In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanwi streams

• Court: Hawaii Supreme Court
• Decided: January 11, 2012
• Docket: SCWC-11-0001005
• Status: Published

Opinion

Electronically Filed Supreme Court SCWC-11-0001005 11-JAN-2012 02:35 PM

NO. SCWC-11-0001005

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-10-0000161)

AMENDED1 ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING ICA ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION, AND REMANDING APPEAL TO ICA (By: Recktenwald, C.J., Nakayama, Acoba, Duffy, and McKenna, JJ.)

Petitioner-appellant Na Moku #Aupuni O Ko#olau Hui (Na

Moku) filed a timely application for writ of certiorari on

November 29, 2011 to review the intermediate court of appeals'

(ICA) August 31, 2011 Order Dismissing Appeal for Lack of

Jurisdiction. Na Moku appealed a decision of the Commission on

Water Resource Management (the Commission) denying Na Moku's

petition for a contested case hearing on the Commission's

amendment of interim instream flow standards for certain Maui

streams. The Commission's decision was reflected in the minutes

1 The amendment corrects the ICA case number that was incorrectly identified on the original order as ICA No. CAAP-11-0000161. of the Commission's October 18, 2010 meeting, which minutes were

approved and signed by Lenore N. Ohye, the Acting Deputy Director

to the Chairperson of the Board of Land and Natural Resources

(BLNR). The ICA concluded that the minutes of the October 18,

2010 meeting were not a final order of the Commission appealable

pursuant to HRS § 91-14(a) because the document was not "signed

by the (BLNR) chairperson or any other member of the

Commission[.]" (Underscoring added.) The ICA accordingly

dismissed Na Moku's appeal for lack of appellate jurisdiction.

HAR § 13-167-7(c) provides that "[a]ll orders and other

actions of the commission shall be authenticated or signed by the

chairperson or other persons authorized by the commission."

(Underscoring added). HAR § 13-167-8(e) provides that the deputy

to the chairperson "shall certify all decisions and orders and

other actions of the commission."

Acting Deputy Director Lenore N. Ohye was authorized by

the Commission, pursuant to HAR § 13-167-8(e), to certify the

Commission's October 18, 2010 decision denying Na Moku's petition

for a contested case hearing. Ohye did so by approving and

signing the minutes of the Commission's October 18, 2010 meeting

reflecting the Commission's decision. Ohye authenticated the

Commission's decision in accordance with HAR § 13-167-7(c). The

decision, as reflected in the minutes of the Commission's October

18, 2010 meeting, is a final decision of the Commission for which

judicial review may be sought pursuant to HRS § 91-14(a). See

Kaleikini v. Thielen, 124 Hawai#i 1, 26, 237 P.3d 1067, 1092

2 (2010) (letter by BLNR chairperson denying request for contested

case hearing constituted a final decision and order from which

judicial review could be sought pursuant to HRS § 91-14(a).).

Na Moku's application for writ of certiorari is

accepted. The ICA's August 31, 2011 Order Dismissing Appeal for

Lack of Appellate Jurisdiction is vacated. Na Moku's appeal is

remanded to the ICA for disposition.

DATED: Honolulu, Hawai#i, January 11, 2012.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ James E. Duffy, Jr.

/s/ Sabrina S. McKenna