish
jurisdiction. FOF 22, COL 40. The May 5, 2023 Dismissal Order
stated:
II. FINDINGS OF FACT
. . . .

19. The [Daileys]' Notice of Appeal and Statement of the
Case was filed as an agency appeal in the Circuit Court of
the First Circuit on July 15, 2022 under 1CCV-XX-XXXXXXX.
Dkt. 1, JEFS 1, 3.

20. [The Daileys]' Notice of Appeal cites Haw. Rev. Stat.
§§ 91-14 and 183C-8, and Haw. R. Civ. P. [Rule] 72. Id.

21. The Jurisdiction section in [the Daileys]' Statement of
the Case cites Haw. Rev. Stat. §§ 91-14 and 183C-8. Id.,
2-3.

22. For appellate jurisdiction, [the Daileys]' Statement of
the Case erroneously cites an older version (i.e., the 1994
version as the 2014 amendment refers to the circuit
environmental court) of Haw. Rev. Stat. § 183C-8 stating as
follows:

Haw. Rev. Stat. § 183C-8, which provides that "Any
final order of the department based upon this chapter
may be appealed to the circuit court of the circuit
in which the land in question is found. The appeal
shall be in accord with chapter 91 and the Hawaii
rules of civil procedure."

Id., p. 3.

23. Haw. Rev. Stat. § 183C-8 was amended by Act 48 in
2016, 10 and by Act 213 in 2019. Haw. Rev. Stat. § 183C-9 was

9 The prior version of HRS § 183C-8 (2011), upon which the Daileys
relied to establish jurisdiction, provides: "Any final order of the
department based upon this chapter may be appealed to the circuit court of
the circuit in which the land in question is found. The appeal shall be in
accord with chapter 91 and the Hawaii rules of civil procedure." (Emphasis
added.)

10 "In 2016, the legislature adopted Act 48 'to provide for the
expedited judicial review of certain contested case proceedings.'" Cmty.
Ass'ns. of Hualalai, Inc. v. Leeward Planning Comm'n, 150 Hawai‘i 241, 245
n.3, 500 P.3d 426, 430 n.3 (2021) (quoting Conf. Comm. Rep. No. 67-16, in
2016 House Journal, at 1363, 2016 Senate Journal, at 789). Prior to the
enactment of Act 48, "[a]ny final order of [DLNR] based upon" HRS Chapter
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promulgated by the same Act 48 in 2016, and also amended by
Act 213 in 2019.

24. On October 17, 2022, [the Daileys] filed their Opening
Brief. Dkt. 53.

25. [The Daileys]' Opening Brief addresses in the statement
of material facts, a "jurisdictional split" between the
City and County of Honolulu ("City") and DLNR which occurs
at the "shoreline", [sic] and states that land mauka of the
shoreline up to the 40' shoreline setback line is the
shoreline area within the jurisdiction of the City, while
land makai of the shoreline is within the conservation
district resource subzone within the jurisdiction of DLNR.
Dkt. 53, 3-4.

26. [The Daileys]' Opening Brief cites Haw. Rev. Stat. §
91-14(g) in the standard of review (Dkt. 53, JEFS 21) but
does not otherwise address appellate jurisdiction for the
appeal of the contested case, and does not reference Haw.
Rev. Stat. § 183C-9. Dkt. 53, p. 16.

. . . .

III. CONCLUSIONS OF LAW

. . . .

37. The Legislature amended Haw. Rev. Stat. § 183C-8 by Act
48 of 2016 S.L.H., adding the phrase, "[E]xcept as
otherwise provided in this chapter" and in the same act
promulgated Haw. Rev. Stat. § 183C-9.

38. Haw. Rev. Stat. § 183C-9 divests the circuit courts of
jurisdiction for appeals of contested case hearings arising
under chapter 183C by providing for a mandatory appeal:

Any other law to the contrary notwithstanding,
including chapter 91, any contested case under
this chapter shall be appealed from a final
decision and order of the nature defined in
section 91-14(a) upon the record directly to
the supreme court for final decision, except

183C could "be appealed to the circuit environmental court of the circuit in
which the land in question [was] found." HRS § 183C-8 (2011 & Supp. 2014).
Act 48 added the new section at issue here, HRS § 183C-9, which provides in
subsection (a) that "any contested case under this chapter shall be appealed
. . . directly to the supreme court for final decision, except for those
appeals heard pursuant to this chapter arising in whole or in part from part
III of chapter 205A . . . ." Act 48 also amended HRS § 183C-8 to provide for
the appeal of final orders to the environmental court "[e]xcept as otherwise
provided in this chapter"--i.e., except as provided in the newly promulgated
HRS § 183C-9. 2016 Haw. Sess. Laws Act 48, § 7 at 79.
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for those appeals heard pursuant to this
chapter arising in whole or in part from part
III of chapter 205A or arising in whole or in
part from chapter 115.

39. The 2016 amendment to Haw. Rev. Stat. § 183C-8 provides
for an exception to an appeal of a contested case to the
Environmental Court of the circuit court, which read
together with § 183C-9, requires the appeal to be made
directly to the Hawaii Supreme Court.

40. The central question in the motion is whether this
appeal should have been filed straight to the Hawaii
Supreme Court.

41. Movants/BLNR say "yes" because this appeal of the
contested case hearing is a Haw. Rev. Stat. chapter 91
appeal of conservation district matters under Haw. Rev.
Stat. chapter 183C.

(Footnote added.) The Environmental Court concluded in the
challenged COLs 42-47, and 49-51 that HRS § 183C-9 was
applicable to this Chapter 183C conservation district appeal;
that HRS § 183C-9 required direct appeal to the supreme court;
that the exception in HRS § 183C-9 for HRS Chapter 205A
"Shoreline Setback" matters did not apply; and that no authority
permitted the Environmental Court to "transfer this appeal
directly to the Hawaii Supreme Court," as follows:
42. The only applicable exception to a direct appeal to the
Hawaii Supreme Court is found in Haw. Rev. Stat. § 183C-9.
The section speaks to appeals (not "cases") arising in
whole or in part from part III of Haw. Rev. Stat. chapter
205A ("Shoreline setbacks").

43. The issue then is whether this appeal arises from a
BLNR decision on shoreline setback.

44. This appeal of the BLNR's 6/16/22 decision is not an
appeal of a shoreline setback determination made in the
contested case hearing.

45. The BLNR 6/16/22 decision addressed whether [the
Daileys]' seawall was a nonconforming use in the
conservation district (i.e., makai of the shoreline). It
was not a shoreline setback determination (dealing with the
mauka side of the seawall).

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46. Shoreline determinations arose in the factually-related
but prior and separate proceedings. Those claims were
dismissed and/or not appealed or remanded and so were not
part of the instant contested case hearing. See Motion
(Dkt. 59) at note 5 for specifics.

47. The Notice of Appeal in this case refers to error under
Haw. Rev. Stat. § 91-14 and Haw. Rev. Stat. chapter 183C
("Conservation district"). The appeal is framed as an
appeal from a contested case enforcement proceeding
involving conservation lands/district. Again, conservation
district appeals go directly to the Hawaii Supreme Court
unless an exception to Haw. Rev. Stat. § 183C-9 is met. As
discussed above, the order appealed from as involved did
not arise from a shoreline setback determination.

. . . .

49. Under the applicable standards of review, [the Daileys]
did not affirmatively establish jurisdiction by their
appellate filings.

50. [The Daileys] request that if the court intends to
grant the motion to dismiss, that the court transfer this
appeal directly to the Hawaii Supreme Court. The court is
not aware of any rule or case law that allows this.

51. The Legislature changed the law to expressly allow for
direct appeals to our Supreme Court. The court does not
believe it has the inherent authority to transfer the
appeal under its supervisory powers. See Amantiad v. Odum,
90 Hawaii 152, 160, 977 P.2d 160, 168 (1999).

Accordingly, the Environmental Court dismissed the Daileys'
appeal for lack of jurisdiction and issued Final Judgment, from
which the Daileys timely appealed.
COLs 42-47, 49, and dismissal of the Daileys'
appeal for lack of jurisdiction were not
erroneous.
In support of their contention that the Environmental
Court erroneously interpreted and applied HRS § 183C-9 to
conclude it lacked jurisdiction, the Daileys argue that (1) HRS
§ 183C-9 did not apply based on certain terms and phrases used
in the statute; (2) the "shoreline setback" exception in HRS
§ 183C-9 applied to them because the case arose in part out of

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HRS Chapter 205A part III pertaining to shoreline setbacks; and
(3) HRS § 183C-9 was improperly retroactively applied to them.
These arguments lack merit.
First, the Daileys argue that the exception to the
supreme court direct appeal requirement in HRS § 183C-9, which
state "except for those appeals" arising in part from Chapter
205A--should apply to "any contested case under this chapter"
rather than "narrowly on 'appeals' arising from Chapter 205A[.]"
The Daileys also argue that the language of HRS § 183C-9(b)
instructing the supreme court to "give priority to contested
case appeals of significant statewide importance" shows that the
Environmental Court "erred in applying HRS § 183C-9 to the
Daileys' appeal because this is not a case of statewide
importance." These arguments are contrary to the plain language
of HRS § 183C-9(a) and (b) and are unpersuasive. See Barker v.
Young, 153 Hawai‘i 144, 148, 528 P.3d 217, 221 (2023) (citation
omitted) ("[W]here the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning.") (citation omitted); Trs. of Estate of Bishop
v. Au, 146 Hawai‘i 272, 280, 463 P.3d 929, 937 (2020) ("When the
legislature uses different words in a statute, . . . the
different words are presumed to have different meanings."
(citation omitted)). Further, the Daileys' arguments are
inconsistent with their own submissions before the Environmental
Court, in which the Daileys never disputed that their contested
case arose under HRS Chapter 183C. The BLNR 2022 Decision
concluded that the Daileys violated HRS § 183C-4(b), and the
Daileys' Notice of Appeal and Statement of the Case to the
Environmental Court cited HRS §§ 91-14 and 183C-8 for
jurisdiction. FOFs 20, 21. We conclude the Environmental Court

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did not err in its interpretation and application of HRS § 183C-
9 to this case, where the Daileys appealed from a final decision
and order in a contested case under HRS Chapter 183C. See
Lambert v. Waha, 137 Hawai‘i 423, 431, 375 P.3d 202, 210 (2016)
("Conclusions of law are reviewed de novo, under the right/wrong
standard of review." (citations omitted)).
Second, the Daileys argue that the Environmental Court
erred in not applying the "shoreline setback" exception in HRS
§ 183C-9 to them "because the case arose in part from part III
of HRS Chapter 205A." The Daileys assert that "the facts
underlying the years-long contested case process arose, at least
in part, out of part III of HRS Ch. 205A, pertaining to
shoreline setbacks[.]"
Here, the record reflects that the seawall was makai
of the shoreline, which is within the conservation district
under HRS Chapter 183C. See Umberger, 140 Hawai‘i at 521-22,
403 P.3d at 298-99 (explaining that all land makai of the
shoreline is within the state conservation district.). The
Daileys submitted a shoreline map to DLNR in 2005 "show[ing]
all, or almost all, of the rock pile makai of the shoreline."
The BLNR 2022 Decision described the Daileys' revetment as "an
unauthorized and unpermitted seawall in the Conservation
District . . . ." (Emphasis added.) While the procedural history
indicates that the Daileys had previously applied for and were
granted a shoreline setback variance (SSV) in 2010, the BLNR
2022 Decision did not pertain to any SSV or any other shoreline
setback statute under Part III of HRS Chapter 205A. The
Environmental Court correctly concluded in its COLs that the HRS
Chapter 205A shoreline setback exception in HRS § 183C-9 did not
apply. See Lambert, 137 Hawai‘i at 431, 375 P.3d at 210.

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Third, the Daileys argue that the Environmental Court
erred in retroactively applying HRS § 183C-9. DLNR argues that
the supreme court "rejected essentially the same argument" in
State of Haw. Org. of Police Officers v. City & Cnty. of
Honolulu, 149 Hawai‘i 492, 514, 494 P.3d 1225, 1247 (SHOPO)

(2021) (holding that applying Act 47, a newly-enacted statute,
to a dispute that arose before the statute was enacted did not
constitute retroactive application).
In SHOPO, the supreme court held that "'a statute does
not operate retroactively merely because it relates to
antecedent events, or because part of the requisites of its
action is drawn from time antecedent to its passing, but is
retroactive only when it is applied to rights acquired prior to
its enactment.'" Id. at 513, 494 P.3d at 1246 (citation
omitted). Here, Act 48 was not retroactively applied where the
Daileys did not acquire the right to appeal the 2022 BLNR
Decision "prior to [the] enactment" of Act 48 in 2016. Id.
(citation omitted). The Environmental Court in its COLs
correctly applied HRS § 183C-9, the applicable law after the
enactment of Act 48 in 2016. See Lambert, 137 Hawai‘i at 431,
375 P.3d at 210.
We conclude that COLs 42-47, 49, and dismissal of the
Daileys' appeal for lack of jurisdiction were not erroneous.
See Makila Land Co., LLC v. Kapu, 152 Hawai‘i 112, 119, 522 P.3d
259, 266 (2022) ("The existence of jurisdiction is a question of
law that is reviewed de novo under the right/wrong standard."
(citation omitted)).

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COLS 50 and 51, and denial of the Daileys'
request to transfer their appeal to the Hawai‘i
Supreme Court were not erroneous.
The Daileys argue that the Environmental Court's
"erroneous assertion that it is unaware of any rule or case law
allowing a transfer to the Supreme Court fundamentally
misinterprets its inherent powers." DLNR responds that there is
no "rule or case law that would have allowed the trial-level
[Environmental] Court to order the State's highest court to hear
an appeal over which the [Environmental] Court itself had no
jurisdiction."
Under HRS § 603-21.9(1) and (6), Hawai‘i circuit courts
have the power "[t]o make and issue all orders and writs
necessary or appropriate in aid of their original or appellate
jurisdiction" and
[t]o make and award such judgments, decrees, orders, and
mandates, issue such executions and other processes, and do
such other acts and take such other steps as may be
necessary to carry into full effect the powers which are or
shall be given to them by law or for the promotion of
justice in matters pending before them.
HRS § 603-21.9(1) & (6) (2016). "The right to appeal is purely
statutory and exists only when jurisdiction is given by some
constitutional or statutory provision." Matter of Kanahele, 152
Hawai‘i 501, 510, 526 P.3d 478, 487 (2023) (citation omitted).

Here, while the Environmental Court had the power
"[t]o make and issue all orders and writs necessary or
appropriate in aid of their . . . jurisdiction" and to "take
such other steps as may be necessary to carry into full effect
the powers which are or shall be given to [it] by law or for the
promotion of justice in matters pending before [it,]" there is
no "constitutional or statutory provision" that allows the
Environmental Court to transfer an appeal such as this one to
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the supreme court. HRS § 603-21.9(1) & (6); Kanahele, 152
Hawai‘i at 510, 526 P.3d at 487. Thus, the Environmental Court

did not err in its COLs denying the direct transfer request,
where no authority supported such. See Lambert, 137 Hawai‘i at
431, 375 P.3d at 210.
For the foregoing reasons, the May 5, 2023 "Findings
of Fact, Conclusions of Law, and Order Granting Appellee Board
of Land and Natural Resources' Motion to Dismiss Appeal" and the
June 6, 2023 "Final Judgment," both filed and entered by the
Circuit Court of the First Circuit are affirmed.
DATED: Honolulu, Hawai‘i, May 16, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Gregory W. Kugle,
Presiding Judge
David H. Abitbol,
for Appellants-Appellants.
/s/ Karen T. Nakasone
Associate Judge
Thomas J. Hughes,
Deputy Solicitor General
/s/ Sonja M.P. McCullen
for Appellee-Appellee.
Associate Judge

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