Ralston 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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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
10-JUN-2025
08:32 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

TYLER RALSTON, Appellant-Appellant,
v.
BOARD OF LAND AND NATURAL RESOURCES and
RESORTTRUST HAWAII, LLC, Appellees-Appellees

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

SUMMARY DISPOSITION ORDER
(By: Wadsworth and Nakasone, JJ., with Hiraoka,
Presiding Judge, concurring in part and dissenting in part)

Appellant-Appellant Tyler Ralston (Ralston) appeals
from the Final Judgment (Judgment), entered in favor of
Appellees-Appellees Board of Land and Natural Resources (BLNR)
and Restorttrust Hawaii, LLC (RTH) on June 17, 2022, by the
Circuit Court of the First Circuit (Circuit Court).1/ Ralston
also challenges the Circuit Court's May 19, 2022 "Findings of
Fact, Conclusions of Law and Order Affirming [BLNR's]
November 12, 2021 Decisions: (1) Denying . . . Ralston's Request
for a Contested Case Hearing; and (2) Renewing Revocable Permit
[(RP)] S-7915" (FOFs/COLs).
On appeal, Ralston contends that the Circuit Court
erred in: (1) affirming BLNR's decisions to deny Ralston's
request for a contested case hearing in connection with the
renewal of RP 7915 and to renew RP 7915 for calendar year 2022;
(2) entering COLs 3, 10, and 12-16 "that together hold that no

1/
The Honorable Dean E. Ochiai presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

contested case hearing was required"; (3) "appl[ying] an improper
standard of review in a case in which BLNR did not adopt any
[FOFs] or [COLs]"; (4) "incorrectly identif[ying] the privately-
owned parcel and suggesting that Lot 41 is not intended to be
used as a public beach"; (5) "rendering (without the benefit of
cross-examination) [FOF ]21 and [COL ]13 . . . when it suggested
that RTH's uses are non-exclusive"; and (6) "mischaracteriz[ing]
the bases on which . . . Ralston asserted that he is entitled to
a contested case hearing in [FOF ]22 . . . ."
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
Ralston's contentions as follows.

I. Background

RTH owns and operates the Kahala Hotel & Resort (the
Hotel). RP 7915 is an annual revocable permit issued by BLNR
that allows RTH to use certain State lands lying between the
Hotel and adjoining shoreline (State Parcel) for recreational and
maintenance purposes, in accordance with the permit's terms and
conditions. See generally Frankel v. Bd. of Land & Nat. Res.,
155 Hawai#i 358, 361-62, 564 P.3d 1157, 1160-61 (2025)
(summarizing the historical background of the permit).
At its November 12, 2021 public meeting, BLNR
considered RTH's request to renew RP 7915 for a one-year period
from January 1, 2022, through December 31, 2022. At the meeting,
Ralston testified and orally requested a contested case hearing
in connection with RTH's request to renew RP 7915. After
considering Ralston's request and going into executive session,
BLNR voted to deny the request. BLNR then voted to approve the
renewal of RP 7915 for calendar year 2022.
On or about November 18, 2021, Ralston filed a written
Petition for a contested case hearing (Petition). On January 14,
2022, BLNR denied Ralston's Petition.
Meanwhile, on December 10, 2021, Ralston filed a
"Notice of Appeal to Circuit Court." On January 12, 2022,
Ralston filed his opening brief, and on March 28, 2022, BLNR and

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RTH filed their respective answering briefs.
Following further briefing and an April 18, 2022
hearing, the Circuit Court affirmed BLNR's decisions to deny
Ralston's request for a contested case hearing and to renew RP
7915 for calendar year 2022.2/ The Circuit Court explained its
reasoning in COLs 10 and 12-16, as follows:

10. Even assuming [Ralston] has a property interest
protected by due process, [Ralston] has been given a
meaningful opportunity to be heard through the BLNR meetings
on RP 7915. The record demonstrates that [Ralston] has been
given ample opportunity to share his views and concerns with
BLNR, including providing written and oral testimony on RP
7915 and past RPs issued to RTH. [Ralston] has also
submitted declarations and photographs in support of legal
challenges to past RPs for use of the State Parcel'.
. . . .
12. Balancing each of the factors in the three-part
test enumerated from Sandy Beach[ Def. Fund v. City Council
of City & Cnty. of Honolulu, 70 Haw. 361, 773 P.2d 250
(1989)], [Ralston] has been afforded sufficient due process.

13. First, RP 7915 involves non-exclusive use of the
State Parcel which tends to limit or eliminate any impact of
[Ralston]'s assertion of "recreational, aesthetic,
environmental and public trust interests".

14. Second, the risk of an erroneous deprivation of
[Ralston's] claimed interest through the procedures actually
used, and the probable value, if any, of additional or
alternative procedural safeguards are low. [Ralston] has
been given a meaningful opportunity to be heard through the
BLNR meetings on RP 7915. Because no further process is
required in this case, his right to due process was not
violated.

15. Third, requiring a [contested case hearing] on
[Ralston's] complaints concerning his claimed exclusion from
limited portions of the State Parcel under RP 7915 would
create significant additional burdens upon the government,
which are not warranted given both [Ralston's] claimed
interest and the procedural safeguards already afforded
[Ralston].
16. In sum, [Ralston] has not met his burden to show
that BLNR abused its discretion in either denying his
request for a [contested case hearing] or renewing RP 7915
for 2022.

On June 17, 2022, the Circuit Court entered the
Judgment. In this secondary appeal, we apply the standards of

2/
Although the renewal end date was December 31, 2022, 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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HRS § 91-14(g) to BLNR's decisions 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)).

II. Discussion

Ralston contends that the Circuit Court erred in
affirming BLNR's denial of his request for a contested case
hearing. He argues that due process mandated such a hearing.
The Hawai#i Supreme Court has articulated a two-step
analysis for determining whether a party has a constitutional due
process right to a contested case hearing:

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, 70 Haw. at 376, 773 P.2d
at 260).
Here, Ralston argues that his property interest is
"founded upon four independent sources of law: (1) Article XI
section 9 of the state constitution, (2) Article XII section 4 of
the state constitution, (3) Article XI section 1 of the state
constitution, and (4) Article I section 2 of the state
constitution." As to his interest based on article XI, section
9, Ralston further argues that HRS Chapter 171, including HRS §
171-55,3/ and HRS Chapter 205A are the laws relating to

3/
HRS § 171-55 (2011) provided:
(a) Notwithstanding any other law to the contrary,
the board of land and natural resources may issue permits
for the temporary occupancy of state lands or an interest
therein on a month-to-month basis by direct negotiation
without public auction, under conditions and rent which will
serve the best interests of the State, subject, however, to
those restrictions as may from time to time be expressly
imposed by the board. A permit on a month-to-month basis
may continue for a period not to exceed one year from the
date of its issuance; provided that the board may allow the
(continued...)

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environmental quality that defined his right to a clean and
healthful environment at issue in the BLNR proceeding.
HRS § 171-55 requires that BLNR continue RP 7915 "under
conditions . . . which will serve the best interests of the
State[.]" That includes conditions that ensure a clean and
healthful environment through "control of pollution and
conservation, protection and enhancement of natural resources."
Haw. Const. art. XI, § 9 (emphasis added). Ralston invoked these
interests in his Petition, asserting that his use and enjoyment
of the State Parcel for recreational and other purposes was
adversely affected by the Hotel's use (including commercial use
of the land), and requesting, for example, that uses of the State
Parcel be restricted to "maintenance and recreational uses" and
that "commercial uses" be prohibited. BLNR appears to have
considered related access issues, at least in part, in renewing
RP 7915. See LAND BOARD SUBMITTALS - 11/12/21, https://dlnr.
hawaii.gov/ wp-content/uploads/2021/11/D-10.pdf (last visited
June 5, 2025).
We conclude that Ralston had a property interest in a
clean and healthful environment, protected under article XI,
section 9 of the Hawai#i Constitution, as defined by HRS § 171-
55, in the matter before BLNR. See Sierra Club v. Bd. of Land &
Nat. Res., 154 Hawai#i 264, 278-79, 550 P.3d 230, 244-45 (App.
2024) ("HRS § 171-55 — the law under which BLNR continued the
[annual revocable] Permits [allowing water diversion] — is a law
relating to environmental quality that defined Sierra Club's
members' constitutional right to a clean and healthful
environment in the matter before BLNR."), cert. granted, No.
SCWC-XX-XXXXXXX, 2024 WL 3378462 (Haw. July 11, 2024); Kia#i Wai
O Wai#ale#ale v. Bd. of Land & Nat. Res., 154 Hawai#i 407, 550
P.3d 1265 (App. 2024) ("Kia#i Wai and Friends had property
interests in a clean and healthful environment, protected under
article XI, section 9 of the Hawai#i Constitution, as defined by
HRS § 171-55 (2011) . . . in the matters before BLNR."), cert.

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(...continued)
permit to continue on a month-to-month basis for additional
one year periods.

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granted, No. SCWC-XX-XXXXXXX, 2024 WL 4276234 (Haw. Sept. 24,
2024), and cert. granted sub nom. Wai#ale#ale v. Bd. of Land &
Nat. Res., No. SCWC-XX-XXXXXXX, 2024 WL 4556252 (Haw. Oct. 23,
2024). Because we further conclude below that a contested case
hearing was required to protect this property interest, we need
not reach the other asserted statutory and constitutional bases
for the interest.
Once a party shows it has a constitutionally protected
property interest, the second step of our analysis involves a
balancing test to determine whether a contested case hearing is
required to protect it. The factors to be balanced are:

(1) the private interest which will be affected; [and]
(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; [against]
(3) the governmental interest, including the burden that
additional procedural safeguards would entail.

Flores, 143 Hawai#i at 126-27, 424 P.3d at 481-82 (reformatted)
(quoting Sandy Beach, 70 Haw. at 378, 773 P.2d at 261).
As discussed above, Ralston had a constitutionally
protected property interest in a clean and healthful environment,
as defined by HRS § 171-55. Ralston contends that the risk of an
erroneous deprivation of that interest is high absent the
protections of a contested case hearing, because "RTH's use of
[the State Parcel] diminishes public recreational opportunities,
open space and scenic views" and Ralston was not afforded the
opportunity to introduce evidence and to cross-examine witnesses.
BLNR argues that the denial of a contested case hearing in these
circumstances does not carry the risk of an erroneous deprivation
of Ralston's interests, "particularly given his meaningful
participation in public Sunshine Law-governed meetings regarding
the permit[.]"
Ralston submitted written testimony prior to, and gave
oral testimony during, the November 12, 2021 public meeting
regarding the renewal of RP 7915. However, other procedural
protections afforded by a contested case hearing were lacking.

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A contested case hearing is similar in many respects
to a trial before a judge: the parties have the right
to present evidence, testimony is taken under oath,
and witnesses are subject to cross-examination. It
provides a high level of procedural fairness and
protections to ensure that decisions are made based on
a factual record that is developed through a rigorous
adversarial process.

Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai#i 376,
380, 363 P.3d 224, 228 (2015); see Protect & Preserve Kahoma
Ahupua#a Ass'n v. Maui Planning Comm'n, 149 Hawai#i 304, 314, 489
P.3d 408, 418 (2021) ("While PPKAA members testified about the
Project at the public hearing and the hearing on its petition to
intervene, they were not able to submit evidence or cross-examine
opposing witnesses, which the Commission's rules would have
allowed them the opportunity to do had their petition been
granted").
Moreover, as BLNR was already required to consider
conditions on RP 7915 that would serve the best interests of the
State, it would not have been unduly burdensome to afford Ralston
a contested case hearing in the particular circumstances of this
case. See In re Application of Maui Elec. Co., 141 Hawai#i 249,
266, 408 P.3d 1, 18 (2017); Kahoma, 149 Hawai#i at 314, 489 P.3d
at 418. Importantly, this is not a case in which the appellant
was previously afforded an opportunity to participate in a
contested case hearing or trial regarding the issuance or renewal
of RP 7915. Cf. Flores, 143 Hawai#i at 127, 424 P.3d at 482
(appellant participated in a prior contested case hearing on the
issuance of the subject permit); Sierra Club, 154 Hawai#i at 282,
550 P.3d at 248 (appellant participated in a recent trial of a
lawsuit challenging earlier permit continuations). Under the
circumstances here, Ralston was denied procedural due process and
was entitled to participate in a contested case hearing on the
renewal of RP 7915. The Circuit Court was wrong in concluding
otherwise in COLs 10 and 12 through 16.
Ralston also argues that BLNR's decision to renew RP
7915 for calendar year 2022 should be vacated, because BLNR "put
the cart before the horse" in making its renewal decision before
conducting the requested contested case hearing. However, the
2022 renewal of RP 7915 has expired. Although we have decided

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this appeal based on exceptions to the mootness doctrine (see
supra note 2), Ralston's challenge to the 2022 renewal still
appears to be moot, and Ralston presents no authority supporting
his request that we vacate the expired renewal. Indeed, a remand
for BLNR to hold a contested case hearing on the 2022 renewal or
to rescind the renewal itself would appear meaningless.
Accordingly, we remand this case to the Circuit Court to
determine what, if any, relief is available to Ralston in these
circumstances.
Ralston presents no separate discernible arguments
regarding his remaining contentions. See Haw. Rules of Appellate
Procedure Rule 28(b)(7). In any event, we need not reach these
issues in light of our disposition.
For the reasons discussed above, the Final Judgment
entered on June 17, 2022, by the Circuit Court of the First
Circuit is vacated, and this case is remanded to the Circuit
Court for further proceedings consistent with this summary
disposition order.
It is further ordered that the motion for retention of
oral argument filed on May 31, 2025, is denied.

DATED: Honolulu, Hawai#i, June 10, 2025.

On the briefs:

David Kimo Frankel /s/ Clyde J. Wadsworth
for Appellant-Appellant. Associate Judge
Kimberly T. Guidry,
Solicitor General, /s/ Karen T. Nakasone
State of Hawai#i, Associate Judge
for Appellee-Appellee Board
of Land and Natural Resources.

William M. Harstad,
Puananionaona P. Thoene, and
Derek B. Simon
(Carlsmith Ball LLP)
for Appellee-Appellee
Resorttrust Hawaii LLC

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OPINION BY HIRAOKA, J.
CONCURRING IN PART AND DISSENTING IN PART

I concur that Ralston had a property interest in a
clean and healthful environment, protected under article XI,
section 9 of the Hawai#i Constitution, as defined by HRS
§ 171-55, in the matter before BLNR. But I respectfully dissent
from the majority's conclusion that a contested case hearing was
required to protect it.
Ralston submitted written testimony and photographs to
BLNR, and testified at the public meeting. He argues generally
that he did not have a chance to introduce evidence or cross-
examine witnesses. But he has not said what evidence he would
have presented; why he couldn't have included it with his written
testimony or offered it during the public meeting; who he would
have cross-examined; what testimony he intended to elicit; and
what relevance it would all have to how continuing RP 7915 would
deprive him of his protected property interest.
In my view, Ralston has not shown that the value of a
contested case hearing, under the circumstances of this case,
would outweigh the burden one would impose on BLNR. See Sierra
Club v. Bd. of Land & Nat. Res., 154 Hawai#i 264, 281–82, 550
P.3d 230, 247–48 (App. 2024) (noting that "[c]ontested cases
impose fiscal and administrative burdens on the state" and "are
generally more costly, time consuming, and burdensome than public
hearings" (cleaned up)), cert. granted, No. SCWC-XX-XXXXXXX, 2024
WL 3378462 (Haw. July 11, 2024).
I would also hold that the circuit court lacked
jurisdiction over Ralston's challenge to BLNR's decision, which
was made in a public meeting, not after a contested case hearing.
HRS § 91-14 (authorizing judicial review of "a final decision and
order" and certain "preliminary ruling[s]" in "a contested
case"); Sierra Club, 154 Hawai#i at 276-77, 550 P.3d at 242-43.

/s/ Keith K. Hiraoka
Presiding Judge

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