Kia'i Wai o Wai'ale'ale v. Board of Land and Natural Resources

• Court: Hawaii Supreme Court
• Decided: September 30, 2025
• Docket: SCWC-23-0000383
• Status: Published

Opinion

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-XX-XXXXXXX 30-SEP-2025 04:08 PM Dkt. 30 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I ---o0o---

KIA‘I WAI O WAI‘ALE‘ALE, an unincorporated association; FRIENDS OF MĀHĀ‘ULEPŪ, a nonprofit corporation, Petitioners and Respondents/Plaintiffs-Appellants/Appellees,

vs.

BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Respondent and Petitioner/Defendant-Appellee/Appellant,

and

KAUA‘I ISLAND UTILITY COOPERATIVE, a domestic cooperative association, Respondent/Defendant-Appellee/Appellee.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1CCV-XX-XXXXXXX)

SEPTEMBER 30, 2025

PART I (BY: GINOZA, J., WITH WHOM RECKTENWALD, C.J., McKENNA, EDDINS, AND DEVENS, JJ., JOIN)

PART II (BY: DEVENS, J., WITH WHOM RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., JOIN; AND GINOZA, J., DISSENTING) *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

OPINION OF THE COURT BY GINOZA, J.

This agency cross-appeal arises out of a dispute over

the denial of contested case hearings and the continuation of a

revocable water permit on the island of Kaua‘i for the years 2021

and 2022, after the permit had been continued for almost two

decades.

In 2003, Respondent-Defendant State of Hawai‘i Board

of Land and Natural Resources (Board or BLNR) issued Revocable

Permit No. S-7340 (permit or RP) to Respondent/Defendant Kaua‘i

Island Utility Cooperative (KIUC), to enter and use State lands

in the Līhuʻe-Kōloa Forest Reserve to divert water to power two

hydropower plants. KIUC sought and was granted continuation of

the permit annually from 2003 through 2022.

In December 2020 and 2021, Petitioners-Plaintiffs

Kia‘i Wai o Wai‘ale‘ale, an unincorporated association (Kia‘i

Wai), and Friends of Māhā‘ulepū, a nonprofit corporation

(Friends) (collectively, Petitioners) sought contested case

hearings on the permit and challenged continuation of the permit

for 2021 and 2022. Each time, the Board denied Petitioners’

requests for contested case hearings and then granted

continuation of the permit.

2 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Petitioners appealed to the Circuit Court of the First

Circuit (Environmental Court),1 challenging the Board’s denial of

their requests for contested case hearings on the 2021 and 2022

permits, the grant of the permits, and asserting violations of

the Board’s duty as trustee of Hawai‘i’s public trust resources.

In 2022, during the pendency of the appeal before the

Environmental Court, KIUC did not seek continuation of the

permit, and the permit expired on December 31, 2022.

On April 21, 2023, the Environmental Court issued its

“Findings of Fact, Conclusions of Law and Decision and Order”

(Environmental Court Decision). The Environmental Court found

that, in Petitioners’ eleven declarations supporting their

requests for contested case hearings, Kānaka Maoli members of

the groups attested to impacts of the permits and the continuing

diversion of affected streams on their exercise of native

Hawaiian traditional and customary rights, and the disrepair of

the diversion systems. The Environmental Court concluded, among

other things, that: Petitioners’ appeal fell under an exception

to the mootness doctrine; Petitioners had protected property

interests under article XII, section 7 of the Hawai‘i

Constitution (traditional and customary rights); the Board erred

1 The Honorable John M. Tonaki presided. Prior to Judge Tonaki, the Honorable Jeffrey P. Crabtree presided over this case from January 6, 2022, until on or around October 25, 2022.

3 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

in denying Petitioners’ requests for contested case hearings in

violation of Petitioners’ due process rights; and the Board’s

failure to enter findings of fact and conclusions of law made it

impossible to determine whether the Board’s continuation of the

permit “served the best interests of the State” pursuant to

Hawai‘i Revised Statutes (HRS) § 171-58 (Supp. 2021). The

Environmental Court vacated and reversed the Board’s 2021 and

2022 permit continuations.

The Board appealed to the Intermediate Court of

Appeals (ICA), which issued a Summary Disposition Order (SDO)

vacating and reversing the Environmental Court’s decision. Kia‘i

Wai o Wai‘ale‘ale v. Bd. of Land & Nat. Res., No. CAAP-23-

0000383, 2024 WL 3221038, at *1 (Haw. App. June 28, 2024) (SDO).

The ICA concluded that Petitioners had standing under article

XI, section 9 of the Hawai‘i Constitution (clean and healthful

environment), as defined by HRS § 171-55 (2011) and HRS chapter

343 (2010), but that Petitioners’ appeal was nonetheless moot

and no exceptions to the mootness doctrine applied. Id. at *2-

3. The ICA also held that the Environmental Court erred in

concluding that constitutional due process required a contested

case hearing on the 2021 RP because the record did not include a

transcript evidencing the procedures “actually used” by BLNR at

the December 2020 public meeting concerning the 2021 permit.

Id. at *2. The ICA further held the Environmental Court 4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

exceeded its jurisdiction by reviewing whether the Board

correctly granted the 2021 and 2022 permits under HRS § 171-58.

Id. at *4.

We accepted both the Petitioners’ and the Board’s

cross-applications for certiorari. Petitioners challenge the

ICA’s rulings that their claims are moot and no exceptions to

the mootness doctrine apply; that they are not entitled to

contested case hearings; and that the Environmental Court

exceeded its jurisdiction when it reviewed whether the Board

properly granted the 2021 and 2022 RPs. The Board challenges

the ICA’s ruling that Petitioners have standing under article

XI, section 9 of the Hawai‘i Constitution, when the Environmental

Court found standing under article XII, section 7 of the Hawai‘i

Constitution (traditional and customary rights) and there was no

plain error as to the type of standing interest involved.

We conclude in Part I of this opinion that: exceptions

to the mootness doctrine apply to sustain Petitioners’ appeal;

Petitioners have standing based on their asserted injury to

traditional and customary rights as found by the Environmental

Court; and Petitioners hold cognizable property interests under

article XII, section 7 of the Hawai‘i Constitution, and contested

case hearings were required to protect their due process rights.

Part II of this opinion addresses whether the

Environmental Court exceeded its jurisdiction under HRS § 91-14

5 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(2012 & Supp. 2022) when the court noted the Board failed to

issue findings and conclusions on the continuation of the RPs

pursuant to HRS § 171-58(c). The majority in Part II concludes

the Environmental Court did not exceed its jurisdiction.

The combined effect of Part I and Part II of this

opinion is that the ICA’s Judgment on Appeal is vacated, and the

case is remanded to the Board for further proceedings consistent

with this opinion.

I. BACKGROUND

A. Factual Background

The factual background is based on unchallenged

findings by the Environmental Court.

On August 11, 2003, the Board issued the permit to

KIUC. The permit allowed KIUC to enter and use, on a month-to-

month basis, water emanating from, and the water transmission

system situated at, the Līhuʻe-Kōloa Forest Reserve in Līhuʻe,

Kaua‘i (Blue Hole diversion). The permit also allowed KIUC to

use the Blue Hole diversion to divert, take, draw off, conduct

away, and dispose of government-owned water, and use, operate,

repair, and maintain a portion of an existing government-owned

water transmission infrastructure system including the Blue Hole

diversion for the purpose of generating hydroelectric power with

KIUC’s two hydroelectric plants, the Upper and Lower Waiahi

Hydropower Plants (collectively, the Hydropower Plants).

6 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Under the RP, KIUC was permitted to divert

approximately 40 million gallons of water per day from the Blue

Hole diversion to supply its Hydropower Plants. In exchange for

the permitted uses under the RP, KIUC paid a monthly rent and

was required to comply with numerous conditions. Diverted water

was not returned to the streams of origin, but rather to Grove

Farm lands for agriculture and the Kapaia Reservoir, which is

the water source for Grove Farm’s Waiahi surface water treatment

plant.

KIUC sought and was granted continuation of the permit

annually from 2003 through 2022. In 2004, in addition to

seeking continuation of the RP, KIUC applied to the Board for a

65-year long-term lease of the same water resources. KIUC’s

long-term lease application process remains ongoing.

In 2019, portions of the Blue Hole diversion siphon

system were damaged and became inoperable. In June 2019, a

large tree fell on the siphon structure causing a breach in the

ditch, resulting in KIUC closing two diversions and seeking bids

for repair of the siphon. Two months later, a landslide

destroyed the siphon structure completely, resulting in a total

breach of the ditch system. KIUC continued to maintain the

diversions, ditch infrastructure, and gauging equipment

associated with the permit to avoid or minimize further

degradation of the diversion system, but did not resume siphon

7 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

repairs because of safety concerns and the significant cost of

repairs.

B. Procedural Background

1. Agency Proceedings

On or around December 11, 2020, the Board held a

public meeting to consider the continuation of KIUC’s RP for

2021 (December 11, 2020 Public Meeting). At the December 11,

2020 Public Meeting, Petitioners opposed the Board’s proposed

grant of the permit, and orally requested a contested case

hearing.2 The Board subsequently granted the continuation of the

RP for 2021 (2021 RP), and orally rejected Petitioners’ requests

for a contested case hearing. On December 19, 2020, Petitioners

filed written petitions for a contested case hearing on the 2021

RP (December 19, 2020 petitions)3 asserting that KIUC’s

unrepaired diversion structures were resulting in impacts to

stream health and biota; wasting of water; and ongoing and

inadvertent diversion of water, resulting in direct violations

of Petitioners’ constitutionally protected exercise of native

2 There appears to be no transcript in the record of the Board’s December 11, 2020 Public Meeting.

3 Petitioners assert they submitted written petitions – after the Board denied their oral requests for a contested case hearing at the December 11, 2020 Public Meeting – to conform with Board rules and this Court’s decision in Hui Kako‘o Aina Ho‘opulapula v. Bd. of Land & Nat. Res., 112 Hawai‘i 28, 40-42, 143 P.3d 1230, 1242-44 (2006), abrogated on other grounds by, Tax Found. of Haw. v. State, 144 Hawai‘i 175, 439 P.3d 127 (2019) (requiring petitioner to file a written petition no later than ten days following Board denial of request for contested case in order to reserve ability to appeal pursuant to HRS § 91-14).

8 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Hawaiian traditional and customary practices, under article XII,

section 7 of the Hawai‘i Constitution,4 and constitutionally

protected right to a clean and healthful environmental under

article XI, section 9 of the Hawai‘i Constitution.5 Each

petition included eleven signed declarations by Petitioners’

members.

Nearly one year later, on December 10, 2021, the Board

held a public meeting (December 10, 2021 Public Meeting) to

consider, inter alia: (1) Petitioners’ December 19, 2020

petitions; and (2) KIUC’s request for continuation of the RP for

2022.6

4 Article XII, section 7 of the Hawai‘i Constitution provides:

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.

5 Article XI, section 9 of the Hawai‘i Constitution provides:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

6 The published agenda for the December 10, 2021 Public Meeting, which appears in the record, listed the following relevant agenda items for the Board’s consideration: D. LAND DIVISION

1. Denial of Petitions for Contested Case Hearing filed by [Plaintiffs] on December 19, 2020, Regarding December 11, 2020, Agenda Item D-5,

9 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Prior to the December 10, 2021 Public Meeting, the

State of Hawai‘i, Department of Land and Natural Resources

(Department or DLNR) provided staff recommendations to the Board

regarding its consideration of the agenda items associated with

the permit. The Department recommended that the Board deny

Petitioners’ December 19, 2020 petitions for a contested case

hearing. The Department reasoned that Petitioners failed to

identify a constitutionally cognizable property interest, and

even if they did, they were not entitled to a contested case

hearing because their allegedly affected interests are “not

substantial in character . . . or the specific injury to that

interest is not clearly articulated in the petition[s][,]” the

risk of erroneous deprivation is “minimal,” and the burden on

the government interest is great.

As to Petitioners’ asserted interests, the Department

noted that “[w]hile traditional and customary practices are

recognized as a constitutionally cognizable property interest[,]

the Petitioners do not identify any such practices as being

Continuation of Revocable Permit S-7340 to [KIUC] for Water Use.

Pursuant to Section 92-5(a) (4), [(HRS)], the Board may go into Executive Session in order to consult with its attorney on questions and issues pertaining to the Board’s powers, duties, privileges, immunities and liabilities.

2. Holdover/Continuation of Revocable Permits for Water Use on the Islands of Hawai‘i and Kaua‘i.

10 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

affected nor present any specific claims of injury to

traditional and cultural practices as being affected . . . as a

result of the Board’s action.”

The Department also recommended that the Board

continue KIUC’s RP for 2022, with an exemption from HRS Chapter

343 environmental review. The Department acknowledged that

there “continue to be complaints that KIUC is failing to comply

with the requirements of the [RP][,]” and that the Department

had received public comments focusing on “an alleged failure by

KIUC to comply with various regulatory requirements to obtain a

lease of water rights, the initial approval of the permit being

based on a non-consumptive use which was incorrect, such

consumptive use of the water being inconsistent with the public

trust, and the diversion of water by KIUC resulting in a

negative impact on the downstream environment.” The Department

reiterated representations by KIUC “that no water is currently

being diverted at North Fork River and Waikoko Stream due to

damage to the diversions[,]” but stated that even though KIUC

was not diverting water, the Department’s “staff concurs with

KIUC’s request and recommends that the revocable permit be

continued to allow KIUC to continue to conduct maintenance [on]

the ditch infrastructure and repair actions at their discretion

when practicable.” With respect to the Department’s

recommendation that the permit be exempt from HRS Chapter 343

11 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

environmental review, the Department reasoned that the permitted

diversions would not have “significant impact” on a

“particularly sensitive environment” because “[r]evocable

permits are temporary in nature.”

Petitioners also submitted written testimony for the

December 10, 2021 Public Meeting, dated December 5, 2021. This

written testimony asked the Board to (1) reject the Department’s

recommendation to deny Petitioners’ December 19, 2020 petitions

for a contested case hearing on the 2021 RP; (2) reject the

Department’s recommendation and KIUC’s request for continuation

of the proposed 2022 RP; and (3) grant Petitioners’ new request

for a contested case hearing on the proposed approval of KIUC’s

2022 RP. Petitioners also asserted that the permit should not

be exempt from HRS Chapter 343 environmental review.

Petitioners noted that the Board has been continuing the

“temporary” permit annually since 2003, and that “[t]he full

extent of the environmental and cultural impact of the Board’s

decades-long permitting of diversions of these streams should be

considered as part of [the] Board’s decision[.]”

At the December 10, 2021 Public Hearing, the Board

heard brief testimony from the Department, Petitioners, KIUC,

and members of the public. KIUC and Petitioners asserted

conflicting factual accounts of the effects of KIUC’s diversion

structures, including whether or not KIUC’s diversion structures

12 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

were inadvertently continuing to divert water and causing

portions of dry streambed. Petitioners orally requested a

contested case hearing on the Board’s proposal to grant KIUC’s

RP continuation for 2022. At the meeting, the Board: (1) denied

Petitioners’ December 19, 2020 petitions; (2) denied

Petitioners’ oral request for a contested case hearing on the

proposal to continue KIUC’s RP for 2022; and (3) granted KIUC’s

RP continuation for 2022 (2022 RP) (collectively, the Board’s

December 10, 2021 decisions). On December 20, 2021, Petitioners

submitted written contested case hearing petitions (December 20,

2021 petitions) asserting largely the same overarching arguments

raised in their December 19, 2020 petitions, with similar

declarations attached.

2. Environmental Court Proceedings

On January 6, 2022, Petitioners filed their notice of

appeal to the Environmental Court pursuant to HRS § 91-14,

challenging the Board’s December 10, 2021 decisions. In the

Environmental Court, Petitioners asserted that the Board

reversibly erred by: (1) denying Petitioners’ December 2020 and

December 2021 requests and petitions for contested case hearings

on the 2021 and 2022 RPs, violating their constitutional due

process rights; (2) granting the 2021 and 2022 RPs; and (3)

violating Petitioners’ substantive and procedural rights, as

13 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

well as the Board’s duties as trustee of Hawai‘i’s public trust

resources.

Amidst the proceedings before the Environmental Court,

KIUC did not seek continuation of the permit, and the permit

expired on December 31, 2022. Thereafter, the Environmental

Court requested that the parties submit supplemental briefing on

the issue of mootness.

On April 21, 2023, the Environmental Court Decision

was entered. The Environmental Court issued a total of forty-

two findings of fact (FOF).

The Environmental Court found, among other things,

that:

18. Plaintiff . . . Kia‘i Wai[,] is an unincorporated association based on Kaua‘i and composed of Kaua‘i residents who use and have interests in freshwater resources of the island of Kaua‘i, including Wai‘ale‘ale, Waikoko, Waiahi, ‘Ili‘ili‘ula, I‘ole, Hanamā‘ulu, Waiaka, and Wailua streams.

19. Kia‘i Wai support a mission of protecting the waters of Wai‘ale‘ale and its tributaries as public trust resources for all communities of Kaua‘i. Kia‘i Wai use and enjoy the environs, cultural and natural resources, streambanks, and waters of Wai‘ale‘ale and its tributaries for the exercise of native Hawaiian traditional and customary rights, traditional healing, gathering resources supported by Wai‘ale‘ale waters, recreation, research on native species, environmental uses, uses on Department of Hawaiian Home Lands [(DHHL)]) and for DHHL beneficiaries, aesthetic purposes adversely impacted by Defendants’ diversions, and as KIUC ratepayers and County of Kaua‘i Department of Water [(KDOW)] customers.

20. Plaintiff . . . [Friends,] is comprised of a group of concerned citizens who are contributing their time and talents to protect the natural beauty of the pristine coastal valley in Kaua‘i. Like Kia‘i Wai, [Friends] also includes Kaua‘i residents who use and have interests in

14 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

freshwater resources of the island of Kaua‘i, including Wai‘ale‘ale, Waikoko, Waiahi, ‘Ili‘ili‘ula, I‘ole, Hanamā‘ulu, Waiaka, and Wailua streams.

21. The mission of [Petitioners’] groups include the preservation and restoration of stream flow, particularly in areas markedly damaged as the areas of the Wai‘ale‘ale and Waikoko stream diversions which prevents the natural enjoyment of the stream, impacting hunters, gatherers and other cultural practices of their community which also includes the sacred historical practices and recognition of the Blue Hole as a natural Heiau.

. . . .

34. Neither the 2021 nor the 2022 RP S-7340 renewals were issued with accompanying findings of fact and conclusions of law by the Board addressing how continuing the permit was in the best interests of the State for those calendar years, and whether continuing the permit complied with the public trust doctrine.

37. In [Petitioners’] eleven (11) declarations submitted in support of their requests for contested case hearings in 2020 and 2021, Kānaka Maoli members of [Petitioners’] groups attested to impacts of the Board’s approval of the Revocable Permits (“RPs”) to KIUC on their exercise of native Hawaiian traditional and customary rights. A cultural practitioner who regularly hikes the areas surrounding Wai‘ale‘ale and Waikoko, wrote specifically about the “Chief’s trail” used by high chiefs to check on all of the ahupua‘a and to “walk the trails and the passages of [his] elders.”

38. Kānaka Maoli members of [Petitioners’] groups attested to the impacts of the continuing diversion of Wai‘ale‘ale and Waikoko streams on their traditional and customary cultural and recreational practices and the disrepair of the diversion systems.

39. [Petitioners’] members include Hawaiian cultural practitioners who support [Petitioners’] mission to preserve water, prevent waste and protect natural stream flow and aquifer recharge as well as to mālama ‘āina affected by the “Blue Hole diversions”, which impact their cultural practices of hunting, gathering, and hiking. [Petitioners’] Kānaka Maoli members have found culturally and archaeologically significant sites while hiking along historic trails, including the Chief’s trail. Blue Hole, the area of the diversions is also a sacred wahi pana associated with sacred historical practices.

15 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The Environmental Court issued a total of twenty-six

conclusions of law (COL). The Environmental Court concluded, in

relevant part, that: (1) the declarations submitted by the

Petitioners established the effects of the Blue Hole diversion

on Hawaiian traditional and customary practices including “oli,

healing, pule, hula, gathering of native instream species such

as hīhīwai, ‘ōpae, ‘o‘opu, and plants, hi‘uwai, mālama ‘āina,

religious rites, subsistence gathering, and other practices”

(COL 5); (2) the exercise of Hawaiian traditional and customary

practices constitute property interests that require due process

protections (COL 6), such that Petitioners were entitled to a

contested case hearing on continuation of the permit, as a

matter of law (COL 7); (3) the Board was required to specify how

the continuation of the permit was “under those conditions which

will best serve the interests of the State[,]” pursuant to HRS §

171-58(c) (COL 13); and (4) the Board’s failure to issue

findings of fact and conclusions of law regarding its approval

of the permit, pursuant to Carmichael v. Bd. of Land & Nat.

Res., 150 Hawai‘i 547, 506 P.3d 211 (2022), “made it impossible

to determine whether the approval of [the permit] ‘served the

best interests of the State’ pursuant to HRS § 171-58(c),

particularly where the original stated purpose of the diversion,

the operation of hydroelectric power plants, cease[d] to exist

after the damage to the ditch in 2019” (COLs 14-15).

16 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

With respect to the issue of mootness, the

Environmental Court concluded that even though the permit has

expired, the “capable of repetition yet evading review”

exception to the mootness doctrine applies to Petitioners’

appeal. The Environmental Court also concluded that “[t]his

appeal presents a highly public issue of whether judicial review

is available for the Board’s denial of contested case requests

on KIUC’s diversions of the waters of Wai‘ale‘ale and Waikoko,

environmental review for the same, and the Board’s public

trustee obligations attending its decision.”

Based on its findings and conclusions, the

Environmental Court held that:

1. The Board’s denial of [Petitioners’] requests for contested cases on 2021 and 2022 revocable permits issued to KIUC was in violation of HRS § 91-1 and [Petitioners’] due process rights; and

2. The Board’s failure to enter findings of fact or conclusions of law resulted in an inability to determine whether the Board properly exercised the discretion vested in it by the constitution and the statutes in approving the permits.

The Environmental Court ordered the Board’s approvals of the

2021 and 2022 RPs be vacated and reversed.

On May 8, 2023, the Environmental Court entered its

Final Judgment reversing and vacating the Board’s decisions on

December 11, 2020, and December 10, 2021, to deny Petitioners’

requests for contested case hearings and to reissue the permit.

17 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

3. ICA Proceedings

On June 7, 2023, the Board appealed to the ICA.

There, the Board challenged Petitioners’ standing; the

Environmental Court’s ruling that a contested case hearing was

required to protect Petitioners’ due process interests; and the

Environmental Court’s jurisdiction to reach the substantive

question of whether the Board failed to issue findings and

conclusions in approving the 2021 and 2022 RPs (as opposed to

just whether contested cases were required).7

On June 28, 2024, the ICA issued its SDO vacating the

Environmental Court Decision and reversing the Environmental

Court’s Final Judgment. Kia‘i Wai o Wai‘ale‘ale, 2024 WL 3221038,

at *1. The ICA held that:

(1) Petitioners had standing to appeal to the

Environmental Court because they had property interests under

article XI, section 9 of the Hawai‘i Constitution, as defined by

HRS § 171-55 and HRS Chapter 343, that were potentially injured

by denial of contested case hearings and that could be remedied

by favorable judicial action;

(2) for the 2021 RP, the Environmental Court erred by

concluding that due process required a contested case hearing

because the record did not include a transcript showing

7 KIUC did not file any briefing to the ICA.

18 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

procedures used by BLNR in the December 11, 2020 Public Meeting,

and thus Petitioners failed to provide sufficient information

for the ICA to balance the factors under Flores v. Bd. of Land &

Nat. Res., 143 Hawai‘i 114, 126-27, 424 P.3d 469, 481-82 (2018);

(3) for the 2022 RP, it is moot whether Petitioners

were entitled to a contested case hearing and no exception to

the mootness doctrine applied; and

(4) because BLNR’s decisions to continue the RPs were

made in public meetings and not contested cases, the

Environmental Court exceeded its jurisdiction by concluding that

BLNR’s failure to issue findings of fact and conclusions of law

made it impossible to determine whether continuation of the

permit “served the best interests of the State” under HRS § 171-

58(c). Id. at *2-4.

4. Certiorari Proceedings

Petitioners challenge the ICA’s rulings, asserting

that: Petitioners’ appeal remains justiciable despite the

expiration of the permit, and even if Petitioners’ appeal is

deemed moot, exceptions to the mootness doctrine apply; the ICA

had sufficient information in the record to assess whether the

Board’s public meeting procedures satisfied due process to

protect Petitioners’ constitutional due process rights; and the

Environmental Court had jurisdiction to review whether the Board

properly issued the 2021 RP and 2022 RP under HRS § 171-55.

19 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The Board asserts that the ICA erred by holding that

Petitioners established injury-in-fact standing due to property

interests under article XI, section 9 (clean and healthful

environment) as defined by HRS § 171-55 and HRS Chapter 343.

The Board notes that the Environmental Court found and concluded

Petitioners asserted injuries to their traditional and customary

rights under article XII, section 7, no party challenged the

Environmental Court’s ruling on the alleged injuries involved,

and the ICA did not contemplate or find plain error by the

Environmental Court in this regard. The Board further asserts

that, even if this court determines that Petitioners have

alleged cognizable injuries, they lack standing because (1) they

failed to demonstrate that the alleged harms are traceable to

continuation of the RPs or how a contested case hearing would

remedy their asserted interests, and (2) because Petitioners’

injury is related to streamflow protection, their alleged injury

is only redressable by the State of Hawai‘i, Commission on Water

Resources Management (CWRM), and not by the Board.

II. STANDARDS OF REVIEW

A. Mootness

Mootness is a question of law, which this court

reviews de novo. See Cnty. of Hawai‘i v. Ala Loop Homeowners,

123 Hawai‘i 391, 403, 235 P.3d 1103, 1115 (2010), abrogated on

other grounds by, Tax Found. of Haw. v. State, 144 Hawai‘i 175,

20 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

439 P.3d 127 (2019); Sierra Club v. Dep’t of Transp., 120 Hawai‘i

181, 196, 202 P.3d 1226, 1241 (2009).

B. Jurisdiction

“The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard.

Questions regarding subject matter jurisdiction may be raised at

any stage of a cause of action.” In re Kanahele, 152 Hawai‘i

501, 509, 526 P.3d 478, 486 (2023) (quoting Lingle v. Haw. Gov’t

Emps. Ass’n, AFSCME, Local 152, 107 Hawai‘i 178, 182, 111 P.3d

587, 591 (2005)).

C. Secondary Agency Appeals

“Review of a decision made by the circuit court upon

its review of an agency's decision is a secondary appeal. The

standard of review is one in which this court must determine

whether the circuit court was right or wrong in its decision,

applying the standards set forth in HRS § 91-14(g) (1993) to the

agency’s decision.” Flores, 143 Hawai‘i at 120, 424 P.3d at 475

(citation omitted). HRS § 91-14(g) provides:

(g) Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

21 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

HRS § 91-14(g) (2012 & Supp. 2022).

D. Constitutional Law

“Questions of constitutional law are reviewed de novo,

under the right/wrong standard.” Carmichael, 150 Hawai‘i at 560,

506 P.3d at 224 (quoting In re Gas Co., 147 Hawai‘i 186, 198, 465

P.3d 633, 645 (2020)).

E. Standing

We review the issue of standing de novo. See Pub.

Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Hawai‘i 425,

434, 903 P.2d 1246, 1255 (1995) (PASH).

This court “evaluate[s] standing using the ‘injury in fact’ test requiring: (1) an actual or threatened injury, which, (2) is traceable to the challenged action, and (3) is likely to be remedied by favorable judicial action.” [Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res., 131 Hawai‘i 193, 204, 317 P.3d 27, 38 (2013) (Kilakila)] (internal quotation marks omitted). As we have noted, however, “where the interests at stake are in the realm of environmental concerns[,] we have not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements.” Id. at 204-05, 317 P.3d at 38-39 (internal quotation marks omitted) (quoting Citizens for the Prot. of the N. Kohala Coastline v. County of Hawai‘i, 91 Hawai‘i 94, 100–01, 979 P.2d 1120, 1126–27 (1999)).

Cmty. Ass’ns of Hualalai, Inc. v. Leeward Plan. Comm’n, 150

Hawai‘i 241, 258, 500 P.3d 426, 443 (2021) (Hualalai).

22 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

III. DISCUSSION Petitioners and the Board raise multiple questions for

this court. We conclude in Part I of this opinion that: (A)

exceptions to the mootness doctrine apply; (B) Petitioners have

standing based on asserted injuries to their traditional and

customary rights affected by the permits; and (C) under Flores,

143 Hawai‘i at 125-28, 424 P.3d at 480-83, which relies on Sandy

Beach Def. Fund v. City Council of City of Honolulu, 70 Haw.

361, 377, 773 P.2d 250, 260 (1989), Petitioners have cognizable

property interests under article XII, section 7 (traditional and

customary rights) and a contested case hearing was required.

Part II of the opinion addresses whether the

Environmental Court exceeded its HRS § 91-14 jurisdiction when

noting that the Board did not follow statutorily required

procedure pursuant to HRS § 171-58(c) when it acted to renew the

RPs for 2021 and 2022.

A. Exceptions to Mootness Apply

We first address Petitioners’ argument that the ICA

erred by concluding that Petitioners’ claims are moot and that

no exceptions to mootness apply. “Under the mootness doctrine,

this court will generally refrain from deciding a case that has

lost its character as a present, live controversy, and in which

the reviewing court can no longer grant effective relief.”

23 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Carmichael, 150 Hawai‘i at 560, 506 P.3d at 224 (citation and

internal quotation marks omitted).

Relying on this court’s opinion in Hualalai,

Petitioners assert that even though the challenged permits have

since expired, the case is not moot because of alleged

disrepair, environmental degradation, and partial diversions of

the stream caused by KIUC’s unrepaired ditch structures that

remain ongoing. Petitioners contend that they sought denial of

the continued RPs due to KIUC’s violations of the permit

conditions requiring maintenance and repair.

In Hualalai, 150 Hawai‘i at 253-54, 500 P.3d at 438-39,

this court held that an appeal retained its vitality because it

possibly afforded an effective remedy where, although a special

permit application had been withdrawn, the appellant had an

interest in arguing the opposing parties’ construction activity

exceeded its other permits and thus required an additional

special permit. As this court explained in Hualalai:

There remains an adversity of interests here because the Planning Director made a “final determination” that “the evidence” showed Bolton’s construction activity was covered by its existing permits, and Hualalai has an interest in arguing that the evidence showed otherwise. Namely, Hualalai has an interest in arguing that Bolton’s construction activity exceeded the conditions of its existing grading and stockpiling permits (Permit Nos. 092524, 092525, and 092529) and, therefore, required an additional special permit.

Analogous to the appeal in [Kona Old Haw. Trails Grp. v. Lyman], Hualalai’s appeal also “retains vitality” because the appeal “possibly affords [it] an effective remedy[,]” that is, remand to the [Leeward Planning Commission] for a

24 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

hearing to determine whether Hualalai’s petition to intervene should be granted or denied. [69 Haw. 81, 87, 734 P.2d 161, 165 (1987)]. Thus, under the facts of this case, Appellees’ withdrawal of Special Permit Application No. SPP-16-188 does not render moot Hualalai’s appeal to this court.

150 Hawai‘i at 254, 500 P.3d at 439.

Unlike in Hualalai, there is no existing construction

nor a question whether such construction requires additional

permitting. Rather, in this case, the 2021 RP and 2022 RP are

now expired and KIUC is not currently using water under the

permit. Rather, this case is similar to Carmichael, which dealt

with environmental challenges to expired revocable water

permits. In Carmichael, this court held that although the

permits were expired, exceptions to mootness applied. 150

Hawai‘i at 560-62, 506 P.3d at 224-26.

Here, we conclude as in Carmichael that two exceptions

to the mootness doctrine apply.

1. The Capable of Repetition, Yet Evading Review Exception

Under the “capable of repetition, yet evading review”

exception to the mootness doctrine, “a court will not dismiss a

case on the grounds of mootness where a challenged governmental

action would evade full review because the passage of time would

prevent any single plaintiff from remaining subject to the

restriction complained of for the period necessary to complete

the lawsuit.” Id. at 561, 506 P.3d at 225 (citation omitted).

25 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Here, although this case is moot because the subject

permit expired on December 31, 2022, the “capable of repetition”

exception to the mootness doctrine applies. Like this court

observed in Carmichael, “[b]ecause the BLNR’s continuation

decisions for revocable permits apply for only one calendar year

at a time, those decisions ‘evade full review’ and no plaintiff

would be able to complete a lawsuit seeking to void the

continuation of a permit before the continuation itself

expired.” Id. Despite the expiration of the subject permit in

the present case, the issues presently on appeal are capable of

repetition if KIUC applies for another revocable permit for the

same water resources (as it did for almost two decades).

The record in this case indicates that KIUC made

varying representations to the Board regarding its likelihood of

repairing the diversion structures and/or seeking another

revocable permit in the future. At the December 10, 2021 Public

Meeting, KIUC represented to the Board that it did have the

budget to repair the damaged diversion structures and that it

was monitoring market conditions to determine when the ultimate

decision whether to make repairs would be made. Then, nearly a

year later, KIUC represented to the Environmental Court that its

failure to continue the RP “demonstrates KIUC will not be

pursuing another revocable permit . . . [and] will instead

26 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

continue to pursue its [still-pending] application for a long-

term [water] lease[,]” which it initiated in 2004.

Additionally, as Petitioners point out, the diversion

structures and ditches remain in place, and KIUC affirmed its

plans to resume diversions depending on cost and under a long-

term lease. Petitioners also cite to a letter dated October 25,

2022, from KIUC to the Board, stating KIUC was not requesting an

RP continuation for 2023, and was instead requesting an “access

agreement for portions of the water transmission system located

on State land . . . for purposes of maintenance only and no

diversion” while KIUC continued to pursue a long-term lease.

KIUC’s letter represented to the Board that “[b]ecause of the

significant estimated cost of repairs, KIUC will not undertake

the work prior to obtaining a long-term lease.” The record does

not indicate whether KIUC was granted its request for an access

agreement in lieu of a revocable water permit. In any event,

the record demonstrates that KIUC maintains a strong interest to

utilize in the future the water resources at issue in this case.

Thus, while it remains unclear whether KIUC will seek

another revocable water permit for the Blue Hole diversion, such

a scenario is capable of repetition based on the record before

us. Further, as noted in Carmichael, the short-term nature of

revocable water permits makes them prone to evasion of full

review. 150 Hawaiʻi at 561, 506 P.3d at 225.

27 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We conclude that the “capable of repetition yet

evading review” exception to the mootness doctrine applies here.

2. The Public Interest Exception

“In determining whether the public interest exception

applies, this court considers[:] (1) the public or private

nature of the question[s] presented, (2) the desirability of an

authoritative determination for future guidance of public

officers, and (3) the likelihood of future recurrence of the

question[s].” Id. (quoting Kaleikini v. Thielen, 124 Hawai‘i 1,

13, 237 P.3d 1067, 1079 (2010) (internal quotation marks

omitted)). We conclude that the issues raised in Petitioners’

appeal satisfy all three factors of the public interest

exception.

First, although at first blush this case involves a

private dispute between water users, the issues raised by

Petitioners implicate overarching issues of alleged improper use

and/or waste of public trust water resources, and obligations of

permittees to abide by permit conditions, which affects a

significant number of Kaua‘i residents. See id. (“The first

factor considers whether the questions presented by the case are

personal to the parties and of a private nature, or if they

implicate broader political and legislative issues that affect a

significant number of Hawai‘i residents.” (citation and internal

quotation marks omitted)). Moreover, this case also implicates

28 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the Board’s duties as trustee of Hawai‘i’s public trust water

resources, particularly when continuing revocable water permits,

ensuring conditions therein are met, and protecting against

ongoing waste. The issues implicated in this case have broad

public import and affect. See id.

Second, this case provides needed guidance to public

officers for the future. Like Carmichael, this case clarifies

BLNR’s authority when continuing revocable water permits under

HRS § 171-55, including when it must provide contested case

hearings to address alleged violations of RP conditions for a

long-time permittee. This case provides new guidance regarding

the due process rights of similarly situated petitioners who

were denied contested case hearings.

Third, questions of whether it is permissible for the

Board to deny a request for a contested case hearing and/or to

continue a revocable water permit, will recur. This court

acknowledged in Carmichael that “[d]isputes over the use of land

and State resources are frequent in Hawai‘i” and “disputes over

revocable permits are likely to arise in the future.” Id. at

562, 506 P.3d at 226. Moreover, the issue that Petitioners

raised regarding violations of RP conditions, and how the Board

should address such violations, is likely to recur in the

future.

29 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We conclude that the public interest exception to the

mootness doctrine applies here.

B. Petitioners have injury-in-fact standing as identified by the Environmental Court.

We next address the Board’s argument that the ICA

erred by holding that Petitioners had injury-in-fact standing,

and doing so on different grounds than the Environmental Court

without a determination that the Environmental Court committed

plain error. The Board also asserts the ICA erred by concluding

that Petitioners established standing without demonstrating

causation or redressability, in other words, without considering

the last two factors for injury-in-fact standing.

We review the issue of standing de novo. See PASH, 79

Hawai‘i at 434, 903 P.2d at 1255. As noted above:

This court “evaluate[s] standing using the ‘injury in fact’ test requiring: (1) an actual or threatened injury, which, (2) is traceable to the challenged action, and (3) is likely to be remedied by favorable judicial action.” Kilakila, 131 Hawai‘i at 204, 317 P.3d at 38 (internal quotation marks omitted). As we have noted, however, “where the interests at stake are in the realm of environmental concerns[,] we have not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements.” Id. at 204-05, 317 P.3d at 38-39 (internal quotation marks omitted) (quoting [Citizens for the Prot. of the N. Kohala Coastline, 91 Hawai‘i at 100–01, 979 P.2d at 1126–27]).

Hualalai, 150 Hawai‘i at 258, 500 P.3d at 443. We agree with the ICA that Petitioners have standing,

but we do so on the grounds found by the Environmental Court.

The narrow standing issue raised to the ICA was the Board’s

30 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

argument that the Environmental Court assumed Petitioners had

standing based on injury to the exercise of their native

Hawaiian traditional and customary rights, but without

considering how these interests would be harmed by continuing

the RP or how a contested case hearing would provide a remedy.

There was no challenge in the ICA to the type of injury

involved.

We therefore conclude Petitioners have injury-in-fact

standing on the same grounds identified by the Environmental

Court (i.e., the alleged negative effects of continuing the RP

on Petitioners’ exercise of their traditional and customary

rights). Given the issue raised before it, the ICA should not

have found standing on different grounds where no error in that

regard was asserted. The question before the ICA was whether

the alleged injury was “traceable to the challenged action” and

was “likely to be remedied” by a contested case hearing. Id. at

258, 500 P.3d at 443. Although we have recognized “a variety of

interests that, if injured, can form the basis for standing[,]”

we have not required that multiple alleged injuries are needed

to establish standing. Sierra Club v. Dep’t of Transp., 115

Hawai‘i 299, 321-22, 167 P.3d 292, 314-15 (2007). Thus, we need

not consider other types of alleged injury to Petitioners,

including those relied upon by the ICA.

31 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

1. Petitioners alleged judicially cognizable harm to their traditional and customary rights, traceable to the Board’s continuation of the RPs.

Petitioners’ asserted to the Board, inter alia, that

their traditional and customary rights were being negatively

affected by the permits that had been issued to KIUC and they

advocated against continuing the RPs for 2021 and 2022.

On two occasions the Board denied Petitioners’

requests and petitions for contested case hearings on the 2021

and 2022 RPs. The RP permitted KIUC to “enter and use . . .

water emanating from, and the water transmission system situate

at[] Līhuʻe-Kōloa Forest Reserve . . . also known as the ‘Blue

Hole’ diversion which is hereinafter referred to as the ‘Water

Resources.’” Condition A.1. of the RP provided that KIUC was

permitted to use the water, and “use, operate, repair and

maintain a portion of an existing government-owned water

transmission infrastructure system including the Blue Hole

diversion all for the purpose of generating hydroelectric power

with [KIUC]’s two hydroelectric plants.” (Emphasis added.)

Condition A.8. of the RP provided that KIUC shall “[r]epair and

maintain all building or other improvements now or hereafter

part of the Water Resources.” (Emphasis added.) Condition A.12

of the RP provided that KIUC shall “[n]ot make, permit, or

suffer, any waste . . . of the Water Resources.” (Emphasis

added.) Condition A.22.b. provided that “[a]ny applicable

32 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

service charge to the cooperative members, by Grove Farm, shall

be for the upkeep of the delivery system, not for the water.”

Following the Board’s oral denials of Petitioners’

requests for contested case hearings, Petitioners filed written

petitions asserting, inter alia, the nature and extent of

Petitioners’ interests affected by the Board’s continuation of

the RP, including multiple bases for standing. Petitioners’

December 19, 2020 petitions were nearly identical and asserted

that because the Board continued the permit despite KIUC’s

noncompliance with the conditions of the RP, their members were

being “deprived of their rights to enjoy Wai‘ale‘ale Stream,” and

“are being further deprived of their ability to enjoy

Traditional and Cultural practices in the Blue Hole area.”

Petitioners asserted that many of their members are cultural and

traditional practitioners, who have and can speak to the public

trust protections intended for the subject waters. They also

asserted there was abundant evidence that the permit was not

needed, there was “gross disrepair,” and that KIUC has violated

the conditions of the permit, including “transferring the water

to others without permits” in violation of the permit.

Petitioners sought relief in the form of revocation of the 2021

RP “with satisfaction of the terms and conditions of the RP, to

include among others, removal of the dam diversions, cleaning

33 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

and [restoration] of the area and the natural flow of the

streams.” (Emphasis added.)

In Petitioners’ December 20, 2021 petitions, they

asserted their interests, and the harms thereto, in even greater

detail, stating:

The Board’s action causes waters from the [Wai‘ale‘ale, Waikoko, Waiahi, ‘Ili‘ili‘ula, I‘ole, Hanamā‘ula, Waiaka, and Wailua] streams to be diverted, leaving portions of some streambeds dry, increasing waters in other areas of the [sic] East Kaua‘i, and facilitates a network of unsustainable practices that frustrate the ability of [Petitioners] to use and enjoy the environs, cultural and natural resources, and waters of Wai‘ale‘ale and its tributaries for the exercise of native Hawaiian traditional and customary rights, domestic uses, recreation, research, environmental uses, uses as [DHHL] beneficiaries, aesthetic purposes, and as KIUC ratepayers and County of Kaua‘i Department of Water [KDOW] customers.

Petitioners also reasserted that KIUC was violating the terms

and conditions of the RP (Conditions A.1, A.8, and A.22.b)

because KIUC had not used diverted water for energy production

since 2019, and was failing to maintain its diversion

infrastructure. Petitioners also note that despite the RP being

conditioned on diverted water solely being used for

hydroelectric power, they believed water was being inadvertently

diverted by KIUC’s diversion infrastructure for downstream use

by Grove Farm and other businesses, which Petitioners asserted

was another violation of the RP.

Petitioners sought relief in the form of a contested

case hearing to protect their rights where they can “produce

evidence and cross examine witnesses to further the development

34 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

of a full record before the Board prior to the [decision-making]

on the RP request and conditions attached thereto.” Petitioners

also noted that “[d]uring the pendency of the contested case

hearing, the Board’s approval of the [2022 RP] should be vacated

pending the contested case hearing.”

Attached to Petitioners’ petitions were supporting

exhibits including eleven sworn declarations from Petitioners’

members attesting, among other things, to the alleged impacts of

the Board’s continuation of the RP — including the Board’s

failure to require KIUC to comply with the RP conditions. Ten

of the eleven sworn declarations were submitted by individuals

who identified themselves as descendants of the aboriginal

people who inhabited the Hawaiian Islands prior to 1778.

Many of the declarations explicitly attested to the

impacts on Petitioners’ members’ exercise of native Hawaiian

traditional and customary rights, including: “waste” of Waikoko

and Wai‘ale‘ale waters; dewatering of portions of the subject

streams; and negatively impacting native bird, aquatic, and

plant species and their habitats, and in turn limiting

Petitioners’ traditional and customary practices associated with

those species, such as gathering of fallen feathers. The

declarations asserted variously that the Board’s actions impact

cultural resources and practices via preventing “natural

enjoyment of the stream, impacting hunters, gather[ers] and

35 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

other cultural practices of [the] community which also includes

the sacred historical recognition of the Blue Hole as a natural

Heiau” and as a “sacred wahi pana.”

At least three of the declarations also attested to

the impacts of the Board’s continuation of the permit on the

habitat of native animal and plant species in the subject

streams; and “aesthetic damage to the[] [subject] streams in the

[form of] interrupted mauka to makai flow.”

Many of the declarations also attested to the

“disrepair, damage, and reduction in flow” of the subject

streams from KIUC’s permitted diversion structures, and included

Petitioners’ members’ observations of jutting rebar, decaying

and dilapidated diversion structures, trash, and generally

dangerous conditions for use and enjoyment of the streams.

Based on the record, we conclude that Petitioners

sufficiently demonstrated injury to their traditional and

customary practices and rights, and that the alleged injury was

traceable to the Board’s actions in continuing the RP.

2. Petitioners’ alleged injuries were redressable by the Board.

The final prong of the injury-in-fact standing inquiry

requires a determination that the alleged harm “is likely to be

remedied by favorable judicial action.” Hualalai, 150 Hawai‘i at

258, 500 P.3d at 443 (citation omitted).

36 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The Board asserts that even if we determine that

Petitioners have actual or threatened injuries, they remain

without standing because the alleged injuries are redressable

only by CWRM, and not by the Board. The Board contends that all

of Petitioners claims are associated with instream flow

standards and/or stream diversion structures, such that

Petitioners are actually complaining of interim instream flow

standards and “stream diversion works”8 which are under the

“exclusive” and “sole jurisdiction” of CWRM, pursuant to HRS

Chapter 174C. The Board asserts that it is not “regulating

water use when it” continues a revocable water permit under HRS

§ 171-55, but is simply carrying out “a mechanism by which the

State may charge rent for use of public trust resources[.]”

Under this argument, the Board seeks to be absolved of its

responsibility and authority over permits and conditions which

it issued under HRS § 171-58 and subsequently continued under

8 HRS § 174C-91 (2011) defines “stream diversion works” as “any artificial or natural structure emplaced within a stream for the purpose of diverting stream water.”

HRS § 174C-92 (2011) provides that “[a]ny person owning or operating a stream diversion works within or outside of a water management area shall register such work with [CWRM].” HRS § 174C-93 (2011) provides, in relevant part, that “[n]o person shall construct or alter a stream diversion works, other than in the course of normal maintenance, without first obtaining a permit from [CWRM].” (Emphasis added.) HRS § 174C-94 (2011) provides, in relevant part, that “[w]ithin thirty days after the completion of construction or alteration of any stream diversion work, the permittee shall file a written statement of completion with the commission.” HRS § 174C-95 (2011) entitled “Abandonment” provides that “[a]ny owner of any stream diversion work wishing to abandon or remove such work shall first obtain a permit to do so from the commission.”

37 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

HRS § 171-55, and also its constitutional obligations as trustee

of the State’s public trust resources.

We agree with Petitioners that such an argument cannot

stand.

The Board’s public trustee obligations in this case

stem from article XI, section 1 of the Hawai‘i Constitution,

which provides that all public natural resources are held in

trust by the State for the benefit of the people:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

Haw. Const. art. XI, § 1; see also Haw. Const. art. XI, § 7

(“The State has an obligation to protect, control and regulate

the use of Hawaii’s water resources for the benefit of its

people.”); In re Water Use Permit Applications, 94 Hawai‘i 97,

132, 9 P.3d 409, 444 (2000) (holding that article XI, section 1

and article XI, section 7 of the Hawai‘i Constitution “adopt the

public trust doctrine as a fundamental principle of

constitutional law in Hawai‘i”).

HRS Chapter 171 establishes and prescribes, among

other things, the Board’s broad powers and authority over public

lands and the resources thereon, including water. HRS § 171-1

38 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

et seq. HRS § 171-3 (2011) provides that the Department, headed

by BLNR, has the authority to “manage, administer, and exercise

control over public lands, the water resources, . . . and all

other interests therein and exercise such powers of disposition

thereof as may be authorized by law.” HRS § 171-1 (2011)

further defines “Land” as including “all interests therein and

natural resources including water, minerals, and all such things

connected with land, unless otherwise expressly provided.” HRS

§ 171-6 (2011) further enumerates the explicit powers held by

the Board, which include the Board’s authority to “[e]stablish

additional restrictions, requirements, or conditions, not

inconsistent with those prescribed in this chapter, relating to

the use of particular land being disposed of, [and] the terms of

sale, lease, license or permit” and, more broadly, to “[d]o any

and all things necessary to carry out its purposes and exercise

the powers granted in this chapter.”

HRS § 171-58 confers authority on the Board to issue

temporary one-year revocable permits “under those conditions

which will best serve the interests of the State and subject to

a maximum term of one year and other restrictions under the

law[.]” See Carmichael, 150 Hawai‘i at 562-63, 506 P.3d at 226-

27. HRS § 171-55 establishes the Board’s authority to

potentially continue a revocable permit, stating:

39 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Notwithstanding any other law to the contrary, the board of land and natural resources may issue permits for the temporary occupancy of state lands or an interest therein on a month-to-month basis by direct negotiation without public auction, under conditions and rent which will serve the best interests of the State, subject, however, to those restrictions as may from time to time be expressly imposed by the board. A permit on a month-to-month basis may continue for a period not to exceed one year from the date of its issuance; provided that the board may allow the permit to continue on a month-to-month basis for additional one year periods.

(Emphases added.)

As this court noted in Carmichael, the Board’s role as

trustee of the State’s public natural resources is implicated

when the Board exercises its discretion to continue revocable

water permits pursuant to its statutory authority under HRS §

171-55. 150 Hawai‘i at 562, 506 P.3d at 226 (holding that “[a]s

a trustee of the public trust, the BLNR failed to demonstrate

that it properly exercised the discretion vested in it by the

constitution and the statute” when it authorized continuation of

a revocable water permit under HRS § 171-55 without making

findings of fact or conclusions of law that such disposition

served the State’s best interests).

Here, under HRS Chapter 171, the Board had the

authority to issue the permit and to prescribe conditions on the

permit which “best serve the interests of the State” pursuant to

HRS § 171-58 (1991). Moreover, the Board had the authority

thereafter to continue the permit, after determining that such

dispositions were “temporary” and that the permit was issued

40 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

“under conditions and rent which will serve the best interests

of the State[.]” HRS § 171-55. The Board also had the authority

to require “restrictions as may from time to time be expressly

imposed[.]” HRS § 171-55. The Board’s authority to issue and

continue the permit, with conditions and restrictions,

establishes the Board’s broad statutory authority, along with

its constitutional public trust authority to address violations

of the same.

We conclude that within the context of continuing the

permit, BLNR had both statutory and constitutional authority to

address alleged violations of the RP conditions -- including the

disrepair and maintenance of the water system, and improper

water diversion -- notwithstanding CWRM’s jurisdiction and

authority over implementation and administration of the state

water code pursuant to HRS Chapter 174C.

Based on the foregoing, we conclude Petitioners have

standing in this case.

C. Petitioners were entitled to a contested case hearing.

Petitioners assert that the ICA erred in declining to

conduct a due process analysis under the Flores/Sandy Beach

factors based on the ICA’s conclusion that such an analysis was

impossible where the “the record does not include evidence of

the procedures actually used by BLNR” at the earlier December

11, 2020 Public Meeting. Petitioners argue that a transcript of

41 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the Board’s December 11, 2020 Public Meeting was not required

because BLNR’s procedures “are presumed to have been in accord

[with] HRS chapter 92, which governs public meetings, and Board

rules of procedures under HAR [Title 13 Chapter 1].”

This court’s decision in Flores, and its predecessor

Sandy Beach, set forth a two-step analysis for determining

whether there is a constitutional due process right to a

contested case hearing: “(1) is the particular interest which

claimant seeks to protect by a hearing ‘property’ within the

meaning of the due process clauses of the federal and state

constitutions, and (2) if the interest is ‘property,’ what

specific procedures are required to protect it.” Sandy Beach,

70 Haw. at 376-77, 773 P.2d at 260 (citation omitted); see

Flores, 143 Hawai‘i at 125, 424 P.3d at 480.

For the second step, determination of the specific

procedures required to satisfy due process requires an

additional balancing of three factors: “(1) the private interest

which will be affected; (2) the risk of an erroneous deprivation

of such interest through the procedures actually used, and the

probable value, if any, of additional or alternative procedural

safeguards; and (3) the governmental interest, including the

burden that additional procedural safeguards would entail.”

Sandy Beach, 70 Haw. at 378, 773 P.2d at 261 (citations

omitted); see Flores, 143 Hawai‘i at 126-27, 424 P.3d at 481-82.

42 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

As discussed below, we conclude that the ICA erred in

declining to conduct a due process analysis under Flores/Sandy

Beach, and Petitioners were entitled to a contested case

hearing.

1. The ICA erred in declining to conduct a due process analysis under Flores/Sandy Beach.

In the circumstances of this case, a transcript of the

December 11, 2020 Public Meeting was not necessary for the ICA

to conduct a due process analysis, because the pertinent Board

decisions were made at the later December 10, 2021 Public

Meeting. A transcript for the December 10, 2021 Public Meeting

is in the record.

At the December 10, 2021 Public Hearing, the Board (1)

denied Petitioners’ December 19, 2020 petitions on the 2021 RP;

(2) denied Petitioners’ request for a contested case hearing on

the 2022 RP; and (3) granted the 2022 RP. Petitioners’ notice

of appeal to the Environmental Court specifically stated that

Petitioners were appealing from the Board’s December 10, 2021

decisions.

The ICA is correct that the record does not contain a

transcript of the earlier December 11, 2020 Public Meeting where

the Board denied Petitioners’ oral requests for a contested case

hearing on the 2021 RP and granted the 2021 RP. Eight days

later, Petitioners submitted their written December 19, 2020

43 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

petition, which sought a contested case hearing on the 2021 RP.

This written petition was not decided until almost a year later,

at the December 10, 2021 Public Meeting. This decision by the

Board encompasses the propriety of its earlier decision to issue

the 2021 RP without a contested case hearing.

The ICA thus erred by ignoring the later December 10,

2021 Public Meeting, where the relevant issues in this case were

decided by the Board. The ICA should have addressed

Petitioners’ due process right to contested case hearings under

the Flores/Sandy Beach factors.

2. A contested case hearing was “required by law” to protect Petitioners’ cognizable property interests.

“To have a property interest in a benefit, a person

clearly must have more than an abstract need or desire for

it. He must have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.”

Sandy Beach, 70 Haw. at 377, 773 P.2d at 260 (citation omitted).

The legitimate claims of entitlement that constitute property interests are not created by the due process clause itself. Instead, “they are created and their dimensions are defined by existing rules or understanding[s] that stem from an independent source such as state law — rules or understanding[s] that secure certain benefits and that support claims of entitlement to those benefits.”

In Re Application of Maui Elec. Co., Ltd., 141 Hawai‘i 249, 260,

408 P.3d 1, 12 (2017) (quoting In re ‘Iao, 128 Hawai‘i 228, 241,

287 P.3d 129, 142 (2012)).

44 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Petitioners have cognizable property interests under

article XII, section 7 of the Hawai‘i Constitution (traditional

and customary rights) to satisfy the first step of the

Flores/Sandy Beach analysis. Article XII, section 7 provides:

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.

Some of Petitioners’ members submitted declarations to the Board

establishing that they are native Hawaiian and descend from the

aboriginal inhabitants of the Hawaiian Islands before 1778, that

they engage in traditional or cultural practices in the areas

affected by the permit, and that they seek to protect the right

to such practices. In Mauna Kea Anaina Hou v. Bd. of Land &

Nat. Res., 136 Hawai‘i 376, 390, 363 P.3d 224, 238 (2015), this

court recognized that the right to exercise native Hawaiian

customs and traditions under article XII, section 7 was a

property interest for which due process protections applied.

See also Flores, 143 Hawai‘i at 125-26, 424 P.3d at 480-81

(holding that under article XII, section 7, appellant had shown

he sought to protect a constitutionally cognizable property

interest); In re ‘Iao, 128 Hawai‘i at 240-41, 287 P.3d at 141-42

(recognizing that the exercise of native Hawaiian traditional

and customary practices constitutes “property interests” for due

process purposes). 45 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We next turn to the second step of the Flores/Sandy

Beach analysis, and the three factors to determine whether a

contested case was required to protect the property interest in

this case. For the first factor (the property interest which

will be affected), Petitioners have established their interest

in engaging in traditional and customary practices in and around

the Wai‘ale‘ale and Waikoko streams, and have submitted evidence

about the deprivation of those interests by ongoing diversion

and/or waste of water and the disrepair of improvements and

diversion structures. We conclude that the first factor weighs

in favor of a contested case hearing.

For the second factor (risk of erroneous deprivation

of property interest through the procedures used and the

probable value of other procedural safeguards), Petitioners

articulated their challenge to the Board’s December 10, 2021

decisions in their December 20, 2021 petitions. Although the

December 10, 2021 Public Meeting provided Petitioners with

notice and an opportunity to be heard, the format of the meeting

did not permit Petitioners a meaningful opportunity to challenge

information presented to the Board. At a contested case hearing

Petitioners would be able to produce evidence and cross-examine

witnesses to develop a full record for the Board to consider in

deciding whether, for instance, conditions of the RP have been

violated, if so what should be done, and given actual

46 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

circumstances whether to continue the RP. In this case, the

opportunity to cross-examine witnesses and provide rebuttal

evidence was critical where the parties provided conflicting

factual representations regarding various relevant

considerations for continuing the RP.

In Carmichael, this court stated that “when appraising

the legislative history of HRS chapter 171 as a whole, it is

clear that the BLNR’s power to issue and continue revocable

permits under HRS § 171-55 was intended to be narrowly

exercised.” 150 Hawai‘i at 564, 506 P.3d at 228. In that case,

this court emphasized that the Board, as a public trustee of

Hawai‘i’s water resources, “is duty bound to demonstrate that it

has properly exercised the discretion vested in it by the

constitution and the statute.” Id. at 566, 506 P.3d at 230

(citation and internal quotation marks omitted). Here,

Petitioners asserted, and the DLNR acknowledged in its

recommendation to the Board, that the circumstances surrounding

KIUC’s water diversion and use had changed significantly due to

the damage in 2019 to its diversion structures, resulting in the

inability for KIUC to divert water for its Hydropower Plants.

Despite major changes to KIUC’s ability to divert water and

power its Hydropower Plants (the underlying purpose for the

permit), the Department recommended that the Board continue

47 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

KIUC’s RP for 2022, without any updated conditions reflecting

the changed circumstances or the concerns raised by Petitioners.

We conclude that, as to the second factor, there was a

risk that Petitioners were deprived of their property interest

due to the procedures used by the Board and there is probable

value in holding a contested case hearing. Despite the short

period of the RPs, the Board had renewed the permit for almost

two decades. KIUC’s diversion structures sustained severe

damage in 2019, making them inoperable and changing the

circumstances surrounding the RP. Further, Petitioners’

evidence included information about the poor condition of permit

improvements and waters being wasted, which are potential

violations of permit conditions. The procedural protections of

a contested case hearing would guard against the risk of

erroneous deprivation of the constitutionally protected property

interest at stake, and would also address the harms raised by

Petitioners in their petitions and declarations.

Finally, as to the third factor, the Board argued to

the Environmental Court that it has a strong interest against

holding a contested case hearing because of the cost of such a

hearing, and because of the “State’s substantial interest in

efficient land management[.]” We recognize the State’s concern

and it is not inconsequential. However, in the circumstances of

this case and given the magnitude of the water resources

48 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

authorized by the 2021 RP and 2022 RP, a contested case hearing

is warranted for the Board to fulfill its legal obligations,

including its public trust duties. Moreover, nothing in the

record indicates that Petitioners were parties to a prior

contested case hearing on the issues raised in this case.

Hence, it appears that a contested case hearing here would not

be duplicative or overly burdensome. See Flores, 143 Hawai‘i at

127-28, 424 P.3d at 482-83 (holding that the appellant was not

entitled to a contested case hearing because he previously had

extensive participation in a related contested case hearing

seeking to vindicate the same interests and expressing similar

concerns). We conclude that the third factor also weighs in

favor of a contested case hearing.

On balance, we hold that a contested case hearing was

required by law to protect Petitioners’ property interests and

constitutional due process rights.

Accordingly, this case is remanded to the Board for a

contested case hearing. Because the 2021 RP and 2022 RP have

expired, the contested case hearing should address Petitioners’

claims that permit conditions were violated prior to issuance of

the 2021 RP and 2022 RP -- including the alleged resulting

disrepair or degradation of improvements under the permit and

the alleged diversions of water or waste -- and the asserted

impacts on Petitioners’ property interests. The Board should

49 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

require actions by KIUC that the Board would have required

before issuing the 2021 RP and 2022 RP after a contested case

hearing, to address prior violations of permit conditions and

the resulting harms to Petitioners. These steps are consistent

with the requirement under HRS § 171-55 that the Board may issue

temporary permits “under conditions . . . which will serve the

best interests of the State” and the Board’s public trust

obligations under article XI, section 1 of the Hawai‘i

Constitution. See Carmichael, 150 Hawai‘i at 566-67, 571, 506

P.3d at 230-31, 235 (holding that BLNR’s authority under HRS

§ 171-55 and its public trust duties required that it make

findings of fact and conclusions of law demonstrating that

revocable water permits served the best interests of the State,

and remanding the case to the circuit court to determine how

best to apply environmental assessment requirements to revocable

permits).

IV. CONCLUSION Based on the foregoing, we vacate the ICA’s Judgment

on Appeal entered on July 29, 2024. Further, based on the

combined effect of Part I and Part II of this opinion, the

Environmental Court’s Final Judgment entered on May 8, 2023, is

50 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

affirmed. We remand this case to the Board for further

proceedings consistent with this opinion.

Lance D. Collins /s/ Mark E. Recktenwald (Bianca K. Isaki, on the briefs) /s/ Sabrina S. McKenna for petitioners /s/ Todd W. Eddins Colin J. Lau Miranda C. Steed /s/ Lisa M. Ginoza Deputy Attorneys General for respondent /s/ Vladimir P. Devens

PART II: The Environmental Court had HRS § 91-14 jurisdiction to review the Board’s proceedings culminating in the Board’s decisions to renew the permit for 2021 and 2022. (By: Devens, J., with whom Recktenwald, C.J., McKenna and Eddins, JJ., join)

We initially note that at the time the ICA issued its

decision in this case, this court’s opinion in Sierra Club v.

Bd. of Land & Nat. Res. (Sierra Club I), No. SCWC-XX-XXXXXXX,

2025 WL 2556067 (Sept. 5, 2025), which decided a similar

jurisdictional issue, had not been published. Given this

court’s opinion in Sierra Club I, we hold in the present case

that the Environmental Court had HRS § 91-14 jurisdiction to

review the Board’s administrative proceedings that culminated in

the decisions to continue the permit for 2021 and 2022.

As we observed in Sierra Club I, this court takes a

functional approach to “‘what can be considered a contested case

hearing for purposes of judicial review, consistent with the

policy of favoring judicial review of administrative actions’”

51 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

and to what an agency’s final decision is. Sierra Club I, at

*40 (quoting Kilakila, 131 Hawaiʻi at 214, 317 P.3d at 48 (Acoba,

J. concurring) (internal quotation omitted)).9 Thus, that view

shapes a court’s determination as to whether an agency’s action

is a final decision that ends an administrative proceeding. Our

decision in Sierra Club I affirms that our case law’s

examination of what constitutes an agency’s “final decision”

does not insulate an agency’s act consummating the

administrative decision-making process from HRS § 91-14 review.

Id. at *37-38. A final decision or order is one that ends the

proceedings, “leaving nothing further to be accomplished.” Id.

at *40 (see Hualalai, 150 Hawaiʻi at 256, 500 P.3d at 441

9 Kilakila involved the approval of a conservation district use permit. In that case, this court framed the issue as:

whether a circuit court has jurisdiction over an HRS § 91– 14 appeal when an agency makes a final decision on a given matter--in this case, an application for a conservation district use permit--without either granting or denying an interested party’s request for a contested case hearing on the matter.

131 Hawaiʻi at 195, 317 P.3d at 29. Petitioner in that case argued that BLNR’s decision to grant the permit at a public meeting “constituted final agency action that was therefore appealable.” Id. at 197, 317 P.3d at 31.

In undertaking the PASH analysis for HRS § 91-14 jurisdiction there, we recognized that BLNR’s vote to approve the conservation district use permit determined the permit applicant’s right, duties, and privileges. This court held that where the Board was required to hold a contested case hearing before deciding on a permit application, the appellate court has jurisdiction over the Board’s decision on the permit, even if a contested case hearing was not held. Id. at 203, 206, 317 P.3d at 37, 40.

52 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(cleaned up); Gealon v. Keala, 60 Haw. 513, 520, 591 P.2d 621,

626 (1979)).

In PASH, this court discussed the requirements for

jurisdiction under HRS § 91-14:

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

79 Hawai‘i at 431, 903 P.2d at 1252.

In the instant case, the ICA held that the

Environmental Court exceeded its jurisdiction by concluding that

“the failure of [BLNR] to issue findings of fact and conclusions

of law made it impossible to determine whether [continuation of

the Permit] ‘served the best interests of the State’ pursuant to

HRS § 171-58(c)[.]”10 Kia‘i Wai o Wai‘ale‘ale, 2024 WL 3221038,

at *8. The ICA’s reasoning was that “BLNR’s decisions to

continue the Permit for 2021 and 2022 were made in public

meetings, not contested cases.” Id. Thus, the ICA concluded,

10 As noted by the ICA, continuation of the permit was under HRS § 171-55 and not HRS § 171-58. See Carmichael, 150 Hawai‘i at 562-63, 506 P.3d at 226-27. Where the Environmental Court’s decision cites to HRS § 171- 58(c), we construe that court’s reference to the statutory requirement for the Board to indicate how revocable permit conditions disposing of water rights “best serve the interests of the State” requirement as inclusive of HRS § 171-55’s “best interests of the State” explanatory requirement.

53 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

“[t]he Environmental Court did not have jurisdiction to review

the propriety of those decisions in this HRS § 91-14 appeal.”

Id. In support, the ICA cited to their published opinion in

Sierra Club v. Bd. of Land & Nat. Res., 154 Hawai‘i 264, 550 P.3d

230 (App. 2024), as corrected (Oct. 31, 2024), which we reversed

in part in our Sierra Club I opinion.

BLNR does not dispute that the Environmental Court had

jurisdiction over Petitioners’ appeal of the Board’s denial of

their requests for a contested case hearing, which was followed

by the Board’s vote to continue the permit for both years in the

same proceedings. The Board’s contention is that the ICA was

correct in concluding that the Environmental Court did not have

jurisdiction “to review the merits of the decision to continue

the permit.”

It is clear from the record that the other PASH

requirements are met to establish jurisdiction under HRS § 91-14

over the Board’s denials of Petitioners’ requests for contested

case hearings. Thus, we review the ICA’s determination that the

Board’s continued proceedings following the denials of the

contested case hearing requests were not within the

Environmental Court’s HRS § 91-14 jurisdiction to review.

The dissent’s view is that “the final agency decision

for purposes of jurisdiction under HRS § 91-14 was the Board’s

denials of Petitioners’ requests for contested case hearings.”

54 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Dissent at 8-9. This view affirms the ICA’s determination in

this case, following the ICA’s opinion in Sierra Club I, that

the Board’s votes to renew KIUC’s revocable permit occurred in

public meetings, “not in contested cases,” and therefore those

permit renewals are not reviewable by our courts under HRS § 91-

14. Kia‘i Wai o Wai‘ale‘ale, 2024 WL 3221038, at *8. Based on

our case law, and our recent opinion in Sierra Club I, this is

incorrect.

We note that the Board’s denials were immediately

followed by their votes to continue the permit which determined

the rights, duties and privileges of KIUC. In December 2020,

BLNR conducted a decision-making process on public meeting Item

D-5, the continuation of KIUC’s revocable permit S-7340. After

Petitioners’ oral request for a contested case hearing, which

BLNR denied, BLNR proceeded to approve the continuation of

KIUC’s permit for 2021. And in December 2021, BLNR undertook a

decision-making process on the continuation of KIUC’s permit for

2022 as Item D-2 on their meeting agenda. Petitioners submitted

written testimony on D-2, which included a request for a

contested case hearing on the permit renewal for 2022. At the

meeting, Petitioners orally renewed their request for a

contested case hearing before the Board approved the permit

continuation for 2022. BLNR again denied Petitioners’ request

and then voted to renew the permit for 2022. In both instances,

55 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

KIUC, an involved party in these agency decision-making

proceedings, had its rights, duties, and privileges determined

with the Board’s respective votes to grant the permit

continuations for 2021 and 2022.

As we noted in Sierra Club I, the agency’s wrongful

denial of a contested case hearing followed by a vote to grant a

revocable permit left no further agency decision-making to be

accomplished on the matter. Our standing analysis here

recognizes that the constitutional violation of Petitioners’

rights stems from the injury the permit renewals, effective for

2021 and 2022, caused to Petitioners’ rights to conduct their

traditional and cultural practices.

On this record, following Sierra Club I, we hold that

the Environmental Court had HRS § 91-14 appellate jurisdiction

to review BLNR’s decisions denying Petitioners’ contested case

hearing requests and continuing the permit. The Environmental

Court properly noted that the Board’s procedures continuing the

permit did not include any “best interests of the State”

findings. We respectfully disagree with the dissent’s premise

that the Environmental Court reached the merits of BLNR’s

decisions to continue the permit. We view the Environmental

Court’s conclusion as based on further procedural deficiencies

rather than the merits of BLNR’s decisions approving the permit.

This is supported by the Environmental Court’s Final Judgment

56 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

which dismissed Petitioners’ requests to address the merits of

their claim that the Board violated HRS Chapter 343 by twice

continuing the permit.

/s/ Mark E. Recktenwald

/s/ Sabrina S. McKenna

/s/ Todd W. Eddins

/s/ Vladimir P. Devens