Public Access Trails Hawai'i v. Haleakala Ranch Company

526 P.3d 526, 153 Haw. 1

• Court: Hawaii Supreme Court
• Decided: March 15, 2023
• Docket: SCWC-16-0000559
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 15-MAR-2023 12:33 PM Dkt. 25 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o--- ________________________________________________________________

PUBLIC ACCESS TRAILS HAWAIʻI, a Hawaiʻi Nonprofit Corporation, and DAVID BROWN, JOE BERTRAM, III; KEN SCHMITT; for themselves individually, and on behalf of the certified class members, Petitioners/Plaintiffs-Appellants,

vs.

HALEAKALA RANCH COMPANY, a Hawaiʻi Corporation; STATE OF HAWAIʻI, WILLIAM AILĀ, JR., in his official capacity as the Director of the State of Hawaiʻi DEPARTMENT OF LAND AND NATURAL RESOURCES and chair of the State of Hawaiʻi BOARD OF LAND AND NATURAL RESOURCES; DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Defendants-Appellees.

DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʻI, Respondent/Cross-Claimant-Appellee,

HALEAKALA RANCH COMPANY, a Hawaiʻi Corporation, Respondent/Cross-Claim Defendant-Appellee. ________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CIV. NO. 11-1-0031(3))

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RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ., WITH McKENNA, J., ALSO CONCURRING SEPARATELY, WITH WHOM WILSON, J., JOINS

OPINION OF THE COURT BY WILSON, J.

I. INTRODUCTION

This case involves the recovery of attorneys’ fees and

costs by a plaintiff from a private defendant under the private

attorney general (“PAG”) doctrine.

Petitioners/Plaintiffs-Appellants Public Access Trails

Hawaiʻi (“PATH”); David Brown; Joe Bertram, III; and Ken Schmitt

(collectively “Petitioners”) prevailed against Respondent/

Defendant-Appellee Haleakalā Ranch Company (“HRC”) in procuring

a judgment from the Circuit Court of the Second Circuit

(“circuit court”) that the State of Hawaiʻi (“State”), not HRC,

owned a portion of Haleakalā Trail that ran over HRC’s property.

This appeal stems from Petitioners’ attempt to recover

attorneys’ fees from HRC under the PAG doctrine.

The PAG doctrine remains an essential tool for

promoting the vindication of public rights. Because eligible

plaintiffs may recover attorneys’ fees, the PAG doctrine enables

litigation in the public’s interest by relieving otherwise

prohibitive costs and burdens assumed by individuals and public

interest groups. To date, the PAG doctrine has promoted

litigation aimed at the preservation and conservation of

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Hawaii’s land and natural resources, as well as litigation

vindicating the rights of the Native Hawaiian community. The

viability of the PAG doctrine hinges on plaintiffs being able to

rely on the doctrine’s promise that they will receive reasonable

compensation for their efforts on behalf of the public. We hold

that this promise translates into allowing plaintiffs who

recover attorneys’ fees and costs under the PAG doctrine to also

recover those fees and costs reasonably incurred in litigating

their initial claim for fees (“fees on fees”).

We also hold that a plaintiff may recover attorneys’

fees under the PAG doctrine from a private defendant even where

the State voluntarily participated as a co-litigant in the case.

The State’s participation pursuant to a joint prosecution

agreement, or other agreement to co-litigate, is not dispositive

with respect to whether a plaintiff’s private enforcement

efforts were necessary under the PAG doctrine.

Because the Intermediate Court of Appeals (“ICA”) held

to the contrary, we vacate the ICA’s March 31, 2021 Judgment on

Appeal and remand to the circuit court for proceedings

consistent with this opinion.

II. BACKGROUND

A. Factual Background

1. Pretrial Proceedings

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On January 18, 2011, Petitioners filed a complaint

against HRC and William Ailā, Jr., in his official capacity as

the Director of the State of Hawaiʻi Department of Land and

Natural Resources (“DLNR”) and Chair of the State of Hawaiʻi

Board of Land and Natural Resources (“BLNR”) (hereinafter “the

State”), seeking to restore public access to Haleakalā Trail on

the island of Maui.1 On March 31, 2011, the State filed a motion

to dismiss the case, which HRC joined. The circuit court2

entered an order denying in part and granting in part the

State’s motion to dismiss.3

a. Joint Prosecution Agreement Between Petitioners and the State

On December 26, 2012, Petitioners and the State

entered into a joint prosecution agreement (“JPA”), in which

Petitioners and the State agreed to jointly prosecute Count III

(claims under the Highways Act of 1892 and Hawaiʻi Revised

Statutes (“HRS”) § 264-1 (2008)) and Count IV (claim to quiet 1 The Complaint consisted of: Count I (public trust); Count II (customary and traditional access); Count III (Highways Act of 1892 and HRS § 264-1); Count IV (quiet title); Count V (public nuisance); Count VI (HRS § 6E - historic preservation); and Count VII (due process). Petitioners filed their Second Amended Complaint on August 30, 2013, which is substantively similar to their first Complaint, but was updated to reflect class certification and to identify the specific portion of Haleakalā Trail by an attached metes and bounds survey.

2 The Honorable Joseph E. Cardoza presided.

3 The circuit court denied Petitioners’ claims seeking declaratory relief under HRS chapter 669, under the Highways Act of 1892 and HRS § 264-1 (on the grounds that those statutes did not create a private right of action), and under 42 U.S.C. § 1983.

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title) of the Petitioners’ original complaint. Petitioners

agreed to dismiss without prejudice their claims against the

State, and the State agreed to file a cross-claim against HRC

asserting ownership of Haleakalā Trail.

The JPA stated, in relevant part, that the State

shall: “at minimum, join with the [Petitioners] on substantive

motions in Court against HRC with respect to the [JPA], or join

and support any appellate arguments” related to the JPA;

“coordinate with [Petitioners] in the preparation of evidence

for motions, evidentiary hearings, and/or trial against HRC on

the [JPA]”; and “not object to any efforts by [Petitioners] to

seek from HRC attorneys’ fees and costs of suit pursuant to the

[PAG] doctrine, and/or as otherwise permitted by law[,]” should

Petitioners prevail against HRC. The JPA also stated that “[a]

Party’s sole remedy for a material breach [of the JPA] is to

seek from the Court a return to the status quo before this

Agreement was signed.”

In joining Petitioners’ motion to the circuit court to

approve the JPA, the State posited that although it “did not

believe [Petitioners] could try title to property that

[Petitioners] do not own or have an interest in[,]” because the

circuit court disagreed, “the State necessarily supports

[Petitioners’] position that the State, not HRC, owns the

property.” The State declared that “[Petitioners] and the State

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want the same outcome as to ownership of the property[,]” and

noted that Petitioners “will continue to take the lead role in

the litigation but benefit from State support.”

On February 4, 2013, the court filed an order granting

Petitioners’ motion to approve the JPA. Pursuant to the JPA, on

March 6, 2013, the DLNR filed its cross-claim against HRC, and

on March 27, 2013, the circuit court ordered all of Petitioners’

claims against the State dismissed without prejudice.

b. Circuit Court’s Bifurcation Order

On May 3, 2013, the circuit court ordered the trial

bifurcated into two phases. Phase one of trial consisted of (1)

the State’s cross-claim against HRC to quiet title, (2) the

public right of way element of Petitioners’ public nuisance

claim against HRC, and (3) HRC’s cross-claim against the State,

asserting that HRC was the sole and exclusive owner of Haleakalā

Trail.

c. Proposed Land Exchange Between the State and HRC

In or about September 2013, HRC and the DLNR began

negotiating a land exchange, in which the DLNR agreed to give up

its interest in Haleakalā Trail in exchange for construction of

a jeep trail on HRC property that would provide access to the

State Forest Reserve. On November 14, 2013, Petitioners sent a

letter to the BLNR voicing their concerns regarding the proposed

land exchange and reiterating their position that the State

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should focus on obtaining public access to Haleakalā Trail.

Petitioners asserted in their letter, among other things, that

the “DLNR’s willingness to pursue the land exchange, or even to

evaluate it” violated the terms of the JPA. On December 16,

2013, Petitioners sent a similar letter to the BLNR, which urged

the BLNR to defer placing the proposed land exchange on its

agenda for consideration. On January 8, 2014, Petitioners sent

a letter urging the BLNR to refrain from making a decision on

the proposed land exchange at its upcoming meeting on January

10, other than to approve further environmental and

archeological review. At the BLNR’s January 10 meeting, the

BLNR heard testimony from Petitioners, HRC, and State officials.

The BLNR ultimately decided not to approve the land exchange,

citing the need to collect more information about the

environmental impact of such an exchange.

d. Petitioners’ HRS § 607-14.5(c) Notice to HRC

On October 24, 2013, pursuant to HRS § 607-14.5(c)

(2016),4 Petitioners sent a written letter to HRC requesting that

4 HRS § 607-14.5(c) states:

A party alleging that claims or defenses are frivolous may submit to the party asserting the claims or defenses a request for withdrawal of the frivolous claims or defenses, in writing, identifying those claims or defenses and the reasons they are believed to be frivolous. If the party withdraws the frivolous claims or defenses within a reasonable length of time, the court shall not award attorneys’ fees and costs based on those claims or defenses under this section.

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HRC: (1) withdraw its frivolous claims and defenses that it

owned Haleakalā Trail, (2) stipulate that the State owned

Haleakalā Trail, and (3) pay Petitioners $500,000.00 in

attorneys’ fees.5 On October 29, 2013, HRC sent back a two-

sentence rejection of Petitioners’ demand.

e. Petitioners’ Motion for Summary Judgment on the Issue of State Ownership

On November 20, 2013, Petitioners filed a motion for

partial summary judgment (“MPSJ”), alleging that there was no

genuine dispute of material fact that the State owned in fee

simple the portion of Haleakalā Trail that fell within HRC’s

private property.6

On December 11, 2013, at a hearing on Petitioners’

MPSJ, Petitioners argued that they had met their burden of

showing that Haleakalā Trail was “open, laid out, and built” by

the State and that the State “never relinquished the trail by

due process of law.” Petitioners emphasized “that the location

of the trail is not before the Court right now” and that they

were “not asking the Court to determine that at this stage.”

5 Petitioners state that “similar notice” was provided to HRC nearly eight months earlier on February 29, 2013. On February 26, 2013, PATH sent HRC an email countering several of HRC’s arguments that it owned the Trail, with supporting case law attached, stating that it “wanted to make sure HRC was aware of these cases before it continue[d] to trial.”

6 In support of their MPSJ, Petitioners submitted the testimony of an expert trail witness opining that Haleakalā Trail was a trail “opened, laid out, and built” by the State for public use.

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The circuit court, however, in denying Petitioners’ MPSJ,

pointed to the “good deal of discussion about the location” of

Haleakalā Trail, and stated, “I do think in this instance that

location [of Haleakalā Trail] is part and parcel of what would

be required to create a record that could allow the Court to

grant the motion.”

f. State Support of Senate Bill 2728

On January 17, 2014, State Senator J. Kalani English

introduced Senate Bill 2728 (“S.B. 2728”) as a proposed

amendment to the Highways Act, as codified at HRS § 264-1. S.B.

2728, 27th Leg., Reg. Sess. (Haw. 2014). S.B. 2728, as

originally introduced, stated that the legislature had the

authority to “declare[]” public trails. Id. S.B. 2728 also

included a provision making it retroactive to January 1, 2011,

which would have effectively mooted Petitioners’ complaint,

which was filed on January 18, 2011. Id. The DLNR submitted

testimony stating that it “support[ed] the intent” of S.B. 2728.

Hearing on S.B. 2728, S.D. 2, Before the H. Comm. on

Transportation, 27th Leg., Reg. Sess. (Haw. 2014) (testimony of

William J. Ailā, Jr., Chairperson, BLNR); Hearing on S.B. 2728,

S.D. 1, Before the S. Comm. on Ways & Means, 27th Leg., Reg.

Sess. (Haw. 2014) (testimony of William J. Ailā, Jr.,

Chairperson, BLNR); Hearing on S.B. 2728, Before the S. Comm. on

Transportation & Int’l Affairs, 27th Leg., Reg. Sess. (Haw.

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2014) (testimony of William J. Ailā, Jr., Chairperson, BLNR). A

subsequent draft of S.B. 2728 incorporated an amendment proposed

by the DLNR that “subject[ed]” public trails to “being accepted

by the [BLNR].” S.B. 2728, H.D. 1, 27th Leg., Reg. Sess. (Haw.

2014). Petitioners submitted testimony in opposition to S.B.

2728. Hearing on S.B. 2728, Before the S. Comm. on

2014) (testimony of David Henderson Brown, PATH). Ultimately,

S.B. 2728 died in committee and was not enacted.

2. Jury Trial on Phase One Issues

On March 17, 2014, a jury trial commenced to determine

the phase one issues.7 PATH, on behalf of Petitioners, and the

State participated in the voir dire process, and both delivered

opening statements once the jury was empaneled. During trial,

PATH performed the direct examination of Petitioners’ three

expert witnesses: Anthony Crook (expert in surveying and

mapping), Richard Stevens (expert in world history and trail

research), and Doris Moana Rowland (expert in the Hawaiian

islands, title research, and translation of Hawaiian documents).

PATH also performed the cross-examination of the State’s expert

witness, Patrick Cummins (expert in mapping and surveying of

trails and roads in Hawaiʻi). PATH and the State delivered

7 See supra section II.A.1.b.

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closing arguments on April 22, 2014, and trial adjourned after

five weeks on April 23, 2014.

a. Circuit Court’s Judgment

On December 19, 2014, the circuit court entered its

judgment on phase one of the jury trial. Consistent with the

jury’s special verdict delivered on April 23, 2014 in favor of

Petitioners, the circuit court declared and ordered, in relevant

part, that:

2. Haleakala Trail is a public right of way under the Highways Act of 1892 by virtue of being opened, laid out, or built by the Government in 1905.

3. Haleakala Trail is a public right of way under the Highways Act of 1892 by virtue of being the successor trail to a trail in existence before 1892.

4. Haleakala Trail is a public right of way by virtue of being the successor trail to a trail in existence before the Mahele of 1848.

5. Haleakala Trail has not been abandoned by the Government by due process of law.

6. The State owns Haleakala Trail in fee simple.

. . . .

8. Haleakala Trail is a public right of way and therefore Plaintiff’s[sic] have proven the first element of their public nuisance claim against [HRC].

3. Settlement Agreement

On December 19, 2014, the same day the circuit court

issued its phase one judgment, Petitioners, the State, and HRC

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mediated a settlement agreement (“Settlement”).8 The handwritten

Settlement states, in relevant part:

The parties agree as follows:

All claims in Phase I of the trial are final and nonappealable and HRC may not request a new trial.

All claims for Phase II of the trial are dismissed with prejudice by Plaintiffs.

The parties agree as follows with respect to Plaintiffs[sic] attorneys’ fees motion:

- The motion will be heard by Judge Cardoza, whose decision may be appealed by either party[.] - HRC further agrees that it will not seek any form of land exchange of Haleakala Trail with the State. - Plaintiff’s[sic] motion for attorneys’ fees will be heard by Judge Cardoza in his courtroom in the normal course[.]

The Settlement was signed by Petitioners, the State, and HRC.

4. Attorneys’ Fees

a. For Phase One of the Trial

1. Petitioners’ First AF Motion

On December 16, 2014, Petitioners filed a “Motion for

Attorneys’ Fees and Costs for Phase One of Trial” (“first AF

motion”) requesting attorneys’ fees in the amount of

$1,108,915.30 and costs in the amount of $24,871.00 for a total

of $1,133,786.30 pursuant to the PAG doctrine. Petitioners also

requested that the circuit court issue written findings that (1)

8 The copy of the Settlement in the record was submitted as Exhibit A of Petitioners’ March 2, 2015 motion to the circuit court to approve the Settlement on behalf of the certified class members. Petitioners explain that the Settlement was redacted as to provisions pertaining to Petitioners’ first motion for attorneys’ fees, which was then-pending before the circuit court.

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“HRC failed to admit to the genuineness of documents and the

truth of matters” during discovery, which “were later proved

during phase one of the trial[,]” and (2) “HRC’s claim of

private ownership of the Trail was made in bad faith[.]”

Petitioners argued they were entitled to attorneys’

fees because they were a prevailing party and, pursuant to the

PAG doctrine, “were solely responsible for vindicating [the]

important public policy” of protecting Haleakalā Trail under the

Highways Act, which set an “important precedent” that may be

used to “protect similar historic trails and roads in Hawaiʻi for

the benefit of current and future generations.” Petitioners

argued that the circuit court should apply the PAG doctrine

after considering the following three factors: “(1) the

strength or societal importance of the public policy vindicated

by the litigation, (2) the necessity for private enforcement and

the magnitude of the resultant burden on the plaintiff, and (3)

the number of people standing to benefit from the decision.”

Honolulu Constr. & Draying Co. v. DLNR (Irwin Park II), 130

Hawaiʻi 306, 308, 310 P.3d 301, 303 (2013).

As to the first factor, Petitioners asserted that

“protection and preservation of public and historic trails . . .

is a significant public policy.” Petitioners emphasized that

even though the litigation “involved the protection of [only]

one historic trail,” their verdict “st[ood] as a precedent that

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w[ould] further the ultimate goal of the [PAG] doctrine[.]”

Petitioners pointed to a number of other “important public

policies in addition to” the “protection and preservation of

historical trails,” which included confirming the scope of the

Highways Act and clarifying a party’s right to bring a public

nuisance action and/or an action under the Highways Act.

As to the second factor of the PAG doctrine,

Petitioners cited Irwin Park II in arguing that even though the

State participated in the litigation against HRC, Petitioners

were “‘solely responsible’ for vindicating the State’s ownership

of Haleakalā Trail as a public right of way.” Irwin Park II,

130 Hawaiʻi at 316, 310 P.3d at 311. Petitioners emphasized the

State’s failure to assert ownership or contest HRC’s claim of

private ownership of the Trail dating back to 2003, including

the State’s 2007 actions “negotiating a memorandum of agreement

[“MOA”] that gave unilateral control of Haleakalā Trail to HRC

and failed to acknowledge State ownership.” Petitioners argued

that “the State took the lead role in seeking” to have their

2011 class action against HRC and the State dismissed.

Petitioners claimed that even after the State entered into the

JPA and Petitioners dismissed their claims against the State,

the State “still vigorously worked outside the courtroom to

undermine” Petitioners, taking actions that would have severely

damaged or mooted Petitioners’ case, including negotiating a

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land exchange with HRC and supporting the passage of S.B. 2728.

Petitioners also emphasized the lack of effort the State

expended as a cross-claimant against HRC, and noted that

Petitioners had assumed most of the costs and expenses of

preparing for and arguing their case at trial.

As to the third factor of the PAG doctrine,

Petitioners argued that the litigation stood to benefit a

“significant” number of people, including, not only the people

who use Haleakalā Trail, but also anyone who seeks to protect

other historic trails in Hawaiʻi under the Highways Act who may

rely on this case as precedent. Thus, although Petitioners’

case involved only a single trail, Petitioners further relied on

Irwin Park II in arguing that the case had a broad impact with

“general precedential value for enforcing governmental adherence

to the dedication of private land for public parks and as

historic sites, and for the enforcement of the government’s

commitments to the preservation of such parks and historic

sites.” Irwin Park II, 130 Hawaiʻi at 319, 310 P.3d at 314.

Finally, Petitioners argued that they were entitled to

attorneys’ fees because HRC’s claim of private ownership of

Haleakalā Trail was frivolous and maintained in bad faith.

Petitioners asserted that under the “bad-faith exception” to the

rule that each party pays its own costs and fees, the circuit

court had the “inherent power to curb abuses and promote a fair

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process, including the power to impose sanctions in the form of

attorneys’ fees for abusive litigation practices.” In re Water

Use Permit Applications (Waiāhole II), 96 Hawaiʻi 27, 29, 25 P.3d

802, 804 (2001). Petitioners also claimed that, under HRS §

607-14.5, the circuit court could award attorneys’ fees upon

making a written finding that “all or a portion of the claims or

defenses made by the party are frivolous and are not reasonably

supported by the facts and the law[.]” HRS § 607-14.5(b).

Petitioners claimed that “on multiple occasions,” as early as

2007 and as recently as a notice letter sent on October 26, 2013

pursuant to HRS § 607-14.5, they informed HRC that its claim of

private ownership of Haleakalā Trail had no basis in fact and

requested HRC withdraw its claim.9 Petitioners asserted that HRC

provided no rebuttal to these notices or requests. Petitioners

noted that, in making its decision regarding attorneys’ fees,

the circuit court could consider that notice, as contemplated in

HRS § 607-14.5, was provided to HRC. See HRS § 607-14.5(b).10

9 See supra section II.A.1.d.

10 Petitioners also argued that pursuant to Hawaiʻi Rules of Civil Procedure (“HRCP”) 36 and 37(c), they were entitled to attorneys’ fees for HRC’s failure during discovery to admit the truth of certain matters and authenticity of certain documents that were later proven true and authentic, respectively, during trial. The circuit court agreed, and awarded Petitioners fees and costs on this basis. This argument is not before this court on appeal, and therefore, will not be discussed further.

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To show that the attorneys’ fees sought were

reasonable and necessarily incurred, Petitioners included their

lodestar calculation for the period beginning when HRC was

served with their complaint on January 18, 2011, until the jury

delivered its special verdict on April 23, 2014, for attorneys’

fees totaling $1,108,915.30.11

2. HRC’s Opposition to Petitioners’ First AF Motion

On February 6, 2015, HRC filed its opposition to

Petitioners’ first AF motion. HRC disputed that Petitioners

were a prevailing party when they did not prevail “on any of the

Counts in the Complaint,” and only prevailed as to the first

element of their public nuisance claim. HRC argued that the

State, not Petitioners, was the prevailing party because the

State had “been awarded full relief on all elements of its

[quiet title] claim.” To the extent that Petitioners’ and the

State’s claims “involved identical proof,” HRC cited Fought &

Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 56, 951 P.2d

487, 506 (1998) in contending that Petitioners had not shown

“their services were not duplicative of the State’s work.”

11 Petitioners also argued that the circuit court should award enhanced fees because counsel represented Petitioners on a contingency basis at a substantially discounted rate, and prepared for a long and complex jury trial, and because the issues involved in the litigation were “of great public interest[.]”

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HRC argued that Petitioners failed to meet any of the

three prongs required to claim fees under the PAG doctrine. HRC

contended that Petitioners did not meet the first prong, which

considers the strength of the public policy vindicated by the

case, because the quiet title case did not further important

public policy. HRC emphasized that Petitioners did not prevail

on their historic preservation claim in phase one of the trial,

and that their claim under the Highways Act was dismissed on

summary judgment. HRC noted that HRS chapter 669, which governs

quiet title cases, contains no provision for attorneys’ fees,

and claimed that “[i]t is well established in Hawaii law that no

party to a quiet title case has a right to recover attorneys’

fees[.]” HRC argued that “[n]o Hawaii case has applied the [PAG

doctrine] to rights or public policies arising from statutory

laws that have no provision for attorneys’ fees[,]” and that,

because the State was not entitled to fees for prevailing on its

quiet title claim, Petitioners were similarly “not entitled to

such fees simply because they assisted the State’s prosecution.”

HRC contended that Petitioners did not meet the second

prong under the PAG doctrine, which considers the necessity of

private enforcement, because the State did not at any time

“wholly abandon” or “actively oppose” Petitioners’ cause. HRC

asserted that Petitioners “mischaracterize[d] the history of

this case” by claiming it was “forced” to file its 2011

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complaint because the State “abandoned” its ownership claim.

HRC, citing a letter to Tom Pierce from Laura H. Thielen, dated

Mar. 12, 2008, countered that the State had communicated to

Petitioners as early as 2008 that it believed its ownership

claim to be “tenuous at best” and was looking to “explore and

employ other methods and opportunities to provide public access”

to Haleakalā Trail. HRC argued that Petitioners

mischaracterized the State’s 2006 communications and 2007 MOA

with HRC, none of which conceded ownership of Haleakalā Trail,

and posited that the State’s proposed land exchange with HRC did

not necessitate private enforcement, but rather, furthered

public policy that favors settlement over litigation. HRC

contended that both the MOA and the proposed land exchange were

within the scope of DLNR’s managerial discretion and were

actions taken in the public interest.

HRC argued that the State’s initial opposition to

Petitioners’ complaint stemmed from the fact that the State

believed that Petitioners did not have a say in how the State

should expend its resources or resolve disputes. Moreover, HRC

continued, given that HRC and the State both believe “that the

MOA continues to govern public use of the trail,” the outcome of

this case--“a 6-foot wide trail that leads to the fence line of

the National Park boundary, barring further travel”--was

“outweighed by the millions of dollars of State and judicial

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resources spent.” HRC stated that finding Petitioners’ efforts

were necessary “amounts to a finding that a private party can

substitute its judgment and interests for that of the State[.]”

Moreover, HRC emphasized that any need for private enforcement

ended when the State entered into the JPA with Petitioners.12

HRC argued that if Petitioners “believed the State was failing

to meet its joint prosecution obligations,” their remedy was

claiming a breach of the JPA.

HRC contended that Petitioners did not meet the third

prong under the PAG doctrine, which considers the number of

people who benefit from the case, asserting that Petitioners

were “not advocating for the public but for their own group’s

rights[.]” HRC emphasized that Petitioners “were forced to

narrow their class membership because [their] interests

conflict[ed] with other portions of the public[,]” and,

moreover, that the number of people who sought and were denied

access to Haleakalā Trail was “extremely small.” HRC stated:

“It is simply disingenuous to suggest that quieting title to a

6-foot wide trail leading to a fence line will have a

significant impact on a significant number of people.”

12 HRC contended that if the circuit court was persuaded that Petitioners were entitled to attorneys’ fees, Petitioners should only recover $244,576.00, the fees accrued through December 26, 2012, the date the JPA was signed.

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HRC emphasized that the circuit court’s denial of

Petitioners’ MPSJ, taken together with its denial of

Petitioners’ motion for judgment as a matter of law and the fact

that the case proceeded before a jury, indicated that HRC’s

ownership claim was not frivolous under HRS § 607-14.5.

HRC rejected the amount of attorneys’ fees Petitioners

requested in their motion as “unreasonable” and “inaccurate.”13

HRC argued that Petitioners provided sloppy documentation of

their counsel’s services, failed to provide certain

documentation at all, used inappropriate billing methods (e.g.,

block and quarter hour billing), and requested fees for non-

compensable items. HRC contended that the requested billing

rates of Petitioners’ counsel far exceeded what was reasonable

and standard in the industry and in comparison to the rates

charged by HRC’s own counsel.

3. Petitioners’ Reply to HRC’s Opposition

Petitioners filed a reply to HRC’s opposition

memorandum on February 13, 2015. Petitioners countered HRC’s

argument that they were not a prevailing party by noting they

were successful in establishing that Haleakalā Trail was a

public right of way under the Highways Act. Petitioners

13 HRC also objected to Petitioners’ argument that fee enhancement was appropriate in this case, and noted that enhancement is limited to fees sought under fee-shifting statutes, not the PAG doctrine. See supra note 11.

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contended HRC “contorted” the circuit court’s March 18, 2014

order, which dismissed Petitioners’ claim seeking relief under

the Highways Act as a separate cause of action, but expressly

left intact Petitioners’ ability to “seek conclusions of law and

findings of fact that there is a public right of way” under the

Highways Act.

As to HRC’s arguments regarding the PAG doctrine,

Petitioners disputed HRC’s claim that the litigation did not

vindicate important public policy, emphasizing that the

legislative effort to pass S.B. 2728 and amend the Highways Act

evinced that this case was of great public interest and

importance. Petitioners contended that HRC “misinterpret[ed]”

Irwin Park II, which held that the important public policy

vindicated need not “be the subject of the litigation itself.”

Irwin Park II, 130 Hawaiʻi at 315, 310 P.3d at 310 (emphasis in

original). Petitioners also disputed HRC’s claim that private

enforcement was unnecessary. Petitioners argued that the

State’s recognition of its legal obligation (e.g., its

“recogni[tion] that it had a definite ownership interest in

Haleakalā Trail,” as evidenced by documents and legal opinions

from 2000, 2004, and 2009) and its subsequent failure to act on

that obligation necessitated private enforcement. Similarly,

Petitioners argued, entering into a MOA that gave HRC

“unilateral control and use of a public resource” constituted an

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abuse of discretion and a failure to meet the State’s legal

obligation to assert ownership over Haleakalā Trail.

Petitioners argued that they were entitled to attorneys’ fees

even after the date the JPA was entered into because they were

“solely responsible” for the outcome of the case and “but for

[their] effort there never would have been a first phase trial.”

Irwin Park II, 130 Hawaiʻi at 317, 310 P.3d at 312 (emphasis in

original). Furthermore, Petitioners asserted that “on multiple

occasions” they had communicated to the State their belief that

the State was in “anticipatory breach” of the JPA. Finally,

Petitioners disputed HRC’s claim that the case had “no public

benefit[,]” arguing that the case “clarifie[d] not only the

status of the property at issue [i.e., Haleakalā Trail], but

also the status of other similar public properties [i.e., other

historic trails].” Petitioners stated that another public

benefit of the case is deterrence of “other private landowners

who might have been inclined to deny public access to historic

trails.”

Petitioners persisted in their claim that HRC’s

refusal to concede private ownership of Haleakalā Trail was in

bad faith, and accused HRC of “us[ing] its significant financial

resources and political connections to bully a small nonprofit

into submission.” Petitioners objected to HRC’s assertion that

Petitioners’ failure to prevail on summary judgment was

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indicative that HRC’s ownership claim was not frivolous,

explaining that the circuit court had emphasized it could not

grant summary judgment because location of the trail was still

unclear.

4. February 18, 2015 Hearing on Petitioners’ First AF Motion

The circuit court held a hearing on February 18, 2015

on Petitioners’ first AF motion. The majority of the parties’

oral arguments hewed closely to their filings. The parties also

debated over the applicability of this court’s opinion in Irwin

Park II. Petitioners argued that their case was “closely on

point” with Irwin Park II and Bitterroot River Protective Ass’n

v. Bitterroot Conservation Dist., 251 P.3d 131 (Mont. 2010), a

Montana supreme court case cited with approval in Irwin Park II.

HRC responded that Irwin Park II was distinguishable from the

present case because Irwin Park II involved a park that was

formally designated as a historic place under HRS chapter 6E.

HRC emphasized that, in Irwin Park II, the State wholly

“abandoned its obligation” to protect the park’s status as a

historic place and “actively sought to have [it] changed from a

park into a parking structure.” HRC contrasted the properties--

a registered historic place in Irwin Park II versus “a six-foot

trail” here--and the State’s actions--actively seeking to turn

the park into a parking lot in Irwin Park II versus entering

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into a JPA here--and concluded that Irwin Park II was simply not

analogous.

5. Circuit Court’s Oral Ruling and Order Granting in Part and Denying in Part Petitioners’ First AF Motion

On February 25, 2015, the circuit court announced its

ruling granting in part and denying in part Petitioners’ first

AF motion. The circuit court found that Petitioners were

entitled to recover attorneys’ fees under the PAG doctrine

because: the litigation “vindicated . . . the important public

policy [of] preserving an ancient and unique historic site”;

Petitioners’ efforts were necessary given “the State’s initial

reluctance to preserve the trail” and pursuance of a land

exchange with HRC; and increasing public access to Haleakalā

Trail will “undoubtedly increase” the number of people who seek

to use the Trail for recreation and who recognize the Trail’s

“cultural value[.]” The circuit court held that Petitioners

were not precluded from being considered a prevailing party just

because their success in phase one of the trial represented only

partial success in their overall case.

The circuit court held that Petitioners were entitled

only to attorneys’ fees and costs “until the time that

[Petitioners] entered into a [JPA] with the State.” The circuit

court reasoned that, given the State’s cooperation after the JPA

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was entered into, it would be “inappropriate” to award costs and

fees for that time period:

Although at times, the joint relationship between the [Petitioners] and the State was not on a solid foundation, these parties continued with their [JPA] of the claims pursued during phase one of the trial. Under these circumstances, it is the Court’s view that it would be inappropriate to apply [PAG] doctrine beyond the date of the [JPA].

The circuit court found that the record did not

support Petitioners’ contention that HRC’s private ownership

claim was made and maintained in bad faith, and it did not order

costs and fees on this basis.

Consistent with its ruling, on March 4, 2015, the

circuit court issued an order granting in part and denying in

part Petitioners’ first AF motion, and specifying for which

items HRC was required to pay Petitioners’ costs and fees.14 The

circuit court ordered Petitioners to resubmit their request for

attorneys’ fees and costs, stated that the parties could address

the details of the requested fees in supplemental memoranda, and

set a hearing at which to announce the award of costs and fees.

6. Parties’ Supplemental Memoranda

Pursuant to the circuit court’s March 4 Order, the

parties filed additional memoranda regarding the amount of

14 The circuit court ordered HRC to pay Petitioners’ reasonable costs and fees for Items 10, 11, 21, and 28 in Petitioners’ Second Request for Admissions, and Items 1, 4, 12, 19, 20, 27, 40, and 41 in Petitioners’ Third Request for Admissions.

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attorneys’ fees and costs. Petitioners requested $396,031.01 in

attorneys’ fees through March 4, 2013 (the date Petitioners

claim the JPA became effective) and $24,871.00 in costs. HRC

requested the circuit court award Petitioners $120,852.00 in

attorneys’ fees through December 26, 2012 (the date the JPA was

signed) and $21,331.31 in costs.

Petitioners noted that since the circuit court did not

specify a date through which they were entitled costs and fees,

they should be awarded costs and fees through March 4, 2013, the

date Petitioners alleged the JPA “became effective.”

Petitioners emphasized that the circuit court preliminarily

approved the JPA on February 4, 2013, subject to a thirty-day

objection period. Since no objection was filed, Petitioners

concluded, the JPA became effective one month later, on March 4,

2013, at which time the State “began to jointly prosecute” the

case by filing its cross-claim against HRC two days later on

March 6, 2013. HRC countered that Petitioners were entitled to

costs and fees only through December 26, 2012, the date the JPA

was signed. HRC contended that the December 26, 2012 date most

accurately reflected the circuit court’s plain language awarding

Petitioners costs and fees through the date the JPA was “entered

into” and the JPA’s plain language stating the JPA was “entered

on this 26 day of December, 2012[.]” (emphasis added).

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Petitioners argued their requested fees were

reasonable and again attached their lodestar calculation.

Petitioners objected to producing counsel’s retention contract

and disputed that they were limited to recovering what they

actually paid their counsel. HRC countered that, under HRCP

Rule 54(d)(2)(B), the court may require the moving party to

disclose the terms of its fee agreement, and argued that such an

agreement would help the court determine the value of counsel’s

services. Petitioners contended that their requested rates were

“consistent with the standard billing rates” reported that year

in the Pacific Business News, and emphasized that HRC’s

comparison to its own counsel’s rate was unhelpful. HRC

countered that Pacific Business News report was of limited use

because it reported rates that ranged from $150.00 to $500.00

per hour.

Petitioners disputed that they failed to provide

proper documentation to support their fee request and addressed

items HRC claimed were non-compensable, including: paralegal

fees, photocopying, depositions, unsuccessful claims, quarter

and block billing, and videography. HRC emphasized its (and the

supreme court’s) concerns regarding block billing, and argued

that block billing combined with Petitioners’ heavily redacted

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time entries made it impossible to determine the reasonableness

of Petitioners’ request.15

7. Circuit Court’s Oral Ruling and Order Awarding Petitioners Attorneys’ Fees and Costs for Phase One of Trial

On April 22, 2015, the circuit court issued an oral

ruling awarding Petitioners attorneys’ fees and costs. The

circuit court found that Petitioners were entitled to recover

attorneys’ fees through December 26, 2012, the date the JPA was

signed. The circuit court awarded Petitioners $227,560.52 in

attorneys’ fees, broken down as follows: 526.3 hours at

$275.00/hour for Mr. Pierce (totaling $144,732.50); 264.8 hours

at $240.00/hour for Mr. Martin (totaling $63,552.00); 92.5 hours

at $110.00/hour for paralegal work (totaling $10,175.00); plus

general excise tax.

The circuit court found that costs Petitioners

incurred from photocopying, taking depositions, and videography

were compensable, given the “unusual amount” of photocopying,

“great importance” of the depositions, and that the video shown

to the jury was “extremely important, [and] highly probative” of

the issues. The circuit court also found that the costs and

15 Relying on a citation in Gurrobat to a Ninth Circuit case that approved of a twenty percent reduction for specific block billed entries, see Gurrobat v. HTH Corp., 135 Hawaiʻi 128, 135, 346 P.3d 197, 204 (2015)(citing Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007)), HRC requested the circuit court reduce Petitioners’ block billed entries by twenty percent.

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fees Petitioners incurred pursuing “unsuccessful claims” were

compensable, as the “claims created a set of circumstances that

in part led to the State joining with” the Petitioners. The

circuit court confirmed that Petitioners’ billing methods and

redactions did “not interfere[] with this Court’s ability to

evaluate the sums due.”

On May 19, 2015, the circuit court filed an order

consistent with its oral ruling awarding Petitioners a total sum

of $256,494.53.

b. For Litigation of Attorneys’ Fees (Fees on Fees)

1. Petitioners’ Second AF Motion

On May 6, 2015, Petitioners filed “[Petitioners’]

Second Motion for Attorneys’ Fees and Costs for Phase One of

Trial” (“second AF motion”), requesting additional attorneys’

fees in the amount of $71,462.58 and costs in the amount of

$905.06 for a total of $72,367.64. Petitioners stated their

second AF motion was warranted “considering the time,

complexities, and difficulties” they faced litigating their

first AF motion. Petitioners acknowledged that the circuit

court only partially granted their first AF motion, and,

accordingly, requested that the court award all of their

requested costs and a minimum of fifty percent of requested

fees.

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Petitioners cited multiple federal appellate decisions

in support of their claim that courts have confirmed that “time

reasonably devoted to obtaining attorneys’ fees is itself

subject to an award of fees.”16 Petitioners requested that the

circuit court apply the hourly rates for counsel it had

established as reasonable for their first AF motion to the

present motion. Petitioners contended the additional hours they

were requesting were reasonable given that their first AF motion

“was heavily disputed and litigated by HRC” and required two

hearings.

2. HRC’s Opposition to Petitioners’ Second AF Motion

On June 16, 2015, HRC filed its opposition to

Petitioners’ second AF motion. HRC argued that the circuit

court should deny the second AF motion because it constituted “a

breach of the intent and plain language of the parties’ final

and executed [Settlement.]” HRC emphasized that settlements are

meant to wind up and end litigation, and noted that the one-page

length of the Settlement here “show[ed] that the parties

intended this process to be simple and expeditious.” HRC

claimed that the language of the Settlement “expressly

16 Petitioners cited Comm’r of INS v. Jean, 496 U.S. 154, 161 (1990); Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1060 (2d Cir. 1995); Envtl. Def. Fund, Inc. v. EPA, 672 F.2d 42, 62 (D.C. Cir. 1982); and Rosenfeld v. S. Pac. Co., 519 F.2d 527, 530–31 (9th Cir. 1975)).

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anticipate[d]” only a single motion for fees and costs: “The

parties agree as to follows with respect to [Petitioners’]

attorneys’ fees motion: The motion will be heard by Judge

Cardoza, whose decision may be appealed by either party. . . .

[Petitioners’] motion for attorneys’ fees will be heard by Judge

Cardoza in his courtroom in the normal course.”17 HRC posited

that Petitioners “had more than enough opportunity to request

and litigate their entitlement” to additional attorneys’ fees,

and should have included a request for such fees in their first

AF motion or in their supplemental memoranda.

HRC argued that the circuit court should deny

Petitioners’ second AF motion because it “[c]ontravene[d] the

[l]aw of the [c]ase [s]et [f]orth” in the circuit court’s order

awarding Petitioners attorneys’ fees for phase one of trial,

which stated that “[t]he total sum of attorneys’ fees,

sanctions, and costs that HRC shall pay [Petitioners] is

$256,494.53[.]” HRC asserted that only “cogent reasons” may

support modifying the law of the case, see Wong v. City & County

of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983), and

that Petitioners’ second AF motion contained no such reasons to

increase the sum awarded in the circuit court’s order. HRC also

17 HRC also contended that under the canon of contractual interpretation expressio unius est exclusio alterius, the Settlement’s mention of one motion implied the exclusion of multiple or subsequent motions.

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argued that Petitioners were judicially estopped from seeking

additional fees and costs not contained in their first AF

motion, which “represented to the Court that the pleadings

contained the total sum of attorneys’ fees and costs . . .

[sought] for Phase One of trial.”

Finally, HRC argued that Petitioners’ second AF motion

was unsupported by Hawaiʻi authority.18 HRC emphasized that

Petitioners failed to cite any Hawaiʻi case law to support their

second AF motion, and instead relied only on non-Hawaiʻi cases

that interpreted specific statutes in awarding fees on fees.

HRC also emphasized that none of the Hawaiʻi cases Petitioners

cited regarding the PAG doctrine stated that a party was

entitled to fees on fees.

memorandum on June 19, 2015. Petitioners disputed HRC’s claim

that their second AF motion was unsupported by authority, and

stated that HRC “fail[ed] to provide an adequate reason why this

18 HRC cited two Hawaiʻi cases in support of its claim that Plaintiffs were not entitled to fees on fees: Hawai‘i Ventures, LLC v. Otaka, Inc., 116 Hawaiʻi 465, 476, 173 P.3d 1122, 1122 (2007)(stating that “services necessarily involved in preparing [fee] applications . . . and defending them are not compensable”); and County of Hawai‘i v. C&J Coupe Family Ltd. P’ship, 124 Hawaiʻi 281, 242 P.3d 1136 (2010) (limiting its award of fees on fees to those awarded under HRS § 101-27, which specifically applies to landowners seeking to recover damage resulting from an abandoned or failed condemnation action by the government).

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Court should not follow the overwhelming majority of courts” in

awarding fees on fees. Petitioners conceded that there was no

Hawaiʻi law on point, but emphasized that this only served to

strengthen their reliance on law from the federal circuit and

other state jurisdictions.19 Petitioners, citing Serrano v.

Unruh (Serrano IV), 652 P.2d 985, 997 (Cal. 1982), claimed that

the “[g]eneral [r]ule” is to award fees on fees, including when

attorneys’ fees are awarded pursuant to the PAG doctrine.

Petitioners distinguished the two Hawaiʻi cases cited by HRC,

noting that their very narrow scope--Hawai‘i Ventures

(receiverships) and County of Hawai‘i (cases under HRS § 101-27)-

-limited their significance and applicability in this case.

Petitioners contended that HRC’s argument that their

second AF motion was barred by the Settlement relied on a

“strained interpretation” of the Settlement’s use of the

singular (“motion”) as opposed to the plural (“motions”).

Petitioners, citing TIG Inc. v. Smart Sch., 401 F. Supp. 2d

1334, 1344 (S.D. Fla. 2005), argued that rules of construction

19 Petitioners noted that HRC also relied on federal authority in its memorandum in opposition, citing to a United States Supreme Court case, Comm’r of INS v. Jean, 496 U.S. 154 (1990). Petitioners emphasized that though HRC cited Jean’s statement that “fee litigation should not result in a ‘second major litigation[,]’” the Supreme Court ultimately awarded fees on fees in the Jean case.

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hold that “[u]se of the singular generally includes the plural,

unless it is clear that the parties intended otherwise.”20

Petitioners posited that the law of the case doctrine

and judicial estoppel were inapplicable here because the issue

presented in the second AF motion--whether Petitioners were

entitled to fees on fees--“has never been before” or been

“adjudicated” by the circuit court. Petitioners argued that

there was no “representation” to the circuit court that the

costs and fees requested in their first AF motion were a “total

sum” that would preclude them from seeking additional fees

spanning a different time frame. Petitioners explained that

HRC’s law of the case and judicial estoppel arguments relied on

a “strained interpretation” of the phrase “‘total sum’ of

attorneys’ fees” in Petitioners’ first AF motion and

supplemental memoranda and the circuit court’s order. HRC,

Petitioners argued, was “well aware” that Petitioners’ first AF

motion sought a “total sum” only for the fees spent litigating

the ownership issue. Finally, Petitioners argued that denying

their second AF motion “would frustrate or nullify the goals of

the PAG doctrine” by “allow[ing] HRC to dilute or dissipate

20 Petitioners also contended that expressio unius exclusio alterius was not applicable here because that canon referred to different items of a similar kind, not items that are exactly the same.

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[Petitioners’] fee award by forcing [them] to defend their

rightful fee claim through lengthy, uncompensated proceedings.”

4. Circuit Court’s Oral Ruling and Order Denying Petitioners’ Second AF Motion

On June 24, 2015, the circuit court held a hearing at

which it heard brief oral argument from the parties on

Petitioners’ second AF motion. Petitioners emphasized that they

had “litigated heavily” the issue of whether they were entitled

to attorneys’ fees under the PAG doctrine and believed that the

instant litigation over fees on fees was “related [] to the

whole entire issue [as] to whether or not [they] were entitled

to any PAG fees.”

The circuit court denied Petitioners’ second AF

motion. The circuit court noted that there was “no Hawaii case

law that’s directly on point here.” The circuit court stated

that while the Settlement “contemplat[ed]” a motion for costs

and fees, the language of the Settlement “did not specifically

address one way or the other whether a second motion for . . .

fees” could be filed. In explaining its decision, the circuit

court focused heavily on what it believed the parties

“contemplated” in their Settlement:

Given the entire fact pattern here, I’m of the view that what the parties contemplated was a litigation over a motion for fees and costs, and . . . I’m of the view that the appropriate ruling here would be to deny this motion.

I am not suggesting that our appellate courts would view unfavorable a request for fees related to litigation over

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fees and costs, but I am of the view that given the settlement agreement that was reached, that what was contemplated here was that there would be litigation, and there was considerable litigation, over the fees and costs as to whether they should be awarded and what that sum should be. I have ruled on that. We’ve had that fully litigated. I gave the parties the opportunity to further brief those issues, and in the Court’s view, that brings the matter to a conclusion as it relates to fees and costs.

The circuit court clarified that the issue of whether a second

AF motion was contemplated by the Settlement was not “the one

and only issue”, but noted that it was a “distinguishing factor”

from the case law presented by the parties. The circuit court

identified the PAG doctrine as another factor that distinguished

this case from the Hawaiʻi case law cited by the parties.

Consistent with its oral ruling, on July 13, 2015, the

circuit court filed an order denying Petitioners’ second AF

motion. On July 11, 2016, the circuit court entered a final

judgment consistent with its prior rulings.

B. ICA Proceedings

On August 10, 2016, Petitioners filed a notice of

appeal to the ICA. Petitioners stated they were appealing the

circuit court’s: (1) March 4, 2015 order granting in part

Petitioners’ first AF motion; (2) May 19, 2015 order awarding

Petitioners attorneys’ fees and costs; (3) July 13, 2015 order

denying Petitioners’ second AF motion; and (4) July 11, 2016

final judgment.

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1. Petitioners’ Opening Brief

Petitioners filed their Opening Brief (“OB”) on

December 14, 2016. Petitioners, repeating many of the arguments

from their two AF motions,21 argued that the circuit court erred

by: holding that Petitioners were not entitled to attorneys’

fees after the date the JPA was signed under the PAG doctrine;

denying Petitioners fees on fees; and holding that the record

did not support a finding that HRC’s ownership claim was made in

bad faith.22 Petitioners urged the ICA to reverse and remand

Petitioners’ first AF motion and the circuit court’s award order

(to the extent they denied fees after the date of the JPA and

under HRS § 607-14.5), and Petitioners’ second AF motion in its

entirety.

Petitioners repeated their argument that Irwin Park

II, along with other persuasive case law cited in Irwin Park II,

indicated that government involvement in a case did not preclude

a finding that private enforcement was necessary. Petitioners

noted that private enforcement can be found to be necessary

where the plaintiffs “‘bore the brunt of the litigation burden’

21 See supra sections II.A.4.a.1, 3–4, 6, II.A.4.b.1, 3–4.

22 Petitioners claimed that de novo review was warranted here as the circuit court “disregarded rules or principles of law” in deciding whether Petitioners were entitled to fees under the PAG doctrine and the construction of the parties’ Settlement. Petitioners claimed that the clear error standard applied to the circuit court’s finding that HRC acted in good faith as that issue presented mixed questions of law and fact.

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and but for [their] efforts, ‘full relief would not have been

granted[.]’” Bitterroot, 251 P.3d at 140. Petitioners asserted

the circuit court “disregarded” Irwin Park II in holding that

private enforcement became unnecessary when the State joined the

litigation, and thus, that Petitioners were not entitled to

attorneys’ fee after the date of the JPA. Petitioners argued

that, even after the JPA, they were the “main prosecutors” of

the case and bore most of the litigation responsibilities:

Among other things, Plaintiffs, without any assistance from the State: (1) conducted all the historical research in the case, in a case that spanned a timeframe of 200 years; (2) determined the location of Haleakala Trail, including by conducting all site inspections; (3) prevailed in a number of discovery disputes against HRC; (4) conducted virtually all discovery against HRC . . . ; (5) conducted the HRCP Rule 30(b)(6) deposition of HRC; (6) conducted extensive title research; (7) prepared all of the voluminous exhibits for trial; (8) performed almost all legal research; (9) drafted most of the motions in limine and trial memoranda; (10) performed the direct examination of all key witnesses, including of all the experts . . . ; and (11) performed the cross-examination of HRC’s expert.

Petitioners requested the ICA remand for the circuit court “to

consider other factors in addition to the [JPA] in its analysis

of the necessity of private enforcement,” including whether the

State would have acted to assert public access to Haleakalā

Trail without Petitioners’ efforts.

Petitioners argued that the circuit court erred in

denying fees on fees, contrary to the rule that the majority of

courts have adopted. Petitioners contended that awarding fees

on fees would advance the goals of the PAG doctrine by

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encouraging private actors to vindicate important public

interests and reassuring them that they will be recouped for

their efforts. Petitioners, citing Serrano IV, 652 P.2d at 993–

94, emphasized that fee litigation can be lengthy and demanding,

and could discourage private actors from pursuing litigation to

begin with. Petitioners conceded there was no Hawaiʻi case law

on point here, but urged the ICA to expressly find fees on fees

recoverable, “including specifically in the context of the PAG

doctrine.” Petitioners repeated their argument that the

Settlement did not preclude them from filing more than one

motion for attorneys’ fees, and that the Settlement’s use of the

singular (“motion”) included the plural (“motions”) because

there is no indication the parties intended otherwise.

Finally, Petitioners argued that HRC’s claim of

private ownership was frivolous and made in bad faith.

Petitioners emphasized that HRC’s argument that its ownership

was established by “the ‘absence of reservation’ in relevant

deeds” was rejected by the circuit court as irrelevant and

inadmissible at trial.

2. HRC’s Answering Brief

HRC filed its Answering Brief (“AB”) on February 22,

2017 and urged the ICA to deny Petitioners’ appeal. HRC,

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repeating many of its arguments from the proceedings before the

circuit court,23 argued that the circuit court did not err in:

finding that Petitioners’ enforcement was unnecessary beyond the

date of the JPA, denying fees on fees, or finding that HRC’s

ownership claim was not made in bad faith.

HRC argued that because the PAG doctrine is an

equitable rule, the appropriate standard of review is abuse of

discretion. See Irwin Park II, 130 Hawaiʻi at 313, 310 P.3d at

316. HRC contended that the circuit court was best suited to

“evaluate the circumstances, weigh the equities, and determine

whether . . . [Petitioners] were ‘solely responsible’ for the

litigation” and neither disregarded the law nor abused its

discretion in finding that Petitioners and the State jointly

prosecuted the case. HRC repeated its argument that none of the

State’s post-JPA actions constituted opposition to Petitioners’

cause. HRC stated that “[t]he fact that [Petitioners] did not

like the [proposed land exchange] does not change that”

settlement is a valued public policy. Furthermore, HRC urged

the ICA not to award fees on this basis as it “would incentivize

third parties acting under the [PAG] doctrine to oppose any and

all settlement efforts in order to prolong the litigation and

claim more fees.”

23 See supra sections II.A.4.a.2, 4, 6, II.A.4.b.2.

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HRC argued that the circuit court did not abuse its

discretion in denying Petitioners fees on fees because their

second AF motion was “wasteful and inefficient” and “violated

the intent and express procedural framework” of the Settlement,

which “controlled the wind-up of this litigation.” HRC repeated

its argument that the Settlement contemplated only a single

motion for attorneys’ fees and costs, and argued that “[h]ad the

parties intended to allow [Petitioners] an open-ended number of

opportunities to seek attorneys’ fees,” they could have drafted

the Settlement as such. Even if the Settlement did not control,

HRC argued, the second AF motion was “untimely and

disorganized,” and Petitioners should have included a request

for all fees in their first AF motion.

Finally, repeating its arguments from before the

circuit court, HRC asserted that the circuit court did not

clearly err in finding that HRC’s ownership claim was not made

in bad faith, or abuse its discretion in denying Petitioners

fees on this basis.

3. Petitioners’ Reply

Petitioners filed a reply on March 8, 2017.

Petitioners claimed that HRC’s arguments regarding “the

necessity of private enforcement” prong of the PAG doctrine

failed to acknowledge that private enforcement can be

“necessary, even where other private and public parties join in

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the litigation, where ‘but for’ the efforts of the plaintiff,

there would not have been a vindication of the public’s

interest.” Petitioners also argued that HRC failed to

distinguish Irwin Park II and claimed the “determinative factor”

in that case was not the State’s agreement to co-litigate the

case, but rather that “the plaintiff’s efforts continued to be

necessary” even after the State intervened. Petitioners argued

that the JPA strengthened, not weakened, their argument in favor

of necessity because the JPA established they “would not only be

a necessary party, but would also be the lead party” in the

case.

Petitioners clarified that they were not challenging

the circuit court’s findings of fact in applying the PAG

doctrine, but rather the legal conclusion the court drew from

these facts, i.e., the conclusion that attorneys’ fees were not

warranted past the date of the JPA. Petitioners contended that,

in light of Irwin Park II’s holding, the circuit court failed to

make findings of fact sufficient to “deny PAG fees after the

execution of the JPA” because “at minimum” it needed to find

either “that the public’s interest in Haleakalā Trail would have

been vindicated even without [Petitioners’] efforts, or that

[Petitioners’] efforts were no longer necessary.”

Petitioners asserted that HRC’s argument that the

State’s proposed land exchange with HRC did not constitute

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adverse action “ignores the trial court’s finding of fact that

the [land exchange] necessitated private enforcement.”24

Petitioners, citing Bitterroot, 251 P.3d at 140, further

emphasized that the State’s support of S.B. 2728 also

constituted opposition because “detrimental legislative efforts

are a relevant factor [to the PAG doctrine].”

4. ICA’s Memorandum Opinion

On February 26, 2021, the ICA published a memorandum

opinion affirming the circuit court’s final judgment. The ICA

found that the circuit court did not abuse its discretion in

denying Petitioners attorneys’ fees after the date of the JPA.25

The ICA stated that the necessity prong of the PAG doctrine is

met “where the government either ‘abandons’ or ‘actively

opposes’ the plaintiff’s cause such that the plaintiff is

‘solely responsible’ for advocating the public interest.” The

ICA validated the circuit court’s finding that the State ended

its active opposition to Petitioners’ case upon signing the JPA

and entering into a cooperative relationship with Petitioners.

24 Petitioners quoted the circuit court’s determination that Petitioners’ “efforts to preserve the trail were necessary in light of the State’s . . . joint proposal with HRC to exchange the trail for another site of less importance”. 25 The ICA noted that while it reviewed attorneys’ fees and costs awards for abuse of discretion, it reviewed de novo “whether the trial court disregarded rules or principles of law that arise” when applying the PAG doctrine. Irwin Park II, 130 Hawaiʻi at 313, 310 P.3d at 308.

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Thus, the ICA reasoned that the circuit court “acted within its

discretion” and “consistent with our precedent” in declining to

award Petitioners attorneys’ fees after the date of the JPA.

The ICA stated that Irwin Park II was distinguishable from the

present case because, in that case, the State “actively opposed

[the plaintiff’s] efforts to vindicate the public interest

throughout the entirety of the litigation.” 130 Hawaiʻi at 316–

17, 310 P.3d at 311-12. In contrast, here, the ICA noted that

the State only opposed Petitioners’ efforts until “the parties

entered into a cooperative agreement to jointly prosecute their

claims against the HRC.” The ICA also emphasized that, to the

extent Petitioners believed the State was violating the JPA,

Petitioners “never exercised [their] right to seek relief from

the [c]ircuit [c]ourt.”

The ICA held that the circuit court did not abuse its

discretion in denying Petitioners fees on fees because the

Settlement “did not appear to contemplate [Petitioners’]

subsequent request for attorneys’ fees.” In reviewing the plain

language of the Settlement, the ICA noted the use of the

singular “motion.” The ICA also reasoned that the record did

not show that the parties contemplated additional attorneys’

fees motions upon entering into the Settlement. Specifically,

the ICA noted that: on the date of the Settlement, December 19,

2014, Petitioners had only filed their first AF motion, which

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made no mention of additional fees beyond those requested in the

motion; Petitioners’ second AF motion was filed nearly five

months after the Settlement was signed; and when Petitioners

first mentioned they would be requesting additional fees at an

April 22, 2015 hearing, HRC’s counsel stated it was “baffled” by

such a request.

Finally, the ICA held that the circuit court did not

clearly err in declining to find HRC had maintained its

ownership claim in bad faith. The ICA reasoned that “[a]lthough

the record may indicate that HRC’s claim of ownership of the

Haleakalā Trail may have been weak or even without merit, we

cannot say that the [c]ircuit [c]ourt clearly erred in

determining there was not bad faith on the part of HRC in

asserting its claim.” The ICA agreed with HRC’s argument that

the circuit court’s rulings denying Petitioners summary judgment

and judgment as a matter of law “support[ed] the inference that

HRC’s claim was not frivolous.”

Given its conclusion that the circuit did not abuse

its discretion or commit clear error, the ICA affirmed the

circuit court’s final judgment.

C. Supreme Court Proceedings

1. Petitioners’ Application for Writ of Certiorari

Petitioners timely filed their application for a writ

of certiorari on May 28, 2021. Petitioners present four

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questions to this court: (1) whether, under the PAG doctrine, a

plaintiff may recover attorneys’ fees “from a private defendant

also sued by a government entity” where the “plaintiff provided

necessary and significant services to the public and/or . . .

the government entity continued to actively oppose plaintiff’s

cause”; (2) whether, under the PAG doctrine, a prevailing party

is entitled to recover fees on fees; (3) whether the use of the

word “motion” (singular) “prevents a party from filing a

supplemental motion to the first” where it is unclear from the

record that the parties intended such an interpretation; and (4)

whether a court clearly errs by finding a party did not act in

bad faith when (a) the party was notified pursuant to HRS § 607-

14.5(c) that its claim was not supported by evidence or law, and

(b) the court later ruled, “consistent with the prior notice,

that the party in fact had no evidence or law in support of its

claim.”

Petitioners repeat many of the arguments from their

filings before the circuit court and ICA. As to the PAG

doctrine, Petitioners argue that the ICA gravely erred when it

“disregarded the rules and principles of law set forth in Irwin

Park II” and affirmed the circuit court’s holding denying

Petitioners attorneys’ fees after the date of the JPA.

Petitioners emphasize the equitable nature of the PAG doctrine

and argue that as Irwin Park II does not require plaintiffs to

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“assume the entire burden” of litigation to qualify for

attorneys’ fees under the PAG doctrine, this court should not

impose such a rule here. Petitioners warn that this rule would

“essentially requir[e] public interest groups to ‘go it alone’

or risk being denied attorneys’ fees, [which] would be

antagonistic to judicial efficiency[.]”

Petitioners emphasize the ICA’s “fail[ure]” to

recognize that this case presents “the relatively rare scenario”

where a party seeks attorneys’ fees from a private defendant

instead of from the State. The ICA stated that in Irwin Park

II, unlike here, the necessity prong of the PAG doctrine was met

because the government entity “actively opposed” the plaintiff’s

efforts “throughout the entirety of the litigation.”

“Obviously,” Petitioners counter, “where litigation is solely

against a government entity[,]” the government “by default must

be abandoning its duty or” actively opposing the plaintiffs.

Thus, Petitioners contend, even though Irwin Park II did not

expressly address the question of whether a party is entitled to

attorneys’ fees under the PAG doctrine where it joins the State

in litigation against a private defendant, nothing in Irwin Park

II demands that such “fees should be categorically barred.”

Petitioners warn of negative consequences should this

court adopt a rule requiring plaintiffs to “assume the entire

burden of the litigation”:

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Under this bright line rule, there could never be an award of attorneys’ fees under the PAG doctrine where a government entity joins in the prosecution of a private defendant, no matter the circumstances. Indeed, such a rule would even proscribe payment of attorneys’ fees where the government entity provides minimal or inadequate representation, or where it continues to be adverse, as is the case here. It would also chill efforts by public interest groups to seek opportunities with a government entity which, in turn, furthers judicial efficiency.

Petitioners also contend the ICA erred by failing to address

persuasive federal and state authority cited in Irwin Park II

that were “directly on point” and supported the argument that

Petitioners need not have assumed the entire burden of

enforcement. Petitioners discuss Comm. to Defend Reprod. Rts.

v. A Free Pregnancy Ctr., in which a California appellate court

found that federal case law showed that private parties were

“not barred, by reason of the [government]’s participation

therein, from recovering attorney fees” so long as they

“rendered necessary and significant services of value to the

public.” 280 Cal. Rptr. 329, 334-35 (Cal. Ct. App. 1991).

Petitioners also reference Waiāhole II--the case in which this

court first considered the applicability of the PAG doctrine--

and Serrano v. Priest (Serrano III), 569 P.2d 1303 (Cal. 1977)--

a California case quoted at length in Waiāhole II--noting that

those cases implied that private enforcement may be necessary

where the ”burden of enforcement is not . . . adequately

carried” by the government. Waiāhole II, 96 Hawaiʻi at 30, 25

P.2d at 805 (emphasis added) (quoting Serrano III, 569 P.2d at

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1313-14). Petitioners also note that the Irwin Park II court

followed the Montana Supreme Court’s decision in Bitterroot,

which found that “private enforcement continued to be necessary

even where the government entity charged with the duty of

enforcement jointly prosecuted the case with the plaintiff.”

Petitioners contend that the ICA “directly

contradicts” this court’s decision in Sierra Club v. Dep’t of

Transp. (Sierra Club II), 120 Hawaiʻi 181, 202 P.3d 1226 (2009),

which held that the necessity prong of the PAG doctrine could be

satisfied by showing that the State actively opposed or wholly

abandoned the plaintiff’s cause. Petitioners emphasize the

State’s actions negotiating a land exchange with HRC and claim

that the ICA “downplay[ed] this active opposition” on the basis

that Petitioners should have sought relief under the JPA’s

provision for material breach. Petitioners argue that as there

was no indication the circuit court relied on the JPA’s material

breach provision in its ruling, the ICA, similarly, should not

have relied on this provision. Petitioners also contend the

ICA’s holding “fails to view the [JPA] in its entirety” and

“ignores any notion of judicial efficiency.”

Petitioners argue that the ICA also erred by affirming

the circuit court’s denial of their second AF motion.

Petitioners assert the ICA failed to address federal and state

law cited in their briefs, law that was particularly important

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as the circuit court in part denied the second AF motion because

of a lack of relevant Hawaiʻi case law. Petitioners also claim

the ICA “mischaracterize[d]” the record in finding that the

parties had not contemplated a second AF motion, and emphasize

that the circuit court “expressly found that the issue of what

the parties contemplated [wa]s unclear[.]” Petitioners conclude

by reiterating their argument that this case “demands” a finding

that HRC maintained its ownership claim in bad faith.

Petitioners ask that the ICA’s memorandum opinion be reversed

and the case remanded to the circuit court.

2. HRC’s Response

HRC timely filed its response on June 28, 2021. HRC

repeats many of its arguments from its AB and contends that the

ICA followed the PAG doctrine in affirming the circuit court’s

judgment. HRC argues that the ICA was correct in distinguishing

Irwin Park II from the present case, and emphasizes that, in

Irwin Park II, there were “no less than three governmental

entities actively opposing the public cause.” HRC argues that

the JPA “distinguishes this case from all of the cases that

Petitioner cites in which a private plaintiff claimed to be

‘solely responsible’ for the litigation despite the government’s

involvement.” Given the JPA, HRC reasons, Petitioners cannot

reasonably claim they were “solely responsible” for the

litigation or that the State opposed their cause. HRC again

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disputes that the proposed land exchange was “an act of active

opposition” by the State, and cites Keahole Def. Coal., Inc. v.

Bd. of Land & Nat. Res. in arguing that it was an action

aligning with Hawaii’s “‘strong public policy’ favoring

settlement.” 110 Hawaiʻi 419, 439, 134 P.3d 585, 605 (2006).

HRC argues that although Petitioners’ application for

cert “relies heavily” on Bitterroot, that “reliance is

misplaced[.]” HRC posits that Bitterroot was cited in Irwin

Park II primarily to support the argument that a discrete piece

of property could implicate the public interest. HRC also

argues that Bitterroot is distinguishable because the state

agency in that case “had to be forced by the private party into

the litigation and did not agree (in writing or otherwise) to

jointly prosecute the case” and did not appeal “the decision

adverse to its interest[.]” HRC stresses that the PAG doctrine

is an equitable doctrine “subject to the court’s equitable

discretion.” HRC emphasizes that the private party in

Bitterroot “initiated the action that implicated public rights

and sought to extinguish those rights”, and differentiates HRC’s

actions and motives in the present case, asserting that it

appeared only “to defend its private rights in good faith.”

Petitioners filed a reply on July 5, 2021.

Petitioners argue that clarification from this court is needed

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on (1) “whether joint prosecution with a government entity

against a private defendant constitutes an absolute bar to any

award of PAG fees . . . no matter the circumstances” and (2)

whether private plaintiffs seeking attorneys’ fees under the PAG

doctrine may recover fees on fees. Petitioners note that

precedent from this court is very limited (and ultimately not

dispositive) as to the first issue and nonexistent as to the

second issue. Thus, Petitioners assert that the case law

“currently does not provide sufficient clarity for trial courts”

interpreting and applying the PAG doctrine, and urge this court

to accept cert.

III. STANDARDS OF REVIEW

A. Application for Writ of Certiorari

The acceptance or rejection of an application for a

writ of certiorari is discretionary. HRS § 602-59(a) (2016).

Grounds for a writ of certiorari include “(1) [g]rave errors of

law or of fact; or (2) obvious inconsistencies in the decision

of the intermediate appellate court with that of the supreme

court, federal decisions, or its own decision, and the magnitude

of those errors or inconsistencies dictating the need for

further appeal.” HRS § 602-59(b).

B. Attorneys’ Fees Awards

“Traditionally . . . an award of attorneys’ fees and

costs is reviewed for abuse of discretion.” Irwin Park II, 130

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Hawaiʻi at 313, 310 P.3d at 308. A trial court abuses its

discretion when it “clearly exceed[s] the bounds of reason or

disregard[s] rules or principles of law or practice to the

substantial detriment of a party litigant.” Id. (quoting Maui

Tomorrow v. Hawaiʻi, 110 Hawaiʻi 234, 242, 131 P.3d 517, 525

(2006)). However, “we review de novo whether the trial court

disregarded rules or principles of law . . . in deciding whether

or not a party satisfie[d] the three factors of the [PAG]

doctrine.” Id.

C. Contract Interpretation

Interpretation and construction of a contract is

reviewed de novo. Title Guar. Escrow Services, Inc. v. Wailea

Resort Co., 146 Hawaiʻi 34, 456 P.3d 107 (2019), reconsideration

denied (Jan. 13, 2020).

D. Allegedly Frivolous Claims Under HRS § 607-14.5

Under HRS § 607-14.5, the circuit court may assess

reasonable attorneys’ fees and costs against a party in a civil

action “upon a specific finding that all or a portion of the

party’s claim or defense was frivolous[.]” HRS § 607-14.5(a).

A trial court’s conclusion that a party’s claim or defense was

made in good faith and was, therefore, not “frivolous” within

the meaning of HRS § 607-14.5 presents mixed questions of fact

and law, and is subject to review for clear error. See Coll v.

McCarthy, 72 Haw. 20, 28, 804 P.2d 881, 886 (1991). “A finding

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is clearly erroneous where the court is left with a firm and

definite conviction that a mistake has been committed.” Id. at

28, 804 P.2d at 887.

IV. DISCUSSION

Petitioners’ cert application presents four questions:

(1) whether, under the PAG doctrine, Petitioners may recover

attorneys’ fees from HRC, a private defendant, where Petitioners

co-litigated the case with the State against HRC pursuant to a

JPA; (2) whether, under the PAG doctrine, Petitioners are

entitled to recover fees on fees; (3) whether the Settlement

between Petitioners, HRC, and the State precluded Petitioners

from filing a second AF motion; and (4) whether the circuit

court clearly erred by finding that HRC’s ownership claim was

not frivolous or maintained in bad faith under HRS § 607-14.5.

As to the first question, because the State actively

opposed Petitioners’ cause after the date of the JPA such that

Petitioners were, for a time, solely responsible for advancing

the public interest, the ICA erred in affirming the circuit

court’s denial of attorneys’ fees past the date of the JPA. As

to the second and third questions: because (1) Petitioners

should be permitted to recover reasonable fees on fees awarded

under the PAG doctrine, (2) the plain language of the Settlement

does not bar Petitioners’ second AF motion, and (3) it is

unclear what the parties intended and contemplated regarding fee

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litigation, the ICA erred in affirming the circuit court’s

denial of Petitioners’ second AF motion. As to the last

question, because Petitioners failed to show that HRC acted in

bad faith, the ICA did not err in affirming the circuit court’s

denial of attorneys’ fees under HRS § 607-14.5.

A. The ICA Erred in Denying Petitioners Attorneys’ Fees After the Date of the JPA

The ICA held that the circuit court acted within its

discretion in denying Petitioners attorneys’ fees under the PAG

doctrine beyond the date of the JPA. The ICA reasoned that

“pursuant to the [JPA], the State was no longer abandoning or

actively opposing [Petitioners’] cause, and [Petitioners] were

no longer ‘solely responsible’ for advocating the public

interest.” Petitioners contend that they are entitled to

attorneys’ fees after the date the JPA was signed because their

continued efforts were necessary to vindicate the public

interest, as the State continued to actively oppose their cause

despite the JPA. Petitioners’ contentions are supported by law

and fact. Pursuant to Waiāhole II, “the role played by the

government” must be examined when analyzing the PAG doctrine’s

“necessity of private enforcement” prong. 96 Hawaiʻi at 32, 25

P.3d at 807. Here, the circuit court disregarded relevant

principles of law in determining that Petitioners’ post-JPA

enforcement efforts were not necessary: namely, that the

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State’s post-JPA conduct with respect to the proposed land

exchange with HRC constituted “active[] opposition[]” to or

“abandonment[]” of Petitioners’ vindication of the public

interest. Id. at 31, 25 P.3d at 806. Because the ICA and the

circuit court disregarded relevant principles of law in

determining that Petitioners’ post-JPA enforcement efforts were

not necessary, we reverse. Petitioners are entitled to

attorneys’ fees for at least the time period during which the

proposed land exchange was negotiated and considered by the

State.

Under the “American Rule,” “each party is responsible

for paying his or her own litigation expenses.” Irwin Park II,

130 Hawaiʻi at 308, 310 P.3d at 303 (quoting Sierra Club II, 120

Hawaiʻi at 218, 202 P.3d at 1263). The PAG doctrine is an

equitable doctrine that functions as an exception to the

American Rule. Sierra Club II, 120 Hawaiʻi at 218, 202 P.3d at

1263. To determine whether the PAG doctrine applies, this court

considers three factors: “(1) the strength or societal

importance of the public policy vindicated by the litigation,

(2) the necessity for private enforcement and the magnitude of

the resultant burden on the plaintiff, [and] (3) the number of

people standing to benefit from the decision.” Id. (quoting

Maui Tomorrow, 110 Hawaiʻi at 244, 131 P.3d at 527). This case

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focuses on the second prong: whether Petitioners’ enforcement

was necessary given the State’s participation under the JPA.

In Waiāhole II, this court concluded that the

plaintiffs failed to satisfy the “necessity of private

enforcement” prong of the PAG doctrine. 96 Hawaiʻi at 31, 25

P.3d at 806. The court reasoned that because the plaintiffs

were not “the sole representative of the vindicated public

interest” and the government did not “abandon[]” or “actively

oppose[]” their cause, the plaintiffs were not entitled to

attorneys’ fees under the PAG doctrine. Id. The court

emphasized that “[t]he relevant point” was “not the extent of

the [plaintiffs’] success on appeal, but, rather, the role

played by the government.” Id. at 32, 25 P.3d at 807.

(emphasis added). The court also recognized that although it is

the responsibility of government agencies and institutions to

“represent the general public . . . and to ensure proper

enforcement, for various reasons the burden of enforcement is

not always adequately carried by [the government], rendering

some sort of private action imperative.” Id. at 30, 25 P.3d at

805 (quoting Serrano III, 569 P.2d at 1313–14).

This court’s instruction in Waiāhole II to focus on

“the role played by the government” applies here. Analysis of

the State’s conduct--at least for the time period during which

the State negotiated and advocated for the proposed land

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exchange--makes clear that even after the signing of the JPA,

the burden of enforcement fell disproportionately, and at times,

solely, on Petitioners. Pursuant to the legal principles set

forth below, Petitioners satisfy the second prong of the PAG

doctrine because (1) the existence of a JPA is not dispositive

on the issue of necessity, and (2) because the proposed land

exchange constituted active opposition and/or abandonment by the

1. The JPA Is Not Dispositive on the Issue of Necessity

The existence of a JPA or other agreement by the State

to co-litigate a case does not automatically render a party’s

private enforcement unnecessary. Irwin Park II is instructive

on this point. While Irwin Park II did not involve a JPA or

written agreement by the government to co-litigate, its holding

does support the conclusion that the government’s voluntary

participation in litigation does not preclude a private

plaintiff from recovering attorneys’ fees under the PAG

doctrine.

In Irwin Park II, Aloha Tower Development Corporation

(“ATDC”), a government entity, filed a court petition to expunge

the deed restriction on Irwin Park--which had been formally

designated as a historic place--that required the property to be

maintained as a public park. 130 Hawaiʻi at 310, 310 P.3d at

305. Scenic Hawaiʻi, a preservation non-profit, moved to

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intervene in the case to advocate for keeping Irwin Park as a

public park and prevent ATDC from turning the property into a

parking structure. Id. The City and County of Honolulu

(“City”) moved to intervene a week after Scenic Hawaiʻi. Id.

The City posited that preserving Irwin Park’s status as a public

park fell within its obligation to “substantially advance

legitimate public interests, including protecting and preserving

open space” in urban areas. Id. at 311, 310 P.3d at 306. The

City explained “that its intervention was proper because its

interest was inadequately represented by the existing parties to

the suit[,]” but acknowledged that Scenic Hawaiʻi “at least to

the extent of preserving [Irwin] Park, [had] similar interests

as the City.” Id. The court granted the City’s motion to

intervene, and also ordered the State and the DLNR to appear in

the case as parties in interest.26 Id.

The court ultimately denied ATDC’s petition and

awarded Scenic Hawaiʻi attorneys’ fees pursuant to the PAG

doctrine. Id. at 312, 310 P.3d at 307. On appeal, the ICA

reversed the award of fees, holding that Scenic Hawaiʻi failed to

meet the second prong of the PAG doctrine because they were not

the “sole representative” of the public interest and it was

26 The State and the DLNR responded by supporting ATDC’s petition in favor of expungement. Id.

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“unnecessary” for them to respond to ATDC’s petition given the

appearances by the respondents to the petition and other persons

with reversionary interests in the property, as well as the

City’s intervention. In re Honolulu Const. & Draying Co. v.

State, 129 Hawaiʻi 68, 75, 293 P.3d 141, 148 (App. 2012). This

court reversed the ICA, stating that “a party representing the

public interest along with other parties may still be ‘solely

responsible’ for advocating the public interest, despite the

fact that private parties are named in the litigation.” Irwin

Park II, 130 Hawaiʻi at 316, 310 P.3d at 311 (internal citation

omitted). This court found persuasive the other private

parties’ declarations that “but for” Scenic Hawaii’s efforts,

“the private parties ‘may not have thus participated in this

litigation.’” Id. at 317, 310 P.3d at 312. This court

concluded that “had Scenic Hawaiʻi not moved to intervene, ATDC

might very well have prevailed in the face of a lack of

opposition[.]” Id.

This court did not address what significance the

City’s intervention posed in evaluating the necessity of Scenic

Hawaii’s enforcement under the PAG doctrine, but noted that

“Scenic Hawaiʻi maintain[ed] that the City, to some extent, rode

[its] coattails . . . after the City’s intervention in the

suit.” Id. In a footnote, this court summarized the law in

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California, explaining that attorneys’ fees under the PAG

doctrine are not proscribed “solely because the [government has]

initiated a similar action” that has been consolidated with the

plaintiffs’ action. Id. at 317 n.12, 310 P.3d at 312 n.12

(quoting Comm. to Defend, 280 Cal. Rptr. at 336, then citing In

re State Water Res. Control Bd. Cases, 73 Cal. Rptr. 3d 842, 849

(Cal. Ct. App. 2008)).

Along with the above-cited California law, Bitterroot,

which the Irwin Park II court cited favorably for its analysis

on the third prong of the PAG doctrine, also provides guidance

in evaluating how the government’s participation in the case

bears on a plaintiff’s entitlement to attorneys’ fees under the

PAG doctrine. In Bitterroot, the Montana Supreme Court found

that the plaintiff, a preservation non-profit, was entitled to

attorneys’ fees under the PAG doctrine, despite a state agency’s

participation as an involuntary plaintiff in the litigation, for

its efforts obtaining public access to a stream. 251 P.3d at

139-140. The Montana Supreme Court noted that the agency’s

involvement in the case--including its failure to “appeal the

decision adverse to its interest” by the Bitterroot Conservation

District that the stream was not a “natural stream”--“was hardly

the usual effort by an agency seeking enforcement of the law.”

Id. at 140. The Montana Supreme Court found that the plaintiff

“alone raised and defended” the issue of whether the stream was

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a natural stream, and “but for” the plaintiff’s challenge, the

adverse decision “may very well still stand.” Id. Thus, the

Montana Supreme Court affirmed the trial court’s holding that

because the plaintiff took the lead role in the case and “bore

the brunt of the litigation burden,” and because “full relief

would not have been granted without its effort[,]” the plaintiff

satisfied the second prong of the PAG doctrine, despite the

government’s participation in the case. Id.

In the present case, as in Irwin Park II (and

Bitterroot), “but for” Petitioners’ efforts, the outcome of the

litigation--i.e., the State being declared owner of Haleakalā

Trail--may not have materialized given the State’s efforts to

approve the land exchange with HRC. 130 Hawaiʻi at 317, 310 P.3d

at 312. And, as in Irwin Park II, had Petitioners not

(1) instigated the present litigation, (2) negotiated a JPA with

the State, and (3) vigorously prepared and led the litigation

effort against HRC, HRC “might very well have prevailed in the

face of a lack of opposition” from the State. Id.

2. The Proposed Land Exchange Constituted Active Opposition and/or Abandonment

The State contends that the proposed land exchange did

not constitute “active opposition” within the meaning of the PAG

doctrine. However, it is clear that by pursuing a deal in which

the State agreed to surrender its interest in Haleakalā Trail,

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after it had agreed to jointly prosecute Petitioners’ case by

asserting an ownership claim against HRC, the State was actively

opposing or abandoning Petitioners’ cause of preserving

Haleakalā Trail for the purpose of public access. Had the land

exchange been finalized, the State would have given up title to

Haleakalā Trail, and control over the Trail would have remained

with HRC, who had consistently denied public access to the

Furthermore, the circuit court found in its order

partially granting Petitioners’ first AF motion that

Petitioners’ enforcement efforts were, in fact, “necessary in

light of the State’s initial reluctance to preserve the trail

and its joint proposal with HRC to exchange the trail for

another site of less importance.” (emphases added). Despite

finding that Petitioners’ actions were necessary in part because

of the proposed land exchange, the circuit court awarded

attorneys’ fees only up until the date of the JPA (December 26,

2012), even though the land exchange was proposed and negotiated

after the date of the JPA (in or about September 2013). In so

doing, the circuit court disregarded the relevant principle of

law that active opposition by the State may render a plaintiff’s

enforcement efforts necessary and warrant an award of attorneys’

fees under the PAG doctrine to cover such efforts. See Waiāhole

II, 96 Hawaiʻi at 31, 25 P.3d at 806. Accordingly, the ICA erred

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in affirming the circuit court’s holding that Petitioners were

not entitled to any attorneys’ fees after the date of the JPA;

Petitioners are entitled to attorneys’ fees after the date of

the JPA through at least the time period during which the State

negotiated and advocated for the land exchange with HRC.

While it is clear that the proposed land exchange

constituted active opposition or abandonment within the meaning

of the PAG doctrine, it is unclear whether the State’s other

actions (e.g., supporting S.B. 2728) also rose to the level of

active opposition or abandonment. Likewise, it is unclear

whether the State’s actions in this case aligned with “the usual

effort by an agency seeking enforcement of the law” or whether

Petitioners “bore the brunt of the litigation burden”27 such that

attorneys’ fees are warranted through the end of trial, despite

the State’s role as a co-litigant. Bitterroot, 251 P.3d at 140.

Although the circuit court found that the relationship between

27 Petitioners claim that they “single-handedly prepared all the evidence for trial, drafted the vast majority of the motions in limine and trial memoranda and were solely responsible for the direct examination of all key witnesses.” (internal quotation marks omitted) Specifically, Petitioners contend that, without any assistance from the State, they:

(1) conducted all the historical research in the case, in a case that spanned a timeframe of 200 years; (2) determined the location of Haleakala Trail, including by conducting all site inspections; (3) prevailed in a number of discovery disputes against HRC; (4) conducted virtually all discovery against HRC . . . ; (5) conducted the HRCP Rule 30(b)(6) deposition of HRC; (6) conducted extensive title research; (7) prepared all of the voluminous exhibits for trial; (8) performed almost all legal research; (9) drafted most of the motions in limine and trial memoranda; (10) performed the direct examination of all key witnesses, including of all the experts . . . ; and (11) performed the cross-examination of HRC’s expert.

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Petitioners and the State was not always “on a solid foundation”

after the JPA, it made no findings as to whether the State’s

(1) support of S.B. 2728 constituted “active opposition” and

(2) participation in preparation for and at trial rendered

Petitioners’ enforcement efforts unnecessary. By addressing

these questions on remand, the circuit court should determine to

what extent Petitioners are entitled to post-JPA attorneys’ fees

under the PAG doctrine.

B. The ICA Erred in Affirming the Circuit Court’s Denial of Petitioners’ Second AF Motion

Petitioners contend that the circuit court erred in

denying their second AF motion. The ICA rejected this argument,

holding that the circuit court did not abuse its discretion in

denying Petitioners’ second AF motion because the Settlement

“did not appear to contemplate [Petitioners’] subsequent request

for attorneys’ fees.” The ICA erred in affirming the circuit

court’s denial of Petitioners’ second AF motion because the

plain language of the Settlement does not preclude motions

subsequent to Petitioners’ first AF motion, and it is unclear

what the parties contemplated with regard to further litigation

over costs and fees. To the extent that the terms of the

Settlement are ambiguous and intent of the parties is unclear,

this case should be remanded to the circuit court. Moreover, as

discussed infra in section IV.B.2, Petitioners’ attorneys’ fees

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and costs recoverable under the PAG doctrine include those

reasonably incurred in litigating the initial claim for fees.

1. The Plain Language of the Settlement Did Not Preclude Petitioners from Filing a Second AF Motion

HRC argues that “[t]he express terms of the Settlement

Agreement called for a single motion and barred [Petitioners’]

attempt to file a second motion for attorneys’ fees.”28

Petitioners disagree that the Settlement’s use of the singular

“motion” precluded them from filing their second AF motion, and

counter that, under the rules of contract interpretation, “the

use of the singular generally includes the plural, unless it is

clear that the parties intended otherwise.” The ICA found that

the circuit court did not abuse its discretion in rendering a

decision consistent with HRC’s argument. However, the ICA erred

28 The redacted Settlement, in relevant part, reads:

All claims in Phase I of the trial are final and nonappealable and HRC may not request a new trial.

All claims for Phase II of the trial are dismissed with prejudice by Plaintiffs.

The parties agree as follows with respect to Plaintiffs[sic] attorneys’ fees motion:

- The motion will be heard by Judge Cardoza, whose decision may be appealed by either party[.] - HRC further agrees that it will not seek any form of land exchange of Haleakala Trail with the State. - Plaintiff’s[sic] motion for attorneys’ fees will be heard by Judge Cardoza in his courtroom in the normal course[.]

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because the plain language of the Settlement does not

unambiguously preclude Petitioners from filing a second AF

motion.

Settlement agreements are contracts and are, thus,

subject to principles of contract law. Exotics Hawaiʻi-Kona,

Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaiʻi 277, 288, 172

P.3d 1021, 1032 (2007). “Under principles of contract

interpretation, an agreement should be construed as a whole and

its meaning determined from the entire context and not from any

particular word, phrase, or clause.” Santiago v. Tanaka, 137

Hawaiʻi 137, 155, 366 P.3d 612, 630 (2016). Contractual terms

“should be interpreted according to their plain, ordinary, and

accepted sense in common speech.” Id. And if those terms are

“reasonably susceptible to more than one meaning[,]” the court

may deem the contract ambiguous. Hawaiian Ass’n of Seventh-Day

Adventists v. Wong, 130 Hawaiʻi 36, 45, 305 P.3d 452, 461 (2013).

If a contract is ambiguous, the court may properly consider

evidence beyond the four corners of the contract to determine

“the intent of the parties and circumstances under which the

agreement was executed.” Id. at 45–46, 305 P.3d at 461–62; see

also 29 Am. Jur. 2d Evidence § 1097 (2021).

Considering the Settlement as a whole, the use of the

term “attorneys’ fees motion” is ambiguous because, in addition

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to HRC’s interpretation, it can also be reasonably construed as

setting forth the terms for one particular motion for attorneys’

fees (i.e., Petitioners’ first AF motion), without establishing

the terms for or precluding subsequent motions (e.g.,

Petitioners’ second AF motion). Furthermore, the language of

the Settlement enumerates specific actions related to the

litigation the parties are precluded from taking--for example,

barring HRC from appealing the claims adjudicated in phase one

of the trial, requesting a new trial, or “seek[ing] any form of

land exchange of Haleakala Trail with the State[,]” and barring

Petitioners from bringing their phase two claims against HRC--

but does not expressly preclude Petitioners from filing a second

AF motion.

HRC contends that the short length of the Settlement

shows that the parties “intended [the litigation wind-up]

process to be simple and expeditious[,]” which supports its

argument that the Settlement bars Petitioners’ second AF motion.

However, the short length of the Settlement, together with the

fact that it is handwritten with numerous edits and corrections,

and that it lacks any indication that it is a fully integrated

document constituting the entire agreement between the parties,

weighs in favor of considering extrinsic evidence to resolve the

Settlement’s ambiguous use of the term “attorneys’ fees motion.”

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Considering the circumstances under which the

Settlement was executed also leads to a conclusion that the use

of the term “attorneys’ fees motion” is ambiguous. The

Settlement was signed on December 19, 2014, the same day the

circuit court entered its Judgment for phase one of trial. At

that time, Petitioners had already filed their first AF motion,

but litigation on the motion did not begin in earnest until

February 2015. The circuit court partially granted Petitioners’

first AF motion on March 4, 2015, and issued an oral ruling on

April 22, 2015 specifying the fees and costs Petitioners were

entitled to. Petitioners filed their second AF motion on May 6,

2015, just two weeks after the circuit court issued its oral

ruling on Petitioners’ first AF motion.

HRC claims that Petitioners’ second AF motion is

“untimely” and that Petitioners should have included their

request for additional fees in their first AF motion. This

argument ignores the conditional nature of a request for fees on

fees. Petitioners spent over five months litigating their

(ultimately successful) claim for attorneys’ fees. Petitioners

would not have filed their second AF motion if they had not

prevailed on their first AF motion, and the substance of their

second AF motion (i.e., the amount of costs and fees requested)

depended heavily on the nature of the litigation of their first

AF motion. Petitioners could have, in theory, included in their

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first AF motion a conditional request for fees on fees. But

Petitioners could not have known, back in December 2014, the

time they would spend or monetary amount they would incur

litigating their first AF motion. To that extent, a request for

fees on fees in their first AF motion could easily have been

dismissed as unripe, incomplete, or unreasonable.

Given that the express terms of the Settlement do not

unambiguously preclude Petitioners’ second AF motion, the issue

of what the parties contemplated regarding further fee

litigation should be remanded for the circuit court’s

consideration. The circuit court should consider all relevant

extrinsic evidence, including that this fee litigation was

brought in the context of the PAG doctrine, an equitable

doctrine aimed at encouraging--and fairly compensating--private

parties to vindicate the public interest. See Waiāhole II, 96

Hawaiʻi at 30, 25 P.3d at 805.

2. Fees Recoverable Under the PAG Doctrine Include Those Reasonably Incurred in Litigating the Initial Claim for Fees

Petitioners argue that while there is no Hawaiʻi case

law on point, the “overwhelming majority of courts” award fees

on fees in the context of the PAG doctrine, and that this rule

aligns with the policy goals of the PAG doctrine. Serrano IV,

652 P.2d at 997. Petitioners explain, as the California Supreme

Court articulated in Serrano IV, that the PAG doctrine will

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“often be frustrated” or “nullified, if [fee] awards are diluted

or dissipated by lengthy, uncompensated proceedings to fix or

defend a rightful fee claim.” 652 P.2d at 992. HRC does not

dispute Petitioners’ argument, but counters that even if this

court were to allow PAG plaintiffs to collect fees on fees,

Petitioners would not be eligible for such an award because

their second fee request was “inflated, unorganized, untimely,

improperly documented, overreaching, or otherwise unreasonable.”

HRC’s argument is without merit. For the reasons set forth

herein, we now clarify that (1) fees and costs awarded pursuant

to the PAG doctrine include those reasonably incurred in

litigating the initial claim for fees, and (2) Petitioners are

eligible to recover fees on fees.

This court’s rationale in adopting the PAG doctrine,

as set forth across Waiāhole II, Sierra Club II, and Irwin Park

II, favors permitting the awarding of fees on fees.29 We first

considered and summarized the arguments in favor of the PAG

doctrine in Waiāhole II, but ultimately held that it was not

applicable to the case before us. 96 Hawaiʻi at 32, 25 P.3d at

807. We quoted the California Supreme Court at length, stating

that, in cases where a private plaintiff has carried the

29 Unlike California, which has codified the PAG doctrine, see Cal. Civ. Proc. Code § 1021.5, in Hawaiʻi the PAG doctrine is wholly judicially imposed, see, e.g., Sierra Club II, 120 Hawaiʻi at 218, 202 P.3d at 1263.

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enforcement burden that has otherwise belonged to the

government, “[o]ne solution . . . within the equitable powers of

the judiciary to provide, is the award of substantial attorneys

[sic] fees to those public-interest litigants and their

attorneys . . . who are successful in such cases, to the end

that support may be provided for the representation of interests

of similar character in future litigation.” Id. at 30, 25 P.3d

at 805 (quoting Serrano III, 569 P.2d at 1313–14 (emphasis

added)). “[S]ubstantial” attorneys’ fees are justified in cases

where a private plaintiff assumes the government’s enforcement

burden because such cases are “of enormous significance to the

society as a whole” and often involve “extremely complex” issues

that require “time-consuming and costly” presentation. Id. In

short, we stated, “the purpose of the [PAG] doctrine is to

promote vindication of important public rights.” Id. (quoting

Arnold v. Dep’t of Health Servs., 775 P.2d 521, 537 (Ariz.

1989)).

In Sierra Club II, we awarded attorneys’ fees under

the PAG doctrine for the first time to plaintiffs who procured a

permanent injunction against an inter-island ferry project while

an environmental assessment was being prepared. 120 Hawaiʻi at

189–90, 202 P.3d at 1234–35. In imposing attorneys’ fees

against both the public (Department of Transportation) and

private (Hawaiʻi Superferry, Inc.) entities in the case, we

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explained that we “s[aw] no reason not to apply the [PAG]

doctrine to a private defendant.” Id. at 225, 202 P.3d at 1270.

We quoted the Arizona Court of Appeals at length, articulating

why it was appropriate to apply the PAG doctrine in this

instance: “[W]e do not find that the exclusive purpose of the

[PAG] doctrine is to impose the cost of vindicating public

rights on the public itself. Awarding [attorney’s [sic]] fees

against private defendants in appropriate cases will promote

important public rights to the same extent as awarding fees

against governmental defendants.” Id. (quoting Ariz. Ctr. For

Law in the Pub. Interest v. Hassell, 837 P.2d 158, 173 (Ariz.

Ct. App. 1991).

Finally, in Irwin Park II, we discussed the importance

of the “general precedential value” of litigation brought under

the PAG doctrine. 130 Hawaiʻi at 319, 310 P.3d at 314. In Irwin

Park II, we noted that while the litigation “concerned a

specific property, . . . the result vindicated the dedication of

public parks and historic sites across the state[,]” id. at 318,

310 P.3d at 313, and ensured the future “enforcement of the

government’s commitments to the preservation of such parks and

historic sites[.]” Id. at 319, 310 P.3d at 314. See also,

Waiāhole II, 96 Hawaiʻi at 31, 25 P.3d at 806 (noting that “all

of the citizens of the state, present and future, stood to

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benefit from the decision”). This court thus adopted the PAG

doctrine to promote the vindication of public rights.

Allowing fees on fees in the PAG context is entirely

consistent with the purpose of vindicating public rights, as

precluding fees on fees would have a chilling effect on vital

public interest litigation. We agree with the warning set forth

in Serrano IV that the PAG doctrine would be “nullified” if fee

awards are “diluted or dissipated by lengthy, uncompensated

proceedings to fix or defend a rightful fee claim.” 652 P.2d at

992. Our considerations regarding the PAG doctrine in Waiāhole

II, Sierra Club II, and Irwin Park II thus favor permitting

plaintiffs to recover reasonable fees on those fees awarded

In the present case, the issues were complex,

requiring exceptional historical and title research,

calculations to determine the location and bounds of Haleakalā

Trail, and numerous physical site inspections. See Waiāhole II,

96 Hawaiʻi at 30, 25 P.3d at 805. The litigation was also

lengthy, beginning in January 2011 (when Petitioners filed their

complaint) and extending through May 2015 (when the circuit

court granted Petitioners’ first AF motion). See id. Finally,

in procuring a judgment that the State owned Haleakalā Trail (in

and of itself a culturally and historically important trail),

Petitioners established important general precedent for future

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parties who may seek to vindicate other historic trails or

rights of way under the Highways Act. See Irwin Park II, 130

Hawaiʻi at 319, 310 P.3d at 314.

Given the Petitioners’ success in the underlying

litigation and on their first AF motion under the PAG doctrine,

and given the policy goals this court has articulated in

adopting and applying the PAG doctrine, we now clarify that

Petitioners’ attorneys’ fees and costs recoverable under the PAG

doctrine include those reasonably incurred in litigating the

initial fee claim. Therefore, the ICA erred in affirming the

circuit court’s denial of Petitioners’ second AF motion.

C. The ICA Did Not Err in Finding that HRC Did Not Act in Bad Faith

Petitioners contend that because they notified HRC,

pursuant to HRS § 607-14.5(c), that there was no law or evidence

supporting HRC’s claim that it owned Haleakalā Trail, and

because the circuit court later entered a judgment “consistent”

with this notice, the circuit court (1) clearly erred by finding

that HRC had not maintained its ownership claim in bad faith and

(2) abused its discretion in denying Petitioners attorneys’ fees

under HRS § 607-14.5. HRC counters that this argument is akin

to claiming that HRC “acted in bad faith by defending its case

at all.” The ICA affirmed the circuit court’s finding that

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HRC’s claim was not frivolous or made in bad faith. The ICA did

not err in affirming the circuit court.

Separate from attorneys’ fees entered under the PAG

doctrine, the circuit court may impose “a reasonable sum for

attorneys’ fees and costs” against a party to a civil action

under HRS § 607-14.5 “upon a specific finding that all or a

portion of the party’s claim or defense was frivolous[,]” HRS

§ 607-14.5(a), and “not reasonably supported by the facts and

the law in the civil action[,]” HRS § 607-14.5(b). A frivolous

claim or defense is one that is “so manifestly and palpably

without merit, so as to indicate bad faith on the [pleader’s]

part such that argument to the court was not required.” Tagupa

v. VIPDesk, 135 Hawaiʻi 468, 479, 353 P.3d 1010, 1021 (2015)

(quoting McCarthy, 72 Haw. at 29–30, 804 P.2d at 887). We have

clarified that “[a] finding of frivolousness is a high bar; it

is not enough that a claim be without merit[.]” Id.

As evidence of HRC’s bad faith, Petitioners emphasize

that when they provided HRS § 607-14.5(c) notice to HRC, which

“thoroughly discuss[ed]” the reasons HRC’s ownership claim was

not supported by law or fact, HRC responded with a “one sentence

rejection[.]” Petitioners also claim that the circuit court’s

phase one judgment was “entirely consistent with the prior

notice.” Even taking everything Petitioners claim as true, all

this shows is that HRC’s ownership claim was “weak” or “without

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merit[.]” A meritless claim, without more, is not sufficient to

show that the claim is frivolous or that the party acted in bad

faith. See Tagupa, 135 Hawaiʻi at 479, 353 P.3d at 1021.

Therefore, the circuit court did not abuse its discretion in

finding HRC’s ownership claim was not frivolous or made in bad

faith. As such, the circuit court did not err in denying

Petitioners attorneys’ fees under HRS § 607-14.5. The ICA did

not err in holding the same.

V. CONCLUSION

For the foregoing reasons, the ICA’s March 31, 2021

Judgment on Appeal is vacated. Awarding fees on fees under the

PAG doctrine is permitted, and furthers the doctrine’s rationale

of vindicating important public rights. The JPA was not

dipositive in analyzing Petitioner’s eligibility for attorneys’

fees under the PAG doctrine. Petitioners’ second AF motion was

not precluded as a matter of law, and Petitioners are eligible

for fees on fees. The case is remanded to the circuit court for

proceedings consistent with this opinion.

Peter N. Martin and /s/ Mark E. Recktenwald Tom Pierce, for appellants /s/ Paula A. Nakayama

Francis P. Hogan, /s/ Sabrina S. McKenna Michael W. Gibson and Benjamin M. Creps, /s/ Michael D. Wilson for appellee Haleakala Ranch Company /s/ Todd W. Eddins