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Electronically Filed Supreme Court SCRQ-XX-XXXXXXX 15-MAR-2023 10:32 AM Dkt. 52 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
FLORES-CASE ‘OHANA, Plaintiff-Appellant,
vs.
UNIVERSITY OF HAWAI‘I, Defendant-Appellee.
SCRQ-XX-XXXXXXX
RESERVED QUESTION FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CCV-XX-XXXXXXX)
MARCH 15, 2023
RECKTENWALD, C.J., AND WILSON, J., WITH McKENNA, J., CONCURRING IN PART AND DISSENTING IN PART1
OPINION BY RECKTENWALD, C.J.
I. INTRODUCTION
In this case, a Native Hawaiian family challenges the
1 Chief Justice Recktenwald, joined by Justices McKenna and Wilson, writes for a majority of the court in Parts II, III, IV(A), IV(B), and IV(D). Justice McKenna does not join Chief Justice Recktenwald as to Parts I and IV(C). *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
constitutionality of administrative rules governing access to
Mauna Kea’s summit under article XII, section 7 of the Hawai‘i
Constitution. The Circuit Court of the Third Circuit reserved
the following questions to us pursuant to Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 15 (2018), which we accepted:
In a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawai‘i State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, Section 7? If so, what standards govern its application?
In answering reserved questions, we apply the same
principles we utilize in answering certified questions from
federal courts. Specifically, “[t]his court may reformulate the
relevant state law questions as it perceives them to be, in
light of the contentions of the parties.” See Pac. Radiation
Oncology, LLC v. Queen’s Med. Ctr., 138 Hawai‘i 14, 16, 375 P.3d
1252, 1254 (2016) (quotation marks omitted) (quoting Allstate
Ins. Co. v. Alamo Rent–A–Car, Inc., 137 F.3d 634, 637 (9th Cir.
1998)). We see no reason why the framework applied to certified
questions from federal courts would not apply to reserved
questions from “circuit court, the land court, the tax appeal
court [or] any other court empowered by statute.” See HRAP Rule
15(a).
Accordingly, we “reformulate the question so that a
negative answer to the first [reserved] question will not
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preclude us from answering the second [reserved] question.” See
Pac. Radiation Oncology, LLC, 138 Hawai‘i at 16, 375 P.3d at
1254. We also “reformulate the question” to remove any
confusion about what standard applies to constitutional
challenges arising from article XII, section 7. See id. As we
explain, the standard does not require, as the circuit court’s
reserved questions imply, that plaintiffs must “prove that the
rules are [un]reasonable and [] unduly limit the constitutional
rights conferred in Article XII, Section 7.”
Therefore, the reformulated reserved questions are as
follows: (1) In a challenge to the constitutionality of
administrative rules based on a violation of article XII,
section 7 of the Hawai‘i Constitution, does the burden of proof
shift to the government defendant? (2) What standard governs a
challenge to the constitutionality of an administrative rule
based on an alleged violation of article XII, section 7?
First, in Part IV(A), we hold that the burden does not
shift to the government agency, and instead remains with the
challenging party, in constitutional challenges to
administrative rules arising from article XII, section 7. In
general, the party challenging the constitutionality of an
administrative rule bears the burden of proof. This
longstanding general rule governs absent an exception, which we
do not make today.
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Second, in Part IV(B), we determine that the Ka Pa‘akai
framework applies to rulemaking in addition to contested case
hearings. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, 94 Hawai‘i
31, 7 P.3d 1068 (2000), as amended (Jan. 18, 2001). There is no
principled basis to exempt agency rulemaking from the State’s
constitutional obligations under article XII, section 7. In Ka
Pa‘akai, we recognized that article XII, section 7 of the Hawai‘i
Constitution “places an affirmative duty on the State and its
agencies to preserve and protect traditional and customary
native Hawaiian rights” during contested case hearings. Id. at
45, 7 P.3d at 1082 (emphasis added). That “affirmative duty”
applies during rulemaking as well. See id.
Third, in Part IV(C) and consistent with the Ka Pa‘akai
framework, we hold that agencies must engage in a
contemporaneous analysis of the relevant factors prior to
adopting a rule. That analysis should identify Native Hawaiian
traditional and customary rights or practices affected by the
proposed rule, if any, consider the scope and extent to which
those rights or practices will be impaired, and explain how the
proposed rule reasonably protects those rights and practices as
balanced with the State’s own regulatory right.
Fourth, in part IV(D), we hold that to succeed in an
article XII, section 7 constitutional challenge to
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administrative rules, a plaintiff must show: (1) the agency
failed to adequately consider “the identity and scope of” Native
Hawaiian traditional and customary rights affected by the rule,
if any; or (2) the agency failed to adequately consider “the
extent to which” Native Hawaiian traditional and customary
rights “will be affected or impaired by the [rule]”; or (3) the
rule failed to “reasonably protect” Native Hawaiian traditional
and customary rights, “if they are found to exist,” as balanced
with the State’s own regulatory right. See id. at 47, 7 P.3d at
1084 (emphasis added). The test sets forth both the steps
agencies must take prior to promulgating rules and the standard
by which rules will be judged under article XII, section 7.
This test necessarily requires agencies to consider a rule’s
impact on Native Hawaiian traditional and customary rights so
that a court may determine whether that analysis and the rule
passes constitutional muster.
As we explained in Ka Pa‘akai, “[r]equiring these
minimal prerequisites facilitates precisely what the 1978
Constitutional Convention delegates sought: ‘badly needed
judicial guidance’ and the ‘enforcement by the courts of these
rights[.]’” Id. at 50, 7 P.3d at 1087 (quoting Stand. Comm.
Rep. No. 57, in 1 Proceedings of the Constitutional Convention
of Hawai‘i of 1978, at 640 (1980)). We apply the Ka Pa‘akai
framework and its requirement of contemporaneous consideration
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of Native Hawaiian rights to administrative rulemaking because,
if not, an agency’s “promise of preserving and protecting
customary and traditional rights would be illusory absent
[consideration of] the extent of their exercise, their
impairment, and the feasibility of their protection.” Id. Put
simply, today we hold the State and its agencies to the promise
made in 1978: “The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence,
cultural and religious purposes and possessed by ahupua‘a tenants
who are descendants of native Hawaiians who inhabited the
Hawaiian Islands prior to 1778, subject to the right of the
State to regulate such rights.” Haw. Const. art. XII, § 7
(emphasis added).
II. BACKGROUND
In 2009, the legislature passed Act 132,2 which
empowered the University of Hawai‘i (UH) to promulgate
administrative rules governing access to the summit of Mauna
Kea.3 2009 Haw. Sess. Laws Act 132, § 1 at 362-65. Act 132
2 Act 132 is codified at Hawaiʻi Revised Statutes (HRS) §§ 304A-1901 to -1905 (2020).
3 Specifically, Act 132 granted UH rulemaking authority over “Mauna Kea lands” – that is:
the lands that [UH] is leasing from the board of land and natural resources, including the Mauna Kea Science Reserve, Hale Pōhaku, the connecting roadway corridor (continued . . .)
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sought to “clarify and add certainty to the law relating to”
UH’s stewardship of Mauna Kea “by granting express authority to
[UH] to adopt rules relating to public and commercial activities
permitted or occurring on the Mauna Kea lands.” Id. at 362.
The law provided that “[a]ccess for traditional and customary
native Hawaiian cultural and religious purposes shall be
accommodated.” Id.
UH did not formally draft administrative rules
governing access to the summit of Mauna Kea until 2018. That
August, UH circulated a notice of proposed rulemaking and, in
September, held public hearings on O‘ahu, Maui, and the Island of
Hawai‘i. After receiving comments, UH circulated a new draft of
the rules for comment.4 A second round of public hearings took
place in April 2019.5 The final administrative rules were
adopted by a unanimous vote of the UH Board of Regents on
November 6, 2019. And on January 13, 2020, Governor David Ige
signed the administrative rules into law. See Hawai‘i
Administrative Rules (HAR) § 20-26, et seq. (2020) (hereinafter
(. . . continued) between Hale Pōhaku and the Mauna Kea Science Reserve, and any other lands on Mauna Kea that [UH] leases or over which the University of Hawai‘i acquires control or jurisdiction.
4 According to UH, the rules received 406 written submissions during the comment period (August 19 to September 28) and ninety-two oral comments.
5 During this round of comments (April 28 to June 7), UH received 332 written submissions and 133 oral comments.
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“Chapter 20-26”).
On June 29, 2020, Plaintiff-Appellant Flores-Case
‘Ohana (FCO)6 filed a complaint for declaratory and injunctive
relief against UH in the Circuit Court of the Third Circuit,
seeking invalidation of the rules.7 The circuit court certified
to us the following reserved questions:
In a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawai‘i State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, Section 7? If so, what standards govern its application?
As noted above, we reformulated the reserved questions
as follows: (1) In a challenge to the constitutionality of
section 7 of the Hawai‘i Constitution, does the burden of proof
shift to the government defendant? (2) What standard governs a
III. STANDARD OF REVIEW
6 The complaint identified FCO as:
an unincorporated association of a Kanaka Maoli (also identified as a Native Hawaiian) family who descends from the aboriginal people who occupied and exercised sovereignty in the area that is now occupied by the State of Hawai‘i prior to 1778, resides on Hawai‘i Island, and engages in traditional and cultural practices throughout Mauna Kea, including on lands managed by the University of Hawai‘i.
7 The Honorable Robert D.S. Kim presided.
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A reserved question that presents a question of law is
“reviewable de novo under the right/wrong standard of review.”
State v. Jess, 117 Hawai‘i 381, 391, 184 P.3d 133, 143 (2008)
(quoting Roes v. FHP, Inc., 91 Hawai‘i 470, 473, 985 P.2d 661,
664 (1999)). “On a reserved question we are required to answer
a question of law based on facts reported to this court by the
circuit judge. We may not express an opinion on a question of
law by assuming certain facts as to which the circuit judge has
made no finding.” Cabrinha v. Am. Factors, Ltd., 42 Haw. 96,
100 (Haw. Terr. 1957).
IV. DISCUSSION
A. The Burden of Proof Does Not Shift to the Government Defendant in Constitutional Challenges Arising from Article XII, Section 7 of the Hawai‘i Constitution
The “general rule [is] that one seeking relief bears
the burden of demonstrating that [they are] entitled to it.”
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5
(1984) (declining to deviate from the general rule in a First
Amendment constitutional challenge). We decline to deviate from
the general rule here.8 We therefore hold that the burden of
proof rests with the challenging party, not the government
8 We note however that the burden of proof does shift to the government defendant in certain types of constitutional challenges. For example, in Nagle v. Bd. of Educ., we held that strict scrutiny applies to challenges that involve suspect classifications or fundamental rights. 63 Haw. 389, 392, 629 P.2d 109, 111 (1981). “Under the strict scrutiny standard, the State carries a heavy burden in arguing for the validity of a statute.” Id. (emphasis added).
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defendant, when challenging the constitutionality of an
administrative rule under article XII, section 7. See Westlawn
Cemeteries, L.L.C. v. La. Cemetery Bd., 339 So. 3d 548, 560 (La.
2022) (“[It is] proper to place the burden of proving
unconstitutionality on the party challenging the administrative
rule, as is clearly the case with statutes or ordinances.”). We
agree with the Louisiana Supreme Court that “[p]lacing the
burden of proof on the party challenging a rule is consistent
with other situations whereby the moving party has the burden of
proof (e.g., summary judgment motions and exceptions).”9 Id.
9 In Westlawn, the Louisiana Supreme Court examined the principles governing constitutional challenges to statutes and administrative rules. 339 So. 3d at 552-62. The court explained that “[a]ll statutory enactments are presumed constitutional” and that “[t]his presumption is based on the premise that legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation.” Id. at 559 (emphasis added) (quotation marks omitted). Administrative rules “on the other hand, [are] not one enacted by a legislative body,” and accordingly, the Louisiana Supreme Court declined to “apply a presumption of constitutionality to an administrative rule.” Id. Westlawn is consistent with our own case law. We have previously explained that in constitutional challenges to statutes, there is a “presumption that every enactment of the Legislature was adopted in accordance with the Constitution.” League of Women Voters of Honolulu v. State, 150 Hawai‘i 182, 194, 499 P.3d 382, 394 (2021), as corrected (Nov. 4, 2021). But we have never extended that presumption to administrative rules. We agree with the Westlawn court that “[u]nlike an elected legislature, an administrative agency is not presumed to have weighed principles of constitutionality in promulgating its rules and regulations.” 339 So. 3d at 560. Accordingly, we decline to extend a presumption of constitutionality as to administrative rules. We do not, however, agree with or adopt Westlawn’s formulation of the standard of review for facial challenges: “To establish that a statute, or as here, an administrative rule, is facially unconstitutional, the party challenging it ‘must establish that no set of circumstances exists under which [it] would be valid, that is, that the law is unconstitutional in all its applications.’” Id. at 561 (footnote omitted) (alteration in original). As we explain infra, the relevant constitutional test is not Salerno’s “no set of circumstances” test.
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Westlawn is also consistent with our own precedents.
For example, in our previous cases addressing the burden of
proof in constitutional challenges arising from article XII,
section 7 in the criminal context, we held that the burden rests
on the challenging party in the criminal context. In State v.
Hanapi, we determined that the initial burden of proof rests
with the defendant claiming a privilege based on article XII,
section 7. 89 Hawai‘i 177, 184, 970 P.2d 485, 492 (1998) (“[I]t
is the obligation of the person claiming the exercise of a
native Hawaiian right to demonstrate that the right is
protected.”). We see no reason to shift the burden in
challenges to administrative rules in the civil context.
B. The State’s Affirmative Duty to Protect Native Hawaiian Rights Applies to Administrative Rulemaking in Addition to Contested Case Hearings
We next examine whether the Ka Pa‘akai framework should
be applied outside of the contested case hearing context. FCO
contends that “an agency’s duty to identify traditional [and]
customary practices, determine how those interests will be
affected by a proposed rule, and to take feasible action to
reasonably protect them, applies not only when it sits in a
quasi-judicial capacity; it bears the same obligations when it
acts to adopt rules.” We agree. Our decisions have made clear
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that Native Hawaiian10 traditional and customary rights and
practices have broad-ranging protections under article XII,
section 7. These protections are flexible and must be adapted
to the particular context or situation where they are
implicated, whether during administrative adjudications, like
contested case hearings, or administrative rulemaking, like the
promulgation of Chapter 20-26.
We hold that the Ka Pa‘akai framework for contested
case hearings applies to administrative rulemaking. We
reiterate that agencies “may not act without independently
considering the effect of their actions on Hawaiian traditions
and practices.” 94 Hawai‘i at 46, 7 P.3d at 1083 (emphasis
added). When agencies act prospectively, by promulgating rules,
instead of retrospectively, by adjudicating individual rights or
claims in contested case hearings, they are no less obligated to
abide by their duties under article XII, section 7. There is no
principled basis to exempt agency rulemaking from the State’s
constitutional obligations.
Administrative rules are potentially far-reaching
statements of policy with the force and effect of law. See HRS
§ 91-1(4) (Supp. 2021) (defining a rule in relevant part as an
10 Where quoted language in this opinion uses “native Hawaiian” or “Hawaiian,” we clarify those references to encompass all Native Hawaiians, which refers to descendants of the indigenous peoples who inhabited the Hawaiian Islands prior to 1778, regardless of blood quantum.
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“agency statement of general or particular applicability and
future effect that implements, interprets, or prescribes law or
policy”). Rules are no less significant, nor less susceptible
to constitutional challenges, than are specific agency actions
like contested case hearings. See HRS § 91-7 (Supp. 2021)
(providing that “[a]ny interested person” may seek to invalidate
a rule, inter alia, based on conflict with a constitutional
provision).
Our cases analyzing article XII, section 7 emphasize
two competing principles: first, that the State is “obligated to
protect the reasonable exercise of customarily and traditionally
exercised rights of Hawaiians;” and second, that the State is
“authorized to impose appropriate regulations to govern the
exercise of native Hawaiian rights.” See Pub. Access Shoreline
Haw. v. Haw. Cnty. Plan. Comm’n (PASH), 79 Hawai‘i 425, 450-51,
450 n.43, 903 P.2d 1246, 1271-72, 1271 n.43 (1995). Thus, while
agencies have the power to regulate “traditionally exercised
rights of Hawaiians” in contested case hearings or through
administrative rulemaking, that regulatory power is constrained
by the State’s obligation to protect those rights when
exercising that power. Id. at 450 n.43, 903 P.2d at 1271 n.43.
In PASH we made clear that the State’s authority to
regulate Native Hawaiian rights, although substantial, is not
unfettered. In that case, the plaintiffs challenged the Hawai‘i
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County Planning Commission’s (HPC) decision to grant a
development permit for a resort on the Kona coast while denying
Native Hawaiian practitioners’ request for a contested case
hearing. Id. at 429-30, 903 P.2d at 1250-51. We reiterated
that “the State retains the ability to reconcile competing
interests under article XII, section 7” and that the provision
“accords an ample legal basis for regulatory efforts by the
State.” Id. at 447, 451, 903 P.2d at 1268, 1272. This
authority “necessarily allows the State to permit development
that interferes with . . . [traditional and customary] rights in
certain circumstances,” for example, where the “protection of
such rights would result in ‘actual harm.’” Id. at 450 n.43,
903 P.3d at 1271 n.43 (quoting Kalipi v. Hawaiian Tr. Co., 66
Haw. 1, 12, 656 P.2d 745, 752 (1982)).
However, we also held that “the State does not have
the unfettered discretion to regulate the rights of ahupua‘a
tenants out of existence.” Id. at 451, 903 P.2d at 1272. This
is because “legitimate customary and traditional practices must
be protected to the extent feasible in accordance with article
XII, section 7.” Id. (emphasis added). Thus, we held that, “to
the extent feasible, . . . HPC must protect the reasonable
exercise of customary or traditional rights that are established
by PASH on remand.” Id.
Following up on PASH, we recognized in Ka Pa‘akai that
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in contested case hearings, the State and its agencies have an
“affirmative duty . . . to preserve and protect traditional and
customary native Hawaiian rights” and provided a framework “to
effectuate the State’s obligation to protect native Hawaiian
customary and traditional practices while reasonably
accommodating competing private interests.” 94 Hawai‘i at 45-47,
7 P.3d at 1082-84. There, community groups challenged the Land
Use Commission’s (LUC) decision to grant a developer’s petition
to reclassify over 1,000 acres from conservation to urban use.
Id. at 34, 7 P.3d at 1071.
We held that in order to fulfill its “affirmative
duty,” the LUC was required to “at a minimum — make specific
findings” regarding (1) “the identity and scope of” traditional
resources and customary rights in the impacted area; (2) the
extent to which those rights and resources would be “affected or
impaired by the proposed action;” and (3) “the feasible action,
if any, to be taken by the LUC to reasonably protect native
Hawaiian rights if they are found to exist.” Id. at 45, 47, 7
P.3d at 1082, 1084 (emphasis in original). We concluded that
the LUC’s findings were “insufficient to determine whether it
discharged its duty to protect customary and traditional
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practices of native Hawaiians to the extent feasible.”11 Id. at
48, 7. P.3d at 1085. In sum, these cases establish that the
State bears an “affirmative duty” to protect the reasonable
exercise of Native Hawaiian traditional and customary practices,
but this duty is qualified by the State’s right to accommodate
competing interests. See id. at 45, 7 P.3d at 1082.
None of our cases suggest that agencies are bound by
these protections only in contested case hearings. To the
contrary, article XII, section 7 protects “the broadest possible
spectrum of native rights” and was not intended to be narrowly
construed. Pele Def. Fund v. Paty, 73 Haw. 578, 619-20, 837
P.2d 1247, 1271 (1992) (quoting Stand. Comm. Rep. No. 57, in 1
Proceedings of the Constitutional Convention of Hawai‘i of 1978,
at 640 (1980)). And, as we explained in Ka Pa‘akai in the
contested case hearing context, “[r]equiring these minimal
prerequisites facilitates precisely what the 1978 Constitutional
Convention delegates sought: ‘badly needed judicial guidance’
and the ‘enforcement by the courts of these rights[.]’” 94
Hawai‘i at 50, 7 P.3d at 1087 (quoting Stand. Comm. Rep. No. 57,
in 1 Proceedings of the Constitutional Convention of Hawai‘i of
11 We also held that the reclassification’s condition that the developer protect the gathering and access rights of Native Hawaiian practitioners granted it “unfettered authority to decide which native Hawaiian practices are at issue and how they are to be preserved or protected,” and thus invalidly delegated the LUC’s obligation to protect those practices to a private party. Id. at 51, 7 P.3d at 1088.
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1978, at 640 (1980)). That same reasoning applies to
administrative rulemaking because, if not, an agency’s “promise
of preserving and protecting customary and traditional rights
would be illusory absent [consideration of] the extent of their
exercise, their impairment, and the feasibility of their
protection.” Id.
Applying the Ka Pa‘akai framework to rulemaking is
consistent with the intent of the framers of article XII,
section 7. That provision “grew out of a desire to ‘preserve
the small remaining vestiges of a quickly disappearing culture
[by providing] a legal means by constitutional amendment to
recognize and reaffirm native Hawaiian rights.’” Id. at 45, 7
P.2d at 1082 (alteration in original) (quoting Stand. Comm. Rep.
No. 57, in 1 Proceedings of the Constitutional Convention of
Hawaiʻi of 1978, at 640 (1980)). The framers recognized that
“[s]ustenance, religious and cultural practices of native
Hawaiians are an integral part of their culture, tradition and
heritage, with such practices forming the basis of Hawaiian
identity and value systems,” id. (quoting Comm. Whole. Rep. No.
12, in 1 Proceedings of the Constitutional Convention of Hawaiʻi
of 1978, at 1016 (1980)), and accordingly “did not intend to
have the section narrowly construed.” Pele Def. Fund, 73 Haw.
at 620, 837 P.2d at 1271 (quoting Stand. Comm. Rep. No. 57, in 1
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Proceedings of the Constitutional Convention of Hawaiʻi of 1978,
at 640 (1980) (emphasis in orginal)). Native Hawaiian
traditional and customary rights do not exist at the sufferance
of the State and its agencies.
In sum, the Ka Pa‘akai framework applies to
administrative rulemaking in addition to contested case
hearings. Requiring the State and its agencies to consider
Native Hawaiian traditional and customary rights in these
contexts “effectuate[s] the State’s obligation to protect native
Hawaiian customary and traditional practices[.]” Ka Pa‘akai, 94
Hawai‘i at 47, 7 P.3d at 1084.
C. Agencies Must Engage in a Contemporaneous Ka Pa‘akai Analysis When Promulgating Administrative Rules
Having determined that the Ka Pa‘akai framework applies
to administrative rulemaking, we now elaborate on what is
required of an agency under that framework when promulgating
administrative rules. In Ka Pa‘akai, we explained that “[i]n
order for native Hawaiian rights to be enforceable, an
appropriate analytical framework for enforcement is needed” for
contested case hearings. Id. at 46, 7 P.3d at 1083. We now set
forth the “appropriate analytical framework” for administrative
rulemaking so that “native Hawaiian rights [are] enforceable.”
See id.
In its amicus brief, the Attorney General (AG) argues
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that while “[r]equiring findings of fact regarding the
assessment of traditional and customary rights may work in the
contested-case setting, [] it does not in the rule-making
setting.” According to the AG, “[t]he resolution of the Ka
Pa‘akai analysis and the making of factual findings depends on
record evidence,” whereas rulemaking produces no evidentiary
record. The AG asserts that it is “fundamentally unreasonable”
to apply Ka Pa‘akai “where there is no evidentiary record and
nobody’s rights, duties, or privileges are judicially
determined.” The AG’s argument fails because it does not
acknowledge that the requirements of Ka Pa‘akai can be adapted to
the rulemaking context.
Just because Ka Pa‘akai may not apply in the same way
to rulemaking as it does to contested case hearings does not
mean that its principles do not apply. To the contrary, Ka
Pa‘akai spoke about agency action in broad terms. 94 Hawai‘i at
46, 7 P.3d at 1083. And its framework can and should be broadly
applied to rulemaking; the State has an “affirmative duty . . .
to preserve and protect traditional and customary native
Hawaiian rights,” and doing so requires identifying the scope
and extent of impacted rights and the feasible steps taken to
protect them. Id. at 45, 47, 7 P.3d at 1082, 1084.
At its core, Ka Pa‘akai concluded the State’s
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constitutional duty means that its agencies “may not act without
independently considering the effect of their actions on
Hawaiian traditions and practices.” Id. at 46, 7 P.3d 1083
(emphasis added). This procedural requirement, that agency
action must be preceded by consideration of Native Hawaiian
traditional and customary rights, should apply equally when
agencies act in a quasi-judicial manner (contested case
hearings) and in a quasi-legislative manner (administrative
rulemaking). State agencies perform different functions and
roles when exercising their quasi-judicial and quasi-legislative
powers and as such, the process by which agencies demonstrate
they have met their affirmative duty under the constitution may
necessarily differ depending on which power is exercised. See
Green Party of Haw. v. Nago, 138 Hawai‘i 228, 238, 378 P.3d 944,
954 (2016) (“This court has recognized that rule-making is
essentially legislative in nature because it operates in the
future; whereas, adjudication is concerned with the
determination of past and present rights and liabilities of
individuals where issues of fact often are sharply
controverted.” (internal quotation marks omitted)).
In contested case hearings, where agencies wear a
quasi-judicial hat, Ka Pa‘akai requires that agencies “at a
minimum” issue “specific findings and conclusions” on:
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(1) the identity and scope of “valued cultural, historical, or natural resources” in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources—including traditional and customary native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist.
94 Hawaiʻi at 47, 7 P.3d at 1084 (footnote omitted) (emphasis in
original).
In a contested case hearing appeal, the State agency
acts like a court. It makes sense then to require the agency,
acting in a quasi-court capacity, to issue findings of fact and
conclusions of law similar to the manner in which courts issue
findings of fact and conclusions of law.12 This permits courts
to review the agency’s decisions to determine if the agency,
prior to acting, properly “consider[ed] the effect of their
actions on Hawaiian traditions and practices” as required by
article XII, section 7. Id. at 46, 7 P.3d at 1083 (emphasis
added).
When rulemaking, an agency does not sit as a quasi-
judicial body whose work must be reviewed. The agency need not
issue findings of fact or conclusions of law as in contested
case hearings because it does not sit as a quasi-court.
12 Indeed, the Hawai‘i Administrative Procedures Act requires that “[e]very decision and order . . . rendered by an agency in a contested case . . . be in writing or stated in the record and . . . be accompanied by separate findings of fact and conclusions of law.” HRS § 91-12.
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Different roles require different methods of review to hold the
State accountable to its constitutional duties.
Therefore, applying the Ka Pa‘akai framework to
rulemaking, we hold that before adopting rules, agencies must
consider: (1) “the identity and scope of” Native Hawaiian
traditional and customary rights affected by the rule, if any;13
(2) “the extent to which” Native Hawaiian traditional and
customary rights “will be affected or impaired by the [rule]”;
and (3) whether the proposed rules “reasonably protect” Native
Hawaiian traditional and customary rights, “if they are found to
exist,” as balanced with the State’s own regulatory right. See
id. at 47, 7 P.3d at 1084 (emphasis added).
Although formal findings of fact and conclusions of
law are not required, agencies must prepare a written statement
summarizing the above analysis prior to adopting a proposed
rule, and make that analysis available to the public. When
13 If an agency determines that a proposed rule will not impact any Native Hawaiian traditional and customary practices, the analysis ends there and the agency will have met its constitutional obligations. Compare In re Conservation Dist. Use Application HA-3568, 143 Hawaiʻi 379, 396-98, 431 P.3d 752, 769-71 (2018) (holding the agency complied with Ka Paʻakai because it identified no Native Hawaiian cultural resources or traditional or customary practices within the project area and found that no traditional and customary rights would be affected or impaired by the proposed action) with In re ʻIao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawaiʻi 228, 248, 287 P.3d 129, 149 (2012) (finding the agency failed to properly apply the Ka Paʻakai framework because although it identified and documented the project area’s Native Hawaiian practices, the agency did not demonstrate the effect of the project on the identified Native Hawaiian practices or make any findings about the feasibility of protecting the identified practices).
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undertaking this analysis, the agency is not required to
“negative any and all native Hawaiian rights claims regardless
of how implausible the claimed right may be.”14 Hanapi, 89
Hawai‘i at 184, 970 P.2d at 492. Where no Native Hawaiian right
or practice is identified or implicated, the agency may say so
in a short statement and the need for analysis ends there.
Requiring a contemporaneous, written analysis will not
unduly burden agencies. Agencies are already required to
provide reasoned justifications for the decisions they made
during the rulemaking process. The procedures agencies must
follow when adopting, amending, and repealing administrative
rules are set forth in HRS § 91-3. The agency must first
“[g]ive at least thirty days’ notice for a public hearing.” HRS
§ 91-3(1). That notice must clearly indicate the topic of the
proposed rule or amendment, must offer to mail a copy of the
14 In cases where there is no readily apparent impacted Native Hawaiian traditional or customary right or practice, we suggest making the analysis public when the agency notices a public hearing under HRS § 91-3(1). The agency can provide a simple statement with its notice saying it identified no impacted rights or practices. Interested parties can then review the agency’s analysis and bring forth any rights or practices the agency failed to identify during a public hearing or through written and oral submissions. See HRS § 91-3(2). The agency, if it receives any comments raising impacted rights or traditions, can then engage in the analysis outlined above and issue a revised analysis reflecting public input prior to promulgating a rule. In cases, such as this one, where Native Hawaiian traditional and customary rights and practices are plainly implicated, the agency can wait to issue its analysis until after the notice-and-comment period so it can appropriately conduct the required analysis. We require only that prior to, or contemporaneously with, adopting administrative rules, agencies engage in and make public the required analysis. Agencies have discretion to determine when during the rulemaking process to make public the required analysis, but the context of the rulemaking should guide that decision.
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rule or amendment to interested parties, must indicate where and
when a copy is available for review, and must give the time and
place of the public hearing. HRS §§ 91-3(1)(A)-(D). The agency
must afford any interested party an opportunity to submit “data,
views, or arguments” and shall “fully consider all written and
oral submissions.” HRS § 91-3(2); see also Aguiar v. Haw. Hous.
Auth., 55 Haw. 478, 487–88, 522 P.2d 1255, 1262 (1974) (“[A]n
agency must consider the views of interested persons where it
seeks to promulgate a rule, no matter how complex is the data
that goes into the rule’s formulation.” (internal quotations
omitted)). Upon taking its final action, the agency must “issue
a concise statement of the principal reasons for and against its
determination” to any interested party. HRS § 91-3(2). The
agency’s final decision is then subject to approval by the
governor, who can require a statement of the agency’s reasons
for adopting the rule. HRS § 91-3(2).
In sum, it would not unduly burden an agency
promulgating a rule that potentially impacts Native Hawaiian
customary and traditional rights or practices to engage in this
analysis because agencies must already be prepared to provide
justifications for their proposed rules.15 Our holding today
15 We note that under the Administrative Procedure Act, federal agencies are required to provide reasoned justifications when rulemaking. (continued . . .)
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only requires agencies to show that they met their obligations
under the constitution so that the public can evaluate an
agency’s decision, and courts have a basis to review that
decision if subsequently challenged in court.16
After the agency has prepared and made public a
written statement of the analysis described above and the rule
has been adopted, plaintiffs may challenge the constitutionality
of the rule under article XII, section 7. As we explain, the
burden then rests on the plaintiff to show that agency did not
adequately consider or reasonably protect Native Hawaiian
traditional and customary rights or practices as balanced with
the State’s own right to regulate.
(. . . continued) See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (holding that agencies must provide a clear basis for their determinations in order for those determinations to withstand judicial review); Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. 29, 42-43 (1983) (invalidating an agency’s decision to rescind a rule because it failed to provide a “reasoned analysis” for changing its course); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (holding an agency must provide a reasoned explanation for departing from a prior policy and show that there are “good reasons” for the new policy, though these reasons need not be “better than the reasons for the old one”).
16 Our holding here does not apply to the legislature or to constitutional challenges to statutes enacted by the legislature. We hold administrative agencies to different standards because “[u]nlike an elected legislature, an administrative agency is not presumed to have weighed principles of constitutionality in promulgating its rules and regulations.” Westlawn, 339 So. 3d at 560. While agencies may act as quasi-legislative bodies, they are not directly responsible to voters. Cf. Citizens Ass’n of Georgetown, Inc. v. Zoning Comm’n of D.C., 477 F.2d 402, 409 n.28 (D.C. Cir. 1973) (explaining that courts apply a different standard of review to agency rulemaking and legislative enactments because Congress is responsible to voters and agencies are not).
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D. To Succeed in an Article XII, Section 7 Challenge to an Administrative Rule, a Plaintiff Must Show the Agency Failed to Adequately Consider or Reasonably Protect Native Hawaiian Traditional and Customary Rights
to rulemaking, we also conclude that the framework provides the
relevant test for determining whether an administrative rule is
constitutional under article XII, section 7. And as we
explained, different contexts require different approaches.
Accordingly, we hold that to succeed in an article XII, section
7 constitutional challenge to administrative rules, a plaintiff
must show: (1) the agency failed to adequately consider “the
identity and scope of” Native Hawaiian traditional and customary
rights affected by the rule, if any; or (2) the agency failed to
adequately consider “the extent to which” Native Hawaiian
traditional and customary rights “will be affected or impaired
by the [rule]”; or (3) the rule failed to “reasonably protect”
Native Hawaiian traditional and customary rights, “if they are
found to exist,” as balanced with the State’s own regulatory
right.17 See id. at 47, 7 P.3d at 1084 (emphasis added).
This test sets forth both the steps agencies must take
prior to promulgating rules and the standard by which rules will
be judged under article XII, section 7. This test places the
17 We note the use of “or” in this test. If the plaintiff meets its burden as to any one of the three prongs, the rule is unconstitutional.
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burden on a plaintiff challenging an administrative rule under
article XII, section 7, to show that the analysis undertaken
during rulemaking did not adequately consider the scope or
impact of a rule on Native Hawaiian traditional and customary
practices or that the rule did not reasonably protect those
rights as balanced with the State’s right to regulate. This
test requires courts to balance an agency’s “affirmative duty”
to protect these rights with “the right of the State to regulate
such rights.” See id. at 45, 7 P.3d at 1082; Haw. Const. art.
XII, § 7.
Balancing the State’s “affirmative duty” with its
“right” to regulate is consistent with our past precedents.
From the outset, we have interpreted article XII, section 7 to
require a contextual balancing approach that weighs Native
Hawaiian rights against other State interests. In Kalipi, the
first case to interpret article XII, section 7, William Kalipi
asserted a right to gather traditional agricultural products on
land belonging to the defendant in accord with his family’s
longstanding practice. 66 Haw. at 3-4, 656 P.2d at 747. Chief
Justice Richardson, writing for the court, held “that the
retention of a Hawaiian tradition should in each case be
determined by balancing the respective interests and harm once
it is established that the application of the custom has
continued in a particular area.” Id. at 10, 656 P.2d at 751.
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For example, traditional and customary usage may continue “so
long as no actual harm is done thereby.” Id. However, the
court held that these rights may be reasonably regulated, for
example by preventing gathering on “fully developed property.”
Id. at 8-9, 656 P.2d at 750.
The same balancing principles articulated in Kalipi
are also relevant here. When courts review the
constitutionality of administrative rules under article XII,
section 7, they should look to the process by which the rules
were adopted. Did the agency adequately consider whether its
proposed rule would impact Native Hawaiian traditional and
customary rights or practices? If the agency identified
impacted rights or practices, did it adequately consider the
extent to which those rights or practices would be impaired?
And finally, did the agency reasonably protect those rights or
practices as balanced with the State’s right to regulate?
We reiterate that the burden of showing the agency
failed to adequately consider or reasonably protect Native
Hawaiian traditional and customary rights or practices remains
with the plaintiff. The plaintiff must make affirmative
arguments as to why the agency’s analysis fails to pass
constitutional muster. It is the plaintiff’s burden to show the
rule is unconstitutional.
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At bottom, the constitution requires that agencies
“may not act without independently considering the effect of
their actions on Hawaiian traditions and practices.” Ka Pa‘akai,
94 Hawai‘i at 46, 7 P.3d 1083 (emphasis added). Thus, when
agencies fail to adequately consider or reasonably protect
Native Hawaiian traditional or customary rights or practices
during rulemaking, the rule is unconstitutional.
1. Salerno’s “No Set of Circumstances” Test Does Not Apply to Constitutional Challenges Arising from Article XII, Section 7
that FCO brings a facial challenge and that “[w]hen an
administrative rule is subject to a facial constitutional
challenge, the challenger must establish that no set of
circumstances exists under which the rule would be valid.” The
AG argues that Salerno’s “no set of circumstances” test “is the
national standard” for reviewing facial challenges and should be
applied to constitutional challenges arising from article XII,
section 7.18 This is incorrect,19 and even if it were, the U.S.
18 In United States v. Salerno, the U.S. Supreme Court initially explained that facial challenges are “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” 481 U.S. 739, 745 (1987). But as the Tenth Circuit explained in Doe v. City of Albuquerque:
The [U.S.] Supreme Court has repeatedly entertained facial challenges without engaging in th[e] hypothetical exercise [required by Salerno]. Instead, the Court has (continued . . .)
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Supreme Court’s determination in Salerno would not control how
this court interprets the Hawai‘i Constitution. See State v.
Hoey, 77 Hawai‘i 17, 36, 881 P.2d 504, 523 (1994) (explaining
that the Hawai‘i Supreme Court is “the ultimate judicial tribunal
with final, unreviewable authority to interpret and enforce the
Hawai‘i Constitution”). We hold that the relevant constitutional
test for determining the constitutionality of an administrative
rule for the purposes of article XII, section 7 is not Salerno’s
“no set of circumstances” test. We reiterate that the relevant
constitutional test is as follows: to succeed in an article XII,
section 7 constitutional challenge to administrative rules, a
plaintiff must show: (1) the agency failed to adequately
consider “the identity and scope of” Native Hawaiian traditional
and customary rights affected by the rule, if any; or (2) the
agency failed to adequately consider “the extent to which”
Native Hawaiian traditional and customary rights “will be
(. . . continued) properly applied the appropriate constitutional test to the restriction at issue; for example, the Ward test to a content-neutral restriction on free speech rights. Thus, Salerno is correctly understood not as a separate test applicable to facial challenges, but a description of the outcome of a facial challenge in which a statute fails to satisfy the appropriate constitutional framework.
667 F.3d 1111, 1123 (10th Cir. 2012).
19 Salerno “is accurately understood not as setting forth a test for facial challenges, but rather as describing the result of a facial challenge in which a statute fails to satisfy the appropriate constitutional standard.” Doe, 667 F.3d at 1127 (emphasis added).
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affected or impaired by the [rule]”; or (3) the rule failed to
“reasonably protect” Native Hawaiian traditional and customary
rights, “if they are found to exist,” as balanced with the
State’s own regulatory right. See Ka Pa‘akai, 94 Hawai‘i at 47,
7 P.3d at 1084 (emphasis added).
V. CONCLUSION
Native Hawaiian traditional and customary rights do
not exist at the sufferance of the State and its agencies.
These rights must be protected and indeed, the State and its
agencies have a constitutional obligation to do so. For the
foregoing reasons, we remand this matter to the circuit court
for further proceedings consistent with this opinion.
Ashley K. Obrey /s/ Mark E. Recktenwald Daylin-Rose H. Heather David Kauila Kopper /s/ Michael D. Wilson for Plaintiff-Appellant Flores-Case ‘Ohana
Joseph F. Kotowski, III for Defendant-Appellee University of Hawai‘i
David D. Day Kimberly T. Guidry for Amicus Curiae, Attorney General of Hawai‘i