Sierra Club v. Board of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-DEC-2024
08:11 AM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

SIERRA CLUB, Appellant-Appellant, v.
BOARD OF LAND AND NATURAL RESOURCES,
ALEXANDER & AND BALDWIN, INC.,
EAST MAUI IRRIGATION COMPANY, LLC, and
COUNTY OF MAUI, Appellees-Appellees

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and Nakasone, JJ.)

Appellant-Appellant Sierra Club appeals from the
January 29, 2024 Final Judgment entered in favor of Appellees-
Appellees Board of Land and Natural Resources (BLNR), Alexander
and Baldwin, Inc. (A&B), East Maui Irrigation Company, LLC (EMI),
and County of Maui (County), by the Environmental Court of the
First Circuit (Environmental Court).1/ Sierra Club also
challenges the Environmental Court's: (1) March 31, 2023
"Opinion on Appeal"; and (2) January 22, 2024 "Order Denying
. . . Sierra Club's Motion for Reconsideration of Opinion On
Appeal, Filed April 3, 2023 [Dkt. 1408], Second Motion for
Reconsideration of Opinion on Appeal, Filed August 14, 2023 [Dkt.
1422], and Third Motion for Reconsideration of Opinion on Appeal,
Filed August 24, 2023 [Dkt. 1428]."
We recently summarized the background of this
litigation in Sierra Club v. Bd. of Land & Nat. Res. (Sierra Club

1/
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

I), 154 Hawai#i 264, 550 P.3d 230 (App. 2024), cert. granted, No.
SCWC-XX-XXXXXXX, 2024 WL 3378462 (Haw. July 11, 2024). Relevant
to this appeal, BLNR held a contested case hearing on whether
four one-year revocable permits (Permits) authorizing A&B and EMI
to divert water from streams in East Maui to Central and
Upcountry Maui should be continued for the years 2021 and 2022.
On June 30, 2022, BLNR entered its "Findings of Fact, Conclusions
of Law, and Decision and Order" (2022 Decision and Order),2/ which
continued the four Permits subject to twenty-three conditions.
On July 7, 2022, Sierra Club appealed from the 2022 Decision and
Order to the Environmental Court. After briefing, a hearing, and
further briefing, the Environmental Court entered the Opinion on
Appeal, in which the court concluded that the appeal was moot and
"the court should not decide it under a 'capable of repetition
but evading review' theory."
In this secondary appeal, Sierra Club contends that the
Environmental Court erred in: (1) "concluding that the Sierra
Club's appeal is moot and that none of the exceptions to the
mootness doctrine apply"; and (2) "not vacating BLNR's flawed
decision and not granting the Sierra Club's appeal[,]" based on
several errors made by BLNR.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Sierra Club's contentions as follows.
Under Hawai#i law, mootness is an issue of
justiciability. See State v. Hewitt, 153 Hawai#i 33, 42, 526
P.3d 558, 567 (2023). The mootness doctrine applies "where
events subsequent to the judgment of the trial court have so
affected the relations between the parties that the two
conditions for justiciability relevant on appeal — adverse
interest and effective remedy — have been compromised." Hamilton
ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5, 193 P.3d 839, 843
(2008).

2/
The 2022 Decision and Order, dated June 28, 2022, was filed and
served on June 30, 2022, and corrected on July 11, 2022.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

None of the parties dispute that this case is moot.
Indeed, Sierra Club asserts in its answering brief that "[a]ll
parties agree that this case is moot."3/ It is. The
Environmental Court correctly found:

A. This appeal involves the BLNR's 2022 [Decision
and Order] for revocable permits for the east Maui streams.
B. The BLNR's 2022 [Decision and Order] was not
issued until June 30, 2022. Since the revocable permits are
good for the calendar year, the June 2022 [Decision and
Order] had a shelf-life of 6 months.

C. The Certified Record on Appeal was not assembled
until August 16, 2022. Sierra Club's Opening Brief was
filed October 11, 2022. [A&B]/EMI's Answering Brief was
filed November 21, 2022. The BLNR's Answering Brief was
filed December 1, 2022. Sierra Club's Reply Briefs were
filed December 5, 2022, and December 8, 2022. The court
hearing did not take place until February 1, 2023.
Supplemental briefs were filed in February and March, 2023.

D. In the meantime, the new revocable permits for
calendar year 2023 were apparently issued. Further, in late
2022, the BLNR denied Sierra Club's request for a contested
case hearing on the revocable permits for 2023. That
decision has been appealed and the Sierra Club's Opening
Brief has been filed . . . . Barring unforeseen
circumstances, briefing should be completed and a court
hearing scheduled in May or June, 2023. Bottom line: the
court is being asked to issue a ruling on 2022 permits which
are no longer in effect and when an appeal is pending on the
replacement 2023 permits.

(Record citations omitted.)
Although Sierra Club agrees that the case is moot, it
argues that the Environmental Court erred in concluding that none
of the exceptions to the mootness doctrine apply in these
circumstances.
In Sierra Club I, we addressed issues related to the
same Permits, including whether the Environmental Court erred by
concluding that a contested case hearing was required to continue
the Permits and by modifying the conditions under which BLNR
continued the Permits. Sierra Club I, 154 Hawai#i at 275, 550
P.3d at 241. We ruled in part:

It seems that most of the issues presented by these
appeals (except for the award of attorneys fees and costs)

3/
We note that the County filed a statement of non-filing of an
answering brief, asserting that the County "has no position as to Sierra
Club's points of error and arguments . . . ."

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

are moot. BLNR complied with the Environmental Court's
Interim Decision, conducted a contested case hearing, and
approved the continuation of the Permits for 2021 (and
2022). Sierra Club's secondary appeal is pending as No.
CAAP-XX-XXXXXXX. The 2021 continuation period has ended.
But "mootness is an issue of justiciability, not an issue of
subject matter jurisdiction." The "capable of repetition,
yet evading review" and "public interest" exceptions to the
mootness doctrine apply here, for the reasons explained in
Carmichael [v. Bd. of Land & Nat. Res.], 150 Hawai #i [547,]
560-62, 506 P.3d [211,] 224-26[ (2022)].

Id. at 276, 550 P.3d at 242 (citation omitted).
We reach the same conclusion in this case. BLNR argues
that the 2021 and 2022 continuation periods have ended, and BLNR
issued one (rather than four) revocable permits in 2024 subject
to new terms and conditions, such that the challenged BLNR
actions are not capable of repetition. The supreme court
rejected similar arguments in Carmichael, stating: "BLNR's
continuation decisions for revocable permits apply for only one
calendar year at a time, those decisions 'evade full review' and
no plaintiff would be able to complete a lawsuit seeking to void
the continuation of a permit before the continuation itself
expired." 150 Hawai#i at 561, 506 P.3d at 225 (citing Hamilton,
119 Hawai#i at 5, 193 P.3d at 843). For the reasons explained in
Carmichael, the capable of repetition, yet evading review and
public interest exceptions to the mootness doctrine apply here.
The Environmental Court thus erred in "denying [Sierra Club's]
appeal because it is moot."
Sierra Club next asks this court to address the merits
of its appeal rather than remand this case to the Environmental
Court for that purpose. We will not do so. Our review of a
decision made by the Environmental Court upon its review of
BLNR's decision is a secondary appeal. Primary review is by the
Environmental Court. See HRS § 91-14(b),(g); Hamilton, 119
Hawai#i at 2, 193 P.3d at 840.
For the reasons discussed above, we vacate the
January 29, 2024 Final Judgment and the March 31, 2023 Opinion on
Appeal, entered by the Environmental Court of the First Circuit.
The case is remanded to the Environmental Court for further
proceedings consistent with this Summary Disposition Order.

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It is further ordered that the July 24, 2024 motion for
judicial notice filed by A&B and EMI, and the December 12, 2024
motion for retention or oral argument filed by Sierra Club, are
denied.

DATED: Honolulu, Hawai#i, December 24, 2024.

On the briefs:
/s/ Katherine G. Leonard
David Kimo Frankel Acting Chief Judge
for Appellant-Appellant.

Julie H. China and /s/ Clyde J. Wadsworth
Melissa D. Goldman, Associate Judge
Deputies Attorney General,
for Appellee-Appellee
Board of Land and Natural /s/ Karen T. Nakasone
Resources, State of Hawai#i. Associate Judge

Trisha H.S.T. Akagi
(Cades Schutte)
for Appellee-Appellee
Alexander & Baldwin, Inc., and
East Maui Irrigation Company,
LLC.

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