Mālama Kakanilua v. Director of the Department of Public Works

• Court: Hawaii Intermediate Court of Appeals
• Decided: November 20, 2025
• Docket: CAAP-19-0000107
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-NOV-2025 08:04 AM Dkt. 84 MO NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

MĀLAMA KAKANILUA, an unincorporated association, CLARE H. APANA, and KANILOA LANI KAMAUNU, Plaintiffs-Appellants, v. DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS, COUNTY OF MAUI, and MAUI LANI PARTNERS, a domestic partnership, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 2CC181000122)

MEMORANDUM OPINION (By: Nakasone, Chief Judge, Leonard and McCullen, JJ.) This case is on remand from the Hawai i Supreme Court

for decision on whether the Circuit Court of the Second Circuit

(Circuit Court) erred in granting Hawai i Rules of Civil

Procedure (HRCP) Rule 12(b)(6) motions to dismiss filed by

Defendants-Appellees Maui Lani Partners (MLP) and Director of the

Department of Public Works (Director), County of Maui (County).

I. BACKGROUND

Prior to the filing of the action underlying this

appeal, in Civ. No. 17-1-0311(3) (the 2017 Case), the appellants

herein (as described below) filed an earlier action seeking,

inter alia, to enjoin MLP from certain grading or excavation NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

absent compliance with Hawaii Revised Statutes (HRS) chapter 6E.

On November 16, 2017, the Circuit Court entered a Preliminary

Injunction in the 2017 Case, which enjoined MLP from further

ground-disturbing activity unless notice was given to the

appellants herein and MLP accommodated a supervisor designated by

these appellants during the ground-disturbing activity.

On March 14, 2018, Plaintiffs-Appellants Mālama

Kakanilua, Clare H. Apana (Apana), and Kaniloa Lani Kamaunu

(Kamaunu) (collectively, Appellants) filed a complaint (2018

Complaint) against MLP, the Director, and the County in the

proceedings below (the 2018 Case). Appellants alleged, inter

alia, that Mālama Kakanilua was an unincorporated association

formed to protect iwi, burials and other historic and

archeologically significant sites, and Apana and Kamaunu were

descendants of persons who inhabited the Hawaiian islands prior

to 1778 and are cultural practitioners. MLP was allegedly mining

and excavating large quantities of sand from sensitive

archeological sites as part of the Phase IX project site of its

Maui Lani Project. A grading permit was issued to MLP on

December 5, 2014, and effective until December 8, 2017. On

November 20, 2017, the County Department of Public Works (DPW)

granted a one-year extension of MLP's grading permit, making its

new expiration date December 8, 2018. The Director of DPW

refused Appellants' request to rescind this extension.

Count I of the Complaint sought an injunction against

the extension of MLP's grading permit. Count II sought an order

in the nature of quo warranto and alleged that the Director had

2 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

granted the extension without good cause and in the absence of

hardship, rendering the Director's action ultra vires and a

usurpation of power belonging to the County Council. Count III

sought declaratory relief that the extension was in excess of the

authority of the Director.

On April 4, 2018, the Director filed a Motion to

Dismiss Complaint With Prejudice.

On April 4, 2018, MLP filed a Motion to Dismiss

Complaint.

Although both motions to dismiss attached exhibits, the

Circuit Court stated that it was not considering facts outside

the Complaint.

On July 24, 2018, the Circuit Court entered an Order

Granting Defendants' Motions to Dismiss Without Prejudice (Order

Dismissing Complaint). The dismissal was without prejudice so as

not to impact Appellants' claims in the 2017 Case, which remained

ongoing and involved overlapping factual allegations.

On October 2, 2018, the Circuit Court entered a

Judgment of Dismissal Without Prejudice (Judgment).

On October 29, 2018, Appellants filed a Motion for

Reconsideration and Relief from Judgment, pursuant to HRCP

Rule 60(b).

On January 25, 2019, the Circuit Court entered an Order

Denying Plaintiff's Motion for Reconsideration and Relief from

Judgment (Order Denying Reconsideration) and an Order re

Defendants' Bill of Costs (Order re Costs).

On February 23, 2019, Appellants filed a Notice of

Appeal.

3 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

On March 15, 2024, this court issued a Summary

Disposition Order affirming the Circuit Court's January 25, 2019

Order Denying Reconsideration and Order re Costs. This court did

not address the Order Dismissing Complaint because Appellants

filed the Notice of Appeal more than thirty days after the

October 2, 2018 Judgment, and the October 29, 2018 Motion for

Reconsideration and Relief from Judgment was not filed within ten

days of the Judgment.

On September 30, 2025, a divided supreme court held

that a motion for reconsideration filed pursuant to HRCP

Rule 60(b)(6) is a "tolling motion" that extends the time to file

a notice of appeal if filed by the deadline for appeal pursuant

to Hawai i Rules of Appellate Procedure (HRAP) Rule 4(a)(1). The

supreme court determined that "the ICA should have reached the

merits of Petitioners' appeal contesting the circuit court's

granting of the motion for dismissal" and vacated the ICA's

April 12, 2024 Judgment on Appeal in part, and remanded for

further proceedings consistent with the majority opinion.

II. REMAINING POINT OF ERROR ON APPEAL

On remand to review the Order Dismissing Complaint,

Appellants' second point of error is at issue. In this point of

error, Appellants contend that the Circuit Court erred in

concluding that the Director was not required to consult the

State Historic Preservation Division (SHPD) prior to extending

the grading permit to MLP.

III. APPLICABLE STANDARD OF REVIEW

"A circuit court order granting a motion to dismiss is

reviewed de novo." Civil Beat Law Ctr. for the Pub. Int., Inc.

4 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

v. City and Cnty. Of Honolulu, 144 Hawai i 466, 474, 445 P.3d 47,

55 (2019) (citation omitted). Dismissal is not proper unless it

appears beyond doubt that the plaintiff can prove no set of facts

in support of the plaintiff's claim that would entitle him or her

to relief. Id. The allegations of the complaint are viewed in

the light most favorable to the plaintiff and deemed to be true.

Id. "However, 'the court is not required to accept conclusory

allegations on the legal effect of the events alleged.'" Id.

(citation omitted).

IV. DISCUSSION

Appellants argue that the Director's extension of MLP's

grading permit, without consulting SHPD, violated their

constitutional rights under article XII, § 7 of the Hawai i

Constitution, which requires protection for their traditional and

customary practices. Article XII, § 7 states: 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.

Appellants' argument is inconsistent with the

allegations of the Complaint, and lacks support in Hawai i case

law, statutes, and administrative rules, which require

consultation with SHPD prior to the grant of a permit, and

notification to SHPD upon discovery of human remains and

consultation with the appropriate burial council.

First, the Complaint alleged that SHPD was consulted

before DPW granted the permit, and again before DPW granted the

extension. According to the Complaint, by letter dated

5 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

November 26, 2014, SHPD accepted an architectural monitoring plan

(AMP) prepared by MLP's consultant. On December 5, 2014, DPW

approved MLP's grading permit. The Complaint also alleged that

the Director contacted SHPD in July 2017, the same month

Appellants filed the 2017 Case alleging violations of HRS Chapter

6E consequent to MLP's sand mining operation at the Phase IX

project site. The Complaint alleges that prior to bringing the

2018 Case that underlies this appeal, Appellants requested that

the Director rescind the grading permit extension.

Appellants do not cite any case, statute, or

administrative rule requiring consultation with SHPD prior to

granting a permit extension. Applicable statutes, administrative

rules, and case law require consultation with SHPD prior to the

grant of a permit or entitlement, and notification to SHPD and

consultation with the appropriate burial council in the event of

discovery of human remains after a project has started.

HRS § 6E-42 (Supp. 2017) states in part: § 6E-42 Review of proposed projects. (a) Except as provided in section 6E-42.2, before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the [Department of Land and Natural Resources (DLNR)] and prior to any approval allow the [DLNR] an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawai i register of historic places.

In Kaleikini v. Yoshioka, 128 Hawai i 53, 72-73, 283

P.3d 60, 79-80 (2012), the supreme court recognized that HRS

§ 6E-8, applicable to projects commenced by "any agency or

officer of the State or its political subdivisions", and HRS

6 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

§ 6E-42, applicable to projects requiring the approval of "any

agency or officer of the State or its political subdivisions,"

establish a sequential review process and requires that the DLNR

be given an opportunity to review and comment before approval is

given for a proposed project. To require reconsultation with

SHPD before an extension would be inconsistent with this

sequential process and Appellants have not cited any case,

statute, or administrative rule requiring reconsultation with

SHPD prior to extending a permit that was issued after SHPD

already was consulted and approved an AMP.

Requiring another consultation with SHPD prior to

granting a permit extension would also be inconsistent with HRS

§ 6E-43.6 and DLNR administrative rules, which specify the

procedures to be followed in the event of discovery of burials or

human remains. HRS § 6E-43.6 (2009) states in part:

§ 6E-43.6 Inadvertent discovery of burial sites. (a) In the event human skeletal remains are inadvertently discovered, any activity in the immediate area that could damage the remains or the potential historic site shall cease until the requirements of subsections (b) to (d) have been met.

(b) The discovery shall be reported as soon as possible to the [DLNR], the appropriate medical examiner or coroner, and the appropriate police department. As soon as practicable, the [DLNR] shall notify the appropriate [burial] council and the office of Hawaiian affairs.

Hawai i Administrative Rules (HAR) § 13-279-6(b) (eff.

Dec. 11, 2003) states: "If human skeletal remains are recovered

during monitoring, they shall be treated as an inadvertent

discovery. Any relocation of the human remains and any

associated grave goods shall follow the procedure of chapter 13-

300."

Chapter 300 of HAR Title 13, Subtitle 13 "governs

practice and procedure relating to the proper care and protection

7 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

of burial sites found in the State." HAR § 13-300-1 (eff.

Sept. 28, 1996). HAR § 13-300-21 requires the DLNR to "establish

an island burial council for Hawai i, Maui/Lāna i, Molokai, O ahu,

and Kaua i/Ni ihau to carry out all applicable duties established

by sections 6E-43, 6E-43.5, and 6E-43.6, HRS, and any other

applicable law."

HAR § 13-300-40 states in part: § 13-300-40 Inadvertent discovery of human remains. (a) The department shall have jurisdiction over any inadvertent discovery of human skeletal remains and any burial goods over fifty years old, regardless of ethnicity.

(b) The inadvertent discovery shall be immediately reported to the following persons:

(1) The state historic preservation division, unless discovery occurs on Saturday, Sunday, or holiday at which time the report shall be made to the division of conservation and resource enforcement;

(2) The medical examiner or coroner from the county in which the inadvertent discovery occurred; and

(3) The police department of the county in which the inadvertent discovery occurred.

(c) Once the report of an inadvertent discovery has been made, the department shall do the following:

(1) Assure that all activity in the immediate area of the human skeletal remains ceases and that appropriate action to protect the integrity and character of the burial site from damage is undertaken;

(2) Assure that a representative of the medical examiner or coroner's office and a qualified archaeologist determines whether the human skeletal remains are over fifty years old;

(3) Conduct a site inspection where necessary;

(4) Gather sufficient information, including oral tradition, by seeking individuals who may have knowledge about the families possibly connected lineally or culturally with the inadvertently discovered human skeletal remains, to help document the nature of the burial context and determine appropriate treatment;

(5) Complete departmental inadvertent discovery forms;

8 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(6) Notify the council member who represents the geographic region where the human skeletal remains were discovered, and the Office of Hawaiian Affairs;

(7) Inform the landowner or its agent of the discovery if different from the person making the report; and

(8) Determine whether to preserve in place or relocate the human skeletal remains.

. . . .

(e) Where human skeletal remains are reasonably believed to be Native Hawaiian following an evaluation pursuant to section 13-300-31, the department shall determine whether to preserve in place or relocate, following consideration and application of the criteria stated in section 13-300-36 and in consultation with appropriate council members, the landowner, and any known lineal or cultural descendants.

(f) Where the human skeletal remains are reasonably believed to be non Native Hawaiian following an evaluation pursuant to section 13-300-31, the department shall determine whether to preserve in place or relocate following application of the criteria stated in section 13-300-37, and in consultation with appropriate ethnic organizations, the landowner, and any known lineal or cultural descendants.

Pursuant to HRS § 6E-43.6 and HAR § 13-300-40(b), the

duty to report to SHPD is triggered by the discovery of human

remains. And, while notification is to be given to SHPD, it is

the appropriate burial council members who are to be consulted

regarding handling of Native Hawaiian remains. HAR § 13-300-

40(e).

The Complaint did not allege that human remains were

discovered at the Phase IX project site prior to the Director

granting the permit extension. According to the Complaint, the

preliminary injunction granted in Appellants' earlier suit was

based on the "potential for unmonitored grading material

containing human remains being removed from the site" and three

violations of the AMP that SHPD had approved prior to grant of

the permit.

9 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

DLNR has procedures in place to address inadvertent

discovery of human remains. Appellants did not allege a

discovery of human remains, and already had their prior suit

pertaining to violations of the AMP. Hawai i law does not

require consultation with SHPD prior to extending a permit.

Rather, Hawai i law recognizes a duty to consult with SHPD prior

to the grant of the permit, as well as notification to the DLNR

and SHPD and consultation with the appropriate burial council

upon actual discovery of human remains. Accordingly, we conclude

that the Circuit Court did not err in dismissing Count I of the

Appellants further argue that Counts II and III were

premised on the common allegation that no good cause existed to

authorize the Director's extension of MLP's grading permit. They

argue that by determining the allegations were so conclusory to

warrant dismissal, the circuit court failed to construe the

allegations in the light most favorable to them. An applicant's

self-serving declaration that it needed to finish grading,

"particularly for a period extending four years after the

original approval," is not good cause and would require all

extension requests be granted.

However, the Complaint did not allege that the Director

lacked good cause to grant the extension. Rather, the Complaint

alleges that when Appellants requested that the Director rescind

the permit extension, the Director refused on the basis of "good

cause, consisting of applicant's need to complete grading

operations."

10 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Regarding the extension, the Complaint alleged in Count

II: 50. A grading permit application requires review by SHPD before DPW or the Director can approve the same.

51. A grading permit expires and becomes null and void one year after the date of issuance.

52. The Director has the power to grant a time extension of a grading permit in cases of hardship or for good cause.

53. Where hardship or good cause are lacking, the Director is without power to grant an extension.

54. Only the County Council has the power to permit grading, stockpiling or grubbing outside of the present framework, which it is empowered to do only by passing an ordinance.

55. The Director's granting of a permit extension in the absence of hardship or good cause is ultra vires and usurps the power of the County Council.

56. Quo warranto may be used to inquiry into what authority a person claims to exercise some government power. It is to prevent the unlawful exercise of power.

57. Plaintiffs therefore seek an order in the nature of quo warranto and for a judgment preventing the Director's usurpation.

Count III repeats these allegations and seeks a

declaration that the grading permit extension is in excess of the

As noted above, to defeat an HRCP Rule 12(b)(6) motion

to dismiss, a complaint need only contain a short and plain

statement of the claim showing that the pleader is entitled to

relief and giving the defendant fair notice of the claim and the

ground upon which it rests. Civ. Beat Law Ctr. For Pub. Int.,

144 Hawai i at 474, 445 P.2d at 55. "However, 'the court is not

required to accept conclusory allegations on the legal effect of

the events alleged.'" Id. (citation omitted).

11 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Maui County Code § 20.08.110 states: Every grubbing or grading permit shall expire and become null and void one year after the date of issuance. However, the director may grant a time extension in cases of hardship or for good cause.

Although Appellants assert that extending a permit for

a fourth year after original issuance raises a claim upon which

relief can be granted, the Complaint made no factual allegations

to dispute that grading was incomplete when the Director granted

the extension, which was the basis for the Director's

determination of good cause. Section 20.08.110 does not place

any time limitations on the Director's ability to grant an

extension, and the Complaint lacks any other factual basis for

challenging the Director's discretionary determination of good

cause. Therefore, the passage of time alone was insufficient to

state a claim that the Director lacked good cause to grant an

extension.

Appellants also failed to allege sufficient facts to

support a claim in the nature of quo warranto. "A petition for a

writ of quo warranto seeks a court order directing a person who

claims or usurps a state office to show by what authority he or

she claims the office." Application of Ferguson, 74 Haw. 394,

399, 846 P.2d 894, 897 (1993). The Complaint alleged that the

Maui County Code authorized the Director to grant a permit

extension. The Complaint does not allege any factual basis that

the Director acted outside his authority. The Complaint also

acknowledged that whether to grant an extension was within the

Director's discretion. Accordingly, the Complaint fails to state

12 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

a claim that the extension of the permit was an unauthorized

exercise of power.

For these reasons, we conclude that the Circuit Court

did not err in entering the Order Dismissing Complaint. The

Circuit Court's October 2, 2018 Judgment is affirmed.

DATED: Honolulu, Hawai i, November 20, 2025.

On the briefs: /s/ Karen T. Nakasone Chief Judge Lance D. Collins (Law Office of Lance D. /s/ Katherine G. Leonard Collins), Associate Judge for Plaintiffs-Appellants. /s/ Sonja M.P. McCullen Kristin K. Tarnstrom, Associate Judge Caleb P. Rowe, Deputies Corporation Counsel, County of Maui, for Defendants-Appellees.