** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 04-MAR-2025 10:03 AM Dkt. 25 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo--- ________________________________________________________________
ELIZABETH DAILEY AND MICHAEL DAILEY, Petitioners/Appellants-Appellants,
vs.
DEPARTMENT OF LAND AND NATURAL RESOURCES; BOARD OF LAND AND NATURAL RESOURCES, Respondents/Appellees-Appellees. ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CIVIL NO. 1CCV-XX-XXXXXXX)
MARCH 4, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case concerns whether an appeal improperly filed in
the Environmental Court of the First Circuit (“environmental
court”) can and should be transferred to this court.
On July 15, 2022, Michael Dailey and Elizabeth Dailey
(together, “the Daileys”), son and mother, filed an appeal with
1 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
the environmental court. The appeal was from a 2022 Board of
Land and Natural Resources (“BLNR”) contested case decision
regarding a seawall allegedly constructed makai1 of the shoreline
and within the conservation district. After the Daileys filed
their opening brief, the BLNR raised appellate jurisdiction
issues in its answering brief. The BLNR pointed out that Act 48
of 2016 (“Act 48”) had amended the law to require the Daileys’
appeal to be filed directly with this court.
Specifically, section 2 of Act 48 added a new statute,
Hawaiʻi Revised Statutes (“HRS”) § 183C-9 (Supp. 2016).
Subsection (a) provides that “any contested case under this
chapter shall be appealed from a final decision and order . . .
upon the record directly to the supreme court for final
decision, except for those appeals heard pursuant to this
chapter arising in whole or in part from part III of chapter
205A . . . .”2 HRS Chapter 183C concerns the conservation
district. Part III of HRS Chapter 205A concerns shoreline
setbacks.
1 “Makai” means “on the seaside, toward the sea, in the direction of the sea.” Kai, Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary (6th ed. 1987).
2 Act 48 was effective from August 1, 2016 to June 30, 2019. 2016 Haw. Sess. Laws Act 48, at 82. Act 213 of 2019 made HRS § 183C-9 a permanent statute. 2019 Haw. Sess. Laws Act 213, at 637.
2 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
BLNR then filed a motion to dismiss alleging lack of
appellate jurisdiction. The Daileys argued the environmental
court had jurisdiction, but they also asked the environmental
court to transfer the appeal to this court if it determined it
lacked appellate jurisdiction. The environmental court
dismissed the appeal based on a lack of appellate jurisdiction
and ruled it lacked power to transfer the appeal to this court.3
The Intermediate Court of Appeals (“ICA”) affirmed.4
On certiorari, the Daileys raise two issues:
1. Whether the ICA gravely erred in affirming the environmental court’s dismissal of the Daileys’ contested case appeal by incorrectly finding that the HRS Chapter 205A shoreline setback exception in HRS § 183C-9 did not apply. Answering this question in the affirmative would obviate the need to address the second question.
2. If the ICA did not err in affirming the finding above, the question becomes whether the ICA gravely erred in affirming the environmental court’s Conclusion of Law denying a direct transfer request to the Hawaiʻi Supreme Court for lack [of] authority for such a transfer.
On the first issue, as further explained below, we hold
that the Daileys’ appeal does not involve the HRS Chapter 205A
shoreline setback exception in HRS § 183C-9; therefore, this
court has exclusive appellate jurisdiction.
3 The Honorable Jeffrey P. Crabtree presided.
4 During the pendency of the ICA appeal, Elizabeth Dailey passed away. Michael Dailey asked that the appeal proceed in his name as the remaining appellant.
3 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
On the second issue, we need not decide whether the ICA
erred by affirming the environmental court’s dismissal. The
power of our courts to transfer appeals was not clear when the
environmental court and the ICA issued their rulings. Even
absent error, this court has discretion under HRS § 602-59(a)
(2016) to accept certiorari. See State v. Hussein, 122 Hawaiʻi
495, 514, 229 P.3d 313, 332 (2010). Here, we accepted
certiorari to consider whether the Daileys’ appeal should be
transferred to this court based on our holdings in Honoipu
Hideaway, LLC v. Land Use Commission, 154 Hawaiʻi 372, 550 P.3d
1230 (2024), and Rosehill v. Land Use Commission, 155 Hawaiʻi 41,
556 P.3d 387 (2024). These opinions post-dated the ICA’s May
16, 2024 summary disposition order (“SDO”).
Honoipu and Rosehill addressed appeals filed in circuit
courts from Land Use Commission (“LUC”) declaratory orders; the
appeals were filed before our opinion in In re Kanahele, 152
Hawaiʻi 501, 526 P.3d 478 (2023). In Kanahele, we held that LUC
declaratory orders have the same status for judicial review as
contested case orders. 152 Hawaiʻi at 512, 526 P.3d at 489. As
a result, based on amendments to appellate jurisdiction in Act
48, appeals from LUC declaratory orders were also required to be
filed directly with this court. 152 Hawaiʻi at 511-12, 526 P.3d
488-89.
4 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
After Kanahele, in Honoipu, a reserved question case, we
held that a circuit court has inherent and statutory authority
to transfer a timely-filed appeal nunc pro tunc to this court.
154 Hawaiʻi at 374, 550 P.3 at 1232. Then, in Rosehill, after
accepting transfer of an appeal to the ICA, we deemed the
transfer accepted nunc pro tunc to the date the appeal was
originally filed in the circuit court. 155 Hawaiʻi at 45, 556
P.3d at 391.
Both Honoipu and Rosehill limited their holdings regarding
appellate jurisdiction to the “limited circumstances” of those
cases, where appeals of LUC declaratory orders were pending in
lower courts when Kanahele was published. Honoipu, 154 Hawaiʻi
at 374, 550 P.3d at 1232; Rosehill, 155 Hawaiʻi at 50, 556 P.3d
at 396. But, as noted in Honoipu, our appellate courts have
long adhered to the policy of permitting litigants, where
possible, to appeal and to have their cases heard on the merits.
Honoipu, 154 Hawaiʻi at 376, 550 P.3d at 1234 (citation omitted).
And, as further noted in Honoipu, various other jurisdictions
have held that courts have inherent authority to transfer
appeals when they have been filed in the wrong court. See
Honoipu, 154 Hawaiʻi at 376, 376 n.3, 550 P.3d at 1234, 1234 n.3.
The inherent and statutory power of our lower and appellate
courts to order transfers of appeals to the court with appellate
jurisdiction, as well as our policy of permitting litigants, 5 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
where possible, to appeal and to have their cases heard on the
merits, also applies here. Not allowing a transfer would
preclude a decision on the merits of the Daileys’ appeal.
Hence, we hold that, based on the inherent and statutory
bases providing courts with the power to order transfers of
appeals to the court with appellate jurisdiction, the
environmental court had the power to transfer the Daileys’
appeal to this court. Under the circumstances of this case, we
order the environmental court to transfer the appeal to this
court nunc pro tunc to the date of its July 15, 2022 filing as
soon as this court’s judgment on appeal has entered. The appeal
on the merits is then to proceed in this court pursuant to the
Hawaiʻi Rules of Appellate Procedure (“HRAP”), with deadlines to
correspond with the date the appeal is actually transferred to
this court.
II. Background
A. Factual background
The Dailey family has owned an ocean-front residential
property in Mokuleia, on the North Shore of Oʻahu, for decades.
The late Fred Dailey, husband of Elizabeth and father of
Michael, was also a previous owner. In December of 1969, Hawaiʻi
was hit with a swell that brought waves that caused destruction
to homes along the North Shore, including the Dailey property.
In what was likely early 1970, Fred Dailey constructed a large,
6 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
loose rock revetment on the makai side of the property to
protect the land and home from high surf damage and beach
erosion.
The structure lasted for decades, but in the early 2000s,
members of the public began complaining to the Department of
Land and Natural Resources (“DLNR”) that the deteriorating
revetment was sending boulders rolling down onto the beach. It
appears that by then the beach had eroded and the rock pile
revetment was below the highest wash of the waves and within the
conservation district.5 The DLNR found that rocks from the
revetment were being worn down by surf and were rolling onto the
beach. DLNR’s Office of Conservation and Coastal Lands (“OCCL”)
issued a notice indicating it had no record of ever approving
the structure and recommended its removal.
Instead of removing the revetment, around 2006 to 2007,
without obtaining a permit, the Daileys built a new seawall with
a cement cap on top of the 1970 rock pile. The OCCL then
recommended that BLNR fine the Daileys and order them to remove
the structure. BLNR agreed with the recommendation, and the
Daileys sought a contested case hearing.
5 The “conservation district” is defined as “those lands within the various counties of the State bounded by the conservation district line. . . .” HRS § 183C-2 (2023). In this case, it means the lands makai of the shoreline.
7 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
B. Procedural background before this appeal
This is the third judicial appeal regarding this matter.
1. First appeal and remand
On June 13, 2014, BLNR issued a decision and order finding
the seawall violated permissible uses within the conservation
district and fined the Daileys. The Daileys appealed this
decision to the circuit court. On March 20, 2015, the circuit
court remanded the matter to the BLNR for the BLNR to prove the
original rock pile revetment was built within the conservation
district. This remand order was not further appealed.
On remand, on June 23, 2017, the BLNR determined that the
OCCL had not met its burden, but also determined that
construction of the new seawall constituted a violation.
2. Second appeal and remand
On July 21, 2017, the Daileys filed their second appeal,
this time with the environmental court.6 Although this appeal
was filed after the August 1, 2016 effective date of Act 48, the
BLNR did not contest the environmental court’s appellate
jurisdiction. In this second appeal, the environmental court
concluded there were procedural infirmities, vacated the BLNR
6 HRS Chapter 604A (2016), which created our environmental courts, came into effect on July 1, 2015. 2016 Haw. Sess. Laws. Act 218, at 737-39. Pursuant to HRS § 604A-2(a)(1) (2016 & Supp. 2018), from that date, the environmental court had exclusive jurisdiction of administrative appeals arising out of HRS title 12, which includes HRS Chapter 183.
8 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
decision, and remanded for a contested case hearing that is the
subject of this third appeal. This decision was also not
further appealed.
3. BLNR decision
After the subject contested case hearing, the BLNR issued
its findings of fact, conclusions of law, and decision and order
on June 16, 2022 (“BLNR FOF/COL”). The BLNR noted issues
regarding pinning down the location of the shoreline for
purposes of this case. BLNR had not established the location
and boundaries of the shoreline when Fred Dailey built the
original rock pile revetment; therefore, BLNR was not able to
establish that the original rock pile revetment was built makai
of the shoreline and in the conservation district. As such,
BLNR considered the original rock pile revetment to be a
“nonconforming” (once legal) structure.
By the early 2000s, however, due to beach erosion, the
highest wash of the waves was clearly above the deteriorating
revetment. BLNR noted that the Daileys’ first attempt to
certify their shoreline in 2007 was rejected because they tried
to certify the shoreline against the face of their new seawall.
Based on the Daileys’ second request, however, on September 15,
2011, DLNR certified the shoreline mauka7 of the seawall, which
7 “Mauka” means “inland.” Mauka, Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary (6th ed. 1987).
9 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
meant the seawall was within the conservation district.
Although the Daileys later complained about the location of the
certified shoreline, they neither appealed the certification nor
sought a new certification.
The BLNR then concluded that the Daileys “willfully
violated H.R.S. § 183C-4(b), and H.A.R. §§ 13-5-30(b)(1994), 13-
5-22(P-9)(C-1)(1994), 13-5-23(L-5)(D-1)(1994), and 13-5-
37(e)(1994) by demolishing a nonconforming rock pile and
reconstructing it into an unauthorized and unpermitted seawall
in the Conservation District on or about December of 2006
through February of 2007.” The BLNR determined that the seawall
and remnants of the rock pile have persisted as a continuing
violation since that time. BLNR also concluded that the seawall
construction exceeded what could lawfully be done on a
nonconforming structure without permits. BLNR fined the Daileys
$8000 and ordered them to remove the unauthorized seawall, all
rocks makai of and underlying the seawall, and any remaining
sections of the old rock pile.
BLNR determined that regardless of where the shoreline had
originally been, the Daileys had gone well beyond what would
constitute legal repairs to the nonconforming rock pile
revetment by cementing it over and building a seawall on top of
it. The BLNR concluded that the seawall violated HRS chapter
183C and its relevant administrative rules because it could not
10 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
have been built in the conservation district without a permit
and would not have been considered a legal repair of a
nonconforming structure even if it remained in the shoreline
setback area.
C. Appeal to the environmental court
1. Appeal
On July 15, 2022, the Daileys filed a notice of appeal of
the BLNR’s FOF/COL with the circuit court. They cited HRS §§
91-14 and 183C-8 as the statutory bases for their appeal. They
quoted a 1994 version of HRS § 183C-8 as stating, “Any final
order of the department based upon this chapter may be appealed
to the circuit court of the circuit in which the land in
question is found. The appeal shall be in accord with chapter
91 and the Hawaii rules of civil procedure.” The circuit court
later appropriately redesignated the matter as being in the
environmental court.8
In its answer to the Daileys’ statement of the case, the
BLNR raised as a defense the environmental court’s lack of
subject matter jurisdiction over the Daileys’ appeal. The DLNR
filed a joinder.
8 See supra note 6.
11 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
2. Briefing before the environmental court
a. Daileys’ opening brief
The Daileys’ October 17, 2022 opening brief addressed the
merits of the BLNR’s FOF/COL in addition to appellate
jurisdiction. Because this certiorari proceeding deals only
with appellate jurisdiction, we do not discuss the briefing
except as relevant to appellate jurisdiction issues that
continue to be raised on certiorari.
Regarding appellate jurisdiction, the Daileys pointed out a
“jurisdictional split” between the City and County of Honolulu
(“the City”) and the DLNR along the shoreline. They explained
that land mauka of the shoreline is within City jurisdiction
under HRS chapter 205A while land makai of the shoreline is
under DLNR jurisdiction under HRS Chapter 183.
b. BLNR’s answering brief
In its answering brief, which DLNR joined, BLNR raised the
threshold question of whether the environmental court had
jurisdiction to hear the Daileys’ appeal. BLNR pointed out that
the Daileys cited an outdated statute for their appeal; HRS §
183C-8 had provided that conservation district contested case
proceeding appeals would be heard by the circuit court. BLNR
noted, however, that Act 48 had vested appellate jurisdiction
12 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
over HRS chapter 183C contested case appeals directly with this
court.
BLNR acknowledged that the environmental court still
retained jurisdiction over appeals concerning HRS Chapter 205A
Part III. BLNR asserted, however, that the Daileys’ case did
not involve such issues and concerned only a seawall constructed
makai of the shoreline, wholly within the conservation district.
BLNR noted that the Daileys themselves, in their notice of
appeal, did not cite to HRS Chapter 205A Part III.
BLNR acknowledged that there had been counts related to HRS
Chapter 205A Part III brought against the Daileys in a prior
contested case hearing, but noted that those counts had been
dismissed and no such claims had since been included. BLNR
notified the environmental court that it would be preparing a
separate motion to dismiss the Daileys’ appeal.
c. Daileys’ reply brief
In their reply brief, the Daileys pointed out that even
after the enactment of Act 48, their 2017 (second) appeal had
been to the environmental court. The Daileys noted that the
BLNR did not contest appellate jurisdiction, which the
environmental court purported to exercise. The Daileys also
argued that their appeal noted the jurisdictional split between
the City and the BLNR and asserted that their appeal involved
HRS chapter 205A Part III.
13 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
The Daileys alternatively asked the environmental court to
transfer their appeal to this court in the event it ruled it
lacked appellate jurisdiction.
3. BLNR’s motion to dismiss
a. BLNR’s motion
BLNR then filed a motion to dismiss on November 22, 2022,
which DLNR joined. BLNR elaborated on its position that there
were no shoreline setback issues under HRS Chapter 205A Part III
at issue in the instant appeal. BLNR explained that DLNR staff
had initially alleged HRS §§ 205A-43.6 and -44(b) violations;
BLNR dismissed that claim, however, because the City was the
entity with jurisdiction over enforcement of HRS Chapter 205A
shoreline setback statutes. According to BLNR, no further
allegations regarding the shoreline setback area were made.
BLNR also pointed out that the shoreline determination for
the subject property was made in 2011, when the shoreline was
certified as mauka of the Daileys’ rock revetment. The Daileys
had not appealed this determination. BLNR emphasized that, in
any event, the current appeal concerned an interpretation of
nonconforming uses in the conservation district and did not
involve shoreline setback issues.
b. Dailey’s memorandum in opposition
In opposition, the Daileys argued that their appeal
triggers the HRS Chapter 205A Part III exception of HRS § 183C-
14 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
9(a) because, over the course of fifteen years, the parties had
argued over the location of the shoreline in reference to the
revetment. They asserted that the movement of the shoreline in
the mauka direction gave rise to the enforcement action against
them.
c. BLNR’s reply
In its reply, which the DLNR joined, the BLNR additionally
argued that subject matter jurisdiction can be raised at any
time and it did not matter that the 2017 appeal was mistakenly
entertained by the environmental court.
d. Supplemental briefing
The environmental court invited supplemental briefing as to
whether the BLNR’s FOF/COL implicated HRS Chapter 205A Part III.
BLNR filed a supplemental brief quoting the following portion of
its FOF/COL to argue that the Daileys’ violation notice did not
arise out of HRS chapter 205A Part III and instead arose only
out of HRS chapter 183C:
The BLNR . . . finds and holds under the evidentiary record of this contested case that Petitioners Elizabeth Dailey and Michael Dailey willfully violated H.R.S. § 183C-4(b), and H.A.R. §§ 13-5-30(b)(1994), 13-5-22(P-9)(C-1)(1994), 13-5-23(L-5)(D-1)(1994), and 13-5-37(e)(1994) by demolishing a nonconforming rock pile and reconstructing it into an unauthorized and unpermitted seawall in the Conservation District on or about December of 2006 through February of 2007.
DLNR joined BLNR’s supplemental brief and also explained
that, in 2013, it had filed a bill of particulars concerning the
Daileys’ seawall violation. The bill of particulars alleged
15 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
that the “Daileys’ reconstruction and repair of the seawall or
revetment located or situated within the Conservation District
along the shoreline on the makai side of their property violated
[HRS] § 183C-4(b), [HRS] § 205A-43.5(a),(b), [HRS] § 205A-44(b)
and [HAR] §§ 13-5-6[,] 13-5-7, 13-5-30(b) and 13-5-35(d).” DLNR
further explained that a 2014 BLNR decision and order then
concluded that DLNR lacked jurisdiction to enforce HRS chapter
205A; therefore, the HRS chapter 205A allegations against the
Daileys were dismissed by BLNR in 2014.
e. Environmental court’s ruling
On May 5, 2023, the environmental court granted BLNR’s
motion to dismiss in its findings of fact, conclusions of law,
and order (“environmental court’s FOF/COL”). It agreed with
BLNR that this appeal arose out of HRS Chapter 183C and not HRS
Chapter 205A Part III; therefore, it lacked jurisdiction over
the appeal. The environmental court also declined the Daileys’
request to transfer the case to this court, indicating it was
not aware of any rule or case law allowing transfer and
concluding it did not possess the inherent power to do so. The
environmental court’s final judgment was filed on June 6, 2023.
D. ICA proceedings
In the Daileys’ appeal to the ICA, the parties essentially
repeated their arguments in the environmental court. In its May
16, 2024 SDO, with respect to the appellate jurisdiction issues
16 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
relevant on certiorari, the ICA affirmed the environmental
court’s dismissal of the Daileys’ appeal. Dailey v. Dep’t of
Land & Nat. Res., No. CAAP-XX-XXXXXXX, 2024 WL 2209726, at *7
(Haw. App. May 16, 2024) (SDO). The ICA pointed out that the
Daileys never disputed that their contested case arose under HRS
Chapter 183C, as evidenced by the jurisdictional statements in
the notice of appeal and statement of the case they filed with
the environmental court. Dailey, 2024 WL 2209726, at *5. The
ICA also noted that the record reflected that the Daileys’
seawall was makai of the shoreline, within the conservation
district. Id.
The ICA also agreed with the environmental court that the
latter did not possess inherent authority to transfer the
Daileys’ appeal to this court. Dailey, 2024 WL 2209726, at *6.
The ICA filed its judgment on appeal on July 9, 2024.
E. Certiorari proceedings
On certiorari, Dailey9 first asserts the HRS Chapter 205A
Part III exception to HRS § 183C-9 applies to his appeal because
the location of the shoreline was a critical issue in this
contested case proceeding.
Secondly, Dailey raises a new argument that could not have
been raised before the ICA’s SDO: that this court’s Honoipu
9 See supra note 4.
17 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
opinion indicates the environmental court had the power to
transfer Dailey’s appeal to this court. Dailey acknowledges
that Honoipu said its holding was “not a license to transfer any
case from the circuit court to our court.” Dailey nevertheless
maintains that his appeal warrants the remedy set forth in
Honoipu due to the environmental court’s mistaken exercise of
jurisdiction over his 2017 contested case appeal, which created
confusion over the appropriate appellate procedure and an
inconsistent exercise of appellate jurisdiction.
In response, BLNR distinguishes Honoipu. BLNR first argues
that Honoipu’s remedy of allowing a court to transfer an agency
appeal to this court should apply only in the narrow
circumstances presented in that case, where jurisdiction was
apparently proper when the appeal was originally filed, but the
parties’ understanding of jurisdiction shifted following a
decision from an appellate court.
III. Standards of Review
A. Appellate jurisdiction
The existence of jurisdiction is a question of law,
reviewed de novo. Dupree v. Hiraga, 121 Hawaiʻi 297, 312, 219
P.3d 1084, 1099 (2009).
B. Statutory interpretation
Statutory interpretation is guided by established rules:
18 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
Rees v. Carlisle, 113 Hawaiʻi 446, 452, 153 P.3d 1131, 1137
(2007) (cleaned up).
IV. Discussion
A. The HRS Chapter 205A Part III exception to HRS § 183C-9(a) is inapplicable; therefore, only this court has appellate jurisdiction
Dailey’s first question on certiorari asks this court to
determine whether the HRS Chapter 205A Part III exception to HRS
§ 183C-9(a)’s requirement that appeals be filed with this court
applies to their appeal; if so, the environmental court would
have had appellate jurisdiction.
The plain language of HRS § 183-9(a) requires appeals
arising out of HRS chapter 183C to come directly to this court
The statute, however, contains an exception for “appeals . . .
arising in whole or in part from part III of chapter 205A.”
Despite Dailey’s argument, this enforcement action was
undertaken entirely under HRS chapter 183C and its related
Hawaiʻi Administrative Rules (“HAR”).
19 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
HRS Chapter 205A Part III contains statutes providing the
City with exclusive or delegated jurisdiction over shoreline
setback issues.10 In 2014, however, BLNR abandoned any attempt
to enforce HRS chapter 205A against the Daileys, acknowledging
that it lacked jurisdiction to enforce shoreline setback
violations. Therefore, since that time, BLNR’s enforcement
action against the Daileys has been undertaken solely under HRS
chapter 183C governing the conservation district.
The BLNR’s problem pinning down the location of the
shoreline for purposes of this case does not affect this
analysis. Even under HRS Chapter 205A Part III, it is the BLNR
that determines shorelines.11 And the shoreline certification
finalized in 2011 at the Daileys’ request established that the
new seawall constructed in 2006-07 had clearly been constructed
in the conservation district. The Daileys never appealed this
certification. Hence, after Act 48, pursuant to HRS § 183C-9,
the environmental court lacked jurisdiction over both the 2017
second appeal as well as this appeal.
10 See HRS Chapter 205A Part III, HRS §§ 205A-41 to 205A-49 (2017).
11 See HRS § 205A-42 (2017).
20 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
B. The constitutional and statutory bases providing the judiciary with inherent power to transfer appeals outlined in Honoipu and Rosehill provided the environmental court as well as this court with the power to order transfer of the Dailey’s appeal
In their second question on certiorari, the Daileys
alternatively assert that even if their appeal had been required
to be filed directly with this court after Act 48, the ICA erred
by affirming the environmental court’s determination that it
lacked authority to transfer the appeal to this court.
We need not decide whether the ICA or the environmental
court erred, as error is not a prerequisite to this court’s
acceptance of certiorari. See Hussein, 122 Hawaiʻi at 514, 229
P.3d at 332. At the time the environmental court dismissed the
case for lack of jurisdiction, and the ICA affirmed, this
court’s Honoipu and Rosehill opinions had yet to be published.
Honoipu involved a petition for a declaratory order for the
LUC to change the boundary location between conservation and
agricultural districts on a district boundary map. 154 Hawaiʻi
at 373, 550 P.3d at 1231. The LUC denied the petition, and
Honoipu Hideaway appealed the decision to the circuit court.
Id.
Since 2016, Act 48 also expressly required that appeals
from LUC contested case decisions be filed with this court, but
it was silent on appeals of declaratory orders. Id. In Lingle
v. Haw. Gov’t Emps. Ass’n, AFSCME, Loc. 152, AFL-CIO, however,
21 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
we held that although declaratory orders are not contested
cases, they have the same status for the purpose of appeal
rights under HRS § 91-14. 107 Hawaiʻi 178, 186, 111 P.3d 587,
595 (2005). Hence, in Kanahele, we interpreted Act 48 to
require agency appeals from both contested cases and declaratory
orders to come to this court. Honoipu, 154 Hawaiʻi at 374, 550
P.3d at 1232 (citation omitted).
After Kanahele was filed, Honoipu Hideaway moved to
transfer its pending appeal in the circuit court to this court.
Id. In response, the LUC moved to dismiss the appeal for lack
of subject matter jurisdiction. Id. The circuit court then
submitted a reserved question to this court: “Whether [the
circuit court] has inherent and statutory authority to transfer
nunc pro tunc an appeal, which was timely filed with [the
circuit court], to the Supreme Court of Hawaiʻi as the court with
appellate jurisdiction.” 154 Hawaiʻi at 373, 550 P.3d at 1231.
This court answered in the affirmative. Id. We held that
“in order to correct jurisdiction following this court’s
decision in Kanahele, the circuit court may transfer the case
here nunc pro tunc, or backdated to the appropriate time.
Allowing such a transfer in these limited circumstances accords
with our longstanding policy to hear cases on the merits, and
there is both inherent and statutory power for the courts to do
so.” 154 Hawaiʻi at 374, 550 P.3d at 1232.
22 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
As to statutory authority for such a transfer of the
appeal, this court cited the circuit court’s authority under HRS
§ 603-21.9(1) “[t]o make and issue all orders and writs
necessary or appropriate in aid of their original or appellate
jurisdiction.” 154 Hawaiʻi at 375, 550 P.3d at 1233. We also
cited HRS § 602-5(a)(5) for this court’s authority “[t]o make
and issue any order or writ necessary or appropriate in aid of
[this court’s] jurisdiction.” Id. In addition to statutory
authority, however, we also cited Hawaiʻi Constitution’s Article
VI, Section 1’s “judicial power,” which includes the inherent
“power to administer justice,” such as the power to “prevent
unfair results and to curb abuses and promote a fair process.”
154 Hawaiʻi at 376, 550 P.3d at 1234. (cleaned up).
In Honoipu, we said that “the power to ‘do such other acts
and take such other steps as may be necessary to carry into full
effect the powers which are or shall be given to them by law or
for the promotion of justice’ gives the circuit court the power
to correct a jurisdictional mistake that was no party’s or
court’s fault.” Id. We also considered the judiciary’s policy
of hearing cases on the merits whenever possible. Id. We noted
that “the judicially efficient remedy is to transfer the case to
this court nunc pro tunc [to the date the notice of appeal was
filed with the circuit court] so that we may address the merits
23 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
questions more expeditiously.” 154 Hawaiʻi at 377, 550 P.3d at
1235.
After Honoipu, in Rosehill, landowners had also appealed an
adverse LUC declaratory ruling to the circuit court. 155 Hawaiʻi
at 45, 556 P.3d at 391. The circuit court reversed the LUC.
Id. The LUC then appealed to the ICA. Id. While the appeal
was pending before the ICA, we issued Kanahele. Id. In
Rosehill, we accepted a transfer of the appeal from the ICA and
then deemed the transfer accepted nunc pro tunc to the date the
appeal was originally incorrectly filed in the circuit court.
Id. We also held that, in reaching the merits of the appeal, we
could use the entirety of the record although the circuit
court's findings of fact and conclusions of law had no weight
because the court had lacked appellate jurisdiction. Id.
We recognize that this case differs from Honoipu and
Rosehill. Both Honoipu and Rosehill limited their holdings
regarding appellate jurisdiction to the “limited circumstances”
of those cases, where appeals of LUC declaratory orders were
pending in our lower courts when Kahahele was published.
Honoipu, 154 Hawaiʻi at 374, 550 P.3d at 1232; Rosehill, 155
Hawaiʻi at 50, 556 P.3d at 396. In Honoipu, we expressly stated
that our opinion was “not a license to transfer any case from
the circuit court to our court. Rather, in this limited
circumstance, in which jurisdiction was proper when the appeal
24 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
was originally filed, but the parties’ understanding of
jurisdiction shifted following a decision from an appellate
court, transfer to perfect jurisdiction is appropriate.”
Honoipu, 154 Hawaiʻi at 377, 550 P.3d at 1235.
Here, the Daileys mistakenly filed their appeal from a
contested case decision to the environmental court in July 2022.
The Daileys mistakenly believed the environmental court had
jurisdiction, but the BLNR asserted a lack of jurisdiction in
that court. Jurisdiction was not proper in the environmental
court when the appeal was filed. The environmental court
granted BLNR’s motion to dismiss for lack of jurisdiction and
declined to transfer the case to this court, stating it was not
aware of any rule or case law allowing such transfer and that it
did not believe it had the inherent power to transfer the
appeal.
But, as noted in Honoipu, our appellate courts have long
adhered to the policy of permitting litigants, where possible,
to appeal and to have their cases heard on the merits. Honoipu,
154 Hawaiʻi at 376, 550 P.3d at 1234 (citation omitted). And, as
further noted in Honoipu, various other jurisdictions have held
that courts have inherent authority to transfer appeals for lack
of jurisdiction when timely appeals have been filed in the wrong
court. See Honoipu, 154 Hawaiʻi at 376, 376 n.3, 550 P.3d at
1234, 1234 n.3.
25 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
For example, we cited to Pearce v. Dir., Off. of Workers’
Comp. Programs, U.S. Dep’t of Lab., 603 F.2d 763, 771 (9th Cir.
1979), which collected cases and noted that the Ninth Circuit
has held it has “power to transfer a pending case to another
circuit even when the latter circuit has exclusive jurisdiction
and venue to review the order in question.” We also cited to
People v. Nickerson, 128 Cal.App.4th 33, 26 Cal. Rptr. 3d 563,
567 (2005), which points out that inherent authority, among
other things, “empowers [the California appellate court] to
order transfer [of an appeal]”). We also pointed to Pridgen v.
Head, 282 Ala. 193, 210 So.2d 426, 429 (1968), in which the
Alabama Supreme Court held in denying a motion to dismiss appeal
that “[t]he fact that the appeal was taken to the Court of
Appeals rather than to [the supreme court] does not justify a
dismissal of the appeal. The cause has been transferred to this
court in keeping with a practice of long standing where the
appeal is taken to the wrong court.” We also favorably cited
Dunn v. U.S. Dep’t of Agric., 654 F.2d 64, 68 (Ct. Cl. 1981),
which noted the Court of Claims’ inherent power to transfer a
case to a an appellate court with exclusive jurisdiction.
Finally, we referred to Commonwealth v. Carter, 36 Pa. Cmwlth.
569, 389 A.2d 241, 242 (1978), which held that “[w]here the
defect is the erroneous filing of the proceeding in the wrong
26 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
court, this error may be corrected by certifying the case to the
proper tribunal.”
These cases do not limit transfers of appeals to situations
where parties’ understanding of jurisdiction shifted following a
decision from an appellate court. Rather, they recognize the
much broader inherent power of courts. And, as we pointed out
in Honoipu, inherent powers of courts grounded in the
constitutional judicial power also provide courts with inherent
power to transfer appeals to the proper court.12 Hence, we hold
that the environmental court had the power to transfer the
Daileys’ timely appeal to this court.
The existence of the power to transfer appeals does not
mean it must always be exercised. For example, we would not
countenance an attorney repeatedly filing appeals in any court
on the assumption the appeals would be transferred to the court
with appellate jurisdiction. But where a timely appeal is
inadvertently filed in the wrong court, it should be
transferred.13 In turn, the court to which an appeal is
12 We also note that HRAP Rule 3(a) (eff. 2019) allows an appeal erroneously filed with the clerk of the court or agency appealed from to effectively be transferred to the appellate court. This rule would not apply here, but this rule does provide authority for some erroneously filed appeals to be transferred.
13 Although not applicable here, we note that courts also have the inherent discretionary power to address any prejudice to other parties through other means, such as an award of reasonable attorney fees and costs unnecessarily incurred due to the filing of appeals in the wrong court.
27 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
transferred will likewise have statutory, constitutional and
inherent authority to determine whether the transfer was
properly made.14
Therefore, we conclude the power to transfer appeals can
and should be exercised under the facts and circumstances of
this case. This is especially because neither the BLNR nor the
environmental court noticed the lack of appellate jurisdiction
in the Daileys’ second appeal. And not requiring a transfer
here would preclude a decision on the merits of the Daileys’
appeal,15 contravening our long-standing policy of permitting
litigants, where possible, to appeal and to have their cases
heard on the merits.
Hence, under the circumstances of this case, we order the
environmental court to transfer the appeal to this court nunc
pro tunc to the date of its July 15, 2022 filing as soon as this
court’s judgment on appeal has entered. The appeal on the
merits is then to proceed in this court pursuant to the HRAP,
with deadlines to correspond with the date the appeal is
actually transferred to this court.
14 For example, the transferee court might determine that the appeal was untimely filed or that it should have been made to another court.
15 If dismissal of the appeal is affirmed, the deadline for filing an appeal to this court would have long expired.
28 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
V. Conclusion
Based on the reasons above, we vacate the ICA’s July 9,
2024 judgment on appeal, the environmental court’s May 5, 2023
“Findings of Fact, Conclusions of Law, and Order Granting
Appellee Board of Land and Natural Resources’ Motion to Dismiss
Appeal,” as well as its June 6, 2023 “Final Judgment.” We order
the environmental court to transfer the appeal to this court
nunc pro tunc to the date of its July 15, 2022 filing as soon as
this court’s judgment on appeal has entered. The appeal on the
merits is then to proceed in this court pursuant to the HRAP,
Gregory W. Kugle and /s/ Mark E. Recktenwald David H. Abitbol for petitioners /s/ Sabrina S. McKenna
Thomas J. Hughes /s/ Todd W. Eddins for respondents /s/ Lisa M. Ginoza Lance D. Collins and Bianca Isaki /s/ Vladimir P. Devens for amicus curiae Nā Papaʻi Wawae ʻUlaʻula, Ka Malu o Kahālāwai, and West Maui Preservation Association