{"id":15064,"date":"2023-04-02T07:34:51","date_gmt":"2023-04-02T17:34:51","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=15064"},"modified":"2023-04-02T07:41:20","modified_gmt":"2023-04-02T17:41:20","slug":"states-highest-court-weighs-in-on-camping-energy-mauna-kea","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=15064","title":{"rendered":"State\u2019s Highest Court Weighs In On Camping, Energy, Mauna Kea"},"content":{"rendered":"\n

Above photo: Interior of Ali\u02bbiolani HaleCredit: King Kamehameha V Judiciary History Center<\/sub><\/p>\n\n\n\n

Over the last month, rulings from the state Supreme Court have changed the regulatory landscape for a variety of activities. The consequences of the decisions range from sea level (the Hu Honua biomass power project on the Hamakua Coast) to mountain top (two decisions addressing controversies over management of the summit area of Mauna Kea).<\/p>\n\n\n\n

Here are our brief synopses of the decisions \u2013 and, where applicable, the dissents, starting at the top and working down.<\/p>\n\n\n\n

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Mauna Kea Rules<\/strong><\/h3>\n\n\n\n

In a decision that was praised by the plaintiffs\u2019 attorneys, the majority of justices approved (by a hair) the argument of the plaintiffs that when government agencies adopt rules, it falls to those agencies to demonstrate that the rules provide constitutional protections to Native Hawaiians, as provided in Article III, Section 7 of the state Constitution.<\/p>\n\n\n\n

What came before the court was a \u201creserved question\u201d from the 3rd<\/sup> Circuit, which was considering a case brought by the Flores-Case Ohana that challenged rules adopted by the University of Hawai\u02bbi Board of Regents governing access to the summit of Mauna Kea.<\/p>\n\n\n\n

The question forwarded to the court was this: \u201cIn a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawai\u02bbi State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, Section 7? If so, what standards govern its application?\u201d
Chief Justice Mark Recktenwald reformulated the question \u201cso that a negative answer to the first question will not preclude us from answering the second.\u201d Recktenwald\u2019s two reformulated questions are these: \u201cIn a challenge to the constitutionality of administrative rules\u201d based on the constitutional rights of Native Hawaiians, \u201cdoes the burden of proof shift to the government defendant?\u201d And \u201cwhat standard governs a challenge to the constitutionality\u201d of a rule alleged to violate those rights?<\/p>\n\n\n\n

In answer to the first question, Recktenwald finds that the burden \u201cremains with the challenging party. \u2026 In general, the party challenging the constitutionality of an administrative rule bears the burden of proof.\u201d<\/p>\n\n\n\n

As to the second question, he writes that in adopting rules, agencies need to conduct a Ka Pa\u02bbakai<\/em> analysis, referring to the Supreme Court decision in Ka Pa\u02bbakai o Ka \u02bbAina v. Land Use Commission.<\/em> That is the landmark ruling from 2000 that \u201cplaces an affirmative duty on the state and its agencies to preserve and protect traditional and customary native Hawaiian rights\u201d during contested case hearings.<\/p>\n\n\n\n

In so doing, Recktenwald broadens the scope of Ka Pa\u02bbakai<\/em> beyond contested case hearings, which are a quasi-judicial function of state boards and commissions, to the legislative functions \u2013 rule-making \u2013 of those same agencies. \u201c[C]onsistent with the Ka Pa\u02bbakai<\/em> framework, we hold that agencies must engage in a contemporaneous analysis of the relevant factors prior to adopting a rule,\u201d he writes. \u201cThat analysis should identify Native Hawaiian traditional and customary rights or practices affected by the proposed rule, if any, consider the scope and extent to which those rights or practices will be impaired, and explain how the proposed rule reasonably protects those rights and practices as balanced with the state\u2019s own regulatory right.\u201d<\/p>\n\n\n\n

After reviewing other landmark rulings by the court, including PASH<\/em> and Kalipi,<\/em> Recktenwald writes: \u201cNone of our cases suggest that agencies are bound by these protections only in contested case hearings.\u201d On the contrary, quoting from Pele Defense Fund,<\/em> he states that Article XII, Section 7 protects \u201cthe broadest possible spectrum of native rights\u201d and was not intended to be narrowly construed.<\/p>\n\n\n\n

Recktenwald asserts that the burden of proof in constitutional challenges arising from Article XII, Section 7 remains with the challenger. However, he agrees with the Flores-Case \u02bbOhana that the protections afforded Native Hawaiians \u201care flexible and must be adapted to the particular context or situation where they are implicated, whether during administrative adjudications, like contested case hearings, or administrative rulemaking. \u2026 There is no principled basis to exempt agency rulemaking from the state\u2019s constitutional obligations.\u201d<\/p>\n\n\n\n

The \u201cappropriate analytical framework\u201d involves agencies considering the identity and scope of Native Hawaiian traditional and customary rights affected by the rule, the extent to which these rights will be affected by the rule, and whether the rules reasonably protect those rights.<\/p>\n\n\n\n

\u201cAlthough formal findings of fact and conclusions of law are not required, agencies must prepare a written statement summarizing the above analysis prior to adopting a proposed rule and make that analysis available to the public,\u201d the decision states. This would not \u201cunduly burden\u201d agencies, because \u201cagencies must already be prepared to provide justifications for their proposed rules. Our holding today only requires agencies to show that they met their obligation under the constitution so that the public can evaluate an agency\u2019s decision, and courts have a basis to review that decision if subsequently challenged in court.\u201d<\/p>\n\n\n\n

Nonetheless, Recktenwald concludes, \u201cthe burden of showing the agency failed to adequately consider or reasonably protect Native Hawaiian traditional and customary rights or practices remains with the plaintiff\u2026. It is the plaintiff\u2019s burden to show the rule is unconstitutional.\u201d<\/p>\n\n\n\n

As mentioned earlier, Recktenwald\u2019s opinion became the majority ruling by the narrowest of margins. Signing onto it fully was just one of the four associate justices, Michael Wilson. Associate Justice Sabrina McKenna concurred in part and dissented in part. McKenna agreed that agencies should consider Native Hawaiian rights when adopting rules. However, requiring agencies to prepare a written statement \u201cviolates separation of powers principles.\u201d Chapter 91 of Hawai\u02bbi Revised Statutes describes the rulemaking procedures agencies must follow and also how those rules are to be challenged. It also provides for those agencies to issue declaratory actions when the validity of those rules are challenged, as the Flores-Case \u02bbOhana has done. \u201cThe Chapter 91 statutory scheme does not require agencies to issue written statements summarizing how it considered Native Hawaiian or other constitutional rights when promulgating rules. Therefore, I believe judicial imposition of such a requirement would violate separation of powers principles,\u201d she wrote.<\/p>\n\n\n\n

Associate Justice Todd W. Eddins wrote the minority opinion, with the full concurrence of Associate Justice Paula A. Nakayama and partial concurrence of Associate Justice McKenna.<\/p>\n\n\n\n

Eddins\u2019 dissenting opinion argued that \u201cKa Pa\u02bbakai<\/em> does not fit the rulemaking context. Ka Pa\u02bbakai\u2019<\/em>s strong protections facilitate rigorous fact findings and legal conclusions based on a full evidentiary record, fleshed out by adversarial parties. By its nature, rulemaking cannot achieve this specificity and rigor. Also, frontloading Ka Pa\u02bbakai<\/em> to the general rulemaking context risks weakening the protections for Native Hawaiians in contested case hearings and criminal prosecutions.\u201d<\/p>\n\n\n\n

Eddins notes that this does not mean agencies need not consider Native Hawaiian rights when adopting rules. When those rules are challenged, \u201cthe government must explain why its regulation is reasonable and the customary usage unreasonable, and the challenger must explain why their customary usage is reasonable and the government\u2019s regulation unreasonable. It is the court\u2019s ultimate duty to balance these competing viewpoints and arrive at a reasoned decision.\u201d<\/p>\n\n\n\n

As McKenna observed, the Legislature \u201chas provided a comprehensive statutory structure for agency rulemaking,\u201d Eddins writes. \u201cI decline to depart from [it]. And refuse to tuck Ka Pa\u02bbakai<\/em> into Hawai\u02bbi Revised Statutes Chapter 91\u2019s rulemaking regime.\u201d<\/p>\n\n\n\n

\u201cApplying Ka Pa\u02bbakai<\/em> to the general rulemaking context risks diluting its strong protections. Even more worrying, it threatens the due process rights of parties who, unlike Flores-Case \u02bbOhana, actually want <\/em>a contested case hearing; same for persons who get charged with violating a rule. If the Ka Pa\u02bbakai<\/em> analysis \u2013 even a Ka Pa\u02bbakai-<\/em>lite version \u2013 fast forwards to the general rulemaking stage, individuals with specific claims to adjudicate may find their cases prejudged or weakened.\u201d<\/p>\n\n\n\n

Eddins cites to a previous decision, In re Hawaiian Elec. Co.,<\/em> in noting that the court has recognized \u201cthat rule-making is essentially legislative in nature  because it operates in the future.\u201d Adjudication, on the other hand \u201coperates concretely upon individuals in their individual capacity.\u201d<\/p>\n\n\n\n

\u201cThe difference is straightforward. Adjudications handle the past or current rights of specific people; rulemakings make law for everyone, for the future.\u201d<\/p>\n\n\n\n

In his closing remarks he summarizes the problem as he sees it: \u201cThe agency\u2019s findings [under Recktenwald\u2019s scheme] or fuzzy \u2018adequate considerations\u2019 will not go unnoticed. Contested case hearings or prosecutions held afterwards may either violate due process, because the result had been pre-decided, or the existence of a general Ka Pa\u02bbakai<\/em> rulemaking may nullify or undermine the rights of individuals who seek or have contested case hearings. Neither result is promising for the protection of Native Hawaiian rights.\u201d<\/p>\n\n\n\n

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An Urbanized Summit?<\/strong><\/h3>\n\n\n\n

The court issued another Mauna Kea-related decision last month, this one involving the direct appeal of a declaratory ruling of the Land Use Commission. The LUC had been asked by two Hawaiians \u2013 Ku\u02bbulei Higashi Kanahele and Ahiena Kanahele \u2013 to find that the collection of telescopes existing on the summit of Mauna Kea effectively constituted a use of the land that should require the summit to be placed in the Urban land use district. As things stand, the summit is in the state Conservation District, with the telescopes having been granted Conservation District Use Permits by the state Board of Land and Natural Resources, which has jurisdiction in the Conservation District.<\/p>\n\n\n\n

The LUC denied the petition in 2019, explaining that it lacked jurisdiction \u201cto use the declaratory ruling procedure to undermine decisions already made and to regulate land uses in the Astronomy Precinct, because the Legislature granted such authority to the Department of Land and Natural Resources. The Supreme Court upheld the LUC ruling.<\/p>\n\n\n\n

The majority decision was another squeaker. Associate Justice Paula Nakayama authored the decision, in which Chief Justice Recktenwald and Circuit Judge Lisa W. Cataldo joined. (Cataldo was filling a vacancy on the bench.) Issuing the dissent were Associate Justices McKenna and Wilson, who authored the dissent.<\/p>\n\n\n\n

\u201cThe Kanaheles seek to use the Commission\u2019s declaratory ruling authority (1) to challenge past decisions that astronomy facilities are permissible within conservation districts and (2) to contravene the Department\u2019s power to regulate conservation district uses,\u201d Associate Justice Nakayama writes in the majority opinion. \u201cContrary to the Kanaheles\u2019 claim that the commission may restrict land uses through Hawai\u02bbi Revised Statutes \u00a7 205-2(3), the statute merely identifies uses that are permitted within conservation districts. The statute does not authorize the commission to exclude or enforce certain land uses within conservation districts.\u201d<\/p>\n\n\n\n

The Kanaheles were not wanting to have the commission reclassify the Astronomy Precinct, where the telescopes were built, they said. Rather, they were merely asking that the commission give them the opportunity to say they did not want the rezoning that had already occurred.<\/p>\n\n\n\n

Their attorney explained to the LUC that they were merely asking the commission to say that \u201cthe concentration of industrial research facilities on Mauna Kea \u2026 are appropriate within the Urban District \u2026 and not the Conservation District.\u201d They were not \u201cseeking enforcement of anything except for [HRS chapter] 205.\u201d<\/p>\n\n\n\n

\u201cWhen asked about the practical result of the Kanaheles\u2019 petition, the Kanaheles\u2019 attorney acknowledged that \u2018in order to keep things as they are,\u2019 \u2018the legal effect of [the Kanaheles\u2019] petition is to \u2026 force the state of Hawai\u02bbi or whoever might be considered the landowner of the land on which the telescopes sit to have to file a request for a [district] boundary amendment.\u201d<\/p>\n\n\n\n

In denying the petition for declaratory ruling, the LUC stated: \u201c[t]he Petitioners have requested a ruling on a statutory provision not administered by the commission and a matter that is not otherwise within the jurisdiction of the commission.\u201d<\/p>\n\n\n\n

While the Kanaheles insisted they were not wanting to have the commission issue an order requiring a district boundary amendment be obtained for the summit, \u201cthe plain language of the Kanaheles\u2019 petition requested a declaratory order that explicitly required a district boundary amendment,\u201d the majority ruling states.<\/p>\n\n\n\n

The Kanaheles also challenged the commission\u2019s finding that they were requesting a ruling on a statute that it did not administer.<\/p>\n\n\n\n

But in fact, the majority opinion states, they were asking the commission \u201cto determine what constitutes prohibited land uses within a Conservation District,\u201d a prerogative that the Legislature gave only to the Department of Land and Natural Resources.<\/p>\n\n\n\n

The majority concludes: \u201cThis court\u2019s role is to interpret the statutory scheme as enacted by the Legislature. The dissent contends this opinion \u2018eliminat[ed] \u2026 the commission\u2019s jurisdiction over conservation land bearing CDUPs granted by the department.\u2019 Not so. This court has faithfully interpreted the relevant statutes and concluded the statutory scheme does not permit the commission to enforce uses within a Conservation District. \u2026 While the dissent appears to question the efficacy of the statutory scheme to protect conservation district land, it is the Legislature\u2019s role, not ours, to amend existing law.\u201d<\/p>\n\n\n\n

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No Camping On<\/strong> Productive Ag Lands<\/strong><\/h3>\n\n\n\n

In a case that goes back more than seven years, the Supreme Court determined that a proposed camp on highly productive land in the state Agricultural District could not be blessed by a Special Use Permit granted by Maui County.<\/p>\n\n\n\n

At issue was the proposal of the Ho\u02bbomoana Foundation to develop a campground near Lahaina on \u201cclass B\u201d agricultural land. Guests would be both commercial campers as well as homeless people. <\/p>\n\n\n\n

The case before the court was brought by the Land Use Commission and the Pu\u02bbunoa Homeowners Association, as well as several of its members (they changed over time). They were appealing the decision of the Intermediate Court of Appeals last year that found that a prior Supreme Court decision, Maha\u02bbulepu v. Land Use Commission<\/em>, decided in 1990, did allow camping to be authorized by Special Use Permit.<\/p>\n\n\n\n

Since then, the Legislature has amended Chapter 205 to exclude overnight camps from the list of permitted uses, which, Associate Justice Nakayama writes in the majority opinion, \u201cmeans that the public and private recreational use of overnight camps is not permitted in class A and B land in agricultural districts and cannot be permitted by Special Use Permit.\u201d<\/p>\n\n\n\n

\u201cIn addition,\u201d she continues, \u201cMaha\u02bbulepu<\/em> v. Land Use Commission \u2026<\/em> is overruled because it was incorrectly decided. Because the foundation\u2019s proposed campground project includes a public or private recreational overnight camp use, the project requires a district boundary amendment.\u201d<\/p>\n\n\n\n

Joining Nakayama in the majority were Associate Justices Wilson and Eddins. Chief Justice Recktenwald and Associate Justice McKenna dissented.<\/p>\n\n\n\n

The basis for the dissent is the principle of stare decisis,<\/em> McKenna writes. The majority \u201cavoids our own stare decisis jurisprudence,\u201d she states. \u201cMaha\u02bbulepu<\/em> was decided more than thirty years ago. Whether or not we agree with its reasoning, we have repeatedly held that where the Legislature fails to act in response to our statutory interpretation, that statutory interpretation must be considered to have the Legislature\u2019s tacit approval.\u201d<\/p>\n\n\n\n

McKenna disagreed with the majority that amendments since Maha\u02bbulepu<\/em> had addressed the issue. \u201c[N]one of the amendments rejected Maha\u02bbulepu<\/em>\u2019s statutory interpretation that the list of uses expressly excluded from permitted open area recreational uses in HRS \u00a7 205-4.5(a)(6) could be authorized through a Special Use Permit. Thus, although legislative inaction can be a poor barometer of legislative intent, in this case, the nature and sheer number of post-Maha\u02bbulepu<\/em> legislative amendments buttress the Legislature\u2019s tacit approval of this court\u2019s statutory interpretation.\u201d<\/p>\n\n\n\n

McKenna concludes: \u201cToday, the majority overrules Maha\u02bbulepu<\/em> while ignoring important stare decisis principles. It does so in a case involving a proposed overnight campground development for unsheltered people in our community brought by adjoining homeowners, some of whom asserted \u2018not in my backyard\u2019 concerns. Respectfully, in my view, our resolution of this case should be guided by the motto enshrined in the Constitution of the State of Hawai\u02bbi: \u2018Ua ma uke ea o ka \u02bbaina I ka pono.\u2019\u201d<\/p>\n\n\n\n

(For additional background, see the article in the July 2022 edition of Environment Hawai\u02bbi, <\/em>\u201cFarm Dwellings, Overnight Camps at Issue in 2 Court Cases the LUC Votes to Appeal.\u201d)<\/p>\n\n\n\n

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Ruling Leaves Few Options<\/strong> For Hu Honua Plant<\/strong><\/h3>\n\n\n\n

In an almost folksy voice, Associate Justice Todd W. Eddins put paid to the years-long controversy over whether the Hu Honua biomass plant on the Hamakua Coast, a few miles north of Hilo, should be allowed to feed power into the island-wide grid of the Hawai\u02bbi Electric Light Co., or HELCO.<\/p>\n\n\n\n

\u201cOver ten years ago, energy company Hu Honua had a brainwave,\u201d Eddins writes for the court. \u201cIt could produce renewable energy by burning trees. The company sought regulatory approval to supply energy to Hawai\u02bbi Island using a biomass power plant. Last summer, approval for that energy deal was denied. Hu Honua appeals the denial, arguing that the Public Utilities Commission misunderstood its mandate and held Hu Honua to an unfair standard.<\/p>\n\n\n\n

\u201cWe disagree.\u201d<\/p>\n\n\n\n

Eddins recaps the history of PUC decisions, appeals, and remands, and then gives the background for the instant case.<\/p>\n\n\n\n

Before evidentiary hearings began before the PUC in March 2022, Eddins writes, \u201cHu Honua brought several motions centered on Act 82, \u2026 the primary statute governing the PUC\u2019s evaluation of energy projects\u2026 It requires the PUC to engage in \u2018public interest-minded balancing.\u2019\u201d<\/p>\n\n\n\n

But Hu Honua argued to the PUC that it could only consider greenhouse-gas emissions from fossil fuels: \u201cEmissions from other sources, such as biomass burned to produce renewable energy, had to be kept out of the equation,\u201d Eddins writes.<\/p>\n\n\n\n

The PUC rejected the argument. Still, Hu Honua and HELCO said the proposed power purchase agreement did serve the public interest, despite the project producing massive carbon emissions.<\/p>\n\n\n\n

\u201cBut Hu Honua made a promise,\u201d Eddins writes. \u201c[T]he project would ultimately be carbon neutral. Hu Honua intended to offset its emissions by planting trees. \u2026 That would zero out the project\u2019s projected eight million metric ton carbon price tag.\u201d The bulk of the tree-planting, it claimed, would occur on land it leased on Hawai\u02bbi Island. The PUC found the claims not credible, given that Hu Honua presented no evidence that it had secured leases that lasted as long as the power purchase agreement.<\/p>\n\n\n\n

The PUC also found that the power purchase agreement would increase ratepayer costs. \u201cOverall,\u201d Eddins writes, \u201cthe PUC found that the project would increase the typical consumer bill by an average of $10.97 a month throughout the full 30-year term. The PUC deemed this a significant bill impact.\u201d<\/p>\n\n\n\n

When Hu Honua appealed the PUC\u2019s decision to the Supreme Court, it argued the PUC erred in three respects. First, it should not have considered the plant\u2019s impact on ratepayers. Second, it should have compared Hu Honua emissions only to emissions from fossil-fuel plants. Third, the PUC \u201cviolated Hu Honua\u2019s due process rights by finding facts not in the record, applying a wrong evidentiary standard, and subjecting Hu Honua to a carbon neutrality requirement.\u201d<\/p>\n\n\n\n

The court rejected all three points.<\/p>\n\n\n\n

\u201cWe have said that an agency \u2018must perform its statutory function in a manner that fulfills the state\u2019s affirmative constitutional obligations,\u2019\u201d Eddins writes, \u201cand that \u2018Article XI, Section 9\u2019s clean and healthful environment right \u2026 subsumes a right to a life-sustaining climate system.\u2019 The right to a life-sustaining climate system is not just affirmative; it is constantly evolving.\u201d<\/p>\n\n\n\n

He concludes: \u201cThe reality is that yesterday\u2019s good enough has become today\u2019s unacceptable. The PUC was under no obligation to evaluate an energy project conceived of in 2012 the same way in 2022. Indeed, doing so would have betrayed its constitutional duty.\u201d<\/p>\n\n\n\n

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\u2018Fees on Fees\u2019 Approved<\/strong> In Haleakala Trail Case<\/strong><\/h3>\n\n\n\n

Just how should fees be paid in a case brought under the private attorney general doctrine?<\/p>\n\n\n\n

That was the question before the Supreme Court in a case brought by attorneys Peter Martin and Tom Pierce, who were appealing an Intermediate Court of Appeals decision that severely limited their recovery of fees incurred in protracted litigation over fees. Martin and Pierce had represented plaintiffs who had sued more than a decade ago to have the state declared the owner of the Haleakala Trail. The plaintiffs \u2013 Public Access Trails Hawai\u02bbi, David Brown, Joe Bertram III, and Ken Schmitt \u2013 prevailed in 2014, when a jury brought a ruling in their favor. The state, which had opposed their original lawsuit, had joined with the plaintiffs by the time the jury trial was held, even though it continued to try to negotiate a land exchange with Haleakala Ranch, without notice to the plaintiffs, after the joint prosecution agreement had been executed.<\/p>\n\n\n\n

Despite the state\u2019s participation, the heavy lifting in the litigation was done by the plaintiffs\u2019 attorneys, who sought attorneys\u2019 fees of more than $1 million and costs amounting to nearly $25,000 from Haleakala Ranch.<\/p>\n\n\n\n

The ranch vigorously opposed the award of fees. As noted in the court\u2019s decision, authored by Associate Justice Wilson, Haleakala Ranch Corporation (HRC) \u201cargued that the state\u2019s initial opposition to petitioner\u2019s complaint stemmed from the fact that the state believed that petitioners did not have a say in how the state should expend its resources or resolve disputes.\u201d Should the court find that the petitioners\u2019 efforts were necessary, HRC argued, it would amount \u201cto a finding that a private party can substitute its judgment and interest for that of the state.\u201d<\/p>\n\n\n\n

On the other hand, the petitioners \u201cargued they were entitled to attorneys\u2019 fees because they were a prevailing party and, pursuant to the [private attorney general] doctrine, \u2018were solely responsible for vindicating [the] important public policy\u2019 of protecting Haleakala Trail under the Highways Act, which set an \u2018important precedent\u2019 that may be used to \u2018protect similar historic trails and roads in Hawai\u02bbi for the benefit of current and future generations.\u2019\u201d<\/p>\n\n\n\n

Just two months after the initial request for attorneys\u2019 fees was filed, the 2nd<\/sup> Circuit Court awarded fees \u2013 but only those fees that were incurred before the time the plaintiffs entered into a joint prosecuting agreement (JPA) with the state.<\/p>\n\n\n\n

Following that, the plaintiffs requested fees of $396,031 and costs of $24,871, representing their efforts up to March 4, 2013, the date they said the JPA became effective.<\/p>\n\n\n\n

Haleakala Ranch disputed that, asking the court to reduce the award to $120,852 in attorneys\u2019 fees and $21,331 in costs.<\/p>\n\n\n\n

The Circuit Court split the difference, awarding the petitioners a total of $256,494.53<\/p>\n\n\n\n

The petitioners then filed a second motion for attorneys\u2019 fees and costs, requesting additional fees of $71,462.58 and costs of $905.06. They argued the second motion for fees was warranted \u201cconsidering the time, complexities, and difficulties\u201d involved in litigating the first motion for fees.<\/p>\n\n\n\n

That second motion for fees was denied by the Circuit Court in a ruling that was promptly appealed to the ICA. In briefs before the ICA, the petitioners argued that private enforcement \u201ccan be necessary, even where other private and public parties join in the litigation, where \u2018but for\u2019 the efforts of the plaintiff, there would not have been a vindication of the public\u2019s interest.\u201d<\/p>\n\n\n\n

Still, the ICA upheld the lower court finding, prompting the plaintiffs to appeal to the high court, which overturned the two lower courts\u2019 rulings.<\/p>\n\n\n\n

\u201cAnalysis of the state\u2019s conduct \u2013 at least for the time period during which the state negotiated and advocated for the proposed land exchange \u2013 makes clear that even after the signing of the JPA, the burden of enforcement fell disproportionately, and at times, solely, on petitioners,\u201d the ruling states. The justices cited to a prior court ruling, Irwin Park II<\/em>, involving efforts to build a parking structure on land lying between Aloha Tower and Nimitz Highway in Honolulu, in deciding that, \u201cbut for petitioners, efforts, the outcome of the litigation \u2013 i.e., the state being declared owner of Haleakala Trail \u2013 may not have materialized given the state\u2019s efforts to approve the land exchange with\u201d Haleakala Ranch. Although the state claimed that the proposed land exchange didn\u2019t violate the JPA and did not constitute \u2018active opposition\u2019 within the meaning of the private attorney general doctrine, \u201cit is clear that by pursuing a deal in which the state agreed to surrender its interest in Haleakala Trail, after it had agreed to jointly prosecute petitioners\u2019 case by asserting an ownership claim against [the ranch], the state was actively opposing or abandoning petitioners\u2019 cause of preserving Haleakala Trail for the purpose of public access.\u201d<\/p>\n\n\n\n

\u201cGiven the petitioners\u2019 success in the underlying litigation and on their first [attorney fees] motion under the [private attorney general] doctrine, and given the policy goals this court has articulated in adopting and applying the PAG doctrine, we now clarify that petitioners\u2019 attorneys\u2019 fees and costs recoverable \u2026 include those reasonably incurred in litigating the initial fee claim,\u201d the ruling states.<\/p>\n\n\n\n

The case was remanded to the 2nd<\/sup> Circuit Court.<\/p>\n\n\n\n

But wait, there\u2019s more<\/strong><\/p>\n\n\n\n

Although the state\u2019s ownership of the Haleakala Trail was vindicated in court, access continues to be an issue.<\/p>\n\n\n\n

In 2022, David Brown and Public Access Trails Hawai\u02bbi returned to 2nd<\/sup> Circuit Court, this time suing the state and Haleakala Ranch over their failure effectively to take ownership of the trail and accommodate public access. In October 2019, the BLNR approved an agreement with Haleakala Ranch that severely restricted hours of access.<\/p>\n\n\n\n

As noted in the complaint, the \u201cNew Trail Agreement\u201d fails \u201cto include provisions obligating [the ranch] to protect, preserve, maintain, or otherwise properly manage the trail \u2026 to the level required of Defendant State in order to fulfill its obligation under the public trust.\u201d<\/p>\n\n\n\n

In the more than three years since the agreement was executed, \u201cno hikes have been scheduled for the trail, the public has no access to the trail, and [the ranch] remains in sole and exclusive possession and use of the trail.\u201d<\/p>\n\n\n\n

Litigation in that case is ongoing.<\/p>\n\n\n\n

\u2014 Patricia Tummons<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Above photo: Interior of Aliʻiolani HaleCredit: King Kamehameha V Judiciary History Center Over the last month, rulings from the state Supreme Court have changed the regulatory landscape for a variety of activities. The consequences of the decisions range from sea … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15067,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,509,11,14,12],"tags":[7],"class_list":["post-15064","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-april-2023","category-climate-change","category-energy","category-telescopes","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15064","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15064"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15064\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15067"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15064"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15064"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15064"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}