Wo v. Board of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-NOV-2023
08:46 AM
Dkt. 318 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

HENRY CHANG WO, JR., Appellant-Appellee, v.
BOARD OF LAND AND NATURAL RESOURCES,
THE DEPARTMENT OF LAND AND NATURAL RESOURCES,
DAWN N.S. CHANG, IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF
THE BOARD OF LAND AND NATURAL RESOURCES, 1
HASEKO (EWA), INC., CITY AND COUNTY OF HONOLULU
DEPARTMENT OF PLANNING AND PERMITTING,
DEPARTMENT OF HAWAIIAN HOME LANDS, and
UNIVERSITY OF HAWAIʻI, Appellees-Appellees.
_______________________

KUAʻĀINA ULU ʻAUAMO,
Party in Interest-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 14-1-1373)

MEMORANDUM OPINION
(By: McCullen, Presiding Judge, Circuit Judge Castagnetti and
Circuit Judge Wong, in place of Ginoza, Chief Judge, and
Leonard, Hiraoka, Wadsworth, Nakasone,
and Guidry, JJ., recused.)

1 Pursuant to Hawaiʻi Rules of Evidence Rule 201 and Hawaiʻi Rules of
Appellate Procedure (HRAP) Rule 43(c)(1), we take judicial notice that
Dawn N.S. Chang is the current Chairperson of the Board of Land and Natural
Resources and she is automatically substituted as an Appellee-Appellee in
place of Suzanne Case.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Party in Interest-Appellant Kua‘āina Ulu ‘Auamo (KUA)

appeals from the Circuit Court of the First Circuit's

(1) October 3, 2017 order granting Appellee-Appellee University

of Hawaii's (UH) motion to dismiss deceased Appellant-Appellee

Henry Chang Wo, Jr.'s (Wo) appeal to the circuit court and

(2) November 7, 2017 Final Judgment. 2

The controversy in the case underlying this appeal

concerns whether a seaside berm that is naturally six to eight

feet above mean sea level should be lowered to four feet. The

purpose of lowering the berm is to prevent flooding of nearby

urban development by allowing more runoff into our ocean.

Wo requested a contested case on the matter at a Board

of Land and Natural Resources (Board or BLNR) meeting in March

2012. 3 While litigating that matter before the Board, Wo passed

away and the Board allowed KUA to substitute in Wo's place.

That substitution was the basis for the circuit court's

dismissal of the appeal in this case, and is at the center of

this secondary appeal. We vacate and remand.

2 The Honorable Keith K. Hiraoka presided.

3 Michael Kumukauoha Lee also requested a contested case, and was a
party to the proceedings, but later withdrew from the case.

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I. BACKGROUND

A. BLNR - Application for a Use Permit

For a brief background, "Kalo‘i Gulch is a natural

drainage for about 7488 acres, beginning in lower slopes of the

[Wai‘anae] Mountains mauka of the H-1 Freeway ending at the

Kalo‘i Gulch discharge site at the eastern [sic] of One‘ula Beach

Park." "Urban development has caused, and will continue to

cause, stormwater runoff greatly exceeding that which occurred

when the [‘Ewa] Plain was planted in sugar cane." This

development "includes [ʻEwa] Villages, UH West [O‘ahu] Campus,

Ocean Pointe, East Kapolei, Gentry [ʻEwa], and other

developments."

In August 2011, SSFM International, Inc., as agent for

Haseko, Inc. (Haseko); the City and County of Honolulu,

Department of Planning and Permitting (Honolulu Planning

Department); the Department of Hawaiian Homelands; and UH

(collectively, Applicants) applied for a Conservation District

Use Permit (Use Permit) "to construct an ocean outlet for storm

water discharge on State-owned land in the Conservation District

as part of the Kalo‘i Gulch Drainage Improvements . . . ." 4

4 BLNR denied the same proposed construction in 2008 because "Haseko
was the sole applicant and could not answer for the other land owners as to
how or to what extent their developments would be constrained without the
ocean outlet."

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Applicants requested the sand berm be lowered two to four feet,

across the 500 foot width of the channel.

Applicants' 2011 application was supported by an

environmental impact statement dated December 2005.

At a March 2012 BLNR meeting, Wo orally requested a

contested case on the application for the Use Permit, which was

granted.

In his written petition for a contested case, Wo

stated he and "his ancestors have traditionally and customarily

gathered limu and other marine life from the area" and his

"interests stem from his (a) traditional and customary

practices; (b) recreational interests; (c) cultural interests;

and (d) environmental interests." Wo asserted that Applicants

failed to meet the criteria for obtaining a Use Permit under the

"public trust doctrine, Native Hawaiian rights, Hawai‘i State

Constitution Articles XI § 1 and § 9, and XII § 4 and § 7,

section 5(f) of the Admissions Act; and [Hawai‘i Revised Statutes

(HRS)] Chapters 7 and 205A . . . ." 5

5 Article XI, section 1 of the Hawaiʻi Constitution addresses
conservation of resources, and provides as follows:

For the benefit of present and future generations,
the State and its political subdivisions shall conserve and
protect Hawaii's natural beauty and all natural resources,
including land, water, air, minerals and energy sources,
and shall promote the development and utilization of these

(continued . . .)

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(. . . continued)

resources in a manner consistent with their conservation
and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the
State for the benefit of the people.

Article XI, section 9 of the Hawaiʻi Constitution addresses environmental
rights, and provides as follows:

Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any
person may enforce this right against any party, public or
private, through appropriate legal proceedings, subject to
reasonable limitations and regulation as provided by law.

Article XII, section 4 of the Hawaiʻi Constitution is titled "Public Trust,"
and provides as follows:

The lands granted to the State of [Hawaiʻi] by
Section 5(b) of the Admission Act and pursuant to
Article XVI, Section 7, of the State Constitution,
excluding therefrom lands defined as "available lands" by
Section 203 of the Hawaiian Homes Commission Act, 1920, as
amended, shall be held by the State as a public trust for
native Hawaiians and the general public.

Article XII, section 7 of the Hawaiʻi Constitution addresses traditional and
customary rights, and provides as follows:

The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence,
cultural and religious purposes and possessed by ahupuaʻa
tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to
the right of the State to regulate such rights.

Section 5(f) of the Admissions Act provides in pertinent part:

The lands granted to the State of [Hawaiʻi] by
subsection (b) of this section and public lands retained by
the United States under subsections (c) and (d) and later
conveyed to the State under subsection (e), together with
the proceeds from the sale or other disposition of any such
lands and the income therefrom, shall be held by said State
as a public trust for the support of the public schools and
other public educational institutions, for the betterment
of the conditions of native Hawaiians, as defined in the
Hawaiian Homes Commission Act, 1920, as amended, for the
development of farm and home ownership on as widespread a
basis as possible for the making of public improvements,
and for the provision of lands for public use.

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In May 2013, before the evidentiary hearing began, the

Hearing Officer found Wo "ha[d] standing based on Ka [Pa‘akai]." 6

In June 2014, the Board issued its decision and order approving

Applicants' Use Permit for the Kalo‘i Gulch Drainage

Improvements.

B. Circuit Court - Appeal

Wo appealed to the circuit court. With the Honorable

Rhonda A. Nishimura presiding, Wo raised the issue of whether a

supplemental environmental impact statement (Supplemental EIS)

was warranted.

Judge Nishimura determined Wo properly raised the

Supplemental EIS issue below, but the Hearing Officer did not

address it. She then ordered the case be remanded to address

the Supplemental EIS issue and set the parameters for remand:

[Judge Nishimura:] Now, in looking under [Hawai‘i
Administrative Rules (HAR) §] 11-200-27, to the extent that
they have properly raised it, in looking at the [Findings
of Fact (FOF), Conclusions of Law (COL)] and order, the
[Supplemental EIS] has not been addressed by the hearings
officer. So to that extent the Court will remand it with
instructions to address the issue of [a Supplemental EIS].

6 In Ka Paʻakai O Ka ‘Āina v. Land Use Comm'n, State of Hawaiʻi, 94
Hawaiʻi 31, 7 P.3d 1068 (2000), the Hawaiʻi Supreme Court addressed whether
the circuit court lacked jurisdiction to consider the appeals of Ka Paʻakai
and Plan to Protect. The supreme court held that the parties were "persons
aggrieved within the meaning of HRS § 91-14[.]" Id. at 44, 7 P.3d at 1081
(cleaned up). The court explained "[w]ith regard to native Hawaiian
standing, this court has stressed that the rights of native Hawaiians are a
matter of great public concern in Hawaiʻi." Id. at 42, 7 P.3d at 1079
(citation, internal quotation marks, and brackets omitted). And, "where the
interests at stake are in the realm of environmental concerns, we have not
been inclined to foreclose challenges to administrative determinations
through restrictive applications of standing requirements." Id. (cleaned
up).

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So it's up to the agency to address as to whether or not
supplemental statement is warranted.

The Court will not reopen it to take in new evidence,
because I believe the evidence -- substantial evidence has
been presented both for and against the [Use Permit] with
respect to, for example, the monk seal, the berm, the
pollution, the limu. All of that have been raised during
the context of the contested case proceeding. So for the
Board to determine, based upon the evidence that have been
presented, whether or not [a Supplemental EIS] is
warranted. So therefore, to remand it back to the Board to
make the determination as to whether or not [a Supplemental
EIS] is warranted, based upon the evidence presented
through the contested case proceeding.

So the Court is not going to reopen it for to taking
in new evidence, but for the Board to determine whether or
not one is warranted. Once that determination is made,
then you may be able -- you may be probably coming back
here to appeal that decision one way or the other. Because
either the Board is going to say it's warranted, or it's
not warranted, based on the evidence that was presented.

So the Court envisions to remand it just for that
specific purpose. Not to reopen. And to allow the Board
to perhaps file a supplemental to what has been issued, to
address the [Supplemental EIS].

(Formatting altered and emphases added.) Wo's counsel, David

Kimo Frankel (Mr. Frankel), then asked Judge Nishimura to

clarify the stay and whether the circuit court had jurisdiction:

[Mr. Frankel:] So I would like to ask that the
permit be stayed until we come back to you. You know, for
example, if they say -- if they say [a Supplemental EIS]
needs to be done, then to me the permit actually needs to
be vacated and we have to go. But if they say the
opposite, that no [Supplemental EIS] needs to be done, we
want to come before you to argue. But we don't want them
to start construction before we have a chance to argue
before you. So just procedurally we need to know, do you
still have jurisdiction?

[Judge Nishimura:] I would think so.

[Mr. Frankel:] Okay. So the stay --

[Judge Nishimura:] Because I'm remanding it. I'm
not affirming, vacating or reversing. I'm remanding it.

[Mr. Frankel:] Okay. So the stay will continue
until you have an opportunity to make another decision.

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[Judge Nishimura:] Right. Because it depends upon
what they -- what's determined regarding the [Supplemental
EIS]. You know, they may take a look and -- look at the
evidence from a different perspective, based upon the --
under the HAR provision.

(Formatting altered and emphases added.)

In her December 30, 2014 written order, Judge

Nishimura explained that the Supplemental EIS issue "was timely

raised during the course of the contested case hearing" and the

Board "did not address this issue in its decision." The written

order remanded the case to the Board, ordered the Board to

determine whether a Supplemental EIS was necessary based on the

existing evidence, and clarified that the circuit court retained

jurisdiction over the case:

1. This Court remands this case to the [Board] to
determine whether a [Supplemental EIS] should be
prepared for the Kaloʻi Gulch drainage project.

2. On remand, the contested case hearing shall not be re-
opened and no new evidence shall be submitted. Rather,
based on the evidence that has already been submitted,
the [Board] shall determine, after hearing from the
parties, whether a [Supplemental EIS] is necessary and
shall provide its reasoning in the form of supplemental
written findings, conclusions, decision and order.

3. The permit granted by the [Board] is stayed until this
Court has an opportunity to review the [Board's]
Findings of Fact, Conclusions of Law, and Decision and
Order Dated June 13, 2014 after the Board renders a
decision on the [Supplemental EIS] issue. Appellees
may not engage in any land alteration or construction
activity pursuant to conservation district use permit
OA-3604 for the Kaloʻi Gulch drainage project until
this stay is lifted by this Court.

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4. This court retains jurisdiction over this case, orders
the parties to inform this Court of the [Board's]
decision on remand, and awaits the filing of any
appropriate motions.

(Emphases added.)

C. BLNR - Remand

On remand, the Board held oral arguments in March

2015. With several new board members, the Board requested to

visit the site, and the parties agreed they should request

permission from Judge Nishimura. Judge Nishimura granted

permission, and BLNR visited the site. Pending BLNR's decision,

the following occurred:

1. BLNR - Motion to Substitute

On September 17, 2015, Wo moved the Board to expedite

its decision on whether a Supplemental EIS was required and to

promptly order substitution of KUA in his place. In Wo's

affidavit attached to his motion, Wo explained he was "diagnosed

with mesothelioma, which is incurable." He stated he wished to

"assign/transfer/bequeath my interest in this proceeding to"

KUA, should something happen to him before the Board rendered a

decision. He also explained he was working closely with KUA, to

pass on his knowledge and skills to a new generation, and with

KUA's executive director, Kevin Chang (Chang), to perpetuate the

tradition of gathering limu.

Also attached to the motion was a declaration by

Chang, explaining that "KUA is an innovative, community-based

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initiative for protecting, restoring and caring for Hawai‘i."

Chang also explained Wo was "a founding kupuna of KUA" and

helped organize a limu hui. Chang stated "KUA empowers

communities to improve their quality of life through caring for

their biocultural (natural and cultural) heritage" and its

"vision is ‘āina momona - abundant and healthy ecological systems

in Hawai‘i that contribute to community well-being."

Chang noted "KUA, through staff and volunteers,

attended all of the contested case hearing" and he "was in

attendance for almost the entire proceeding." Chang stated Wo

asked KUA to "grab the ‘auamo for him; that we step into his

tabis," and "[w]e are willing to substitute" in Wo's place.

Wo passed away two days after the motion to expedite

and substitute was filed.

2. Circuit Court - Suggestion of Death

On September 25, 2015, six days after Wo's death, UH

filed a "Suggestion of Death Upon the Record Under" Hawai‘i Rules

of Civil Procedure (HRCP) Rule 25(a)(1). 7

7 HRCP Rule 25(a)(1) provides:

If a party dies and the claim is not thereby
extinguished, the court may order substitution of the
proper parties. The motion for substitution may be made by
any party or by the successors or representatives of the
deceased party and, together with the notice hearing, shall
be served on the parties as provided in Rule 5 and upon
persons not parties in the manner provided in Rule 4 for

(continued . . .)

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Three days later, Judge Nishimura notified the parties

that a status conference would be held on October 2, 2015.

According to the October 2, 2015 circuit court

minutes, the status conference with Judge Nishimura was "IN

CHAMBERS -- OFF RECORD." The minutes also note that present

were "David Frankel/For Appellant Wo[,] Linda Chow/For BLNR[,]

Don Kitaoka/For City and County[,] Lisa Munger/For UH[,] Yvonne

Izu/For Haseko[, and] Craig Iha/for DLNR." (Formatting

altered.) The minutes do not provide information on what

transpired during the conference, and do not indicate Judge

Nishimura entered an order.

3. BLNR - Motion to Substitute

Back before the Board, on October 23, 2015, Applicants

filed a "Joint Memorandum in Opposition to Motion to Expedite

and Substitute." Applicants argued that the Board lacked

jurisdiction to substitute KUA because the substitution was "not

within the scope of the Remand Order." Applicants also argued

(. . . continued)

the service of a summons, and may be served in any judicial
district. Unless the motion for substitution is made not
later than 120 days after the death is suggested upon the
record by service of a statement of the fact of the death
as provided herein or the service of the motion, the action
shall be dismissed as to the deceased party.

(Emphases added.) See HRCP Rule 81(e) (providing that the HRCP "shall apply
to any proceedings in a circuit court pursuant to appeal to the circuit court
from a governmental official or body (other than a court), except as
otherwise provided in Rule 72").

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that KUA was not the proper party to substitute because HRCP

Rule 25 controls and not HAR § 13-1-19 (Amended 2009) and, thus,

"substitution of parties is allowed when the rights that resided

in the original party have been transferred to the substituted

party."

Four days later, Wo and KUA filed a reply. Wo and KUA

asserted that Applicants "failed to inform the BLNR that at that

[October 2, 2015] conference, Judge Nishimura agreed to await

the BLNR's decision on this pending motion and that her

inclination was to allow substitution to take place." Wo and

KUA further asserted that "it [was] perfectly appropriate for

the BLNR to rule on the September 17, 2015 motion. And in fact,

Judge Nishimura expects nothing less, as she made clear in

chambers."

On November 4, 2015, Applicants filed a joint

surreply. In their surreply, Applicants stated they "take

strong exception to [Native Hawaiian Legal Corporation's]

characterization of what transpired during the conference before

Judge Nishimura" and "[a]t no time during the conference did

Judge Nishimura express an 'inclination . . . to allow

substitution to take place.'" Applicants further stated that

Judge Nishimura indicated

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"an inclination to have the Board, rather than
herself, render a decision on the motion to
substitute. She later clarified, however, that
the question of whether the Board had
jurisdiction to entertain the motion was not
closed, and that the parties were free to argue
that issue to the Board."

(Emphases added.)

Applicants attached declarations from Yvonne Izu

(Ms. Izu) and Lisa Bail (Ms. Bail), attorneys for Haseko and UH,

respectively. Ms. Izu declared that "[a]t no time during the

Status Conference did Judge Nishimura indicate or even suggest

an inclination on how she would rule if the Motion to Substitute

were before her." Ms. Izu also declared that, while discussing

jurisdiction of the Board and the circuit court, "Judge

Nishimura at one point did indicate an inclination to have the

Board, rather than herself, render a decision on the motion to

substitute" and "[s]he later clarified, however, that the

question of whether the Board had jurisdiction to entertain the

motion was not closed, and that the parties were free to argue

that issue to the Board." (Emphases added.) Ms. Bail's

declaration did not mention what transpired at the status

conference.

Mr. Frankel then filed a declaration responding to

Applicants' surreply stating, "[i]n our conversation, Judge

Nishimura said, 'I would grant it.' Although the word 'it'

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could be construed as ambiguous, the context of the conversation

was substitution." Mr. Frankel also stated counsel for BLNR,

Deputy Attorney General Linda Chow (DAG Chow), "attended that

meeting and can offer her own interpretation of what Judge

Nishimura said."

On December 16, 2015, the Board granted Wo's request

to substitute KUA pursuant to HAR § 13-1-19, but denied Wo's

request to expedite its decision indicating it would complete

its review "in due course."

4. Circuit Court - Response to Suggestion of Death

On January 6, 2016, 103 days after UH filed the

suggestion of death in circuit court, Wo and KUA filed a

"Response to [UH's] Suggestion of Death Upon the Record Under"

HRCP Rule 25(a)(1). Wo and KUA stated, "The sole purpose of

this notice is to advise this Court that on December 16, 2015,

the BLNR granted the motion to substitute KUA in place of [Wo]

pursuant to HAR § 13-1-19. . . . The case remains before the

BLNR on remand to render its determination as to whether [a

Supplemental EIS] is necessary."

January 25, 2016 marked 120 days since UH filed its

suggestion of death informing Judge Nishimura that Wo died,

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which would trigger the dismissal of a case as to a decedent if

no motion to substitute was filed under HRCP Rule 25(a)(1). 8

5. BLNR - Decision

On February 27, 2017, the Board issued its "Findings

of Fact, Conclusions of Law, and Decision and Order Re Request

for Supplemental Environmental Impact Statement" denying Wo's

request for a Supplemental EIS. In FOF 4, the Board found that

"[t]he Remand Order remanded the case to the Board for the

limited purpose of determining whether [a Supplemental EIS]

should be prepared for the Kalo‘i Gulch drainage project. Except

for the limited remand, the First Circuit Court retained

jurisdiction over this case." In FOF 12, the Board further

found, "After the death of . . . Wo, the First Circuit Court

permitted the substitution of [KUA] in place of . . . Wo."

D. Circuit Court - Return from Remand

1. Judge Nishimura

On March 16, 2017, a notice of BLNR's "Findings of

Fact, Conclusions of Law, and Decision and Order Re Request for

Supplemental Environmental Impact Statement" was filed in the

circuit court.

8 Actually, January 23, 2016 marked 120 calendar days since UH filed
its suggestion of death. However, pursuant to HRCP Rule 6(a), if the last
day of a time period falls on a Saturday, Sunday, or holiday, "the period
runs until the end of the next day which is not a Saturday, a Sunday or a
holiday." January 23, 2016 was a Saturday, thus the 120-day period would
have been extended to Monday, January 25, 2016.

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On April 24, 2017, 455 days after triggering an HRCP

Rule 25(a)(1) dismissal based on UH's suggestion of death, the

court minutes note "STATUS CONFERENCE HELD IN CHAMBERS. PTYS TO

STIPULATE TO A BRIEFING SCHEDULE." Present were "Camille

Kalama/For Appellant[,] Don Kitaoka/For City and County[,] Lisa

Munger & Christine Terada/For UH[,] Yvonne Izu/For Haseko[,]

Craig Iha/For DLNR[, and] William Wynhoff/For BLNR & DLNR[.]"

(Formatting altered.) These minutes do not mention the

substitution.

On June 20, 2017, a stipulation to supplement the

certified record on appeal was filed.

2. Judge Hiraoka

On July 11, 2017, 533 days after triggering an HRCP

Rule 25(a)(1) dismissal based on UH's suggestion of death, the

case was reassigned from Judge Nishimura to the Honorable

Keith K. Hiraoka.

On July 20, 2017, nine days after the reassignment

from Judge Nishimura to Judge Hiraoka, UH moved to dismiss Wo's

notice of appeal based on the failure to file a motion to

substitute in the circuit court. UH reiterated Judge

Nishimura's instructions to the Board on remand and asserted

that "[i]n direct contravention of these express instructions,

the Board granted a motion for substitution filed on behalf of

KUA. The Board had no authority to grant the motion for

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substitution, and its order affords no substitute for compliance

with the requirements of HRCP Rule 25(a)(1)." (Footnote

omitted.) UH further argued KUA was not a proper party for

substitution because "Wo's standing was based on personal

interests and rights." (Formatting altered.) UH asserted that

the Board "incorrectly concluded, 'After the death of . . . Wo,

the First Circuit Court permitted the substitution of [KUA] in

place of . . . Wo.'"

The Honolulu Planning Department joined UH's motion to

dismiss; the other applicants did not. KUA opposed UH's motion

to dismiss.

On September 20, 2017, Judge Hiraoka held a hearing on

the motion. The hearing began with Judge Hiraoka asking the

Board's counsel, DAG Chow, about the Board seeking Judge

Nishimura's permission to visit the site but not seeking

permission to substitute parties:

[Judge Hiraoka:] The counsel for the Land Board, why
did the Board feel it was necessary to move the Circuit
Court for leave to conduct a site visit?

[DAG Chow:] Because at that time, there had been a
previous site visit, I believe, and I may be confusing the
first case with the second case, but there had been
previous site visits that had been conducted, but the Land
Board members who were, a lot of them were new, had not had
an opportunity to see the site or were not familiar with
the site, and they had wanted to be able to see that even
if in connection with the limited purpose of the remand,
and so because that would be taking in evidence that was
not part of the prior contested case, we felt that it would
be better to get leave of the court for that limited
purpose.

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[Judge Hiraoka:] Based on the terms of the remand
order?

[DAG Chow:] Yes.

[Judge Hiraoka:] Why did the Land Board not seek
Circuit Court approval to substitute the parties upon
[Wo's] impending death?

[DAG Chow:] Because they thought that that was not
taking in new evidence per se pertaining to the subject
matter of the contested case but that it was more in terms
of just a, not really a ministerial duty because, of
course, there is a discretion that is exercised with that,
but that it was ancillary to the subject matter of the
contested case and that it was properly within the
jurisdiction to do it.

[Judge Hiraoka:] And the Board did consider
evidence, didn't it?

[DAG Chow:] The evidence it considered was based on
the standing for the substitution but solely for that
purpose.

[Judge Hiraoka:] Yes, but the Board considered new
evidence in the form of declarations from [Wo] and [Chang]?

[DAG Chow:] Correct.

(Formatting altered.)

New counsel for Wo and KUA, Camille Kalama

(Ms. Kalama), argued that there was "no dispute among the

parties that [Judge Nishimura] was aware and had indicated that

she would allow the Board to make a decision on" the motion to

substitute. Ms. Kalama also requested that if the circuit court

determined Wo should have followed HRCP Rule 25(a)(1), the time

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"be enlarged for excusable neglect." 9 Ms. Kalama requested the

circuit court "allow time for us to satisfy that rule and not to

impose such a draconian penalty . . . ."

Following a discussion with the parties on HRCP

Rule 25, enlarging the time to file a motion based on excusable

neglect, and transfer of rights, Judge Hiraoka ruled in UH's

favor. Judge Hiraoka (1) explained Wo's standing was based on

his personal Native Hawaiian rights and Wo's counsel made a

strategic decision to file a motion to substitute before the

Board rather than file an HRCP Rule 25(a)(1) motion in circuit

court, (2) denied the motion to enlarge the time to file an HRCP

Rule 25(a)(1) motion to substitute with the circuit court, and

(3) dismissed the appeal:

The issue of organizational standing, the Court
doesn't consider to be dispositive because even if [KUA]
would have had standing to bring its own proceeding before
the Board, . . . the case before the Court was one brought
by [Wo] based on his personal Native Hawaiian rights. When
[Wo] passed away or shortly before, his then counsel made a
strategic decision. Rather than filing [an HRCP] Rule 25
motion in the Circuit Court which had jurisdiction over the

9 HRCP Rule 6(b) provides in relevant part:

Enlargement. When by these rules or by a notice given
thereunder or by order of court an act is required or
allowed to be done at or within a specified time, the court
for cause shown may at any time in its discretion . . .
upon motion made after the expiration of the specified
period permit the act to be done where the failure to act
was the result of excusable neglect; but it may not extend
the time for taking any action under Rules 50(b)[,] 52(b),
59(b), (d)[,] and (e) and 60(b) of these rules and
Rule 4(a) of the Hawai‘i Rules of Appellate Procedure,
except to the extend and under the conditions stated in
them.

(Emphasis added.)

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entire case, he decided, he made the tactical decision to
file a motion before the Land Board in a proceeding in
which the final order had not been reopened and was
specifically not reopened by the Circuit Court's temporary
remand.

And so because it was a strategic or tactical
decision, the Court does not believe excusable neglect can
be shown, so that's why the Court is going to deny the
request for a continuance under [HRCP Rule] 6(b) or any
other authority to file [an HRCP] Rule 25 motion.

And the Court has struggled with the equities of this
case because it does present very compelling equities, but
the Court is constrained because the rule of law must be
applied equally to all parties, and the issue of
jurisdiction, subject matter jurisdiction, can be raised at
any time, even on appeal for the first time, because it's
not waivable.

The Court rules that the Land Board did not have
jurisdiction to substitute [KUA] for [Wo] because the
Circuit Court retained jurisdiction over the entire case.
Since [an HRCP] Rule 25 motion was not filed in Circuit
Court within 120 days of the filing of the suggestion of
death, the appeal was abated, and therefore, the Motion to
Dismiss is granted.

Ms. Munger, since you represent the prevailing party,
could you please prepare the order, and the order need not
recite Findings or Conclusions. It is not the Court's
intent to make them. The Court just wanted to explain for
everyone present the thought process that the Court went
through in reaching this very difficult decision.

KUA timely appealed to this court.

II. STANDARDS OF REVIEW

"In [a] secondary appeal, this court applies the

standards of HRS § 91-14(g) to determine whether the circuit

court's decision was right or wrong." Mauna Kea Anaina Hou v.

Bd. of Land & Nat. Res., 136 Hawaiʻi 376, 388, 363 P.3d 224, 236

(2015). HRS § 91-14(g) (Supp. 2016) provides:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the

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petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:

(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

(Formatting altered.)

The denial of an HRCP Rule 6(b) extension is reviewed

for an abuse of discretion. Kapahu v. Sam's Club West, Inc.,

139 Hawai‘i 36, 383 P.3d 139, No. CAAP-XX-XXXXXXX, 2016 WL

4555856 at *4 (App. Aug. 31, 2016) (mem. op.). Abuse of

discretion occurs if the court has "clearly exceeded the bounds

of reason or disregarded rules or principles of law or practice

to the substantial detriment of a party litigant." Amfac, Inc.

v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10,

26 (1992).

III. DISCUSSION

In challenging the dismissal of Wo's case, KUA argues,

inter alia, that (1) the Board could not have complied with the

remand order without substituting Wo, and (2) if HRCP

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Rule 25(a)(1) applied, the circuit court "abused its discretion

by refusing KUA's request to enlarge time to substitute pursuant

to HRCP [Rule] 6(b)." 10 (Formatting altered.) Applicants, on

the other hand, contend that the circuit court's dismissal was

proper because the Board lacked jurisdiction to substitute KUA

in Wo's place and HRCP Rule 25(a)(1) applied. 11

A. The Board's consideration of the motion to substitute did
not require dismissal of the appeal.

KUA explains that Judge Nishimura "indicated that the

[Board] should decide that issue 'in the first instance.'"

KUA argues that "[h]aving full knowledge then of the Motion to

Expedite and Substitute still pending before the [Board], she

could have objected, but did not object, to the [Board] acting

on the motion and easily notified the parties then of any

contrary reading of her limited remand order." Applicants argue

10 We note that KUA mainly argues the circuit court failed to recognize
BLNR's "primary jurisdiction." KUA also argues Applicants failed to serve
nonparties with the suggestion of death. Because we vacate and remand for
reasons discussed below, we need not address these arguments.

11 Applicants also correctly point out that KUA's opening brief fails
to comply with HRAP Rule 28(b).

In its points of error, KUA challenges specific findings of fact and
conclusions of law, but does not address these findings and conclusions in
the argument section of its opening brief. See HRAP Rules 28(b)(4) and (7).
Instead, KUA appears to address these findings and conclusions in the context
of its broader arguments. We address KUA's challenged findings and
conclusions in the same manner.

In addition, though KUA's arguments are not presented as points of
error, the appellate courts have "consistently adhered to the policy of
affording litigants the opportunity 'to have their cases heard on the merits
where possible.'" Morgan v. Plan. Dep't, Cnty. of Kauaʻi, 104 Hawaiʻi 173,
180-81, 86 P.3d 982, 989-90 (2004) (citation omitted).

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that "the Board lacked jurisdiction to substitute KUA for [Wo]

during remand." (Formatting altered.)

Under HRS § 91-14, the circuit court may affirm,

reverse, or modify the Board's decision, or "remand the case

with instructions for further proceedings[.]" HRS § 91-14(g).

"Where a court remands a matter to an agency for the purpose of

conducting a contested case hearing, the court may reserve

jurisdiction . . . ." HRS § 91-14(i) (Supp. 2016).

As HRS §§ 91-14(g) and (i) permit, Judge Nishimura

remanded the case, instructing the Board to determine whether a

Supplemental EIS was warranted based on the existing record

without taking new evidence, while retaining jurisdiction over

the appeal.

At this point, it is essential to recognize that this

appeal is not about jurisdiction per se because Judge Nishimura

explicitly retained jurisdiction over the case. Instead, this

appeal concerns the authority Judge Nishimura bestowed upon the

Board on remand. To determine whether the Board acted within

its authority as permitted by Judge Nishimura, we consider all

relevant circumstances.

Judge Nishimura remanded the case for the limited

purpose of determining whether a Supplemental EIS was warranted,

and ordered no new evidence be taken in making that

determination. Even when taking this into consideration, the

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record before this court demonstrates that Judge Nishimura

nonetheless permitted the Board to decide the motion to

substitute.

Following an in-chambers conference with Judge

Nishimura held seven days after UH filed its HRCP Rule 25(a)(1)

suggestion of death, the parties actively litigated the

substitution issue before the Board. Applicants filed an

opposition to Wo's motion to substitute arguing lack of

jurisdiction, Wo filed a reply, Applicants filed a surreply, and

Mr. Frankel filed a declaration in response to the surreply.

Based on the litigation before the Board surrounding the

substitution issue, it may be reasonably inferred that the

parties understood that the Board would hear the substitution

issue and Applicants were free to argue the Board's authority in

opposing the motion.

Ms. Izu's declaration supports this inference, as she

stated, "Judge Nishimura at one point did indicate an

inclination to have the Board, rather than herself, render a

decision on the motion to substitute" and "[s]he later

clarified, however, that the question of whether the Board had

jurisdiction to entertain the motion was not closed, and that

the parties were free to argue that issue to the Board."

(Emphasis added.)

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In addition, Applicants filed no HRCP Rule 25(a)(1)

motion to dismiss during the 533 days between January 25, 2016

(120 days since the suggestion of death) and July 11, 2017

(reassignment order) while Judge Nishimura presided over the

appeal. During those 533 days, the Board issued its decision

that a Supplemental EIS was not warranted, the Board filed a

notice of its decision with Judge Nishimura, Judge Nishimura

held a status conference with all parties attending, and the

parties stipulated to supplement the certified record. And,

Applicants made no motion to dismiss based on HRCP

Rule 25(a)(1).

Although Applicants took no action within those 533

days to request Judge Nishimura dismiss the appeal, it only took

nine days for UH to request an HRCP Rule 25(a)(1) dismissal

after the case was reassigned to Judge Hiraoka.

When considering Judge Nishimura set the parameters of

the Board's review on remand and (1) the parties actively

litigated the substitution issue before the Board,

(2) Applicants did not request Judge Nishimura dismiss the

appeal pursuant to HRCP Rule 25(a)(1) during those 533 days she

presided over the appeal, and (3) deciding the Supplemental EIS

issue innately required determining whether the issue was moot

after Wo's death, it is reasonable to infer that the Board acted

within the authority granted by Judge Nishimura.

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Thus, as governed by the standard of review in HRS

§ 91-14(g), we hold that the Board deciding the motion to

substitute did not require an HRCP Rule 25(a)(1) dismissal of

the appeal.

B. The Board's substitution of parties was supported by good
cause.

KUA argues good cause existed to substitute it in Wo's

place, while Applicants argue the good cause standard did not

apply because the Board had no jurisdiction.

As discussed above, it is reasonable to infer the

Board acted within the authority granted by Judge Nishimura.

Turning to good cause, HAR § 13-1-19 guides the

Board's substitution of parties, providing that "[u]pon motion

and for good cause shown, the board may order substitution of

parties; provided that in case of death of a party, substitution

may be ordered without filing of a motion." "It is not possible

to provide one definition of 'good cause,' as standards

governing whether 'good cause' exists depend not only upon the

circumstances of the individual case, but also upon the specific

court rule at issue." Chen v. Mah, 146 Hawai‘i 157, 178, 457

P.3d 796, 817 (2020). "Good cause depends upon the

circumstances of the individual case, and a finding of its

existence lies largely in the discretion of the officer or court

to which the decision is committed." Id. (cleaned up).

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Here, while the decision on the Supplemental EIS was

pending before the Board, Wo moved to substitute KUA in his

place due to his mesothelioma diagnosis. KUA indicated it was

willing and able to take Wo's place in the suit. Two days

later, Wo passed away.

The substitution was fully litigated before the Board

with Applicants arguing, inter alia, that the Board lacked

jurisdiction to entertain the motion. The Board granted Wo's

motion to substitute finding "good cause appearing therefrom[.]"

Considering Wo's death, KUA's willingness to

substitute, and the environmental concerns raised regarding the

impact of runoff into our oceans should Applicant's use permit

be granted, good cause existed for the substitution. See Ka

Paʻakai O Ka ‘Āina v. Land Use Comm'n, State of Hawaiʻi, 94

Hawaiʻi 31, 42, 7 P.3d 1068, 1079 (2000) (explaining "where the

interests at stake are in the realm of environmental concerns,

'we have not been inclined to foreclose challenges to

administrative determinations through restrictive applications

of standing requirements'" (citation and brackets omitted)).

And by allowing the parties to fully litigate the

motion to substitute, including whether the Board had the

authority to entertain the motion, we cannot say the Board

clearly exceeded the bounds of reason or disregard rules or

principles of law or practice. Amfac, 74 Haw. at 114, 839 P.2d

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at 26. Based on HAR § 13-1-19, the Board did not abuse its

discretion in substituting KUA in place of Wo. See id.

Thus, as governed by the standard of review in HRS

§ 91-14(g), we hold that the Board's substituting KUA in Wo's

place did not require dismissal of the appeal under HRCP

Rule 25(a)(1).

C. The circuit court abused its discretion by denying KUA's
request to enlarge time.

Even if HRCP Rule 25(a)(1) applied in this case, we

hold that the circuit court abused its discretion by denying

Wo's request to enlarge the time for filing a motion to

substitute with the circuit court based on excusable neglect.

"The 120-day time period provided for in HRCP

Rule 25(a)(1) is subject to extension under HRCP Rule 6(b), at

the discretion of the circuit court." Kapahu, 2016 WL 4555856

at *4 (citation and brackets omitted). HRCP Rule 6(b)(2) allows

for enlargement of time to file a motion where the failure to

timely file was the result of excusable neglect:

When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to be
done at or within a specified time, the court for cause
shown may at any time in its discretion . . . upon motion
made after the expiration of the specified period permit
the act to be done where the failure to act was the result
of excusable neglect . . . .

(Emphasis added.)

"Courts generally have given Rule 6(b) a liberal

interpretation . . . in order to work substantial justice

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. . . ." Bagalay v. Lahaina Restoration Found., 60 Haw. 125,

141, 588 P.2d 416, 426 (1978) (applying HRCP Rule 6(b) to the

HRCP Rule 25 time period, utilizing the framework for the

substantially identical Federal Rules of Civil Procedure

Rules 6(b) and 25(a)). "Ordinarily, the discretion of the court

should be exercised to permit an extension of time, in the

absence of a showing of bad faith on the part of the movant for

substitution or undue prejudice to the other parties to the

action." Id. (emphases added); see JK v. DK, 153 Hawai‘i 268,

275, 278, 533 P.3d 1215, 1222, 1225 (2023) (explaining that

excusable neglect in the context of default judgment is

determined by considering "all relevant circumstances," and when

considering undue prejudice, the court looks at "prospective

prejudice"). "The burden is on the movant to demonstrate good

faith and to show some reasonable basis for noncompliance with

the rules." Bagalay, 60 Haw. at 141, 588 P.2d at 426.

When Wo's condition became apparent, the parties were

litigating before the Board whether a Supplemental EIS was

warranted. So, it was reasonable for Wo to request substitution

from the Board. See generally, 60 Haw. at 141, 588 P.2d at 426.

Doing so did not rise to the level of bad faith. See generally,

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id. And Applicants did not claim prospective undue prejudice

before the Board. 12

As discussed above, Judge Nishimura set the parameters

of what the Board could review on remand. Through the

suggestion of death and the in-chambers conference, Judge

Nishimura was aware of the pending motion to substitute before

the Board. Judge Nishimura was also aware of the Board's

substitution based on the notice of substitution and the Board's

decision denying a Supplemental EIS. And Applicants did not

move for an HRCP Rule 25(a)(1) dismissal in the 533 days between

January 25, 2016 (120 days since the suggestion of death) and

July 11, 2017 (reassignment order) that Judge Nishimura presided

over the appeal.

Based on these circumstances, there was no evidence

showing Wo's counsel engaged in bad faith. Rather, it appears

Wo's counsel litigated the motion to substitute before the Board

on a good faith belief that Judge Nishimura intended the matter

be litigated before the Board.

The determination that the motion to substitute before

the Board was strategic was insufficient to show bad faith or

undue prejudice. Denying the request for an HRCP Rule 6(b)

12 Applicants claim on appeal to this court that they "would have been
prejudiced if the circuit court granted an extension to KUA pursuant to
[HRCP] Rule 6(b)," but do not provide a valid basis to support this claim.
(Formatting altered.)

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enlargement of time to file a substitution motion without bad

faith or undue prejudice was an abuse of discretion as it

disregarded rules or principles of law to KUA's substantial

detriment.

IV. CONCLUSION

Based on the foregoing, we vacate the circuit court's

October 3, 2017 order granting UH's motion to dismiss Wo's

appeal and the November 7, 2017 Final Judgment, and remand this

case to the circuit court for further proceedings consistent

with this memorandum opinion.

DATED: Honolulu, Hawaiʻi, November 8, 2023.

On the briefs: /s/ Sonja M.P. McCullen
Presiding Judge
Summer L.H. Sylva,
Alan T. Murakami, /s/ Jeannette H. Castagnetti
for Party in Interest- Circuit Court Judge
Appellant Kua‘āina Ulu ʻAuamo.
/s/ Paul B.K. Wong
Carrie K.S. Okinaga, Circuit Court Judge
University General Counsel,
Bruce Y. Matsui,
Office of the General
Counsel,
University of Hawaiʻi

and

Lisa Woods Munger,
Lisa A. Bail,
Christine A. Terada,
(Goodsill Anderson Quinn &
Stifel),
for Appellee-Appellee
University of Hawaiʻi.

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Angela Fong,
Yvonne Y. Izu,
(Morihara Lau & Fong, LLP),
for Appellee-Appellee
Haseko (Ewa), Inc.

Donna Y.L. Leong,
Corporation Counsel,
Brad T. Saito,
Deputy Corporation Counsel,
for Appellee-Appellee City
and County of Honolulu,
Department of Planning and
Permitting.

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