                                                                          FILED
                           NOT FOR PUBLICATION                            APR 11 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT V. GUNDERSON, JR. and                    No. 10-17688
ANNE D. GUNDERSON,
                                                D.C. No. 1:08-cv-00533-KSC
              Plaintiffs - Appellants,

  v.                                            MEMORANDUM*

MAUNA KEA PROPERTIES, INC., a
Hawaii corporation and MAUNA KEA
DEVELOPMENT CORP., a Hawaii
corporation,

              Defendants - Appellees,

  v.

COUNTY OF HAWAII,

              Third-party-defendant.

ROBERT V. GUNDERSON, JR. and                    No. 11-16403
ANNE D. GUNDERSON,
                                                D.C. No. 1:08-cv-00533-KSC
              Plaintiffs - Appellants,

  v.

MAUNA KEA PROPERTIES, INC., a

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Hawaii corporation and MAUNA KEA
DEVELOPMENT CORP., a Hawaii
corporation,

               Defendants - Appellees,

  v.

COUNTY OF HAWAII,

               Third-party-defendant.


                     Appeal from the United States District Court
                              for the District of Hawaii
                     Kevin S. Chang, Magistrate Judge, Presiding

                      Argued and Submitted February 18, 2014
                                Honolulu, Hawaii

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       This action arises out of the inland relocation of a shoreline trail across Lot 29,

which was retained by property-developer Mauna Kea Properties, Inc. and Mauna Kea

Development Corp. (collectively, “Mauna Kea”) as a buffer lot between certain

private lots within the development and the ocean. Robert and Anne Gunderson

(“Gundersons”) own Lot 8, which abuts Lot 29. As relocated, the trail remains on

Mauna Kea’s property, but now passes much closer to Lot 8's property line and is

more visible from the Gundersons’ residence, and vice versa, whence arises this case.



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      The Gundersons claim the relocation of the trail was improper for: (1) violating

an earlier settlement agreement to which they were not a party (the “Akau

Settlement”), (2) violating the restrictive covenants that affect Lots 8 and 29, (3)

violating Hawaii law (H.R.S. §7-1), (4) violating federal law (National Trails Systems

Act, 16 U.S.C. §§ 1241–1251), and (5) that Mauna Kea should be estopped from

moving the trail due to promises made when selling Lot 8 to the Gundersons. The

district court granted summary judgment to Mauna Kea on all claims, and awarded

them approximately $200,000 in attorneys’ fees. The Gundersons appeal both the

merits determination and the attorney fee award. We affirm.

       The district court did not err by concluding that the relocation of the trail was

required by the county of Hawaii and within its authority to do so. Importantly, the

trail the County ordered relocated was not the trail described as Easement 3 in the

Akau Settlement or subdivision plan, and moreover, the County took no actions to

invalidate such easement. Rather, pursuant to an independent obligation of Mauna

Kea to provide lateral shoreline access under the County’s existing use permit and

variance, the County required Mauna Kea to close the unauthorized shoreline trail




                                           3
(created by the Gundersons)1 and to grant an easement for an additional public access

path that deviates slightly inward from the Easement 3 location.2

      Nor did the district court err by granting summary judgment on the

Gundersons’ estoppel claim. An informal path had developed across Lot 8 prior to

the Gundersons’ purchase, and there were numerous letters between the Gundersons

and Mauna Kea clarifying that this was not the proper location of the trail, that the

trail was supposed to be wholly within Lot 29, and that it would be permissible to

move the trail off Lot 8 and to the correct location of Easement 3. However, there is

no evidence Mauna Kea promised that this could be the only location of a trail on Lot

29, and, in fact, Mauna Kea specifically represented its understanding that the trail

could be located anywhere on Lot 29. Moreover, as the district court held, the sales

contract contained an integration clause and thus any promises or agreements not




      1
          See County of Hawaii Planning Dep’t Rule 11-12(b) (“Any structure or
activity prohibited within the shoreline setback area that has not received appropriate
approvals or a shoreline setback variance or that has not complied with conditions of
said variance shall be removed or corrected.”).
      2
        We further note that the remedy that the Gundersons do seek–an injunction
to move the trail back to its pre-2007 location–is wholly unsupported by the Akau
Settlement, subdivision plan, restrictive covenants, and existing county permits
because: (1) they do not describe a trail in that seaward location, but describe the
centerline of Easement 3, and (2) they do not indicate Easement 3 must be the only
public access path on Lot 29.

                                          4
contained in the contract are not actionable. See Akamine & Sons, Ltd. v. Am. Sec.

Bank, 440 P.2d 262, 266 (Haw. 1968).

      The district court properly held that the Gundersons waived any claim under

H.R.S. Section 7-1. Section 7-1 serves to ensure that the traditional practices of native

Hawaiians enumerated in that section remain “available to those who wish to continue

those ways.” PASH v. Hawaii Cnty. Planning Comm’n, 903 P.2d 1246, 1270 (Haw.

1995). The Gundersons’ complaint contained no mention of this statute and no

allegations that Mauna Kea somehow impeded the Gundersons’ ability to conduct any

of these traditional Hawaiian practices.

      The district court also correctly concluded the trail at issue is not currently

encompassed by the National Trails Systems Act. Even assuming that the shoreline

trail at issue here is part of the Ala Kahakai trail, only components of a historic trail

which are on federally-owned lands are included as federal protection components;

no land outside a federally administered area can be acquired without the landowner’s

consent. 16 U.S.C. §§ 1242(a)(3) & 1244(a)(22)(D). Although the Gundersons argue

the 1981 Akau Settlement can constitute a “written cooperative agreement” within the

meaning of the statute, 16 U.S.C. § 1246(e), the settlement preceded the statute by

nearly twenty years and understandably fails to reference the Ala Kahakai trail or

evince any intent of voluntary participation in the system.


                                           5
      The district court did not abuse its discretion by awarding attorneys’ fees to

Mauna Kea. A substantial portion of the Gundersons’ complaint and motion for

summary judgment sought enforcement of various provisions of the CC&Rs against

Mauna Kea. Section 12.5 of that document explicitly provides: “If any court

proceedings are instituted in connection with the right of enforcement and remedies

provided in this Declaration, the prevailing party shall be entitled to recover from the

losing party its costs and expenses in connection therewith, including attorneys’ fees.”

      Although within its discretion to disallow fees for Mauna Kea’s failure to

comply with Local Rule 54.3, the court determined that Mauna Kea’s “block billing”

was sufficiently descriptive to allow the court to determine what tasks were performed

and whether the amount spent was reasonable. See Prof’l Programs Grp. v. Dep’t of

Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (departure from local rules that affects

substantial rights requires reversal). The district court also explained which types of

fees were excluded or reduced, how it calculated the rate for each attorney, and how

many hours each attorney reasonably spent working on compensable claims; the

court’s explanation was sufficient to permit meaningful appellate review and was not

an abuse of discretion. See McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.

2009).




                                           6
       We need not address the Gundersons’ final claim that the district court used an

incorrect value for purposes of calculating the 25% cap on attorneys’ fees under

Hawaii law. See H.R.S. § 607-14. Whether the court should have used the $1 million

damage allegation in the complaint or the $5 million figure from the Gundersons’

response to interrogatories is irrelevant because the court awarded less than 25% of

either figure.

       AFFIRMED.




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