  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000061
                                                               04-DEC-2013
                                                               09:48 AM




                              SCWC-12-0000061

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                            DANA NAONE HALL,
                    Respondent/Plaintiff-Appellant,

                                     vs.

              DEPARTMENT OF LAND AND NATURAL RESOURCES,
    BOARD OF LAND AND NATURAL RESOURCES, WILLIAM J. AILA, JR.,
           in his official capacity as chairperson of the
       Board of Land and Natural Resources and as the State
          Historic Preservation Officer, ALAN S. DOWNER,1
      in his official capacity as administrator of the State
       Historic Preservation Division, DEPARTMENT OF HEALTH,
    LORETTA J. FUDDY in her official capacity as the Director
   of the Department of Health, ALVIN T. ONAKA in his official
        capacity as State Registrar of Vital Statistics and
       Chief of the Department of Health’s Office of Health
        Status Monitoring, KAWAIAHA#O CHURCH, WILLIAM HAOLE
 in his official capacity as the Chair of the Board of Trustees
     and Chair of the Board of Directors of Kawaiaha#o Church,
                  Petitioners/Defendants-Appellees.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000061; CIV. NO. 09-1-1828)


      1
            Alan S. Downer, administrator of the State Historic Preservation
Division, is substituted for Puaalaokalani Aiu, the former administrator of
the State Historic Preservation Division.
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

                             MEMORANDUM OPINION
          (By:    Recktenwald, C.J., Nakayama, and McKenna, JJ.
                 with Acoba, J, Concurring and Dissenting,
                       in which Circuit Judge Wilson,
                  in place of Pollack, J., recused, joins)

             We accepted certiorari in this case to address the

Intermediate Court of Appeals’s (ICA) order awarding attorneys’

fees and costs against the State defendants2 pursuant to the

private attorney general doctrine.

             This case originated from Kawaiaha#o Church’s

disinterment of human remains during the initial stages of

construction of its new multipurpose building.           Dana Naone Hall

(Hall), a native Hawaiian, has family members who were buried on

Kawaiaha#o Church’s property and she opposed the disinterments.

She filed a complaint in the Circuit Court of the First Circuit

(circuit court) against the State defendants and the Kawaiaha#o

Church defendants3 seeking declaratory and injunctive relief.



      2
            The State defendants in this case are the Department of Land and
Natural Resources (DLNR), the Board of Land and Natural Resources (BLNR),
William Aila, Jr. in his official capacity as chairperson of the Board of Land
and Natural Resources and as the State Historic Preservation Officer, Alan S.
Downer in his official capacity as administrator of the State Historic
Preservation Division (SHPD), the Department of Health (DOH), Loretta Fuddy in
her official capacity as the director of the DOH, Alvin Onaka in his official
capacity as State Registrar of Vital Statistics and Chief of the Department of
Health’s Office of Health Status Monitoring.
      3
            The Kawaiaha#o Church defendants currently include Kawaiaha#o
Church and William Haole in his official capacity as the Chair of the Board of
Trustees and Chair of the Board of Directors of Kawaiaha#o Church. Hall’s
original lawsuit named Frank Pestana, in his official capacity as the Chair of
the Board of Trustees and Chair of the Board of Directors of Kawaiaha#o
Church, as a defendant. On October 25, 2012, the ICA granted Kawaiaha#o
Church’s motion to substitute William Haole for Frank Pestana as a party in
the appeal.

                                      2
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Her suit alleged, in part, that the disinterments were unlawful

because Kawaiaha#o Church failed to conduct an Archaeological

Inventory Survey (AIS) or to receive the approval of the O#ahu

Island Burial Council (OIBC) before conducting the disinterments

and that the Department of Health’s issuance of a disinterment

permit was unlawful and unconstitutional.         Following cross

motions for summary judgment, the circuit court granted summary

judgment in favor of the defendants on all of Hall’s eleven

counts.

          Hall appealed to the ICA.        On December 14, 2012, the

ICA published an opinion concluding that an AIS should have been

conducted before construction began on Kawaiaha#o Church’s new

multipurpose building.     Hall v. Dep’t of Land & Natural Res., 128

Hawai#i 455, 463-69, 290 P.3d 525, 533-39 (App. 2012).           The ICA

vacated the circuit court’s final judgment with respect to nine

of Hall’s eleven counts and remanded the case to the circuit

court for further proceedings.       Id. at 458, 290 P.3d at 528.

          Hall subsequently filed a motion requesting attorneys’

fees and costs pursuant to the private attorney general doctrine.

By order of March 20, 2013, the ICA granted, in part, Hall’s

request for attorneys’ fees and costs.         The ICA awarded Hall

$31,225 in attorneys’ fees and $365 in costs against the

Kawaiaha#o Church defendants and the State defendants, jointly


                                     3
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


and severally.

          We affirm the ICA’s opinion vacating the circuit

court’s final judgment with respect to nine of Hall’s eleven

counts and remanding the case to the circuit court for further

proceedings.   However, we hold that, as Hall concedes, the

State’s sovereign immunity barred the award of attorneys’ fees

and costs against the State defendants.

                             I.   DISCUSSION

          Under the ‘American Rule,’ “‘each party is responsible

for paying his or her own litigation expenses.’”           Kaleikini v.

Yoshioka (Kaleikini II), 129 Hawai#i 454, 462, 304 P.3d 252, 260

(2013) (quoting Sierra Club v. Dep’t of Transp., 120 Hawai#i 181,

218, 202 P.3d 1226, 1263 (2009)).        The private attorney general

doctrine is an exception to this general rule.
          “[This doctrine] is an equitable rule that allows courts in
          their discretion to award attorneys’ fees to plaintiffs who
          have vindicated important public rights. Courts applying
          this doctrine consider three basic 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,
          (3) the number of people standing to benefit from the
          decision.”

Maui Tomorrow v. State, Bd. of Land & Natural Res., 110 Hawai#i

234, 244, 131 P.3d 517, 527 (2006) (quoting In re Water Use

Permit Applications, 96 Hawai#i 27, 29, 25 P.3d 802, 804 (2001)).

          However, the doctrine of sovereign immunity bars the

award of attorneys’ fees and costs against the State unless there


                                     4
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


was “‘a clear relinquishment of the State’s immunity.’”

Kaleikini II, 129 Hawai#i at 467, 304 P.3d at 265 (some internal

quotation marks omitted) (quoting Sierra Club v. Dep’t of

Transp., 120 Hawai#i at 226, 202 P.3d at 1271).          Historically,

“‘[t]he doctrine of sovereign immunity refers to the general

rule, incorporated in the Eleventh Amendment to the United States

Constitution, that a state cannot be sued in federal court

without its consent or an express waiver of its immunity.’”             Id.

(quoting State ex rel. Anzai v. Honolulu, 99 Hawai#i 508, 515, 57

P.3d 433, 440 (2002)).     Hawai#i courts have interpreted the

doctrine of sovereign immunity to extend to such suits in state

courts.   Id.; see also Pele Def. Fund v. Paty, 73 Haw. 578, 606-

607, 837 P.2d 1247, 1264-65 (1992); W.H. Greenwell, Ltd. v. Dep’t

of Land & Natural Res., 50 Haw. 207, 208, 436 P.2d 527, 528

(1968).   The State created “a limited waiver of sovereign

immunity” in Hawai#i Revised Statutes (HRS) § 661-1(1), strictly

construed in favor of the sovereign, “for claims against the

State of Hawai#i that are founded upon a statute.”          Id.

(alterations and internal quotations omitted) (quoting Garner v.

State, Dep’t of Educ., 122 Hawai#i 150, 160, 223 P.3d 215, 225

(App. 2009)).

           We recently considered the implications of the State’s

sovereign immunity on the award of attorneys’ fees pursuant to


                                     5
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


the private attorney general doctrine in Kaleikini II.              In that

case, we determined that Kaleikini was the prevailing party in

Kaleikini v. Yoshioka (Kaleikini I), 128 Hawai#i 53, 283 P.3d 60

(2012),4 and we awarded attorneys’ fees and costs to Petitioner

Kaleikini pursuant to the private attorney general doctrine.               129

Hawai#i at 462, 304 P.3d at 260.          But, we also held that the

State’s sovereign immunity barred Kaleikini from collecting

attorneys’ fees and costs from the State because the State had

not waived its sovereign immunity.          Id. at 466-67, 304 P.3d at

264-65.   Kaleikini had argued that the State waived its immunity

for fees under HRS § 6E-13(b) (2009), which states:
            “Any person may maintain an action in the trial court having
            jurisdiction where the alleged violation occurred or is
            likely to occur for restraining orders or injunctive relief
            against the State, its political subdivisions, or any person
            upon a showing of irreparable injury, for the protection of
            an historic property or a burial site and the public trust
            therein from unauthorized or improper demolition,
            alteration, or transfer of the property or burial site.”

Id. at 468, 304 P.3d at 266 (emphasis omitted) (quoting HRS § 6E-

13(b)).   We noted, however, that this statute provides for only


       4
             In Kaleikini I, native Hawaiian Kaleikini brought suit against the
City and County of Honolulu and the State, challenging the approval of the
Honolulu High-Capacity Transit Corridor project (the rail project). 128
Hawai#i at 56, 283 P.3d at 63. The rail project, which involved the
construction of a 20-mile “fixed guideway rail system,” was planned to proceed
in four phases. Id. It was undisputed that the rail project had a high
likelihood of having a potential effect on archeological resources,
particularly native Hawaiian burial sites, in the fourth phase. Id. at 56,
63, 283 P.3d at 63, 70. Kaleikini argued, in part, that pursuant to HRS
chapter 6E, the project should be enjoined until an archaeological inventory
survey was conducted for all four phases of the project. Id. at 56, 283 P.3d
at 63. We held that “the SHPD failed to follow its own rules when it
concurred in the rail project prior to the completion of an archaeological
inventory survey for the entire project.” Id.

                                      6
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


declaratory or injunctive relief.         Id.   Therefore, HRS § 6E-13(b)

“is not a waiver of the State’s sovereign immunity, but rather an

exception to the sovereign immunity doctrine for which no waiver

is necessary.”     Id. (emphasis in original).        We concluded that

there was no clear relinquishment of the State’s sovereign

immunity for claims brought under HRS chapter 6E and that the

State’s immunity therefore barred Kaleikini’s request for fees

from the State.5     Id. at 469, 304 P.3d at 267.

            Regarding Hall’s request for attorneys’ fees and costs,

the ICA concluded that “the strength or societal importance of

the public policy vindicated by the litigation,” “the necessity

for private enforcement and the magnitude of the resultant burden

on [Hall],” and “the number of people standing to benefit from

the decision” warranted the award of fees and costs jointly and

severally against the Kawaiaha#o Church defendants and the State

defendants.    The ICA rejected the State’s contention that it did

not waive its sovereign immunity with respect to the award of

attorneys’ fees.     In her briefing to this court, Hall concedes

that our holding in Kaleikini II is directly applicable to this

case and bars the award of attorneys’ fees and costs against the


      5
             In another recent case, Nelson v. Hawaiian Homes Comm’n, 130
Hawai#i 162, 307 P.3d 142 (2013), we held that because claims against the
State defendants in that case for declaratory and injunctive relief were not
founded upon any statute, and because the State had not waived its sovereign
immunity in any other way, the plaintiffs were barred from collecting
attorneys’ fees under the private attorney general doctrine from the State
defendants. 130 Hawai#i at 170, 173-74, 307 P.3d at 150, 153-54.

                                      7
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


State defendants here.     As in Kaleikini II, many of Hall’s claims

were brought pursuant to the historic preservation provisions in

HRS chapter 6E.    Because the State has not waived its sovereign

immunity to claims brought pursuant to HRS chapter 6E, or to any

of the other claims brought by Hall, the ICA erred in awarding

attorneys’ fees and costs against the State defendants.

                             II. CONCLUSION

          For the reasons discussed above, we affirm the ICA’s

opinion vacating the circuit court’s final judgment with respect

to nine of Hall’s eleven counts and remanding the case to the

circuit court for further proceedings.         We also affirm in part

and vacate in part the ICA’s order granting Hall’s request for

attorneys’ fees and costs jointly and severally against the State

defendants and the Kawaiaha#o Church defendants.          We vacate the

order insofar as it awards fees and costs against the State

defendants and affirm the order insofar as it awards fees and

costs against the Kawaiaha#o Church defendants.

          DATED:    Honolulu, Hawai#i, December 4, 2013.

David M. Louie,                      /s/ Mark E. Recktenwald
William J. Wynhoff,
and Marie Manuele Gavigan            /s/ Paula A. Nakayama
for petitioners
Department of Land and               /s/ Sabrina S. McKenna
Natural Resources, et al.

David Kimo Frankel
and David Kauila Kopper
for respondent
Dana Naone Hall

                                     8
