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EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

The Protection of the Environment, Cultural Resources, and Quality of Life in Hawaii State Court by David Kimo Frankel

OF NOTE

HSBA Happenings

President P. Gregory Frey

Notices of Discipline

President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni

Court Briefs

Case Notes Off the Record

Treasurer Paul Naso

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President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

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Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

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Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

Protection The

of the Environment, Cultural Resources, and Quality of Life in Hawaii State Court by David Kimo Frankel

Among the natural resources designated for preservation, protection, and restoration are “recreational resources,” “historic resources,” “scenic and open space resources,” and “coastal ecosystems.” See HRS § 205A-2. In my view they constitute property “owned” by the public. Sandy Beach Defense Fund v, City Council, 70 Haw. 361, 389, 773 P.2d 250, 267 (1989)(Nakamura, J. dissenting) Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen. ... [B]efore these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard. Sierra Club v. Morton, 405 U.S. 727, 744-745 and 750, 92 S. Ct. 1361, 1371 and 1374 (1972) (Douglas, J. dissenting). 1

Despite the lamenting dissents of Justices Nakamura and Douglas, the doors of Hawaii state courts are open to protect resources so long as procedural obstacles are avoided. This article presents a broad overview of some of the basic issues in environmental cases in state court. It is not intended as a treatise on the substance of the state’s environmental laws.1 Nor does it describe specific cases in detail. Rather, it outlines how environmental cases are litigated. It discusses the typical claims brought to protect natural resources, cultural practices and quality of life. It highlights the procedural obstacles to bringing these claims to trial. It concludes by describing the relief available in these cases. CLAIMS2 Three types of claims can be brought to protect natural resources, cultural practices, and quality of life: common-law and equitable claims; constitutional claims; and violations of state statutes, charter provisions, ordinances, or rules.3 I.

A. Common-Law Claims For the purposes of protecting natural and cultural resources and our quality of life, there are five claims that are

Instead, see e.g. NATIVE HAWAIIAN LAW — A TREATISE (Melody Kapilialoha MacKenzie et al. eds., 2015); PROTECTING PARADISE: A CITIZEN’S GUIDE TO LAND & WATER USE CONTROLS IN HAWAII (1997). 2 Nearly fifty years ago, the Hawaii Supreme Court said that the term “cause of action” was “an outdated term not used in the Hawaii Rules of Civil Procedure.” Ellis v. Crockett, 51 Haw. 45, 47, 451 P.2d 814, 818 (1969). Nevertheless, the term’s use remains ubiquitous. 3 These are “claims upon which relief can be granted.” Rule 12(b)(6), Hawaii Rules of Civil Procedure.

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the most appropriate4: public nuisance; desecration of graves; interference or infringement with custom; harm to public trust property; and breach of trust. When traditional property interests or personal injury are involved with damage to the environment— subjects beyond the scope of this article — claims for nuisance,5 trespass,6 or negligence7 may be appropriate. 1. Public Nuisance A public nuisance is one that unreasonably interferes with a right common to the general public.8 A public nuisance includes that which “unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage . . . and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.”9 Public nuisances include: the obstruction of a public right of way;10 the destruction of cultural sites;11 the disturbance of burials;12 and the violation of zoning laws.13 2. Desecration of graves Claims based upon the desecration of graves have a long history.14

3. Interference with custom Although there are few cases which discuss the claim, interference or infringement with custom is a recognized common-law claim.15 4. Harm to public trust property The Hawaii Supreme Court has appeared to recognize the right to raise a claim of damage to public trust resources.16 5. Breach of trust The ceded lands trust, the Hawaiian Homes trust, and the public trust doctrine each impose trust obligations upon government entities. Breach of trust claims are well recognized by the courts as a part of their inherent jurisdiction.17 The ceded land trust18 requires the state to preserve and protect trust property19 and to prevent trust property from falling into ruin and from degradation.20 Similarly, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands must comply with basic trust principles, including protecting and preserving the Hawaiian Home Lands’ environmental assets and ensuring they are not harmed from interfering uses.21 The public trust

Of course, the creative litigator should consider other common law theories as well. “The common law system would have withered centuries ago had it lacked the ability to expand and adapt to the social, economic, and political changes inherent in a vibrant human society. The genius of the common law is its capacity for orderly growth.” Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 376, 441 P.2d 141 (1968). 5 See e.g. Fernandez v. People’s Ice & Refrigerating Co., 5 Haw. 532 (1886)(pollution); Cluney v. Lee Wai, 10 Haw. 319 (1896) (noise). 6 See e.g. Aana v. Pioneer Hi-Bred Intern., Inc., 965 F. Supp. 2d 1157 (D. Hawaii 2013). 7 Id. 8 Restatement 2d of Torts, § 821B. 9 Littleton v. State, 66 Haw. 55, 67, 656 P.2d 1336, 1344-5 (1982) (citing 58 Am.Jur. 2d Nuisances § 1 at 555.). 10 Akau v. Olohana Corp., 65 Haw. 383, 386, 652 P.2d 1130, 1133 (1982). 11 Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072, 1123 (S.D. Cal. 2008). 12 Beatty v. Kurtz, 27 U.S. 566, 584-585 (1829). 13 Marsland v. Pang, 5 Haw. App. 463, 701 P.2d 175 (1985); see also Kauai County Code § 8-24.1(d). 14 Sylva v. Wailuku Sugar Co., 19 Haw. 602, 609 and 615 (1909). See also St Peter’s Evan. Luth Ch. v. Kleinfelter, 96 Pa. Superior Ct. 146, 154 (1929); St. Peter’s Evangelical Lutheran Church v. Kleinfelter, 8 Pa. D. & C. 612, 1926 Pa. Dist. & Cnty. Dec. LEXIS 205 (Pa. C.P. 1926); Galletta v. Hillcrest Abbey W., 363 S.E.2d 265 (Ga. Ct. App. 1987); Whitt v. Hulsey, 519 So.2d 901 (Ala. 1987); Serv. Corp. Int’l v. Great Am. Ins. Co., 264 Fed. Appx. 431, 432 (5th Cir. Tex. 2008); Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227 (R.I. 1872); Perry v. Cullipher, 318 S.E.2d 354, 356 (N.C. Ct. App. 1984); Carney v. Smith, 437 S.W.2d 246 (Tenn. 1969); Roundtree v. Hutchinson, 107 P. 345 (Wash. 1910); Bennett v. 3 C Coal Co., 379 S.E.2d 388 (W. Va. 1989); Humphreys v. Bennett Oil Corp., 197 So. 222, 228 (La. 1940); Growth Properties I v. Cannon, 669 S.W.2d 447, 449 (Ark. 1984); Michels v. Crouch, 150 S.W.2d 111, 112 (Tex. Civ. App. 1941). 15 Akau v. Olohana Corp., 65 Haw. 383, 652 P.2d 1130 (1982); Twiss v. Baldwin, 9 Conn. 291, 303 (Conn. 1832)(“the plaintiff is entitled to judgment, if he has a right of common, and that right has been disturbed, by the defendant” “they prove a right, and that they have been disturbed in the enjoyment of it.”); Geller v. Huffaker, 1 Nev. 23, 25 (1865); “The Persistence Of The Ancient Regime: Custom, Utility, And The Common Law In The Nineteenth Century,” 79 CORNELL L. REV. 183 (discussing Mercer v. Denne, 1904 2 Ch. 534 (Farwell, J.), aff ’d, 1905 2 Ch. 538 (C.A.) Betts v. Thompson, 6 L.R.-Ch. App. 732 (1871), and Warrick v. Queen’s College, Oxford, 10 L.R.-Eq. 105 (1870)). 16 Akau v. Olohana Corp., 65 Haw. 383, 387-88, 652 P.2d 1130, 1134 (1982). 17 Kapiolani Park Preservation Soc’y v. Honolulu, 69 Haw. 569, 571,751 P.2d 1022, 1024 (1988). See also Pele Defense Fund v. Paty, 73 Haw. 578, 606, 837 P.2d 1247 (1992); and Kelly v. 1250 Oceanside Ptnrs, 111 Hawaii 205, 140 P.3d 985 (2006). 18 Hawaii State Constitution Article XII, § 4 and Article XI, § 1; Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019); State by Kobayashi v. Zimring, 58 Haw. 106 (1977); Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992). 19 Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019); State by Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d 725, 735 (1977). 20 Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019). 21 In re Waiola O Molokai, Inc., 103 Hawaii 401, 426, 83 P.3d 664, 689 (2004); Kepoo v. Watson, 87 Hawaii 91, 101, 952 P.2d 379, 389 (1998). 6 May 2020

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doctrine governs the management of all natural resources,22 and includes a panoply of duties.23 Because government entities (unlike private parties) have trust duties to the public, breach of trust claims involving natural and cultural resources are generally filed against government entities.24 B. Constitutional Claims Citizens have the right to sue the government over its violation of its constitutional duties25 (for prospective injunctive relief, but not for damages).26 Because the constitution constrains the conduct of government rather than private parties, constitutional claims generally can only be filed against government agencies and officials. The Hawaii Supreme Court has held that citizens can sue to enforce Hawaii State Constitution Article XII § 4 (ceded land trust obligations),27 §7 (duty to protect traditional and customary practices)28, and Article XI §§ 1 and 7 (public trust responsibilities).29 The procedural vehicle to bring constitutional challenges appears to be HRS chapter

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Morgan v. Planning Dep’t, 104 Hawaii 173, 184 n.12, 86 P.3d 982, 993 (2004); Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019). 23 Kauai Springs, Inc. v. Planning Comm’n of Kauai, 133 Hawaii 141, 174-75, 324 P.3d 951, 984-85 (2014); In Re Water Use Permit Applications, 94 Hawaii 97, 143, 9 P.3d 409, 455 (2000); Kelly v. 1250 Oceanside Ptnrs, 111 Hawaii 205, 140 P.3d 985 (2006); King v. Oahu Railway and Land Company, 11 Haw. 717 (1899). 24 Most breach of trust claims can also be characterized as violations of the Hawaii State Constitution. See next section. 25 The Hawaii Supreme Court has recognized the constitution can create a right of action. County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 408, 235 P.3d 1103, 1120 (2010). 26 Pele Def. Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992). 27 Pele Def. Fund v. Paty, 73 Haw. 578, 605, 837 P.2d 1247, 1263 (1992); Ching v. Case, 145 Hawai‘i 148, 449 P.3d 1146 (2019). See also HRS chapter 673 and HRS chapter 632. 28 Pele Def. Fund v. Paty, 73 Haw. 578, 614, 837 P.2d 1247, 1268 (1992). 29 Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019); Kelly v. 1250 Oceanside Ptnrs, 111 Hawaii 205, 140 P.3d 985 (2006).

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63230 — although HRS chapter 673 is available in certain limited circumstances. C. Claims Based on Violations of State Statutes, Charter Provisions, Ordinances, or Rules. Suits can be brought to enforce environmental statutes enacted by the state legislature, ordinances passed by the county councils, charter provisions approved by the people, and rules enacted by administrative agencies. Knowing which procedural vehicle may be best, however, can be challenging. 1. Environmental laws Although citizens generally cannot enforce legislation unless the legislature intended to provide a private right of action,31 the public can usually seek redress of violation of laws that protect our natural resources, cultural practices, and our quality of life.32 The legislature has provided for specific private rights of action in HRS §§ 6E-13 (historic preservation),33 464(a) (county zoning),34 128D-21 (hazardous substances), 195D-32 (endangered species), 205A-6 (coastal zone management), HRS § 342B-56 (air pollution), and 343-7 (environmental impact statements). These statutes, however, do not constitute the universe of environmental statutes which citizens can enforce. Article XI section 9 of the Hawaii State Constitution allows enforcement of 30

See e.g., Nelson v. Hawaiian Homes Comm’n, 127 Hawaii 185, 277 P.3d 279 (2012); Kahoohanohano v. State, 114 Hawaii 302, 162 P.3d 696 (2007); Ching v. Case, 145 Hawaii 148, 173 n.41 , 449 P3d 1146, 1171 n. 41 (2019). 31 Rees v. Carlisle, 113 Hawaii 446, 458, 153 P.3d 1131, 1143 (2007). 32 County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 235 P.3d 1103 (2010). 33 See e.g. Kaleikini v. Yoshioka, 124 Hawaii 53, 283 P.3d 60 (2012); Hall v. Department of Land and Natural Resources, 128 Hawaii 455, 290 P.3d 525 (ICA 2012). 34 Pavsek v. Sandvold, 127 Hawaii 390, 279 P.3d 55 (ICA 2012); Kaiser Hawaii Kai Development Co. v. City & County of Honolulu, 70 Haw. 480, 777 P.2d 244 (1989); Lum Yip Kee Ltd v. City & County, 70 Haw. 179, 767 P.2d 815 (1989). 8 May 2020

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all laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.35 The private right of action likely includes all the statutes identified by the legislature in HRS § 607-25(c).36 These statutes include those dealing with historic preservation (HRS chapter 6E),37 county planning and zoning (HRS § 46-4 and the county planning and zoning ordinances adopted pursuant thereto),38 county boards of water supply (HRS chapter 54), public lands (HRS chapter 171),39 the water code (HRS chapter 174C), soil erosion (HRS chapter 180C), forest reserves (HRS chapter 183), the conservation district (HRS chapter 183C), state parks (HRS chapter 184), natural area reserves (HRS chapter 195), endangered species (HRS chapter 195D),40 the state land-use law (HRS chapter 205),41 coastal zone management (HRS chapter 205A),42 harbors (HRS chapter 266),43 air pollution (HRS chapter 342B),44 water pollution (HRS chapter 342D), noise pollution (HRS chapter 342F), solid waste (HRS chapter 342H), hazardous waste (HRS chapter 34J), underground storage tanks (HRS chapter 342L), and environmental impact statements (HRS chapter 343).45 The identification of HRS chapter 46 in HRS § 60725(c) arguably allows citizen enforcement of a panoply of county ordinances that are all ultimately based on HRS chapter 46 — as well as county charter provisions.46 Given their environmental subject matter and their

identification in HRS § 604A-2 (environmental courts), a private right of action also likely exists to enforce statutes related to caves (HRS chapter 6D), Kahoolawe (HRS chapter 6K), hazardous substances (HRS chapter 128D),47 litter (HRS chapter 339), electronic waste (HRS chapter 339D), solid waste (HRS chapter 340A), drinking water (HRS chapter 340E), ozone (HRS chapter 342C), nonpoint source water pollution, (HRS chapter 342E), integrated solid waste management (HRS chapter 342G), lead acid batteries and tires (HRS chapter 342I), asbestos and lead (HRS chapter 342P), and environmental covenants (HRS chapter 508C), as well as all the conservation and resource statutes within HRS title 12. A private right of action likely applies to other environmental statutes, although not specifically identified in HRS § 607-25(c) or § 604A-2, including state planning (HRS chapter 226),48 pesticides (HRS chapter 149A),49 public access (HRS chapter 115), and all those statutes involved with reducing carbon emissions (portions of HRS chapters 196 and 269).50 2. Declaratory Actions Declaratory actions (HRS chapter 632) have been the procedural vehicle by which many environmental claims alleging violations of state statutes or county ordinances have been brought.51 Declaratory actions are typically filed —

County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 235 P.3d 1103 (2010). Id. at 410, 235 P.3d at 1122 37 Given the legislature’s determination in HRS §§ 607-25 and 604A-2 that HRS chapter 6E is a law relating to environmental quality, there should be no question that citizens can sue to enforce its provisions. In any case, HRS § 6E-13(b) provides explicit access to court. 38 In enacting what is now codified as HRS § 46-4 in 1957, the legislature cited the importance of the “conservation and development of all natural resources.” Act 234, 1957 Haw. Session Law at 253 and 257. 39 Natatorium Preservation Comm. v. Edelstein, 55 Haw. 55, 515 P.2d 621, 622 (1973); see also Pele Def. Fund v. Paty, 73 Haw. 578 n.17, 837 P.2d 1247 (1992). 40 But see more particularly HRS § 195D-32. 41 County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 235 P.3d 1103 (2010); Neighborhood Board v. State Land Use Commission, 64 Haw. 265, 639 P.2d 1097 (1982). 42 But see more particularly HRS § 205A-6. 43 Surely, that’s a legislative typographical error in HRS § 607-25. 44 But see more particularly HRS § 342B-56. 45 But see more particularly HRS § 343-7. 46 HRS § 46-1.5(1). See e.g. Hall v. City & County, 56 Haw. 121, 530 P.2d 737 (1975); Akahane v. Fasi, 58 Haw. 74, 565 P.2d 552 (1977). 47 But see more particularly HRS § 128D-21. 48 Long before the Ala Loop decision, the Supreme Court considered challenges to compliance with HRS chapter 226. Lum Yip Kee Ltd v. City & County, 70 Haw. 179, 767 P.2d 815 (1989); Kaiser Hawaii Kai Development Co. v. City & County of Honolulu, 70 Haw. 480, 777 P.2d 244 (1989). 49 See e.g. Conf-Com Rep. 5-72, 1972 Sen. Journal 748. In Aana v. Pioneer Hi-Bred Intern., Inc., 965 F. Supp. 2d 1157, 1175 (D. Haw. 2013), a federal district court claimed that HRS chapter 149A does not create a private right of action — without citing the Ala Loop decision or the legislative history of the act. It similarly opined that there was no private right of action to enforce HRS chapter 342B — completely ignoring the plain language of HRS § 342B-56. The federal court’s analysis is as unpersuasive as was Stop H-3 Association v. Lewis, 538 F. Supp. 149 (D. Haw. 1982) to the Hawaii Supreme Court in its Ala Loop decision. 50 In re Maui Electric, 141 Hawaii 249, 408 P.3d 1 (2017). 51 See e.g., Dalton v. City & County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969); Pele Defense Fund v. Puna Geothermal Venture, 9 Haw. App. 143, 827 P.2d 1149 (1992); Citizens for Protection of the North Kohala Coastline v. County of Hawaii, 91 Hawaii 94, 979 P.2d 1120 (1999); Hawaii’s Thousand Friends v. City & County of Honolulu, 75 Haw. 237, 858 P.2d 726 (1993); Sierra Club v. DOT, 115 Hawaii 299, 315 n.21, 167 P.3d 292, 308 n.21 (2007). But see Rees v. Carlisle, 113 Hawaii 446, 458, 153 P.3d 1131, 1143 (2007). 36

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and can only be filed — when an appeal cannot be filed pursuant to HRS chapter 91.52 3. HRS chapter 91 When government agencies and officials render decisions, these decisions are generally challenged pursuant to HRS chapter 91.53 These include: decisions regarding an agency’s rules; agency declaratory orders; decisions made after a contested case hearing; and decisions to deny (or effectively deny) a request for a contested case hearing. a.

Challenging the validity of a rule Challenges to the validity of an administrative rule are filed pursuant to HRS § 91-7.54 b.

Challenging a declaratory ruling The applicability of any statute, rule, or order is obtained by petitioning for a declaratory order. Challenges to an agency’s HRS § 91-8 declaratory order are filed pursuant to HRS § 91-14.55 c.

A brief detour: what is a contested case? A contested case hearing is a hearing that is 1) required by law and 2) determines the rights, duties, and privileges of specific parties. A contested case hearing is required if it is required by statute, agency rule, or constitutional due 52

process.56 If constitutionally protected environmental or cultural practices are adversely affected, a contested case hearing is required by law.57 The issue being contested in a contested case hearing is often misunderstood. Some contested case hearings challenge a director’s decision. For example, when a planning director makes a certain type of decision — that decision may be subject to a subsequent contested case hearing before an administrative body.58 On the other hand, a contested case hearing may challenge a developer’s application for a permit. Contested case hearings before the state land use commission, commission on water resource management, the board of land of natural resources and the planning commissions are usually contested cases on the developer’s application – not an agency decision or recommended decision.59 Enforcement actions by government agencies are a third type of contested case.60 d. Challenging the decision of a board or commission after a contested case hearing Cases challenging the decision of a government board or commission after the completion of a contested case hearing are brought as appeals pursuant to HRS § 91-14. Thus, for example, challenges to decisions in contested cases related to coastal zone management,61 the conservation

Punohu v. Sunn, 66 Haw. 485, 666 P.2d 1133, (1983); Kellberg v. Yuen, 131 Hawaii 513, 319 P.3d 432 (2014). There are, however, exceptions. See e.g., Kellberg v. Yuen, 131 Hawaii 513, 319 P.3d 432 (2014); Citizens for the Protection of the North Kohala Coastline v County of Hawaii, 91 Hawaii 94, 100, 979 P.2d 1120, 1126 (1991); Dalton v. City & County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969); Hawaii’s Thousand Friends v. City & County of Honolulu, 75 Haw. 237, 858 P.2d 726 (1993); Sierra Club v. DOT, 115 Hawaii 299, 315 n.21, 167 P.3d 292, 308 n.21 (2007); Umberger v. Dep’t of Land & Natural Res., 140 Hawaii 500, 403 P.3d 277 (2017). 54 See e.g., Asato v. Procurement Policy Board, 132 Hawaii 333, 322 P.3d 228 (2014). 55 Lingle v. HGEA, 107 Hawaii 178, 111 P.3d 587 (2005); Citizens Against Reckless Development v. Zoning Board of Appeals, 114 Hawaii 184, 159 P.3d 143 (2007); T-Mobile USA v. County of Hawaii Planning Commission, 106 Hawaii 343, 104 P.3d 930 (2005). 56 Pele Defense Fund v. Puna Geothermal Venture, 77 Hawaii 64, 881 P.2d 1210 (1994); Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawaii 376, 363 P.3d 224 (2015); Kilakila O Haleakala v. Bd of Land & Natural Res.,131 Hawaii 193, 317 P.3d 27, (2013); In re Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications & Petition, 128 Hawaii 228, 287 P.3d 129 (2012); Kaleikini v. Thielen, 124 Hawaii 1, 26, 237 P.3d 1067, 1092 (2010); Pub. Access Shoreline Haw. v. Haw. Cnty. Planning Comm’n, 79 Hawaii 425, 903 P.2d 1246 (1995). 57 In re Maui Electric, 141 Hawaii 249, 408 P.3d 1 (2017); Pele Defense Fund v. Puna Geothermal Venture, 77 Hawaii 64, 881 P.2d 1210 (1994); Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawaii 376, 363 P.3d 224 (2015). 58 See e.g. Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawaii 217, 236-45, 953 P.2d 1315, 1334-43 (1998); Leslie v. Bd. of Appeals of the Cnty. of Hawaii, 109 Hawaii 384, 386, 126 P.3d 1071, 1073 (2006). 59 See e.g. Morimoto v. Bd. of Land & Natural Res., 107 Hawaii 296, 113 P.3d 172 (2005). 60 See e.g., Pilaa 400, LLC v. Bd. of Land & Natural Res., 132 Hawaii 247, 320 P.3d 912 (2014). 61 Hui Alaloa v. Planning Comm’n, 68 Haw. 135, 705 P.2d 1042 (1985); Leslie v. Board of Appeals, 109 Hawaii 384, 126 P.3d 1071 (2006); Curtis v. Board of Appeals, 90 Hawaii 384, 978 P.2d 822 (1999). 53

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district,62 the state land use law,63 and the water code,64 are brought pursuant to HRS § 91-14. While most agency decisions are appealed to circuit court,65 some are appealed directly to the supreme court.66 These appeals must be filed within thirty days of the decision. e. Challenging an agency decision to deny a request to participate in a contested case hearing Even though government agencies benefit from a deferential standard of review, they frequently deny the public the opportunity to participate in contested case hearings. As with other appeals of agency decisions, an agency’s decision to deny a contested case hearing — or effectively deny one67 — can be appealed pursuant to HRS § 91-1468 to circuit court, or directly to the supreme court.69 The denial of a contested case hearing can be successfully appealed if: first, the proceeding that resulted in the unfavorable agency action was a hearing that a) was required by law and b) determined the rights, duties, and privileges of specific parties; second, the agency’s action represented a final decision and order, or a preliminary ruling such that deferral of review would deprive the claimant of adequate relief; third, the claimant followed the applicable agency rules and, therefore, was involved in the contested case;

and finally, the claimant’s legal interests were injured — i.e., the claimant has standing to appeal.70 4. Challenging a decision when no formal contested case hearing was held. One can challenge an agency’s decision pursuant to HRS chapter 632 (or a specific statutory right of action) when a contested case hearing has not been held.71 Filing an HRS chapter 632 claim when an appeal pursuant to HRS chapter 91 is available, however, can be fatal72 — as can filing an improper chapter 91 appeal.73 Some litigators address the procedural dilemma by filing two separate cases;74 others plead in the alternative.75 As mentioned above, the law is well settled that both challenges to an agency’s declaratory order (even though no contested case hearing has been conducted), and to an agency’s decision to deny a request for a contested case hearing, are appeals pursuant to HRS § 91-14. Other than those situations, if no contested case hearing was available, suits challenging agency decisions and actions can be filed pursuant to HRS chapter 632 if no specific statutory right of action is available.76 Coastal zone management decisions have been challenged pursuant to HRS § 205A-6,77 HRS chapter 632,78

62 Mauna Kea Power Co. v. Board of Land & Natural Resources, 76 Hawaii 259, 874 P.2d 1084 (1994); Morimoto v. Bd. of Land & Natural Res., 107 Hawaii 296, 113 P.3d 172 (2005); Kilakila O Haleakala v. BLNR, 138 Hawaii 383, 382 P.3d 195 (2016). 63 Curtis v. Board of Appeals, 90 Hawaii 384, 978 P.2d 822 (1999); Ka Paakai O Kaaina v. Land Use Comm’n, 94 Hawaii 31, 7 P.3d 1068 (2000); Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawaii 505, 364 P.3d 213 (2015). 64 In Re Water Use Permit Applications, 94 Hawaii 97, 143, 9 P.3d 409, 455 (2000); In re Waiola O Molokai, Inc., 103 Hawaii 401, 83 P.3d 664 (2004); In re Contested Case Hearing on the Water Use Permit Application Filed by Kukui, 116 Hawaii 481, 174 P.3d 320 (2007); In re Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications & Petition, 128 Hawaii 228, 287 P.3d 129 (2012). 65 HRS § 91-14; HRS chapter 604A. 66 See Act 48, 2016 Haw. Sess. Law. and as subsequently amended. 67 Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawaii 376, 363 P.3d 224 (2015); Kilakila O Haleakala v. Bd of Land & Natural Res., 131 Hawaii 193, 317 P.3d 27, (2013). 68 Pele Defense Fund v. Puna Geothermal Venture, 77 Hawaii 64, 881 P.2d 1210 (1994); Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawaii 376, 363 P.3d 224 (2015); Kilakila O Haleakala v. Bd of Land & Natural Res., 131 Hawaii 193, 317 P.3d 27, (2013); Kaleikini v. Thielen, 124 Hawaii 1, 26, 237 P.3d 1067, 1092 (2010); Pub. Access Shoreline Haw. v. Haw. Cnty. Planning Comm’n, 79 Hawaii 425, 903 P.2d 1246 (1995). 69 See HRS § 91-14; HRS chapter 604A; Act 48, 2016 Haw. Sess. Law, and as subsequently amended. 70 Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 79 Hawaii 425, 431, 903 P.2d 1246 (1995). 71 See e.g., Dalton v. City & County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969); Pele Defense Fund v. Puna Geothermal Venture, 9 Haw. App. 143, 827 P.2d 1149 (1992); Citizens for Protection of the North Kohala Coastline v. County of Hawaii, 91 Hawaii 94, 979 P.2d 1120 (1999); Hawaii’s Thousand Friends v. City & County of Honolulu, 75 Haw. 237, 858 P.2d 726 (1993); Sierra Club v. DOT, 115 Hawaii 299, 315 n.21, 167 P.3d 292, 308 n.21 (2007). 72 Punohu v. Sunn, 66 Haw. 485, 666 P.2d 1133, (1983). But see Gatri v. Blane, 88 Hawaii 108, 962 P.2d 367 (1998) in which the Supreme Court considered an appeal filed pursuant to HRS § 91-14, but where no contested case had been held. 73 Bush v. Hawaiian Homes Commission, 76 Hawaii 128, 870 P.2d 1272 (1994). 74 See, e.g, Citizens for the Protection of the North Kohala Coastline v. County of Hawaii, 91 Hawaii 94, 96, 979 P.2d 1120, 1122 (1999); Kaleikini v. Thielen, 124 Hawaii 1, 7-8 237 P.3d 1067, 1073-74 (2010); Bart v. Bd. of Land & Natural Res., 2010 Haw. App. LEXIS 312 (ICA June 23, 2010); Sandy Beach Defense Fund v. City Council of the City and County of Honolulu, 70 Haw. 361, 773 P.2d 250 (1989). 75 Life of the Land v. Land Use Comm ‘n, 58 Haw. 292, 568 P.2d 1189 (1977); Mahuiki v. Planning Commission, 65 Haw. 506, 654 P.2d 874 (1982); Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 79 Hawaii 425, 903 P.2d 1246 (1995) 76 See e.g. Bush v. Hawaiian Homes Commission, 76 Hawaii 128, 136-37, 870 P.2d 1272, 1280-81 (1994). 77 Sandy Beach Defense Fund v. City Council of the City and County of Honolulu, 70 Haw. 361, 773 P.2d 250 (1989). 78 Hawaii’s Thousand Friends v. City & County of Honolulu, 75 Haw. 237, 858 P.2d 726 (1993).

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and HRS § 91-14.79 When boards and commissions have rendered decisions about environmental impact statements in the context of contested case hearings on substantive permits, their decisions are generally appealed pursuant to HRS § 91-14.80 Challenges are filed pursuant to HRS chapter 632 and HRS § 343-7, however, when the environmental impact statement decision was not made in the context of a contested case hearing. This could be because the agency is not headed by a board of commission (e.g., the Department of 79

Transportation); 81 or it is an agency project;82 or no contested case hearing was conducted or available.83 5. Other Vehicles to Challenge Illegal Conduct Access and gathering rights guaranteed by HRS § 7-1 may be enforced by private action.84 Native Hawaiians can use HRS chapter 673 to cure breaches of the Hawaiian Home Lands Trust and the ceded lands trust. HRS § 480-13 is available where a consumer is injured by unfair practices.

II. PROCEDURAL DEFENSES The procedural defenses to suits to protect natural resources, cultural practices and our quality of life include: (a) standing, (b) primary jurisdiction, (c) exhaustion, (d) ripeness, (e) mootness, (f) statute of limitations, (g) laches, (h) political question, and (i) sovereign immunity. A. Standing Generally, standing is liberally provided. Establishing standing usually requires fulfilment of a three-part “injury in fact” test: a description of the nature of

Mahuiki v. Planning Commission, 65 Haw. 506, 654 P.2d 874 (1982); Gatri v. Blane, 88 Hawaii 108, 962 P.2d 367 (1998); Leslie v. Board of Appeals, 109 Hawaii 384, 126 P.3d. 1071 (2006). See also Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 79 Hawaii 425, 430 n.5, 903 P.2d 1246, 1251 n.5 (1995). 80 McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981); Pearl Ridge Estates Commm. Ass’n v. Lear, 65 Haw. 133 (1982); Kahana Sunset Owners Ass’n v. County of Maui, 86 Hawaii 66, 947 P.2d 378 (1997); Sierra Club v. Office of Planning, 109 Hawaii 411, 126 P.3d 1098 (2006). 81 Sierra Club v. DOT, 115 Hawaii 299, 315 n.21, 167 P.3d 292, 308 n.21 (2007) 82 Kilakila O Haleakala v. University of Hawaii, 138 Hawaii 364, 382 P.3d 176 (2016). 83 Citizens for the Protection of the North Kohala Coastline v County of Hawaii, 91 Hawaii 94, 100, 979 P.2d 1120, 1126 (1991); Kepoo v Kane, 106 Hawaii 270, 103 P.3d 939 (2005); Unite Here! Local 5 v. City & County of Honolulu, 123 Hawaii 150, 231 P.3d 423 (2010); Umberger v. Dep’t of Land & Natural Res., 140 Hawaii 500, 403 P.3d 277 (2017). 84 Akau v. Olohana Corp., 65 Haw. 383, 391 n.6, 652 P.2d 1130, 1136 n.6 (1982).

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the injury, its cause and an explanation as to how judicial action can remedy the problem.85 Standing has been based on injuries to: recreational interests,86 aesthetic interests,87 environmental interests,88 historic interests,89 traditional and customary

practices,90 cultural interests,91 religious interests,92 and/or trust property.93 Declaratory actions filed pursuant to HRS chapter 632, however, do not need to pass the three-part injury in fact test.94

B. Exhaustion The doctrine of exhaustion of administrative remedies provides that where a claim is cognizable in the first instance by an administrative agency alone, judicial review of agency action

85 See Citizens for the Protection of the North Kohala Coastline v County of Hawaii, 91 Hawaii 94, 105, 979 P.2d 1120, 1131 (1991); Kilakila O Haleakala v. Bd of Land & Natural Res., 131 Hawaii 193, 204-5, 317 P.3d 27, 38-39 (2013); Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, 121 Hawaii 324, 331-5, 219 P.3d 1111, 1118-22 (2009); Pele Defense Fund v. Paty, 73 Haw. 578, 614, 837 P.2d 1247, 1268 (1992). 86 Akau v. Olohana Corp., 65 Haw. 383, 390, 652 P.2d 1130, 1135 (1982); Ka Paakai O Ka ‘Aina v. Land Use Comm’n, 94 Hawaii 31, 43-4, 7 P.3d 1068, 1080-1 (2000); Citizens for the Prot. of the N. Kohala Coastline v. Cnty. of Haw., 91 Hawaii 94, 101, 979 P.2d 1120, 1127 (1999). 87 Life of the Land, Inc. v. Land Use Commission, 61 Haw. 3, 8, 594 P.2d 1079, 1082 (1979). 88 Id. 89 Ka Paakai O Ka Aina v. Land Use Comm’n, 94 Hawaii 31, 43, 7 P.3d 1068, 1080 (2000); Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008); Pres. Coalition v. Fed. Transit Admin., 2001 U.S. Dist. LEXIS 24654 (W.D.N.Y. Jan. 23, 2001); Vieux Carre Property Owners, Residents & Assocs. v. Brown, 875 F.2d 453, 459 (5th Cir. La. 1989). 90 Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 79 Hawaii 425, 434, 903 P.2d 1246, 1255 (1995); Ka Paakai O Kaaina v. Land Use Comm’n, 94 Hawaii 31, 43, 7 P.3d 1068, 1080 (2000). 91 Kaleikini v. Thielen, 124 Hawaii 1, 26, 237 P.3d 1067, 1092 (2010); Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 121 Hawaii 324, 334, 219 P.3d 1111, 1121 (2009). 92 Id. 93 Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 121 Hawaii 324, 331, 219 P.3d 1111, 1118 (2009); Kapiolani Park Preservation Soc’y v. Honolulu, 69 Hawai‘i 569, 751 P.2d 1022 (1988); Pele Def. Fund v. Paty, 73 Haw. 578, 592 n.8 and 605 n. 18, 837 P.2d 1247, 1257 n.8 and 1264 n. 18(1992); Aged Hawaiians v. Hawaiian Homes Comm’n, 78 Haw. 192, 208 n.26, 891 P.2d 279, 295 (1995). 94 Tax Found. Hawaii v. State, 144 Hawaii 175, 439 P.3d 127 (2019).

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone:

808.523-1234

judgefoley2000@hotmail.com

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will not be available unless the party affected has taken advantage of all the corrective procedures provided for in the administrative process. An aggrieved party need not exhaust administrative remedies where no effective remedies exist, or where it would be futile to do so.95 C. Primary Jurisdiction The primary jurisdiction doctrine suspends court proceedings when the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.96 D. Ripeness The courts lack jurisdiction if an agency decision is not final.97 E. Mootness Courts lack jurisdiction when a case is moot — as can occur when events move faster than the judicial process. There are three exceptions to the mootness doctrine: matters capable of repetition yet evading review; matters affecting the public interest; [1195] and matters posing collateral consequences for the litigant.98 Most often invoked is the second.99 Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question. The phrase, “capable of repeti95

tion, [24] yet evading review,” means that a court will not dismiss a case on the grounds of mootness where a challenged governmental action would evade full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of for the period necessary to complete the lawsuit.100 F.

Statute of Limitations Some of the more relevant statutes of limitations are found at HRS chapter 657. Specific rights of action have specific statutes of limitations.101 In equitable actions, however, extraordinary circumstances can make the statute of limitations inapplicable.102 In a breach of trust case, claims accrue when the plaintiffs had learned of: (1) the conduct establishing the government’s liability or breach; (2) the injury to the trust beneficiaries and the link between the injury and the conduct; and (3) some damage to the trust.103 G. Laches “The doctrine of laches reflects the equitable maxim that equity aids the vigilant, not those who slumber on their rights. There are two components to laches, both of which must exist before the doctrine will apply. First, there must have been a delay by the plaintiff in bringing his claim and that delay must have been unreasonable under the circumstances. Delay is reasonable if the claim was brought without undue delay after plaintiff knew of the wrong or knew of facts

and circumstances sufficient to impute such knowledge to him. Second, that delay must have resulted in prejudice to defendant. Common but by no means exclusive examples of such prejudice are loss of evidence with which to contest plaintiff ’s claims, including the fading memories or deaths of material witnesses, changes in the value of the subject matter, changes in defendant’s position, and intervening rights of third parties.”104 Since laches is an equitable defense, its application is controlled by equitable considerations. It will not be applied where the enforcement of the right asserted will work injustice.105 H. Political Question The court may refuse to hear a case that involves a political question — that is when a case involves: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.106

Kellberg v. Yuen, 131 Hawaii 513, 319 P.3d 432 (2014). See United Pub. Workers v. Abercrombie, 133 Hawaii 188, 325 P.3d 600 (2014); Pacific Lightnet, Inc. v. Time Warner Telecom, Inc., 131 Hawaii 257, 318 P.3d 97 (2013); Pavsek v. Sandvold, 127 Hawaii 390, 279 P.3d 55 (ICA 2012). 97 Blake v. County of Kauai Planning Comm’n, 131 Hawaii 123, 315 P.3d 749) (2013); Office of Hawaiian Affairs v. Hous. and Cmty. Dev. Corp. of Hawaii, 121 Hawaii 324, 336, 219 P.3d 1111, 1123 (2009). 98 State v. Kiese, 126 Hawaii 494, 508-09, 273 P.3d 1180, 1194-95 (2012). 99 Diamond v. State, 112 Hawaii 161, 170, 145 P.3d 704, 713 (2006); Kaleikini v. Thielen, 124 Hawaii 1, 12-13, 237 P.3d 1067, 1078-9 (2010); County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 408, 235 P.3d 1103, 1120 (2010); Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 734 P.2d 161 (1987). 100 Diamond v. State, 112 Hawaii 161, 170, 145 P.3d 704, 713 (2006). 101 See e.g. HRS §§ 91-14, 205A-6, 343-7, 673-10. 102 Yokochi v. Yoshimoto, 44 Haw. 297, 300, 353 P.2d 820, 823 (1960). 103 Office of Hawaiian Affairs v. State, 110 Hawaii 338, 359-362 (2006); Pele Defense Fund v. Paty, 73 Haw. 578, 595-8, 837 P.2d 1247 (1992). 104 Ass’n of Apt. Owners v. Venture 15, Inc., 115 Hawaii 232, 284, 167 P.3d 225, 277 (2007). 105 Yokochi v. Yoshimoto, 44 Haw. 297, 300, 353 P.2d 820, 823 (1960). 106 See Nelson v. Hawaiian Homes Comm’n, 127 Hawaii 185, 194, 277 P.3d 279, 288 (2012). 96

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Sovereign Immunity Sovereign immunity prevents lawsuits against the state and its agencies for damages (including for attorney’s fees) unless the state has explicitly waived sovereign immunity.107 The Supreme Court has found that such a waiver can be found in: HRS chapter 343,108 and HRS chapter 673.109 Sovereign immunity, however, is not a bar to prevent action that is unconstitutional or violates state statutes.110 Suits for declaratory or prospective relief are not barred by sovereign immunity. Sovereign immunity, however, does not apply to the counties.111 III. TRIAL The vast majority of reported environmental cases are resolved without going to trial.112 They are either settled, resolved by motion (both procedural113 or substantive114), or through briefing in an HRS chapter 91 appeal.115 Many of these cases, however, involve trial-like proceedings, such as formal contested case hear107

Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168, 307 P.3d 142, 148 (2013); Kaleikini v. Yoshioka, 129 Hawaii 454, 304 P.3d 252 (2013) Pele Defense Fund v. Paty, 73 Haw. 578, 595-8, 837 P.2d 1247 (1992). 108 Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 227-28, 202 P.3d 1226, 1272-74 (2009). 109 Office of Hawaiian Affairs v. State, 110 Hawaii 338, 358, 133 P.3d 767, 787 (2006). 110 Pele Defense Fund, 73 Haw. at 607, 837 P.2d at 1265; Nelson v. Hawaiian Homes Comm’n, 130 Hawaii. 162, 168 (2013). 111 Kamau v. County of Hawaii, 41 Haw. 527, 542 (1957); Kahale v. City & County of Honolulu, 104 Hawaii 341, 346 and 348, 90 P.3d 233, 238 and 240 (2004). See also Lincoln County v. Luning, 133 U.S. 529, 530 (1890). 112 But see Kelly v. 1250 Oceanside Ptnrs, 111 Hawaii 205, 140 P.3d 985 (2006); Ching v. Case, 145 Hawaii 148, 449 P.3d 1146 (2019). 113 See e.g. Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 734 P.2d 161 (1987). 114 See e.g. Natatorium Preservation Comm. v. Edelstein, 55 Haw. 55, 515 P.2d 621, 622 (1973); Sierra Club v. DOT, 115 Hawaii 299 167 P.3d 292 (2007); Price v. Obayashi Hawaii Corporation, 81 Hawaii 171, 18182 914 P.2d 1364, 1374-75 (1996). 115 See e.g. Leslie v. Bd. of Appeals of the Cnty. of Hawaii, 109 Hawaii 384, 386, 126 P.3d 1071, 1073 (2006). May 2020

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ings,116 or injunction hearings.117 When trials are held, they are usually without a jury because a jury trial is generally only available in cases were damages are available118 and few such cases include claims for damages.119 The constitutional guarantee of a right to a jury trial does not extend to suits of an equitable nature.120 IV. RELIEF Generally, the relief sought to protect natural and cultural resources and trust land includes: declaratory relief; injunctive relief; invalidation of permit; potentially damages; penalties; attorneys’ fees; and costs. A. Declaratory Relief Declaratory relief can be obtained pursuant to HRS chapter 632. “Further relief based on a declaratory judgment may be granted whenever necessary or proper, after reasonable notice and hearing, against any adverse party whose rights

have been adjudicated by the judgment.”121 “In an action for declaratory judgment, the court is empowered to grant ancillary equitable relief. HRS § 632-3.”122 B. Injunctive Relief Although some specific statutes give the courts power to provide for injunctive relief,123 the courts always have the authority to provide for injunctive relief.124 The standard for injunctive relief is: “(1) whether the plaintiff is likely to prevail on the merits; (2) whether the balance of irreparable damage favors the issuance of a temporary injunction; and (3) whether the public interest supports granting an injunction.”125 “As ordinarily understood, an injury is irreparable where it is of such a character that a fair and reasonable redress may not be had in a court of law, so that to refuse the injunction would be a denial of justice; where, in other words, from the nature of the act, or from the circumstances surrounding the

person injured, or from the financial condition of the person committing it, it cannot be readily, adequately, and completely compensated for with money. The term ‘irreparable damage’ does not have reference to the amount of damage caused, but rather to the difficulty of measuring the amount of damages inflicted.”126 Generally injunctive relief is granted at circuit court,127 but it can be granted while on appeal.128 C. Invalidation of Permits and Approvals The Hawaii Supreme Court has consistently held that when an agency fails to follow proper procedures, any approval it has issued is void. The court has vacated the approval whether the agency violated HRS chapter 205A,129 chapter 343,130 chapter 205,131 chapter 91,132 the Hawaii county subdivision control code,133

116

See e.g. In re Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications & Petition, 128 Hawaii 228, 287 P.3d 129 (2012). See e.g. Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 202 P.3d 1226 (2009). 118 Hawaii State Constitution Article I § 13; Mehau v. Reed, 76 Haw. 101; 869 P.2d 1320 (1994). But see In re Paloma, 4 Haw. 131 (1878)(ejectment). 119 But see Sylva v. Wailuku Sugar Co., 19 Haw. 602 (1909) (desecration of graves); Public Access Trails Hawaii v. Haleakala Ranch Company, Civ. No. 11-0031-03. 120 See Harada v. Burns, 50 Haw. 528, 532-533, 445 P.2d 376 (1968). 121 HRS § 632-3. 122 Food Pantry v. Waikiki Business Plaza, 58 Haw. 606, 613-614 575 P.2d 875-66 (1978). See also Costa v. Sunn, 5 Haw. App. 419, 424-425, 697 P.2d 43, 47 (1985). The Food Pantry Court relied on Koziol v. Village of Rosemont, 32 Ill.App.2d 320, 177 N.E.2d 867 (1961), which held: 117

The scope of the declaratory judgment remedy should be kept wide and liberal and not restricted by technicalities. The important point is the right and duty of the courts to grant declaratory relief where, in the interests of the proper administration of justice, it ought to be granted regardless of how the particular action in which the declaratory relief is sought, may be classified. Declaratory relief is not “defeated by the mere existence of another form of action which could presently be employed. . . . It is the duty of the court to grant such further relief as is incidentally necessary and proper to the controversy determined. The Declaratory Judgment statute “was designed to provide a speedy and inexpensive method of determining disputes.” Koziol v. Rosemont, 32 Ill. App. 2d 320, 327, 329 (Ill. App. Ct. 1st Dist. 1961). See e.g. HRS §§ 6E-13(b) and 205A-6(c). 124 See State v. Harrison, 95 Hawaii 28, 32, 18 P.3d 890, 894 (2001)(emphasizing that the “[i]nherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute” and recognizing the courts’ “inherent equity” power to “create a remedy for a wrong even in the absence of specific statutory remedies, and to prevent unfair results”); Hawaii State Constitution Article VI § 7; cf. County of Hawaii v. Ala Loop Homeowners, 123 Hawaii 391, 413, 235 P.3d 1103, 1125 (2010)(“It is also worth noting that the right at issue here—i.e., the right to seek enforcement “through appropriate legal proceedings”—is within the ability of the judiciary to implement without legislative action.”). 125 Office of Hawaiian Affairs v. Housing and Community Development, 117 Hawaii 174, 211, 177 P.3d 884, 921 (2008); Reppun v. Board of Water Supply, 65 Haw. 531, 556-63, 656 P.2d 57 (1982); Life of the Land v. Ariyoshi, 59 Haw. 156, 158, 577 P.2d 1116, 1118 (1978). 126 Klausmeyer v. Makaha Valley Farms, Ltd., 41 Haw. 287, 339-40 (1956). 127 See e.g. Aluli v. Lewin, 73 Haw. 56, 62 828 P.2d 802, 805 (1992); Umberger v. Dep’t of Land & Natural Res., 140 Hawaii 500, 528, 403 P.3d 277, 305 (2017). 128 Natatorium Preservation Comm. v. Edelstein, 55 Haw. 55, 515 P.2d 621, 622 (1973); Hall v. Department of Land and Natural Resources, 128 Hawaii 455, 458 n.5 and 462, 290 P.3d 525, 528 n. 5 and 532 (ICA 2012). 129 Hui Alaloa v. Planning Comm’n, 68 Haw. 135, 137, 705 P.2d 1042, 1044 (1985); Mahuiki v. Planning Comm’n, 65 Haw. 506, 519-520, 654 P.2d 874,882-3 (1982). 130 Kahana Sunset Owners Ass’n v. County of Maui, 86 Hawaii 66, 947 P.2d 378 (1997); Kepoo v. Kane, 106 Hawaii 270, 103 P.3d 939 (2005). 131 Town v. Land Use Commission, 55 Haw. 538, 545, 524 P.2d 84, 89 (1974) 132 Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 79 Hawaii 425, 429, 903 P.2d 1246, 1250 (1995). 133 Leslie v. Board of Appeals, 109 Hawaii 384, 126 P.3d 1071 (2006). 123

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or the state constitution.134 D. Penalties HRS § 342B-56 (clean air) and § 464(a) (county zoning) are the only statutes that explicitly authorize the court to apply civil penalties in a case brought by members of the public. It is unclear whether penalties can be applied in suits filed to enforce other statutory provisions — although they are commonly applied in citizen suits pursuant to federal law. E. Damages The Hawaii Supreme Court has embraced a comprehensive approach for evaluating the damages to natural resources. Damages include use value, option value, commodity value, existence value, bequest value, cultural values, including value to indigenous people, and intrinsic value.135 In other words, damages to natural resources are not limited to economic and use (market) values. Nevertheless, tort claims require reasonable certainty of damages as well as some evidence upon which to measure the amount of damage.136 No state appellate cases report awarding damages for harm caused to natural or cultural resources in a case brought by a member of the public. HRS chapter 673 explicitly allows for

the recovery of some damages where the Hawaiian Home Lands trust or the ceded lands trust have been harmed. F.

Attorney’s Fees Attorney’s fees are chargeable against the opposing party when authorized by statute or pursuant to the private attorney general doctrine.

does not require that a plaintiff receive a final judgment in his or her favor before fees may be awarded.138 Where a party prevails on the disputed main issue, even though not to the extent of his original contention, s/he will be deemed to be the successful party for the purpose of taxing costs and attorney’s fees.139 b.

1. Statutory provisions Several provisions allow for the award of attorneys’ fees to protect natural and cultural resources. HRS § 342B-56 allows for the recovery of attorneys’ fees in actions to enforce the state’s air pollution law. HRS § 607-25 allows for the recovery of attorneys’ fees from private parties who are engaged in “development” without obtaining all necessary permits.137 HRS § 673-5 allows for the recovery of attorney’s fees in certain cases involving breaches of the Hawaiian Home Lands and ceded lands trusts. 2. Private attorney general doctrine The private attorney general doctrine allows prevailing parties to recover their attorney’s fees in important cases. a.

Prevailing party The private attorney general doctrine

Three factors The private attorney general doctrine calls for the award of attorneys’ fees after considering three factors: (1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, and (3) the number of people standing to benefit from the decision.140 c.

Sovereign immunity Sovereign immunity bars the recovery of attorneys’ fees from the state141 unless sovereign immunity has been waived.142 It has been waived in cases enforcing HRS chapter 343,143 but not for suits to enforce HRS chapter 6E.144 G. Costs Prevailing parties can recover their costs as a matter of course.145 That includes the recovery of costs against the state after final judgment.146

134

Ka Paakai O Ka Aina v. Land Use Comm’n, 94 Hawaii 31, 53, 7 P.3d. 1068, 1090 (2000); In Re Water Use Permit Applications, 94 Hawaii 97, 144, 9 P.3d 409, 456 (2000); Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawaii 376, 363 P.3d 224 (2015). 135 Pilaa 400, LLC v. Bd. of Land & Natural Res., 132 Hawaii 247, 257 and 267, 320 P.3d 912, 922 and 932 (2014). 136 Exotics Hawaii v. EI Du Pont de Nemours, 172 P. 3d 1021 (2007). 137 Kahana Sunset Owners Ass’n v. Maui County Council, 86 Hawaii 132, 948 P.2d 122 (1997). 138 Kaleikini v. Yoshioka, 129 Hawaii 454, 462, 304 P.3d 252, 260 (2013). 139 Food Pantry, Ltd. v. Waikiki Bus. Plaza, Inc., 58 Haw. 606, 620, 575 P.2d 869, 879 (1978). See also Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 218, 202 P.3d 1226, 1263 (2009); Kaleikini v. Yoshioka, 129 Hawaii 454, 304 P.3d 252 (2013); Aloha Tower Dev. Corp. v. State, 130 Hawaii 306, 310 P.3d 301 (2013); Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168 (2013). 140 In re Water Use Permit Applications, 96 Hawaii 27, 25 P.3d 802 (2001); Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 218, 202 P.3d 1226, 1263 (2009); Kaleikini v. Yoshioka, 129 Hawaii 454, 304 P.3d 252 (2013); Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168 (2013); Honolulu Const. & Draying Co., Ltd. v. State, Dep’t of Land & Natural Res, 130 Hawaii 306, 310 P.3d 301 (2013). 141 Sovereign immunity, however, does not apply to the counties. Kamau v. County of Hawaii, 41 Haw. 527, 542 (1957); Kahale v. City & County of Honolulu, 104 Hawaii 341, 346 and 348, 90 P.3d 233, 238 and 240 (2004). See also Lincoln County v. Luning, 133 U.S. 529, 530 (1890). 142 Nelson v. Hawaiian Homes Comm’n, 130 Hawaii 162, 168 (2013). 143 Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 227-28, 202 P.3d 1226, 1272-74 (2009). 144 Kaleikini v. Yoshioka, 129 Hawaii 454, 304 P.3d 252 (2013). 145 HRCP Rule 54(d). 146 HRS § 607-24.; Kamalu v. Paren, 110 Hawaii 269, 278, 132 P.3d 378, 387 (2006); Kaleikini v. Yoshioka, 129 Hawaii 454, 469 n.14, 304 P.3d 252, 267 n.14 (2013) (“HRS § 607-24 waives the State’s immunity for costs ‘[i]n all cases in which a final judgment or decree is obtained against the State[.]’”).

David Kimo Frankel is an attorney who graduated from Liliuokalani Elementary School. May 2020

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H SBA HAP PE NIN GS

• Ratified HSBA President P. Gregory Frey’s appointment of the following individuals as 2020 HSBA Committee Chairs:

• Determined that legislative measure SB 2117 meets the Keller analysis (i.e. is germane to the purposes of the unified bar and would generally be supported by HSBA members), and voted to track and support SB 2117, which establishes an additional District Court judge in the Second Circuit; and

Attorney/Client Relations - Charles Crumpton and Peter Lenhart

• Voted to approve the proposed amendments to the HSBF Board bylaws.

Board Action The HSBA Board took the following actions at its meeting in February:

Awards - Erin Kobayashi and Mark K. Murakami Civic Education - Troy Andrade, Ryan Hamaguchi and Ruth Oh Consumer Protection - Paul Alston CLE - Lissa Andrews and Brian Black Delivery of Legal Services to the Public Christine Daleiden • Ratified President Frey’s appointment of Addison Bonner as one of the attorneys to the joint committee of the Hawaii State Trial Judges Association and the Hawaii State Bar Association; • Ratified President Frey’s appointment of the following individuals, in addition to the Treasurer, President-elect, and Vice President who serve automatically by virtue of their office, to the HSBA Finance Committee: Alika Piper, Shannon Sheldon, and Craig Wagnild; • Ratified President Frey’s appointment of the following individuals as members of the 2020 HSBA Nominating Committee: Rhonda Griswold, Karin Holma, Rosalyn Loomis, Judge Henry Nakamoto, Zale Okazaki, and Judge Michael Soong; • Ratified President Frey’s appointment of Carol Muranaka as one of the HSBA representatives to the Supreme Court Nominating Committee due to the resignation of Judge Linda Luke (ret.); • Approved the continued monitoring of the Judiciary supplemental budget measure and submittal of supportive testimony;

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Announcement – Mandatory Continuing Legal Education Board Openings The Hawaii State Board of Continuing Legal Education is looking for applicants to fill three expiring attorney terms on its Board beginning on October 2, 2020 and expiring October 1, 2023. Responsibilities and duties include, but are not limited to, attending quarterly board meetings, reviewing applications for CLE credits, and providing recommendations to various oversight issues that arise. Board positions are uncompensated. If interested in serving, please submit a resume, cover letter, and area of law practice concentration to the Nominating Committee at nominations@hsba.org no later than Friday, May 29, 2020.

Member Benefits Spotlight LawPay LawPay, the leaders in online legal payments has an exclusive offer just for Hawaii State Bar members. Open a new LawPay account by April 30 and receive a $100 credit toward processing fees. Visit https://bit.ly/2QqAYeA for more information. Best Buy Best Buy for business offers top tier pricing on over 150,000 items. Discounts vary upon item category. Visit https://bit.ly/3daICDz for more information.

MyCase MyCase is an affordable, intuitive and powerful legal case management software designed for the modern law firm. Give your law firm the advantage of a complete case management software solution – get organized with contacts, calendars, cases, documents, time tracking, and billing. MyCase also includes a first-of-its-kind integrated client portal so everyone stays informed and connected. Hawaii State Bar members get a 10% lifetime discount. Visit https://bit.ly/38ZVDwn for more information. AAA Hawaii Save $20 on AAA Hawaii’s Classic Plan. To enroll, call AAA Hawaii at 808593-2221 (neighbor islands can call toll free at 800-736-2886). The HSBA campaign code is 47357. Mass Mutual - Disability Insurance As a member of the HSBA, you have access to wide-ranging income replacement solutions at discounted rates from one of the industry’s leading benefits providers – MassMutual. MassMutual is an approved HSBA Member-Only Benefits Provider. Please contact Glennel W. Jordan for more information at gjordan@summitfinancialhawaii.com or 808-2197398. Kumu Kahua Theatre HSBA members receive a 25% discount on tickets. Purchase tickets online at https://bit.ly/3a27qvp, select your tickets and enter promo code “HSBA” when prompted. Additional fees are applied when you order online. To purchase with no fee, you may call or visit our box office at 46 Merchant Street, 808-536-4441, Monday through Friday, between 11 AM and 3 PM. Visit https://hsba.org/memberbenefits to get more information on the more than 70 member benefits available.

Notices of Discipline Christopher S. Bouslog On February 27, 2020, the Hawaii Supreme Court granted the request of Christopher S. Bouslog to resign from the practice of law in lieu of discipline. At the time Bouslog offered to resign, he was facing serious disciplinary charges, arising from a client complaint alleging a failure to pay to his client the portion of a personal injury settlement. During investigation by the Office of Disciplinary Counsel, Bouslog acknowledged committing the misconduct and offered to resign. Concurrently, the Chairperson of the Disciplinary Board ordered an audit of Bouslog’s trust accounts to determine if any other clients were harmed. The Supreme Court has reserved jurisdiction to pass on restitution awards dependent on the results of the ongoing audit. Resignation in lieu of discipline requires an acknowledgement that the material facts of the disciplinary proceeding are true, and that if the proceeding were prosecuted, the attorney would not be able to successfully defend the case. Further, “[r]esignation in lieu of discipline is a disbarment for all purposes under these rules, including reinstatement.” RSCH Rule 2.14(d). Bouslog’s resignation was effective on March 28, 2020, and during this time he could not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, before March 28, 2020 he could have wound up all matters that were pending on February 27, 2020. During that time, he was required to promptly notify all of his clients, any attorneys for any party, or self-represented parties in any pending litigation or proceedings of his inability to act as an attorney. Further, by March 28, 2020, Bouslog was ordered to surrender to all clients all papers and property to which

they are entitled and return any advance payments of fees that had not been earned. Bouslog, age 66, was admitted to the Hawaii bar in 1982, and is a graduate of the Cornell Law School, Cornell University, Ithaca, New York. Katherine P. Kealoha On March 13, 2020, the Hawaii Supreme Court granted the request of attorney Katherine Puana Kealoha to resign from the practice of law in lieu of discipline. At the time Kealoha offered to resign, she was facing serious disciplinary charges arising from multiple federal convictions for felony crimes for which she was awaiting sentencing, and earlier, as a result of those convictions, was restrained from the practice of law in Hawaii. Kealoha’s resignation was effective on March 27, 2020 and given her prior July 3, 2019 order of restraint from the practice of law, she was unlikely engaged in any pending matters. However, under the new resignation order, as is consistent with the prior restraint order, she could not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, before March 27, 2020 she was ordered to wind up all matters that were pending on March 13, 2020. During this time, she was required to promptly notify all of her clients, any attorneys for any party, or self-represented parties, in any pending litigation or proceedings of her inability to act as an attorney. Further, by March 27, 2020, Kealoha was ordered to surrender to all clients all papers and property to which they are entitled and return any advance payments of fees that had not been earned. Kealoha, age 49, was admitted to the Hawaii bar in 1996, and is a graduate of the William S. Richardson School of Law, University of Hawaii. Case reference: ODC v. Katherine Puana Kealoha, SCPR-20-0000117.

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

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C O URT BR IEF S Hawaii Judges Celebrate National Judicial Outreach Week 2020

Judge Margaret Masunaga (second from right), Lisa Rosile (left), and other librarians.

During National Judicial Outreach Week, March 1 through March 10, 2020, judges and lawyers across the country engaged with the public to discuss the importance of the nation’s commitment to the rule of law. Hawaii’s state judges connected with a broad cross-section of the community in a variety of settings. On March 2, Third Circuit District Court Judge Margaret Masunaga met with law librarian Lisa Rosile and other librarians at the Keahuolu Courthouse. On March 5, Fifth Circuit Judge Kathleen Watanabe met with Per Diem Judge Robert Michael Goldberg’s Kauai Community College Business Law students. The judges met with people outside of the formal courtroom setting to help enhance public understanding of the work courts do to provide a fair and impartial system of justice, maintain open and transparent government, and protect the fundamental legal rights of all citizens. Third Circuit District Court Judge Margaret Masunaga spoke with five groups, totaling at least 270 people

in West Hawaii. “National Judicial Outreach Week made me think about the rule of law and due process this year, and I was just feeling proud to be an American,” she said. Judge Masunaga noted that Third Circuit Chief Judge Ronald Ibarra (ret.) was the one who advocated for attorneys to engage the community on the island of Hawaii. “He was an inspiring example. Events like National Judicial Outreach Week give judges the opportunity to help support and protect their communities by educating them about the rule of law, and the resources and public services available through the courts,” said Masunaga. Second Circuit District Family Court Judge Adrianne Heely said, “I love doing judicial outreach, and in the past I have spoken at many Second Judicial Circuit schools or communities including Kaunakakai Elementary, Lanai Community, Hana High School, Kalama Intermediate, King Kekaulike High School, Kamehameha preschool and high school.” Judge Heely’s community outreach has included being a volunteer judge for Baldwin High School’s Senior Project and being a facilitator of the Kids First Program, which is a mandatory class on positive co-parenting for divorcing families or families with custody cases in family court. “Judge Douglas McNish (ret.) started Kids First over 34 years ago on Maui, and we are still going strong, every month, one class,” said Judge Heely.

Per Diem Judge Announcements The following per diem judges were recently reappointed: • Jonathan J. Chun as per diem judge of the District Court of the Fifth Circuit, designated to preside as per diem District Family Judge. His term runs from March 2, 2020 to March 1, 2024. • Lisa R. Arin as per diem judge in the District Court of the Fifth Circuit. Her term is from March 11, 2020 to February 10, 2022. • Joe Paul Moss as per diem judge of the District Court of the Fifth Circuit, designated to preside in the District Family Court. His term is from March 24, 2020 to May 16, 2022.

Judge Kathleen Watanabe (left), Robert Michael Goldberg (right), Kauai Community College Business Law students.

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• Laurel Loo, as per diem judge of the District Court of the Fifth Circuit, designated to preside in the District Family Court. Her term runs from April 1, 2020 to March 31, 2024.

CAS E NOTES Hawaii Supreme Court Administrative In re Sanctions Against Partington and McPherson, SCWC-18-0000301, March 5, 2020, (McKenna, J. with Wilson, J., dissenting). This case concerned whether the ICA abused its discretion by (1) sanctioning attorneys Robert Patrick McPherson (“McPherson”) and Earl A. Partington (“Partington”) (sometimes collectively referred to as “Counsel”) each in the amount of $50.00 based on Hawaii Rules of Appellate Procedure (“HRAP”) Rule 51 (2010) (“sanctions orders”) and by denying Counsel’s motion to reconsider the sanctions orders; and (2) whether the Office of Disciplinary Counsel (“ODC”) was authorized to thereafter send letters to Counsel indicating it was administratively disposing of the matter and that the sanctions orders could be used as evidence of aggravation in any future disciplinary proceedings. The Hawaii Supreme Court held (1) that the ICA did not abuse its discretion by imposing sanctions on Counsel and denying the motion for reconsideration; (2) but that the ODC was without authority to treat the sanctions orders as administrative dispositions that might be used in the future as evidence of a pattern of conduct in aggravation. Wilson, J., concurred and dissented. Wilson, J. stated that at issue was the ICA’s finding that counsel did not have good cause for their failure to file an opening brief by the July 9, 2018 deadline set by the ICA—nor good cause for their failure to request an extension of the filing deadline. Two days after the deadline, counsel explained in their July 11, 2018 Amended Statement of Jurisdiction that the court lacked jurisdiction to consider the appeal. Specifically, counsel noted that the opening brief was

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Appeal Pointer In cases where the transcript of any part of the proceeding is unavailable and a statement of evidence is prepared in accordance with HRAP Rule 10(c), a party is not required to file a motion for remand in the appellate court. The court appealed from retains jurisdiction to settle and approve the statement of evidence and objections or amendments. Upon the settlement and approval of the statement of evidence, the clerk of the court appealed from, pursuant to HRAP Rule 10(c), shall include the statement of evidence in the record on appeal or in a supplemental record. The party is not required to file a motion to supplement the record in the appellate court. not filed because “[w]e expected this court to issue an order dismissing this appeal and remanding to the district court for entry of judgment. Because of this, we did not file the opening brief as that would have been a meaningless act.” While it may have been better practice to perform the technical task of requesting an extension of time to file the opening brief rather than inform the ICA two days after the deadline that it lacked jurisdiction to proceed with the appeal, there was nonetheless a sound basis upon which to conclude that such a request for an extension would be a hollow exercise requiring additional and unnecessary consideration by the ICA as to whether an extension of time should be granted. A request for additional time to file an opening brief for an appeal that could not be considered by the court would lack merit. Accordingly, the imposition of sanctions upon Partington and McPherson was an abuse of discretion. In all other respects, Wilson, J. concurred with the decision of the Majority.

Arbitration Yamamoto v. Chee, No. SCWC-160000260, March 2, 2020, (McKenna, J., with Recktenwald, C.J., concurring in part and dissenting in part). This case concerned whether attorney Donna H. Yamamoto (“Yamamoto”) was required to arbitrate claims against Tom Chee Watts Degele-Mathews & Yoshida, LLP (the “Law Firm” or “Partnership”) and Law Firm Partner David W.H. Chee (“Chee”) (collectively, “Defendants”) contained in her August 27, 2015 complaint filed in the circuit court. When Yamamoto, a founding partner of the Law Firm, left the Partnership, she handed Chee a personal check made payable to the Law Firm to repay a 401(k) loan. Chee allegedly knew that the 401(k) loan had already been repaid from Yamamoto’s Partnership capital account but did not inform Yamamoto. When Yamamoto later demanded that Defendants return the funds from her personal check, Defendants refused. After Yamamoto filed suit, on December 16, 2015, Defendants moved to compel arbitration of Yamamoto’s claims (“motion to compel”). Defendants asserted that the agreement founding the Partnership (the “Partnership Agreement”), signed by Yamamoto, required the arbitration of any disputes “in connection with” that agreement. The circuit court granted Defendants’ motion to compel, concluding Yamamoto’s claims arose out of the Partnership Agreement, and therefore the arbitration clause applied. Additionally, the circuit court concluded Defendants had provided appropriate notice to initiate the arbitration under Hawaii Revised Statutes § 658A-9. The ICA affirmed the circuit court, concluding Defendants had provided adequate notice and that Yamamoto’s allegations “touch[ed] [the] matter[]” of the

handling of her Partnership capital account, which was covered by the Partnership Agreement. Yamamoto asserted the ICA erred on both issues, and presented the following two questions in her certiorari application: A. Whether the [ICA] used the wrong test and ignored precedent to determine the arbitrability of a dispute under an agreement? B. Whether strict compliance with Haw. Rev. Stat. § 658A-9 is required and if so, whether the statute is jurisdictional? Corollary: Whether it is reversible error to allow a party, effectively, to give a proper Haw. Rev. Stat. § 658A-9 notice after that party filed a motion to compel? The Hawaii Supreme Court concluded that the ICA erred when it concluded that (1) Yamamoto’s claims were “in connection with” the Partnership Agreement, and (2) compliance with Haw. Rev. Stat. § 658A-9’s notice requirements was not required to initiate arbitration. Recktenwald, C.J., concurred in part and dissented in part. Recktenwald, C.J. disagreed with the Majority that concluded that Yamamoto’s claim was outside the scope of the Partnership Agreement. While “the mere existence of an arbitration agreement did not mean that the parties must submit to an arbitrator disputes which are outside the scope of the arbitration agreement,” whether a claim is arbitrable “depends on the wording of the contractual agreement to arbitrate.” County of Hawaii v. UNIDEV, LLC, 129 Hawaii 378, 394, 301 P.3d 588, 604 (2013) (quoting Hawaii Med. Ass’n v. Hawaii Med. Servs. Ass’n, Inc., 113 Hawaii 77, 92, 148 P.3d 1179, 1194 (2006)) (emphasis omitted). When evaluating the scope of an arbitration agreement, “[the] contract ‘should be construed as a whole and its meaning determined from the entire context and not from any particular word, phrase, or clause.’” Hawaii Med. Ass’n, 113 Hawaii at 92, 148 P.3d at 1194. Here, the majority focused on the preliminary provisions of the Partnership Agreement to the

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exclusion of all other terms in the contract. Recktenwald, C.J. concluded that the Majority construed the Partnership Agreement too narrowly and must look to the entire contract, not just two preliminary clauses, to determine the scope of the arbitration provision. However, Recktenwald, C.J. concurred with the Majority in Part IV.A that the requirements of Haw. Rev. Stat. § 658A-9 were not met by the Defendants here.

Civil Procedure Trustees of the Estate of Bernice Pauahi Bishop v. Au, No. SCWC-16-0000235, March 10, 2020, (Pollack, J.). Chapter 634J of the Haw. Rev. Stat. authorizes a court to enter an order declaring a plaintiff to be a vexatious litigant in particularly defined circumstances. The circuit court in this case determined that the defendant qualified as a “plaintiff ” for the

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purpose of the vexatious litigant statute and that the required circumstances were demonstrated. The ICA affirmed the circuit court’s ruling. Upon review of the vexatious litigant statute and its legislative history, the Hawaii Supreme Court held that the circuit court and ICA erred in determining that the defendant in this case qualified as a “plaintiff ” and that other requirements set forth in the statute were satisfied. The Hawaii Supreme Court also held that a court’s vexatious litigant determination must be supported by findings that set forth, with reasonable specificity, the perceived misconduct, including a finding of bad faith when applicable. Finally, the Hawaii Supreme Court concluded that the record did not show that the motions underlying the vexatious litigant order in this case were made in bad faith.

Criminal State v. Baker, No. SCWC-180000454, March 13, 2020, (Pollack, J.). When a driver in the State of Hawaii is involved in an accident that causes damage to another person’s vehicle or property, the driver is required by law to stop the vehicle at, or as close as possible to, the accident scene and remain there until the driver has provided certain identifying information. The applicable statute also requires that every such stop be made without obstructing traffic more than is necessary. In this case, the Hawaii Supreme Court considered whether the State must include this additional statutory requirement when charging a driver with the offense of not stopping at an accident scene and providing the required information. The Hawaii Supreme Court answered this question in the affirmative. The Hawaii

Supreme Court also concluded that the State failed to prove in this case that the defendant did not provide the required statutory information to the police after the accident.

Land Yin v. Aguiar, No. SCWC-150000325, March 9, 2020, (Pollack, J.). In this case, the Petitioner filed a complaint in the circuit court alleging that the Respondent’s cattle trespassed onto his property causing damage to his sweet potato crop. In granting the Respondent’s motion for summary judgment, the circuit court concluded that the Petitioner’s land was neither “properly fenced” nor “unfenced,” and therefore Hawaii’s statutory law governing the trespass of livestock onto cultivated land did not apply to the Petitioner’s property. Further, the circuit court determined that a

provision in the Petitioner’s lease, making the Petitioner fully responsible for keeping cattle out of his cultivated land, was not void against public policy. The ICA affirmed the circuit court’s judgment. Upon review of the legislative history of the statutes that govern the trespass of livestock onto the cultivated land of another, the Hawaii Supreme Court concluded that the legislature intended to hold owners of livestock liable for the damage caused by the trespass of their animals on cultivated land whether the land was properly fenced or not. Further, the Hawaii Supreme Court determined that the lease provision in this case had the effect of absolving the Respondent of liability for livestock damage to Petitioner’s cultivated land and therefore was contrary to statutory law and public policy, and it was thus invalid.

Tort Mobley v. Kimura, No. SCWC-120001090, March 13, 2020, (McKenna, J.). This case arose from a personal injury lawsuit filed by Gary Alan Mobley (“Mobley”) against the drivers of two vehicles in two separate accidents, from which Mobley allegedly sustained injuries. The accidents occurred on June 8, 2005, and January 12, 2008. Mobley filed a complaint in the circuit court against Leslie S. Ching (“Ching”) for the 2005 accident and Lyanne Kimura (“Kimura”) for the 2008 accident. Kimura then impleaded Dennis K. Espaniola (“Espaniola”) as a third-party defendant because of his involvement in the 2008 accident. Haw. Rev. Stat. § 431:10C-306(a) (2005) abolished tort liability with respect to accidental harm arising from motor vehicle accidents

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occurring in this State unless an exception under subsection (b) applies. Mobley’s complaint alleged he was able to assert tort liability for the 2005 and 2008 accidents under either or both of two exceptions: (1) Haw. Rev. Stat. § 431:10C-306(b)(4), which provides an exception to the abolition of tort liability if a person has incurred at least $5,000 in personal injury protection (“PIP”) benefits (sometimes “tort threshold” or “tort threshold exception”); and/or (2) Haw. Rev. Stat. § 431:10C-306(b)(2), which provides an exception for an injury that consists, in whole or in part, “in a significant permanent loss of use of a part or function of the body” (sometimes “significant permanent loss of use exception”). The circuit court granted summary judgment in favor of Kimura and Espaniola with respect to the 2008 accident, ruling Mobley failed to satisfy either exception. Before granting the defense motions, the circuit court also ruled Mobley failed to lay sufficient foundation for the admission and consideration of a doctor’s report and letter attached to his opposition memorandum, then denied Mobley’s oral request for a Hawaii Rules of Civil Procedure Rule 56(f) continuance to obtain admissible evidence of the contents of the doctor’s documents. In its August 15, 2019 memorandum opinion, the ICA ruled, inter alia, that the circuit court erred in granting summary judgment in favor of Kimura and Espaniola for the 2008 accident. The Hawaii Supreme Court accepted Espaniola’s application for a writ of certiorari, which presented two questions, summarized as follows: 1. Did the ICA err in ruling the circuit court erred in granting Espaniola’s motion for partial summary judgment based on Mobley’s failure to satisfy the tort threshold? 2. Did the ICA err in ruling that the circuit court’s grant of Espaniola’s motion for partial summary judgment was premature because evidence

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had not established that, by the time of trial, Mobley would not be able to demonstrate satisfaction of the tort threshold or prove that his injury constitutes, in whole or in part, a significant permanent loss of use of a part or function of the body? With respect to Mobley’s alleged failure to satisfy the tort threshold exception, Espaniola’s motion was based on the first Ralston prong, as Kimura and Espaniola allegedly “present[ed] evidence negating an element of [Mobley’s] claim” by submitting a declaration stating that no PIP benefits had been paid for the 2008 accident. Yet, the ICA ruled Espaniola was not entitled to summary judgment because of a failure to show that Mobley would be unable to offer proof at trial that he met the tort threshold. As indicated in the passage from Ralston above, however, the “unable to offer proof at trial” factor applies only when a movant seeks summary judgment based on the second Ralston prong, by “demonstrating that the nonmovant will be unable to carry [their] burden of proof at trial.” According to Hawaii law, when a plaintiff asserts applicability of the tort threshold exception, satisfaction of the exception is jurisdictional to the filing of a lawsuit. Therefore, the ICA erred to the extent it ruled Espaniola could not obtain summary judgment on the tort threshold exception unless he could show Mobley could not demonstrate he could meet the tort threshold at the time of trial. The Hawaii Supreme Court also held, however, that the ICA did not err in vacating the circuit court’s grant of summary judgment as to the 2008 accident based on the tort threshold exception. This was because Espaniola failed to meet his initial burden under the first Ralston prong of “negating an element of [Mobley’s] claim.” The tort threshold exception of Haw. Rev. Stat. § 431:10C-306(b)(4) requires that a plaintiff have “incurred” PIP benefits of

$5,000, and reviewing the record de novo, Mobley’s amended answers to interrogatories, attached to Kimura’s motion for summary judgment, raised a genuine issue of material fact on the applicability of the exception. The ICA also did not err with respect to its application of Ralston with respect to the significant permanent loss of use exception. Espaniola presented no evidence to negate this exception to the abolition of tort liability. Espaniola’s motion for partial summary judgment was, therefore, based on the second Ralston prong. The ICA properly concluded Espaniola did not meet his burden of establishing that Mobley would be unable to offer proof of this exception at trial; based on the record, whether Mobley could meet the exception was not “so clear that reasonable minds could only come to one conclusion.”

UIPA Honolulu Civ. Beat Inc. v. Department of the Att’y Gen., No. SCAP-170000480, (Wilson, J.). In response to a Uniform Information Practices Act (“UIPA”) request from Plaintiff-Appellant Honolulu Civil Beat Inc. (“Civil Beat”) to Defendant-Appellee the Department of the Attorney General (“the Department”) for the results of an investigation into the Office of the Auditor, the State refused to produce any documentation; its refusal was based in part on the lawyer-client privilege and the professional rule protecting confidential lawyer-client communications. The Hawaii Supreme Court held that the State may not exclude a government record from disclosure under the UIPA on the basis of a lawyer-client relationship between two State entities which is “asserted but not proved[.]” Ipse Dixit, Black’s Law Dictionary (11th ed.

2019). “An ipse dixit claim of privilege is insufficient.” Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980).

Intermediate Court of Appeals Family JW v. RJ, No. CAAP-19-0000328, March 16, 2020, (Hiraoka, J.). In this divorce case, Plaintiff appealed from two post-decree orders entered by the Family Court: (1) the Decision and Order entered on February 7, 2019; and (2) the Reconsideration Order entered on March 14, 2019. The ICA vacated Paragraph 3 (Child Support) and Paragraph 5 (Post High School Education) of the Decision and Order. The ICA concluded that the family court did not make findings of fact that enabled it to determine whether its calculation of Father’s gross monthly income was supported by substantial evidence; and Mother’s 529 savings plan accounts were Mother’s separate property and should not have been allocated to pay a portion of Father’s share of the children’s higher education expenses. The Estate of Joanna Lau Sullivan, Deceased, No. CAAP-17-0000826, March 20, 2020, (Leonard, J.). This case arose out of a petition for the probate of a will and the appointment of a personal representative to administer the decedent’s estate. One of the decedent’s children petitioned for the appointment of a special administrator to properly administer a potential claim against the decedent’s estate planning attorney, who is now the personal representative of the decedent’s estate. The potential claim is that the attorney may have negligently advised the decedent and/or provided her with materially inaccurate information, which she allegedly relied on to the detriment of her estate or certain beneficiaries of her estate. The ICA held that: (1) a special administrator is appointed when a

Thank you to the law firms, businesses, and individuals for supporting the Legal Aid Society of Hawaii’s four year Justice Campaign. Your continued support is leading the way towards providing access to justice for those in need. Blaine Rogers Bronster Fujichaku Robbins Cades Foundation Carlsmith Ball LLP Corianne Lau Cronin, Fried, Sekiya, Kekina & Fairbanks Dentons US LLP Gary Y. Murai Goodsill Anderson Quinn & Stifel LLP Hawaii Gas

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For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org.

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Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in mediations for clients of most of Hawaii’s major law firms. • 41 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, and Arbitration, 2018. • Mr. Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies. • Mr. Hiatt has also served as a court appointed Receiver For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 885-3400. Resume and references at www.hiattlaw.com.

personal representative cannot or should not act temporarily such as when a conflict of interest exists; (2) a fundamental duty of a personal representative is to act as a fiduciary consistent with the best interests of the estate and successors to the estate; (3) a personal representative cannot properly administer an estate with respect to evaluating issues related to a legally-cognizable claim against the personal representative himself because his self-interest creates a conflict with his fiduciary duties to the estate; (4) based on the potential claims identified by the petitioner here, the ICA could not conclude that there was no justiciable claim subject to the administration of the estate; and (5) therefore, the appointment of a special administrator was necessary under the circumstances.

Foreclosure Bank of New York Mellon v. Colton, No. CAAP-17-0000174, February 28, 2020, (Wadsworth, J.). Appellant appealed the judgment in favor of Appellee that dismissed all her counterclaims. Appellant contended, among other things, that the circuit court abused its discretion in granting Appellee’s motion for sanctions, thereby dismissing Appellant’s counterclaims with prejudice, on the ground that she failed to comply with the circuit court’s prior order to compel her responses to Appellee’s written discovery requests. The ICA concluded that the nature of the relief sought in Appellant’s counterclaims did not change their gravamen, which was based on a common set of factual allegations that concerned issues involving the foreclosure. The remaining counterclaims appeared to be closely related to, not collaterally incidental to, the foreclosure judgment. Accordingly, Appellant’s prior appeal from the foreclosure judgment divested the circuit court of jurisdiction over all the counterclaims until the case was remanded.

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HAWAII BAR JOURNAL

O FF THE R EC ORD Thomas J. Hughes joined Goodsill Anderson Quinn & Stifel as a Litigation Associate. He received his J.D. degree from Harvard Law School in 2018 and his B.A. in political science from the University of California, Berkeley in 2012. Prior to entering law school, Hughes worked in state politics and lobbying in Sacramento, California and was a former clerk for Hawaii Supreme Court Associate Justice Michael D. Wilson. Carlsmith Ball LLP has hired Erika Gustin as an associate in the firm’s Litigation and Alternative Dispute Resolution practice group in Honolulu. The Cades Schutte law firm recently named Trisha Nishimoto as a partner in its Litigation Department and Andrea K. Ushijima as a partner in the firm’s Finance and Real Estate Department. Hawaii Women Lawyers selected five women to receive the following 2020 honors: Outstanding Woman Lawyer of the Year: Senator Laura H. Thielen; Outstanding Judicial Achievement Award: Judge Alexa D. M. Fujise; Lifetime Achievement Award: Judge Barbara P. Richardson; Distinguished Service Award: Tracey S. Wiltgen; President’s Award: Rachael Wong. In February, 2020, the Hawaii Legislature honored Melody Kapilialoha MacKenzie in a Resolution commending “her strong commitment to the betterment of our society and advancement of the Native Hawaiian community” and recognizing “her career in advocating for Native Hawaiian issues.” Pacific Business News chose Coralie Chun Matayoshi as this year’s Career Achievement honoree for Women Who Mean Business. “We were especially interested in celebrating her success as a business leader running three consecutive statewide nonprofits. Each job was

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HAWAII BAR JOURNAL

bigger than the last, culminating in her position as chief executive officer of the American Red Cross Pacific Islands Region, from which she retired at the end of 2019. And each organization was struggling when she came aboard and thriving by the time she left.” (March 6, 2020 issue)

News for “Off the Record” Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at <carol.k.muranaka@gmail.com> or Cynthia M. Johiro at <Cynthia.M. Johiro@hawaii.gov>.

Articles Wanted If you are interested in writing ei-

ther a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@ hawaii.gov; or Carol K. Muranaka at carol.k.muranaka@gmail.com; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is approximately 500 to 1,500 words. The longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue. These articles exceed 7,000 words. The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

ATTORNEY WANTED DEPUTY PROSECUTING ATTORNEY The County of Maui Department of the Prosecuting Attorney, seeks to fill position(s) at the entry to high experience level(s) as a Deputy Prosecuting Attorney. Applicants must have an active Hawaii State Bar license, be in good standing and experience in criminal law. Competitive salary commensurate with years of experience ranging from $66,000 to $130,000. Please send letter of interest, resume, writing sample, and three references to: Don S. Guzman, Prosecuting Attorney, 150 South High Street Wailuku, Maui, Hawaii 96793 E-mail: Prosecuting.Attorney@co.maui.hi.us

EXPERT WITNESS AQUATIC SAFETY EXPERT 28 years aquatic Experience. Qualified as an expert in state and federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Service 808-960-9348 www.aquaticsconsulting.com

Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spikedenis@hawaii.rr.com Tel:808.224.4559

knowledge of state/federal court rules, along with working knowledge of Microsoft Word. Experience with Juris preferred. Competitive benefits offered; salary commensurate with experience. All interested applicants should email their current resume and cover letter to hr@lbchlaw.com

REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 2-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059.

LEGAL CONSULTING

REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

LEGAL ADMINISTRATION CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. National Building Expert. Best Selling Author. www.lanceluke.com 808-422-2132 PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions •

ONE ON ONE litigation legal/administrative assistant wanted for name partner in high volume civil trial practice. Must be a selfstarter with strong communication skills, able and willing to deal directly with clients, and work well with others. 5-7 years experience in civil litigation practice a must, including

LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case. Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

LEGAL WRITING /RESEARCH EXPERIENCED ATTORNEY will provide legal writing services. Motions, memos, complaints, appellate briefs, and other writing assignments. Reasonable rates. Writing samples, and references provided on request. Call (808) 7358701 or (808) 227-2141.

RECRUITING / TEMP STAFFING HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available. 695-3974. email: info@hi-employment.com

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HAWAII BAR JOURNAL