County of Kaua'i v. Kala Industries

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-APR-2024
07:47 AM
Dkt. 86 SO

NO. CAAP-XX-XXXXXXX

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

COUNTY OF KAUA‘I, Plaintiff-Appellee,
v.
KALA INDUSTRIES LLC, Defendant-Appellee,
and
DOES 1-20, Defendants,
and
BAUCIS KILAUEA, LLC, DOLPHIN HOUSE ESTATES, LLC,
MICHAEL PIUZE, and ZOE ROSE LLC,
Real Party in Interest-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC-18-1-000031)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Real Party in Interest-Appellants Baucis Kilauea, LLC,
Dolphin House Estates, LLC, Michael Piuze, and Zoe Rose LLC
(collectively, Appellants) appeal from the December 10, 2018
"Order Denying Motion for Leave to Intervene as Defendants"
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(Order Denying Motion to Intervene), filed by the Circuit Court
of the Fifth Circuit (Circuit Court). 1
On appeal, Appellants raise two points of error
(POEs), 2 contending that the Circuit Court erred by denying their
motion to intervene as of right and permissively under Hawai‘i
Rules of Civil Procedure (HRCP) Rule 24. 3
Upon careful review of the record on appeal and the
briefs submitted by the parties and having given due
consideration to the arguments advanced and the issues raised,
we vacate and remand.
Defendant Kala Industries LLC (Kala) 4 is the owner of
Lot 10-C, Tax Key No. (4)5-2-004-071, located in the County of
Kaua‘i (Property), a 21-acre parcel comprised mostly of
conservation land, which includes cliffs above and adjacent to
Kauapea Beach. On February 28, 2018, Plaintiff-Appellee County
of Kaua‘i (County) filed a Complaint against Kala to affirm the
existence of a public beach access trail easement across Kala's
Property to access Kauapea Beach.

1 The Honorable Edmund D. Acoba presided.

2 In light of our disposition of POE 1 regarding intervention as of
right, we do not address POE 2 regarding permissive intervention.

3 HRCP Rule 24(a) states:

(a) Intervention of right. Upon timely application
anyone shall be permitted to intervene in an action: (1)
when a statute confers an unconditional right to intervene;
or (2) when the applicant claims an interest relating to
the property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may as a practical matter impair
or impede the applicant's ability to protect that interest,
unless the applicant's interest is adequately represented
by existing parties.

4 On November 14, 2022, this court granted Defendant Kapha North
Shore, LLC's motion to substitute Kala for itself as Defendant-Appellee.

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On August 9, 2018, Appellants, who own parcels
adjacent to or near the proposed trail through Kala's Property,
filed a "Motion for Leave to Intervene as Defendants" on grounds
that they met the standard to intervene as of right under HRCP
Rule 24(a)(2). Appellants argued they had significant property
interests relating to the matter in dispute, based on their
ownership of residential properties near the proposed easement
or ownership of easements that intersect with the proposed
easement. Appellants claimed that their property interests
differed from Kala's, and that the proposed easement would
adversely affect them. The County opposed the motion.
At the November 7, 2018 hearing on the motion, the
Circuit Court denied intervention as of right because "the
defenses that were being raised by both the [Appellants] and
[Kala] almost appear[ed] to be the same"; and Appellants failed
to meet their "burden to show that their interest is
inadequately represented by the existing defendants in this
case[.]" Appellants appealed the Circuit Court's December 10,
2018 Order Denying Motion to Intervene.
"An order denying a motion to intervene pursuant to
HRCP Rule 24(a)(2) is reviewed under the right/wrong standard."
Hoopai v. Civ. Serv. Comm'n, 106 Hawai‘i 205, 216, 103 P.3d 365,

376 (2004) (citation omitted). This court must consider four
factors in determining intervention as of right under HRCP Rule
24(a)(2) (mandatory intervention factors):

(1) whether the application was timely; (2) whether the
intervenor claimed an interest relating to the property or
transaction which was the subject of the action; (3)
whether the disposition of the action would, as a practical
matter, impair or impede the intervenor's ability to
protect that interest; and (4) whether the intervenor's
interest was inadequately represented by the existing
defendants.

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In re Estate of Campbell, 106 Hawai‘i 453, 460, 106 P.3d 1096,

1103 (2005) (citing Hoopai, 106 Hawai‘i at 216, 103 P.3d at 376).

We may look to federal law applying the parallel federal
provision, Federal Rules of Civil Procedure (FRCP) Rule 24. 5
See Furuya v. Ass'n of Apartment Owners of Pac. Monarch, Inc.,
137 Hawai‘i 371, 382, 375 P.3d 150, 161 (2016) (looking to
interpretations of the equivalent FRCP rule as "highly
persuasive" (cleaned up)).
Factor 1: The parties do not dispute the first factor
(timely intervention application) for mandatory intervention was
met. See HRCP Rule 24(a)(2); Campbell, 106 Hawai‘i at 460,
106 P.3d at 1103.
Factor 2: Regarding the second factor for mandatory
intervention under HRCP Rule 24(a)(2), that Appellants claim
interests related to the subject of this action, Appellants
point to their ownership of properties near the easement at
issue. The County argues that Appellants' speculative claims of
harm from the public's use of the beach and access trail "are
not relevant to the question of whether, as a matter of law, the
easement exists." The County's relevance argument does not
apply the proper standard and is unpersuasive.

5 FRCP Rule 24(a) is substantially similar to HRCP Rule 24(a). It
states:

(a) Intervention of Right. On timely motion, the court must
permit anyone to intervene who:

(1) is given an unconditional right to intervene by a
federal statute; or

(2) claims an interest relating to the property or
transaction that is the subject of the action, and is
so situated that disposing of the action may as a
practical matter impair or impede the movant's
ability to protect its interest, unless existing
parties adequately represent that interest.

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An applicant for intervention as of right must have an
interest "relating to the property . . . which is the subject of
the action . . . ." HRCP Rule 24(a)(2). The interest must be
one that is "significantly protectable." Su Duk Kim v. H.V.
Corp., 5 Haw. App. 298, 302, 688 P.2d 1158, 1161 (1984)
(citation omitted). Whether an interest is "significantly
protectable" is fact-specific. See Wineries of the Old Mission
Peninsula Ass'n v. Twp. of Peninsula, Mich., 41 F.4th 767, 772-
73 (6th Cir. 2022) (allowing organization of homeowners to
intervene to enforce ordinance regulating wineries because the
wineries' proximity could diminish the homeowners' property
values, increase traffic, and diminish their quiet enjoyment of
their homes). "Interests in property are the most elementary
type of right that Rule 24(a) is designed to protect." Id. at
772 (quoting Planned Parenthood of Minn., Inc. v. Citizens for
Cmty. Action, 558 F.2d 861, 869 (8th Cir. 1977)). "[I]ndirect
impacts on property interests" may suffice to establish
mandatory intervention. Id.; see Planned Parenthood, 558 F.2d
at 869 (allowing property owners near abortion clinic to
intervene to uphold an ordinance regulating such clinics in
order to preserve the property owners' property values).
Here, Appellants similarly argue that they own
properties near the proposed easement and are concerned with
diminished property values, the character of the neighborhood,
the integrity of local natural resources, and dangerous roadway
and trail conditions. See Wineries, 41 F.4th at 772-73.
Appellants have established "significantly protectable"
interests relating to the property that is the subject of this
action under HRCP Rule 24(a)(2). See Su Duk Kim, 5 Haw. App. at
302, 688 P.2d at 1161. We conclude the second factor for

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mandatory intervention was met. See HRCP Rule 24(a)(2);
Campbell, 106 Hawai‘i at 460, 106 P.3d at 1103.
Factor 3: Regarding the third factor for mandatory
intervention under HRCP Rule 24(a)(2), that the disposition of
the action would impair or impede Appellants' ability to protect
their interests, Appellants argue that if the proposed easement
is granted, it could immediately impact property values,
increase traffic, create unsafe conditions, and create potential
liabilities.
"To satisfy this element of the intervention test, a
would-be intervenor must show only that impairment of its
substantial legal interest is possible if intervention is
denied." Wineries, 41 F.4th at 774 (emphases added) (citation
omitted). This burden is "minimal[,]" and "is satisfied
whenever disposition of the present action would put the movant
at a practical disadvantage in protecting its interest." Id.
(emphasis added) (cleaned up); see WildEarth Guardians v. Nat'l
Park Serv., 604 F.3d 1192, 1199 (10th Cir. 2010) ("The mere
availability of alternative forums is not sufficient to justify
denial of a motion to intervene because at most, participating
in a new proceeding would not provide the level of protection to
the intervenors' interests that the current plan offers."
(cleaned up)).
Here, if the County is allowed to enforce an easement
on the Property, Appellants may be able to provide input
regarding the easement and challenge how the easement is used or
developed, but they will lose the opportunity to challenge the
validity of the easement. Appellants have met their "minimal"
burden showing that their interests may be impaired, impeded, or
disadvantaged without the ability to intervene and protect their
interests in this action. See HRCP Rule 24(a)(2); Wineries, 41

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F.4th at 774. We conclude the third factor for mandatory
intervention was met. See HRCP Rule 24(a)(2); Campbell, 106
Hawai‘i at 460, 106 P.3d at 1103.
Factor 4: Regarding the fourth factor for mandatory
intervention under HRCP Rule 24(a)(2), that Appellants'
interests were inadequately represented by Kala, Appellants
argue that Kala's interest in its conservation land Property is
distinct from Appellants' property interests as residential
owners. Appellants argue that they have a "greater interest" to
preserve the rural and agricultural character of the
neighborhood, and that the proposed easement will have a
"greater impact" on Appellants' "use and enjoyment of their
land" as residential owners. The County responds that Kala and
Appellants have the same objective - to defeat the easement, and
Appellants had not shown inadequacy of Kala's representation due
to "adverse" interest or "nonfeasance in the duty of
representation."
The most important factor in determining the adequacy of
representation is how the interest compares with the
interests of existing parties. When an applicant for
intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation
arises. . . .

. . . Where parties share the same ultimate
objective, differences in litigation strategy do not
normally justify intervention.

Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)
(citations omitted). Even when parties share the "same ultimate
objective," however, the "presumption of adequacy of
representation" can be overcome by "showing, inter alia, that
the party has interests adverse to the intervenor." Id.;
Wineries, 41 F.4th at 774 (cleaned up). "[T]he requirement of
inadequacy of representation is satisfied if the applicant shows
that representation of its interests may be inadequate" and "the

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burden of making this showing is minimal." Hoopai, 106 Hawai‘i
at 217, 103 P.3d at 377 (cleaned up).
In Planned Parenthood, where homeowners sought
mandatory intervention to uphold an ordinance regulating
abortion clinics, the reviewing court concluded that the
homeowners' "respective interests, while not adverse, [were]
disparate" from defendants. 558 F.3d at 869-70. The Planned
Parenthood court explained that the homeowners were "concerned
only with their own property values[,]" and the defendants were
"accused of invidiously discriminating" against abortion
clinics, and thus, the defendants were not adequate
representatives of the homeowners' interests. Id.; see also
Wineries, 41 F.4th at 777 (concluding inadequacy of
representation where defendant faced possibility of damages and
intervenors did not, and where intervenors owned homes near the
wineries at issue while defendant did not).
Here, Kala's Property is mostly conservation land.
Kala's interests are different from Appellants, who claim to own
residential properties or easements near the proposed easement.
While both Appellants and Kala have the same objective to defeat
the validity of the easement, their interests are "disparate"
from each other. See Planned Parenthood, 558 F.2d at 870.
Appellants have met their "minimal" burden showing that Kala's
representation of their interests "may be inadequate," and the
fourth factor for mandatory intervention was met. See HRCP Rule
24(a)(2); Campbell, 106 Hawai‘i at 460, 106 P.3d at 1103; Hoopai,

106 Hawai‘i at 217, 103 P.3d at 377.
Because Appellants met the four factors for
intervention as of right under HRCP Rule 24(a)(2), the Circuit
Court erred in denying Appellants' motion to intervene. See
Hoopai, 106 Hawai‘i at 216, 103 P.3d at 376.

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For the foregoing reasons, the December 10,
2018 "Order Denying Motion for Leave to Intervene as
Defendants," filed by the Circuit Court of the Fifth Circuit is
vacated, and we remand for further proceedings consistent with
this order.
DATED: Honolulu, Hawai‘i, April 15, 2024.
On the briefs:
/s/ Katherine G. Leonard
Erika L. Amatore,
Acting Chief Judge
for Real Party in Interest-
Appellants.
/s/ Karen T. Nakasone
Associate Judge
Charles A. Foster,
for Plaintiff-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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