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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000353
                                                              13-DEC-2013
                                                              12:19 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                        KILAKILA #O HALEAKALA,
                   Petitioner/Appellant-Appellant,

                                    vs.

               BOARD OF LAND AND NATURAL RESOURCES,
          THE DEPARTMENT OF LAND AND NATURAL RESOURCES,
          AND WILLIAM AILA, IN HIS OFFICIAL CAPACITY AS
     CHAIRPERSON OF THE BOARD OF LAND AND NATURAL RESOURCES,
   UNIVERSITY OF HAWAII, AND THOMAS M. APPLE, IN HIS OFFICIAL
  CAPACITY AS CHANCELLOR OF THE UNIVERSITY OF HAWAI#I AT MANOA,
                 Respondents/Appellees-Appellees.


                            SCWC-11-0000353

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0000353; CIV. NO. 10-1-2651)

                           DECEMBER 13, 2013

     RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
              WITH ACOBA, J., CONCURRING SEPARATELY,
                   WITH WHOM POLLACK, J., JOINS

                OPINION OF THE COURT BY NAKAYAMA, J.

          It is well established that under Hawai#i Revised

Statutes (HRS) § 91-14(a), “[a]ny person aggrieved by a final

decision and order in a contested case . . . is entitled to
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judicial review thereof under this chapter[.]”          In Kaleikini v.

Thielen, 124 Hawai#i 1, 26, 237 P.3d 1067, 1092 (2010), this

court most recently reaffirmed the principle that a denial of a

request for a contested case hearing (or a request to intervene

and participate in one) also constitutes a “final decision and

order” of an administrative agency from which the aggrieved party

may appeal pursuant to HRS § 91-14.        In this case, we must

consider whether a circuit court has jurisdiction over an HRS §

91-14 appeal when an agency makes a final decision on a given

matter -- in this case, an application for a conservation

district use permit -- without either granting or denying an

interested party’s request for a contested case hearing on the

matter.

          This case concerns a proposed project of

Respondent/Appellee-Appellee University of Hawai#i (UH) to

construct an advanced solar telescope, observatory, and

associated facilities near the summit of Haleakalâ on Maui.

Petitioner/Appellant-Appellant Kilakila #O Haleakalâ (KOH), “an

organization dedicated to the protection of the sacredness of the

summit of Haleakalâ[,]” opposed UH’s conservation district use

application (CDUA or application) to Respondent/Appellee-Appellee

Department of Land and Natural Resources (DLNR or the department)

for a conservation district use permit (CDUP or permit) to build


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on the project site.     KOH also requested and formally petitioned

DLNR for a contested case hearing on the application in order for

Respondent/Appellee-Appellee Board of Land and Natural Resources

(BLNR or the board) to make a decision on the application after

having considered evidence on the record, including exhibits and

witness testimony.    Without either granting or denying KOH’s

petition, BLNR considered UH’s application as an agenda item at a

regularly scheduled public board meeting and proceeded to vote to

grant the permit.    KOH orally renewed its request for a contested

case hearing immediately after the vote and submitted another

formal written petition the next day.        KOH also filed an agency

appeal in the Circuit Court of the First Circuit1 seeking remand

to BLNR for a contested case hearing, a stay of the permit, and

reversal of the permit.     The circuit court dismissed the agency

appeal for lack of jurisdiction because there had been no

contested case hearing.     The circuit court also concluded that

KOH’s appeal was mooted by the fact that BLNR had subsequently

granted KOH’s request for a contested case hearing subject to a

preliminary hearing on KOH’s standing.         KOH appealed the circuit

court’s decision to the ICA, and the ICA affirmed on the ground

that, under HRS § 91-14, the circuit court did not have

jurisdiction because no contested case hearing had been held.


     1
          The Honorable Rhonda A. Nishimura presided.

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            Now before this court, KOH maintains that BLNR’s

decision to grant the permit was “a final decision and order in a

contested case” pursuant to HRS § 91-14; as a result, a separate

contested case hearing was not required for it to appeal and for

the circuit court to have jurisdiction over the appeal pursuant

to HRS § 91-14.      Although BLNR did grant KOH’s request for a

contested case hearing subsequent to the board meeting at which

it issued the permit, BLNR has not ever stayed or vacated the

permit.    Thus, KOH’s position is that it may still seek those

remedies and therefore that this appeal is not moot.              Based on

the discussion herein, we agree that the case is not moot, that a

contested case hearing should have been held prior to the vote,

and that the circuit court erred in dismissing KOH’s appeal.

Because BLNR voted to grant the permit without having held a

contested case hearing as requested by KOH prior to taking that

vote, BLNR effectively rendered a final decision and order within

the meaning of HRS § 91-14, and KOH at that point had the right

to appeal to circuit court.

                               I.   BACKGROUND

A.    Factual and Procedural Background

            On March 10, 2010, UH submitted an application to DLNR

for its Advanced Technology Solar Telescope (ATST or telescope)

project at Haleakalâ on the island of Maui.            The telescope

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project “involves the construction, installation and operation of

a solar telescope and associated infrastructure near the summit

of Haleakalâ.”    KOH, which “is an organization dedicated to the

protection of the sacredness of the summit of Haleakalâ[,]”

submitted a written petition to DLNR on May 24, 2010 for a

contested case hearing on the application.         “On June 10, 2010,

Sam Lemmo of DLNR rejected the petition for a contested case

hearing, stating that a hearing was not required by law[.]”

Subsequently, on July 8, 2010, KOH “re-submitted its petition for

a contested case hearing on the ATST project because Mr. Lemmo

did not have authority to reject the petition.”          DLNR did not

take any action on the July 8 resubmission.          On August 26, 2010,

DLNR held a public hearing on the application in Pukalani, Maui,

KOH “testified in opposition to the project, citing its impacts

on resources in the conservation district, and orally requested a

contested case hearing.”      DLNR persisted in taking no action on

KOH’s requests for a contested case hearing.

          On November 22, 2010, at a regularly scheduled board

meeting, BLNR considered UH’s application for the telescope

project but deferred any decisions on the application until the

next scheduled meeting.     At the next regularly scheduled board

meeting on December 1, 2010, BLNR again considered UH’s

application; at that meeting, BLNR voted to grant the application


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and thereafter issued a permit to UH.        Immediately after the

vote, KOH, through counsel, again orally requested a contested

case hearing.   The next day, December 2, 2010, KOH again

submitted a written petition for a contested case hearing

pursuant to Hawai#i Administrative Rules (HAR) § 13-1-29.2

          On December 13, 2010, KOH filed an appeal in circuit

court, pursuant to HRS § 91-14,3 “from the final decision of BLNR


     2
          HAR § 13-1-29 provides, in pertinent part:

                (a) . . . An oral or written request for a contested
          case hearing must be made to the board no later than the
          close of the board meeting at which the subject matter of
          the request is scheduled for board disposition. An agency
          or person so requesting a contested case must also file [a]
          written petition with the board for a contested case no
          later than ten calendar days after the close of the board
          meeting at which the matter was scheduled for disposition.
     3
          HRS § 91-14 (Supp. 2010) provided then, as it does now:

                (a) Any person aggrieved by a final decision and order
          in a contested case or by a preliminary ruling of the nature
          that deferral of review pending entry of a subsequent final
          decision would deprive appellant of adequate relief is
          entitled to judicial review thereof under this chapter[.]

          . . . .

                (b) Except as otherwise provided herein, proceedings
          for review shall be instituted in the circuit court within
          thirty days after the preliminary ruling or within thirty
          days after service of the certified copy of the final
          decision and order of the agency pursuant to rule of court,
          except where a statute provides for a direct appeal to the
          intermediate appellate court, subject to chapter 602.

          . . . .

                (c) The proceedings for review shall not stay
          enforcement of the agency decisions or the confirmation of
          any fine as a judgment pursuant to section 92-17(g); but the
          reviewing court may order a stay if the following criteria
          have been met:
                                                              (continued...)

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on December 1, 2010 (1) effectively denying the timely request of

[KOH] for a contested case hearing and (2) granting [UH]’s

conservation district use application (CDUA MA 3542).”4              In its

statement of the case filed with the notice of appeal, KOH

indicated that it was asking the circuit court to:
            A. Remand the case with instructions to the
            Chairperson, BLNR and DLNR to:

                   (i) properly apply the criteria set forth in
                   HAR § 13-5-30;
                   (ii) provide [KOH] with a contested case
                   hearing with all the procedural protections
                   provided in HAR §§ 13-1-28 [to] 13-1-39 and HRS
                   §[§] 91-9 [to] 91-13.

            B. Stay the decision granting the conservation
            district use permit.

            C. Reverse the decision granting the conservation
            district use permit.

On January 4, 2011, UH filed a motion to dismiss KOH’s notice of

appeal in the circuit court.        In support of the motion, UH argued



      3
       (...continued)
                  (1) There is likelihood that the subject person will
                  prevail on the merits of an appeal from the
                  administrative proceeding to the court;
                  (2) Irreparable damage to the subject person will
                  result if a stay is not ordered;
                  (3) No irreparable damage to the public will result
                  from the stay order; and
                  (4) Public interest will be served by the stay order.

            . . . .
      4
            On November 22, 2010, KOH also filed an original complaint in
circuit court seeking declaratory relief. On January 11, 2011, KOH filed a
motion to consolidate the declaratory action with the agency appeal. On
February 7, 2011, a hearing on the motion to consolidate was held before the
Honorable Virginia L. Crandall; Judge Crandall took the motion under
submission pending Judge Nishimura’s ruling on UH’s motion to dismiss the
agency appeal. Because the motion to dismiss was granted, the motion to
consolidate was denied as moot.

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that the appeal had to be dismissed for lack of jurisdiction and

on ripeness grounds because no contested case hearing had been

held, and further that KOH’s request for such a hearing had not

yet been decided.    On January 11, 2011, BLNR filed a joinder to

UH’s motion to dismiss.

          In its February 10, 2011 memorandum in opposition to

the motion to dismiss, KOH argued that Hawai#i case law does not

require a formal contested case hearing as a necessary condition

precedent to a chapter 91 appeal when the appellant has done all

it can to participate in the agency proceedings and preserve its

right to appeal; accordingly, in this case, KOH argued that the

circuit court had jurisdiction to determine whether the permit

was properly granted even in the absence of a formal contested

case hearing.   KOH therefore argued that the appeal was ripe

because even without a formal contested case hearing, BLNR’s

decision to grant the permit at the December 1, 2010 meeting

constituted final agency action that was therefore appealable.

KOH further argued that BLNR’s granting of the permit had the

mark of finality because once granted, a permit can only be

revoked if BLNR is ordered to do so by a court or if the permit

applicant fails to comply with a condition of the permit. KOH

also noted that a contested case hearing on a matter, when such a

hearing is required, must take place before an agency’s decision


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on that matter; in this case, therefore, “[t]he granting of a

permit to develop in the face of a [pending] request for a

contested case hearing effectively denies the request for the

hearing.”    Furthermore, as KOH argued, “[n]othing in BLNR’s rules

would allow it to: first, grant a conservation district use

permit; second, conduct a formal contested case hearing; and then

revoke the conservation district use permit if the party

challenging the conservation district use application prevailed.”

            Meanwhile, on February 11, 2011, BLNR granted KOH’s

request for a contested case hearing and authorized the

appointment of a hearing officer to conduct all hearings

regarding UH’s application, subject to a preliminary hearing to

determine whether KOH had standing to participate in a contested

case hearing.    On February 15, 2011, UH replied to KOH’s memo in

opposition, arguing that KOH’s appeal was now moot because BLNR’s

February 11 grant of KOH’s contested case hearing request

afforded KOH the relief it was seeking from the circuit court.

            On February 18, 2011, the circuit court held a hearing

on the motion to dismiss.      Before ruling, the court expressed

concerns regarding the implementation of the permit in light of

the pending contested case hearing.        BLNR’s counsel asserted that

the contested case hearing would be the appropriate venue for

pursuing a possible stay of the permit.         The circuit court then


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granted the motion to dismiss, but it encouraged BLNR to stay the

permit until the contested case hearing concluded.             KOH timely

appealed to the ICA.

B.    The ICA’s June 28, 2012 Memorandum Opinion

            On appeal to the ICA, KOH raised one general point of

error: that the circuit court erred in dismissing its agency

appeal for lack of jurisdiction.           In support of that point of

error, KOH argued, adhering to its position in circuit court,

that a party can appeal pursuant to HRS chapter 91 even when a

formal contested case hearing has not been held, and that the

circuit court had jurisdiction to rule on whether BLNR properly

granted the permit even in the absence of a formal contested case

hearing; that the case was ripe and not moot; that KOH had

exhausted the administrative remedies that were available to it;

and that BLNR could not grant a permit before holding a contested

case hearing.

            In response, UH argued that the circuit court did lack

jurisdiction because KOH was not a “person aggrieved by a final

decision and order in a contested case” pursuant to HRS § 91-14.

Specifically, UH noted that “[a]mong its prerequisites, [HRS §

91-14(a)] requires that a contested case must have occurred

before appellate jurisdiction may be exercised.”             UH also argued

that the agency appeal was moot because a contested case hearing


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was in fact granted.     Similarly, UH argued that the appeal was

not ripe because at the time of its filing, no contested case

hearing had been held; moreover, because a contested case hearing

had been granted, the appeal would remain unripe until BLNR

issued a final decision and order from which KOH could then

appeal.

          In a memorandum opinion, the ICA affirmed the final

judgment of the circuit court dismissing KOH’s agency appeal for

lack of jurisdiction.     The ICA’s brief analysis focused on the

following passage explaining the requirements that an appellant

must meet in an HRS § 91-14 appeal from an agency to the circuit

court:
          first, the proceeding that resulted in the unfavorable
          agency action must have been a contested case hearing
          -- i.e., a hearing that was (1) required by law and
          (2) determined the rights, duties, and privileges of
          specific parties; second, the agency’s action must
          represent a final decision and order, or a preliminary
          ruling such that deferral of review would deprive the
          claimant of adequate relief; third, the claimant must
          have followed the applicable agency rules and,
          therefore, have been involved in the contested case;
          and finally, the claimant’s legal interests must have
          been injured -- i.e., the claimant must have standing
          to appeal.

Kilakila #O Haleakalâ v. Bd. of Land & Natural Res., No. CAAP-11-

0000353, 2012 WL 2476802, at *2 (Haw. App. June 28, 2012) (mem.

op.) (emphasis in original) (quoting Kaleikini, 124 Hawai#i at

16-17, 237 P.3d at 1082-83 (quoting Pub. Access Shoreline Haw. v.

Haw. Cnty. Planning Comm’n (PASH), 79 Hawai#i 425, 431, 903 P.2d


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1246, 1252 (1995))) (internal quotation marks omitted).

            The ICA relied solely on the first requirement in its

disposition of the case.         It stated that “[b]ecause KOH does not

meet the first criteria [sic] -- that the agency action stemmed

from a contested case hearing -- we look no further and conclude

[that the] circuit court did not err when it dismissed the case

for lack of jurisdiction.”         Id.    KOH timely filed its application

for writ of certiorari on September 27, 2012.

                          II.    STANDARD OF REVIEW

A.    Jurisdiction

            “‘The existence of subject matter jurisdiction is a

question of law that is reviewable de novo under the right/wrong

standard.’”     Kaniakapupu v. Land Use Comm’n, 111 Hawai#i 124,

131, 139 P.3d 712, 719 (2006) (quoting Aames Funding Corp. v.

Mores, 107 Hawai#i 95, 98, 110 P.3d 1042, 1045 (2005)).

                                III.   DISCUSSION

            On certiorari review in this court, KOH makes the same

arguments with regard to the jurisdiction of the circuit court to

hear its initial HRS § 91-14 agency appeal from BLNR and adds

that the ICA has erred in affirming the circuit court’s judgment.

            Nevertheless, UH maintains in this court that KOH’s

appeal is moot.      Because mootness is a matter of justiciability

and implicates the question of whether this court may validly

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render a decision on appeal, we consider this issue first.




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A.    This case is not moot

            UH argues, as it did below, that because BLNR

ultimately granted KOH a contested case hearing, the reviewing

court can not grant effective relief.          UH submits that “[KOH]

asked the [c]ircuit [c]ourt to remand the case with instructions

to [BLNR] to provide [KOH] with a contested case hearing.”               UH

thus concluded that because “[KOH] received the relief it

requested on February 11, 2011 when [BLNR] granted its request

for a contested case hearing . . . the instant appeal falls

squarely within the definition of moot.”

            KOH responds, as it also did below, that the case is

not moot.     In fact, it responded to UH’s argument to this court

by noting that it “requested not only that a contested case be

provided, but also that the [permit] be stayed and reversed.”

KOH further notes that “‘[a]s long as all of the construction

authorized under the . . . permit is not completed, the appeal

presents an adversity of interests and possibly affords the

appellant an effective remedy.’”

            Crucially, BLNR has neither stayed nor revoked the

permit, not even when KOH appealed or BLNR granted KOH a

contested case hearing on the already-issued permit.              Because the

permit remains in effect despite BLNR’s failure to hold a

contested case hearing before voting to grant the permit, UH can


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still build on Haleakalâ and KOH can still seek effective relief

against UH.    Consequently, we agree with KOH’s position and

conclude that this case is not moot.        As a result, we now turn to

the substance of KOH’s appeal.

B.   The circuit court erred in dismissing, and the ICA erred in
affirming the dismissal of, KOH’s agency appeal based strictly on
the absence of a formal contested case hearing

          KOH argues to this court that although it requested and

petitioned for a contested case hearing prior to BLNR’s vote on

UH’s application and although BLNR did not hold a contested case

hearing before conducting the vote at the December 1, 2010

regularly scheduled board meeting, the proceedings that did take

place before the BLNR nevertheless did constitute a contested

case from which KOH can appeal to the circuit court pursuant to

HRS § 91-14.    Moreover, KOH maintains that pursuant to HRS

chapter 91, as well as PASH and Kaleikini, an appeal may be taken

even in the absence of a formal contested case hearing if the

appellant has followed the procedures necessary for it to

preserve its right to appeal.       Indeed, much of KOH’s argument

follows the test this court has previously applied in PASH and

Kaleikini, and it is to that test which we must now turn.

          To determine whether a circuit court can exercise

jurisdiction over an appeal brought pursuant to HRS § 91-14, we

consider whether the following requirements have been met:

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          first, the proceeding that resulted in the unfavorable
          agency action must have been a contested case hearing
          -- i.e., a hearing that was (1) required by law and
          (2) determined the rights, duties, and privileges of
          specific parties; second, the agency’s action must
          represent a final decision or order, or a preliminary
          ruling such that deferral of review would deprive the
          claimant of adequate relief; third, the claimant must
          have followed the applicable agency rules and,
          therefore, have been involved in the contested case;
          and finally, the claimant’s legal interests must have
          been injured -- i.e., the claimant must have standing
          to appeal.

Kaleikini, 124 Hawai#i at 16-17, 237 P.3d at 1082-83 (emphases,

brackets, and internal quotation marks omitted) (quoting PASH, 79

Hawai#i at 431, 903 P.2d at 1252).

     1.   The BLNR proceedings were a contested case hearing
within the meaning of HRS § 91-14

          a.     “Required by law”

          In order for an administrative agency hearing to be

“‘required by law, it may be required by (1) agency rule, (2)

statute, or (3) constitutional due process.’”          Id. at 17, 237

P.3d at 1083 (quoting Kaniakapupu, 111 Hawai#i at 132, 139 P.3d

at 720) (some internal quotation marks omitted).

          At the outset, we note that no statute mandates that

BLNR conduct public hearings as part of its permitting

procedures.    See, e.g., HRS § 171-3 (2011); HRS § 171-6 (2011);

HRS § 26-15(b) (2009).     HRS § 183C-6 (2011), located in the

chapter of HRS dealing specifically with conservation district

lands, provides, in pertinent part:
                 (a) The department shall regulate land use in


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          the conservation district by the issuance of permits.
                (b) The department shall render a decision on a
          completed application for a permit within one-hundred-
          eighty days of its acceptance by the department. If
          within one-hundred-eighty days after acceptance of a
          completed application for a permit, the department
          shall fail to give notice, hold a hearing, and render
          a decision, the owner may automatically put the
          owner’s land to the use or uses requested in the
          owner’s application. When an environmental impact
          statement is required pursuant to chapter 343, or when
          a contested case hearing is requested pursuant to
          chapter 91, the one-hundred-eighty-days may be
          extended an additional ninety days at the request of
          the applicant. Any request for additional extensions
          shall be subject to the approval of the board.

Although HRS § 183C-6(b) does reference the “hold[ing] [of] a

hearing” as part of the permitting process for uses in the

conservation district, it does not mandate one.          The sentence

that contains the phrase “hold a hearing” is written as a

negative conditional; in other words, if, within 180 days of

accepting an application, DLNR does not give notice, does not

hold a hearing, and does not render a decision on the

application, then the applicant may proceed to use the land in

the manner requested.     Because some hearings may not be required

by law but may nevertheless be held voluntarily, we cannot read

the statute to require a hearing for all permit applications in

the absence of mandatory language directing the agency to do so.

          Indeed, the statutes in HRS chapter 171 governing DLNR

and BLNR speak in general terms and delegate rulemaking authority

to the agency to devise and promulgate the rules that will govern

the agency’s procedures in specific situations.          We thus next


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look to those administrative rules for a requirement that a

public hearing be held as part of the process of considering an

application for a conservation district use permit.

          In this particular case, UH seeks through its

application to build astronomy facilities near the summit of

Haleakalâ, an area which is classified as being in the general

subzone of the conservation district.         HAR § 13-5-25, “Identified

land uses in the general subzone,” provides, in pertinent part:
                (a) In addition to the land uses identified in
          this section, all identified land uses and their
          associated permit or site plan approval requirements
          listed for the protective, limited, and resource
          subzones also apply to the general subzone, unless
          otherwise noted.

          . . .

                 (c) Identified land uses in the general subzone
          and their required permits (if applicable), are listed
          below:
                       (1) Identified land uses beginning with
                       the letter (A) require no permit from the
                       department or board;
                       (2) Identified land uses beginning with
                       the letter (B) require site plan approval
                       by the department;
                       (3) Identified land uses beginning with
                       the letter (C) require a departmental
                       permit; and
                       (4) Identified lang uses beginning with
                       the letter (D) require a board permit and
                       where indicated, a management plan.

          HAR § 13-5-24 identifies “astronomy facilities” as an

identified land use in the resource subzone:
          R-3     ASTRONOMY FACILITIES

          (D-1)         Astronomy facilities under a management plan
                        approved simultaneously with the permit, is also
                        required.



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            By virtue of HAR § 13-5-25(a), astronomy facilities are

also a permissible land use in the general subzone.            Further, as

a letter (D) land use, HAR § 13-5-25(c)(4) requires submission of

an application for a board permit and simultaneous approval of

the permit and a management plan.

            Board permits are governed by HAR § 13-5-34, which

provides in full:
                  (a) Applications for board permits shall be
            submitted to the department in accordance with section
            13-5-31.
                  (b) A public hearing, if applicable, shall be
            held in accordance with section 13-5-40.
                  (c) The application for a board permit shall be
            accompanied by:
                        (1) The application fee which is equal to
                        2.5 per cent of the total project cost,
                        but no less than $250, up to a maximum of
                        $2,500; and
                        (2) A public hearing fee of $250 plus
                        publication costs, if applicable.
                  (d) Contested case hearings, if applicable, and
            as required by law, shall be held as provided in
            chapter 13-1. The aggrieved appellant or person who
            has demonstrated standing to contest the board action
            may request a contested case hearing pursuant to
            chapter 13-1.

            Finally, with respect to public hearings, HAR § 13-5-40

provides:
            (a) Public hearings shall be held:
                  (1) On all applications for a proposed use of
                  land for commercial purposes, (excluding site
                  plan approvals);
                  (2) On changes of subzone or boundary,
                  establishment of a new subzone, changes in
                  identified land use, or any amendment to this
                  chapter;
                  (3) On applications requiring a board permit in
                  the protective subzone; and
                  (4) On all applications determined by the
                  chairperson that the scope of proposed use, or
                  the public interest requires a public hearing on
                  the application.

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            Under this rule, the BLNR chairperson determined that,

pursuant to HAR § 13-5-40(a)(4), the public interest required a

public hearing on UH’s application; this was the public hearing

that took place on August 26, 2010 in Pukalani, Maui.             While

subsection (4), as written, does seem to indicate an amount of

discretion on the chairperson’s part, subsection (4) is also no

less valid a prerequisite for the holding of a public hearing

than any of the other subsections.         Accordingly, if the

chairperson determines that the scope of the project or the

public interest requires a public hearing on the application,

then BLNR shall hold a public hearing.

            Accordingly, based on the foregoing discussion, we

conclude that UH’s application necessitated a hearing required by

law -- i.e., by the administrative rules governing DLNR and

BLNR.5

            b.    “Rights, duties, and privileges”

            In this case, no formal contested case hearing was

actually held before the BLNR voted to grant the permit in this


      5
            As discussed in the Concurrence, KOH also argued to the circuit
court, to the ICA, and to this court that a hearing was required by law on the
ground of constitutional due process, under the provisions of the Hawai#i
Constitution protecting Native Hawaiian rights and the right to a clean and
healthful environment. See Haw. Const. art. XI, § 9, art. XII, § 7. Because
we conclude that the administrative rules required that a hearing be held, we
need not reach this argument. Nevertheless, we do discuss KOH’s Native
Hawaiian and environmental interests with regard to their standing to appeal.
See infra Part III.B.4.

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case, so the question becomes whether a formal hearing would have

determined -- or whether the proceedings that did take place

determined -- the “rights, duties, and privileges of specific

parties.”    Kaleikini, 124 Hawai#i at 17, 237 P.3d at 1083

(quoting PASH, 79 Hawai#i at 431, 903 P.2d at 1252) (internal

quotation marks omitted).      The inquiry here is “directed at the

party whose application was under consideration.”           Id. at 24, 237

P.3d at 1090 (quoting PASH, 79 Hawai#i at 432, 903 P.2d at 1253)

(internal quotation marks omitted).        Thus, we focus on the

rights, duties, and privileges of UH.

            As discussed supra in Part III.B.1.a, UH’s proposed

project involves construction of a substantial complex of

astronomy facilities on conservation district land.           Accordingly,

as provided for in the statutes and rules concerning land use in

the conservation district, UH could not legally commence that

construction without first submitting an application for a permit

and having that application reviewed and approved by BLNR.

Approval, including any conditions attached thereto, or denial of

the application clearly implicates whether UH would or would not

be able to engage in the requested use of building astronomy

facilities at the telescope project site.         Thus, a formal

contested case hearing approving of denying UH’s application

would have determined UH’s rights, duties, or privileges with


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regard to the project.     Even in the absence of a formal contested

case hearing, we point out that the proceedings that otherwise

took place, including the vote to grant the permit, in fact did

determine UH’s rights, duties, and privileges.

     2.   BLNR’s decision to approve the permit without either
granting or denying KOH’s contested case hearing request was a
“final decision and order” within the meaning of HRS § 91-14

            We must next “examin[e] whether the agency’s action

represents ‘a final decision or order,’ or ‘a preliminary ruling’

such that deferral of review would deprive the claimant of

adequate relief.”    Kaleikini, 124 Hawai#i at 26, 237 P.3d at 1092

(ellipses and some internal quotation marks omitted) (quoting

PASH, 79 Hawai#i at 431, 903 P.2d at 1252).         Again, our decisions

in PASH and Kaleikini provide the most useful guidance for our

analysis.

            In PASH, an organization (PASH) and an individual

(Pilago) opposed a developer’s application to the Hawai#i County

Planning Commission (HCPC) for a special management area (SMA)

use permit and requested contested case hearings.           79 Hawai#i at

429, 903 P.2d at 1250.     HCPC denied the requests on the ground

that PASH and Pilago did not have standing to participate in a

contested case and subsequently issued the permit.           Id.   This

court affirmed the ICA’s decision affirming the circuit court’s

order (with respect to PASH, but reversing the circuit court’s


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order as to Pilago) to remand to HCPC for the purpose of holding

a contested case hearing in which PASH would be allowed to

participate.    Id.

           In Kaleikini, the discovery of iwi, or Native Hawaiian

burial remains, at a construction site in Honolulu necessitated

submission of a burial treatment plan by the developer.            124

Hawai#i at 5-7, 237 P.3d at 1071-73.        After the O#ahu Island

Burial Council approved the plan, Kaleikini wrote a letter to

DLNR requesting a contested case hearing.         Id. at 6-7, 237 P.3d

at 1071-72.    DLNR denied her request, and Kaleikini filed a

notice of agency appeal in circuit court to seek review of that

denial.   Id. at 7, 237 P.3d at 1072.       The circuit court dismissed

the appeal because no contested case hearing had been held, but

recognized that it would be impossible for an appellant to obtain

judicial review if an agency improperly denies the request for a

contested case hearing.     Id. at 7-8, 237 P.3d at 1073-74.

Although the ICA then dismissed Kaleikini’s secondary appeal as

moot, this court held that it could consider the case pursuant to

the public interest exception to the mootness doctrine.            Id. at

12-13, 237 P.3d at 1078-79.      On the merits, this court noted that

the relevant administrative rule provided Kaleikini with a

procedural vehicle to obtain a contested case and that she had

followed the applicable procedures to request a contested case


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hearing; therefore, this court’s inquiry focused on whether

Kaleikini met the requirements of HRS § 91-14 under the test we

set out in PASH.    Id. at 16, 237 P.3d at 1082.        With respect to

this prong of the test, we concluded that DLNR’s decision to deny

Kaleikini’s request for a contested case hearing constituted a

“final decision and order” of the agency because “it ended the

litigation.”   Id. at 26, 237 P.3d at 1092.

           Here, KOH’s oral and written requests for a contested

case hearing prior to the December 1, 2010 vote were neither

granted nor denied by the agency.        However, the absence of a

formal denial is not dispositive of the issue.          While in PASH and

Kaleikini we concluded that the formal denial of the contested

case hearings provided the requisite finality to enable the

respective appellants to appeal to the circuit court pursuant to

HRS § 91-14, we note here that the failure to either grant or

deny KOH’s requests for a contested case hearing became an

effective denial when BLNR proceeded to render a final decision

by voting to grant the permit to UH at the December 1, 2010 board

meeting.   Accordingly, we conclude that BLNR’s vote to grant the

permit in the face of a valid pending request for a contested

case hearing satisfies this prong of the test.




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     3.   KOH followed all applicable agency rules in requesting
a contested case hearing

          The third part of the PASH/Kaleikini test “requires a

determination [of] whether the claimant followed the applicable

agency rules and, therefore, was involved in the contested case.”

Id. at 26, 237 P.3d at 1092 (ellipses, brackets, and internal

quotation marks omitted) (quoting PASH, 79 Hawai#i at 431, 903

P.2d at 1252).

          The applicable agency rules, HAR §§ 13-1-28 and 13-1-

29, provide as follows:
                § 13-1-28 Contested case hearings.
                (a) When required by law, the board shall hold a
          contested case hearing upon its own motion or on a
          written petition of any government agency or any
          interested person.
                (b) The contested case hearing shall be held
          after any public hearing which by law is required to
          be held on the same subject matter.
                (c) Any procedure in a contested case may be
          modified or waived by stipulation of the parties.

                § 13-1-29 Request for hearing.
                (a) On its own motion, the board may hold a
          contested case hearing. Others must both request a
          contested case and petition the board to hold a
          contested case hearing. An oral or written request
          for a contested case hearing must be made to the board
          no later than the close of the board meeting at which
          the subject matter of the request is scheduled for
          board disposition. An agency or person so requesting
          a contested case must also file (or mail a postmarked)
          written petition with the board for a contested case
          no later than ten calendar days after the close of the
          board meeting at which the matter was scheduled for
          disposition. For good cause, the time for making the
          oral or written request or submitting a written
          petition or both may be waived.
                (b) Except as otherwise provided in section 13-




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            1-31.1,[6] the formal written petition for a contested
            case hearing shall contain concise statements of:
                  (1) The nature and extent of the requestor’s
                  interest that may be affected by board action on
                  the subject matter that entitles the requestor
                  to participate in a contested case;
                  (2) The disagreement, if any, the requestor has
                  with an application before the board;
                  (3) The relief the requestor seeks or to which
                  the requestor deems itself entitled;
                  (4) How the requestor’s participation would
                  serve the public interest; and
                  (5) Any other information that may assist the
                  board in determining whether the requestor meets
                  the criteria to be a party pursuant to section
                  13-1-31.

            As we noted in the factual background of this case, KOH

first submitted a written petition for a contested case hearing

on May 24, 2010; it resubmitted that petition on July 8, 2010

after a pro forma denial by a person at DLNR who apparently did

not have authority to reject the original petition.            The May 24,

2010 petition, which appears in the record, contains the “concise

statements” required by HAR § 13-1-29(b).          KOH also made an oral

request for a contested case hearing at the August 26, 2010

public hearing in Pukalani, Maui; aside from that request, we

also note that at the public hearing, KOH “testified in

opposition to the project, citing its impacts on resources in the

conservation district[.]”

            Moreover, after the vote to grant the permit passed at

the December 1, 2010 board meeting but before the close of the


      6
            HAR § 13-1-31.1 applies to hearings concerning violations of the
administrative rules and does not apply to a permitting situation as in the
present case.

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meeting, KOH made yet another oral request for a contested case

hearing pursuant to HAR § 13-1-29(a).        The next day, December 2,

2010, KOH filed yet another written petition with BLNR requesting

a contested case hearing, also pursuant to HAR § 13-1-29(a).

          There is no question that KOH did all it could, both

prior to and following BLNR’s decision on the permit, to comply

with the agency’s rules for requesting a contested case hearing.

     4.   KOH has standing to appeal because it has sufficiently
alleged injury to its interests

          The final prong of the PASH/Kaleikini test “requires

that the claimant’s legal interests must have been injured --

i.e., the claimant must have standing to appeal.”           Kaleikini, 124

Hawai#i at 26, 237 P.3d at 1092 (citing PASH, 79 Hawai#i at 431,

903 P.2d at 1252).    We evaluate standing using the “‘injury in

fact’ test requiring: ‘(1) an actual or threatened injury, which,

(2) is traceable to the challenged action, and (3) is likely to

be remedied by favorable judicial action.’”          Ka Pa#akai O Ka#Aina

v. Land Use Comm’n, 94 Hawai#i 31, 42, 7 P.3d 1068, 1079 (2000)

(quoting Citizens for the Prot. of the N. Kohala Coastline v.

Cnty. of Haw., 91 Hawai#i 94, 100, 979 P.2d 1120, 1126 (1999)).

However, in cases involving native Hawaiian and environmental

interests, we have been especially concerned that the doctrine of

standing not serve as a barrier to a plaintiff’s legitimate



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claims:
                 With regard to native Hawaiian standing, this
          court has stressed that “the rights of native
          Hawaiians are a matter of great public concern in
          Hawai[#]i.” Pele Defense Fund v. Paty, 73 Haw. 578,
          614, 837 P.2d 1247, 1268 (1992), certiorari denied,
          507 U.S. 918, 113 S. Ct. 1277, 122 L. Ed. 2d 671
          (1993). Our “fundamental policy [is] that Hawaii’s
          state courts should provide a forum for cases raising
          issues of broad public interest, and that the
          judicially imposed standing barriers should be lowered
          when the “needs of justice” would best be served by
          allowing a plaintiff to bring claims before the
          court.” Id. at 614-15, 837 P.2d at 1268-69 (citing
          Life of the Land v. The Land Use Comm’n [(Life of the
          Land II)], 63 Haw. 166, 176, 623 P.2d 431, 441
          (1981)).
                 We have also noted that, “where the interests at
          stake are in the realm of environmental concerns[,]
          ‘we have not been inclined to foreclose challenges to
          administrative determinations through restrictive
          applications of standing requirements.’” Citizens, 91
          Hawai#i at 100-01, 979 P.2d at 1126-27 (quoting
          Mahuiki v. Planning Commission, 65 Haw. 506, 512, 654
          P.2d 874, 878 (1982) (quoting Life of the Land [II],
          63 Haw. at 171, 623 P.2d at 438))). Indeed, “[o]ne
          whose legitimate interest is in fact injured by
          illegal action of an agency or officer should have
          standing because justice requires that such a party
          should have a chance to show that the action that
          hurts his interest is illegal.” Mahuiki, 65 Haw. at
          512-13, 654 P.2d at 878 (quoting East Diamond Head
          Association v. Zoning Board of Appeals, 52 Haw. 518,
          523 n.5, 479 P.2d 796, 799 n.5 (1971) (citations
          omitted)). See also Mahuiki, 65 Haw. at 515, 654 P.2d
          at 880 (those who show aesthetic and environmental
          injury are allowed standing to invoke judicial review
          of an agency’s decision under HRS chapter 91 where
          their interests are “personal” and “special,” or where
          a property interest is also affected) (citing Life of
          the Land v. Land Use Commission [(Life of Land I)], 61
          Haw. 3, 8, 594 P.2d 1079, 1082 (1979)); Akau v.
          Olohana Corporation, 65 Haw. 383, 390, 652 P.2d 1130,
          1135 (1982) (an injury to a recreational interest is
          an injury in fact sufficient to constitute standing to
          assert the rights of the public for purposes of
          declaratory and injunctive relief); Life of the Land
          [II], 63 Haw. at 176-77, 623 P.2d at 441 (group
          members had standing to invoke judicial intervention
          of LUC’s decision “even though they are neither owners
          nor adjoining owners of land reclassified by the Land
          Use Commission in [its] boundary review”); Life of the
          Land [I], 61 Haw. at 8, 594 P.2d at 1082 (group
          members who lived in vicinity of reclassified


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          properties and used the subject area for “diving,
          swimming, hiking, camping, sightseeing, horseback
          riding, exploring and hunting and for aesthetic,
          conservational, occupational, professional and
          academic pursuits,” were specially, personally and
          adversely affected by LUC’s decision for purposes of
          HRS § 91-14).

Id. at 42-43, 7 P.3d at 1079-80; see also Mottl v. Miyahira, 95

Hawai#i 381, 393, 23 P.3d 716, 728 (2001) (“To date, the

appellate courts of this state have generally recognized public

interest concerns that warrant the lowering of standing barriers

in two types of cases: those pertaining to environmental concerns

and those pertaining to native Hawaiian rights.”).

          In its petition to BLNR requesting a contested case

hearing and in its statement of the case on agency appeal to the

circuit court, KOH emphasized that its members have used the

Haleakalâ summit area to engage in traditional and customary

practices as well as enjoy the views, natural beauty, and quiet

of the area and thus allege that construction of the proposed

facilities will directly and adversely affect their ability to

engage in traditional and customary practices and enjoy the area.

Due to the procedural history of this case, in which the

requested contested case hearing was not held prior to approving

the permit and the circuit court granted the motion to dismiss

KOH’s agency appeal, we are bound, even on further appeal, to

deem KOH’s factual allegations as true.         See, e.g., Buscher v.

Boning, 114 Hawai#i 202, 212, 159 P.3d 814, 824 (2007) (“A trial

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court’s ruling on a motion to dismiss is reviewed de novo.             The

court must accept plaintiff’s allegations as true and view them

in the light most favorable to the plaintiff . . . .” (internal

citations omitted)).

          Because we must accept KOH’s assertions as true, we

must conclude that KOH had standing to pursue its HRS § 91-14

appeal based on the threatened injury to its Native Hawaiian

traditional and customary practices and to its aesthetic and

environmental interests in the summit area.          See, e.g.,

Kaleikini, 124 Hawai#i at 26, 237 P.3d at 1092; Mottl, 95 Hawai#i

at 393, 23 P.3d at 728; Ka Pa#akai, 94 Hawai#i at 42-43, 7 P.3d at

1079-80; Citizens, 91 Hawai#i at 100-01, 979 P.2d at 1126-27;

PASH, 79 Hawai#i at 434 & n.15, 903 P.2d at 1255 & n.15; Pele

Def. Fund, 73 Haw. at 614-15, 837 P.2d at 1268-69; Mahuiki, 65

Haw. at 515-16, 654 P.2d at 880; Life of the Land II, 63 Haw. at

176-77, 623 P.2d at 441; Life of the Land I, 61 Haw. at 8, 594

P.2d at 1082.

          Accordingly, KOH has met this final requirement, and

thus has met all of the requirements, of the PASH/Kaleikini test.

We therefore conclude that BLNR should have held a contested case

hearing as required by law and requested by KOH prior to decision

making on UH’s application, and that the circuit court had

jurisdiction to hear KOH’s HRS § 91-14 agency appeal.


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                             IV. CONCLUSION

          Based on the foregoing, we conclude that KOH’s appeal

is not moot and that a contested case hearing should have been

held, as required by law and properly requested by KOH, on UH’s

application prior to BLNR’s vote on the application.

Accordingly, we vacate the ICA’s July 30, 2012 judgment on

appeal, vacate the circuit court’s March 29, 2011 final judgment

and March 15, 2011 order granting the motion to dismiss, and

remand to the circuit court for further proceedings consistent

with this opinion regarding KOH’s request for stay or reversal of

the conservation district use permit granted by BLNR to UH on

December 1, 2010.


David Kimo Frankel                    /s/ Mark E. Recktenwald
(Sharla Ann Manley and
            2
Camille Kaimalie Kalama               /s/ Paula A. Nakayama
with him on the briefs)
for petitioner                        /s/ Sabrina S. McKenna

Linda L.W. Chow                       /s/ Richard W. Pollack
(Donna H. Kalama and
Julie H. China with her
on the briefs) for
respondents Board of Land
and Natural Resources,
Department of Land and
Natural Resources, and
William Aila, in his
official capacity as
Chairperson of the Board of
Land and Natural Resources




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Lisa Woods Munger
(Bruce Y. Matsui, Randall K.
Ishikawa, Lisa A. Bail and
Adam K. Robinson with her on
the briefs) for respondents
University of Hawai#i and
Thomas M. Apple, in his
official capacity as
Chancellor of the University
               2
of Hawai#i at Manoa




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