Ka Malu O Kahālāwai 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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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
28-JUL-2025
10:43 AM
Dkt. 124 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KA MALU O KAHÂLÂWAI, a domestic non profit corporation,
NÂ PAPA#I WAWAE #ULA#ULA, an unincorporated association,
KEKAI KEAHI, individual, and KAI NISHIKI, individual,
Plaintiffs-Appellants-Appellants, v.
BOARD OF LAND AND NATURAL RESOURCES, State of Hawai#i,
ADMINISTRATOR OF DIVISION OF BOATING AND OCEAN RECREATION
of Department of Land and Natural Resources, State of Hawai#i,
HAWAIIAN RAFTING ADVENTURES, INC., a domestic profit corporation,
LAHAINA HARBOR WATER TAXI INC., a domestic profit corporation,
and UNDERWATER SAFARI, INC., a domestic profit corporation,
Defendants-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CCV-XX-XXXXXXX)

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

Plaintiffs-Appellants-Appellants Ka Malu O Kahâlâwai,
Nâ Papa#i Wawae Ula#ula, Kekai Keahi, and Kai Nishiki (together,
Appellants) appeal from the May 31, 2022 Final Judgment entered
by the Circuit Court of the Second Circuit1/ (Circuit Court) in
favor of Defendants-Appellees/Appellees Board of Land and Natural
Resources (BLNR); Administrator of Division of Boating and Ocean
Recreation (DOBOR), Department of Land and Natural Resources;
Hawaiian Rafting Adventures, Inc. (HRA); Lahaina Harbor Water
Taxi Inc. (LHWT); and Underwater Safari, Inc. (US). Appellants
also challenge certain aspects of the Circuit Court's May 31,
2022 Findings of Fact, Conclusions of Law, and Decision and Order

1/
The Honorable Peter T. Cahill presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(FOFs/COLs).
On October 8, 2021, Appellants submitted a Petition to
DOBOR. Appellants sought a contested case hearing regarding the
then-pending annual renewal of commercial use permits (CUPs) for
HRA, LHWT, and US (together, the Companies) to continue using the
Mala Launch Ramp (Mala Ramp) in Lâhainâ, Maui in connection with
their local businesses. On October 22, 2021, BLNR denied the
Petition. Appellants appealed to the Circuit Court, which
affirmed the denial on May 31, 2022.
On appeal, Appellants contend that the Circuit Court
erred in affirming the denial of the Petition by: (1)
incorrectly concluding that (a) the Petition was a policy
challenge to the administrative rules, (b) vacating the CUPs via
a contested case hearing would prejudice the Companies, (c) no
statute or rule required a contested case hearing prior to
issuance of the CUPs, and (d) there was no need to determine
whether due process required a contested case hearing; (2)
wrongly rejecting Appellants' claim that BLNR failed to fulfill
its affirmative duty to "protect Native Hawaiian rights by
performing the analysis set forth in Ka Pa#akai O Ka #Aina v. Land
Use Commission, 94 Hawai#i 31, 7 P.3d 1068 (2000)"; (3)
erroneously rejecting Appellants' claim that DOBOR failed to
ensure that the CUPs provide "corresponding and reasonable
benefits and returns to the public"; and (4) making clearly
erroneous FOFs and considering matters unsupported by the record.
In this secondary appeal, we apply the standards of
Hawaii Revised Statutes (HRS) § 91-14(g) to BLNR's decision to
determine whether the Circuit Court was right or wrong. Flores
v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469,
475 (2018) (citing Paul's Elec. Serv., Inc. v. Befitel, 104
Hawai#i 412, 416, 91 P.3d 494, 498 (2004)).
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
Appellants' contentions as follows.
(1) Appellants contend that the Circuit Court erred in
holding that no statute or rule required a contested case hearing

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prior to issuance of the CUPs because Hawaii Administrative Rules
(HAR) § 13-1-29.1 and § 13-1-31 mandated a hearing based on
Appellants' property interest. Appellants separately argue that
the Circuit Court erred in failing to determine "whether and that
due process required a contested case hearing."2/
BLNR must hold a contested case hearing when required
by law. Flores, 143 Hawai#i at 124, 424 P.3d at 479; see HRS
§ 91-1 (Supp. 2017) ("'Contested case' means 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."). "A contested case hearing is required by law
when it is required by: (1) statute; (2) administrative rule; or
(3) constitutional due process." Flores, 143 Hawai#i at 124, 424
P.3d at 479 (citing Mauna Kea Anaina Hou v. Bd. of Land and Nat.
Res., 136 Hawai#i 376, 390, 363 P.3d 224, 238 (2015)).
HAR § 13-1-29.1 provides that BLNR,

without a hearing may deny a request or petition or both for
a contested case when it is clear as a matter of law that
the request concerns a subject that is not within the
adjudicatory jurisdiction of the board or when it is clear
as a matter of law that the petitioner does not have a legal
right, duty, or privilege entitling one to a contested case
proceeding.

HAR § 13-1-31 pertains to who may be parties to a contested case
hearing.
Appellants fail to explain how these administrative
rules require a contested case hearing in this matter. See HRAP
Rule 28(b)(7) ("Points not argued may be deemed waived."). To
the extent Appellants may be claiming that a contested case
hearing is required "as a matter of law" because it is required
as a matter of constitutional due process, we address that
argument below.
The Circuit Court affirmed the denial of the Petition
on the ground that "Appellants' attempt to secure a contested

2/
It appears that the permit renewals that are the subject of the
Petition expired on or about October 31, 2022. Nevertheless, the "capable of
repetition, yet evading review" and "public interest" exceptions to the
mootness doctrine apply to this appeal, for the reasons explained in
Carmichael v. Bd. of Land & Nat. Res., 150 Hawai #i 547, 561-62, 506 P.3d 211,
225-26 (2022).

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case hearing is in fact an attempt to raise a policy-based
challenge to the relevant administrative agency rules and the
application of the current rules" and, thus, "it is not the
appropriate procedural mechanism to challenge the agency's
administrative rules." In a footnote, the court stated that
"[f]or this reason, the Court does not make any finding or
conclusion as to Appellants' due process arguments . . . ."
Whether a contested case proceeding is the "appropriate
procedural mechanism" under HRS Chapter 91 is not the applicable
test for determining whether a party has a constitutional due
process right to a contested case hearing. Rather, the Hawai#i
Supreme Court has articulated a two-step analysis for making such
a determination:

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 Hawai#i at 125, 424 P.3d at 480 (brackets and
citations omitted) (quoting Sandy Beach Def. Fund v. City Council
of City & Cnty. of Honolulu, 70 Haw. 361, 376, 773 P.2d 250, 260
(1989)). In determining the specific procedures required to
comply with constitutional due process, the court must balance
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." Id. at 126-27, 424 P.3d at
481-82 (quoting Sandy Beach, 70 Haw. at 378, 773 P.2d at 261).
Here, the Petition sought to determine the legal rights
and duties of specific parties — the Appellants and the Companies
— in relation to the Companies' permit applications. In
particular, the Petition alleged that the Companies' activities
have harmed Appellants' right to engage in traditional Native
Hawaiian cultural practices, including the "traditional and
customary practices of fishing, surfing, canoe paddling, and

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diving . . . and also pelagiac fishing[,]" as well as Appellants'
right to a clean and healthful environment. In these
circumstances, the Circuit Court was required to conduct the two-
step analysis set out in Flores and Sandy Beach to determine
whether BLNR was required to hold a contested case hearing
regarding the renewal of the Companies' CUPs. The court's
failure to do so was error.
Appellants request that this court "void the Companies'
[CUPs], and remand to [BLNR] for a contested case hearing on any
re-reissuance of [CUPs] to the Companies." The sole issue
presented in this secondary appeal, however, is whether the
Circuit Court erred in affirming BLNR's denial of the Petition,
which sought a contested case hearing regarding the then-pending
annual renewals of the Companies' CUPs.3/ Appellants' request
that we void the CUPs themselves is therefore beyond the scope of
this appeal. See HRS § 91-14(g) (Supp. 2019). Additionally, it
appears that the permit renewals that are the subject of the
Petition expired on or about October 31, 2022. Although we have
decided this appeal based on exceptions to the mootness doctrine
(see supra note 2), Appellants' request that we remand to BLNR
for a contested case hearing on the expired renewals still
appears to be moot. Indeed, a remand to the Circuit Court for a
determination as to whether BLNR was required to hold a contested
case hearing regarding the expired renewals of the Companies'
CUPs would appear meaningless. Accordingly, we remand this case
to the Circuit Court to determine what, if any, relief is
available to Appellants in these circumstances.
(2) and (3) Appellants contend that BLNR failed to
fulfill its affirmative duty to protect Native Hawaiian rights by
performing the analysis set forth in Ka Pa#akai before denying
the Petition, and erroneously rejected Appellants' claim that
DOBOR failed to ensure the CUPs provide "corresponding and
reasonable benefits and returns to the public[.]"

3/
Relatedly, the Circuit Court determined that "the sole issue
before this Court is whether the Board correctly concluded that Appellants
were not entitled to a contested case hearing." The court did not review the
CUPs themselves. Appellants do not dispute any of this.

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Appellants do not explain how these issues relate to
the sole issue in this secondary appeal, i.e., whether the
Circuit Court erred in affirming BLNR's denial of Appellants'
request for a contested case hearing. See supra. We need not
reach these issues in light of our conclusion that the Circuit
Court erred in failing to determine whether BLNR was required to
hold a contested case hearing regarding the renewal of the
Companies' CUPs.
(4) Appellants challenge several of the Circuit
Court's FOFs as clearly erroneous. They appear to relate to the
court's decision to affirm the denial of Appellants' request for
a contested case hearing.
A circuit court reviewing an agency's decision and
order under HRS § 91-14 acts as an appellate court; it does not
review the evidence in the agency record to make its own findings
of fact. 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 (July 11, 2024); see Diamond v.
Dobbin, 132 Hawai#i 9, 24, 319 P.3d 1017, 1032 (2014). Having
addressed Appellants' arguments regarding the requested contested
case hearing, we do not review the challenged FOFs.
For the reasons discussed above, the Final Judgment
entered on May 31, 2022, by the Circuit Court of the Second
Circuit, is vacated, and this case is remanded to the Circuit
Court for further proceedings consistent with this summary
disposition order.

DATED: Honolulu, Hawai#i, July 28, 2025.

On the briefs:
/s/ Karen T. Nakasone
Christina Lizzi, with Chief Judge
Lance D. Collins and
Bianca K. Isaki (on reply)
for Plaintiffs-Appellants- /s/ Keith K. Hiraoka
Appellants. Associate Judge

Kaliko#onalani D. Fernandes,
Melissa D. Goldman, and /s/ Clyde J. Wadsworth
Nicholas M. McLean, Associate Judge
Deputy Attorneys General

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for Defendant-Appellee-
Appellee Board of Board of
Land and Natural Resources,
State of Hawai#i and
Administrator of Division of
Boating and Ocean Recreation.

Gregory W. Kugle,
Mark M. Murakami, and
Katie T. Pham
(Damon Key Leong Kupchak
Hastert)
for Defendant-Appellee-
Appellee Lahaina Harbor Water
Taxi Inc.

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