Where There's a Right of Action, There's a way

Pono v. Molokai Ranch
(ICA October 21, 2008)

Background. Molokai Ranch owned agricultural lands on the western end of Molokai. The Ranch asked the then-Mayor Linda Crockett Lingle and other Maui County officials if commercial campgrounds could be developed on these lands and, if so, what permits were needed. The County informed the Ranch that development was possible and that permits were needed for tents, yurts, and other camping facilities. The Ranch got the permits and started developing. An unincorporated association of Molokai residents called Pono sued the Ranch, Maui County, and the mayor and her officials. Pono sought a declaratory order stopping the development because it violated the state land use law (HRS ch. 205) and county zoning laws. The circuit court dismissed those counts because it failed to exhaust administrative remedies--it did not bring their claim before the County's Board of Variances Appeals--and, thus, had no subject matter jurisdiction.

Exhausting Administrative Remedies Impossible Without a Right to Bring a Cause of Action. The ICA majority--Judges Watanabe and Fujise--never examined the circuit court's application of the doctrines of primary jurisdiction and the exhaustion of administrative remedies. Instead, it held that Pono had no standing to enforce HRS chapter 205 against the Ranch. Pono sought a declaratory judgment and, according to the ICA, "in order for a private citizen to seek a declaratory judgment that a statute has been violated, the private citizen must, as a threshold matter, have a private right of action to enforce the statute." To determine whether a private remedy implicitly lies in a statute, the court examines three factors: (1) whether the plaintiff is "one of the class for whose especial benefit the statute was enacted" (i.e. "does the statute create a right in favor of the plaintiff?"); (2) any indication of legislative intent to create or deny such a remedy; and (3) whether the remedy is consistent with the underlying purposes of the legislative scheme. Rees v. Carlisle, 113 Hawai'i 446, 458, 153 P.3d 1131, 1141 (2007) (quoting Reliable Collection Agency v. Cole, 59 Haw. 503, 507, 584 P.2d 107, 109 (1978)).

Under the first factor, the ICA concluded that, unlike HRS § 205A-6, which provides "any person or agency" to bring a cause of action for violations of the Coastal Zone Management Area, nothing in HRS chapter 205 "expressly authorizes a private individual to enforce the chapter." To support its conclusion, the ICA pointed to examples in the HRS where the legislature provided a private cause of action to enforce a statute, and succinctly stated that "when the legislature desires to provide a cause of action to Hawai'i's citizens to remedy a statutory violation, it knows how to do so and has done so[.]" The ICA then examined the legislative history behind HRS chapter 205 and concluded that the legislative record was silent on whether a private right of action was intended.

Finally, the ICA concluded that one of the purposes behind HRS chapter 205 was "to preserve, protect, and encourage the development of the lands in the State for those uses to which they are best suited for the public welfare[.]" The ICA also pointed out that enforcement of these statutes went to county officials, and not the Land Use Commission. In Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 97 P.3d 372 (2004), the HSC looked to the same legislative record and held that if the legislature intended to grant the LUC enforcement powers along with the county, it would have done so. Id. at 318-19, 97 P.3d at 394-95. In light of that, the ICA concluded that "it would be incongruous to hold that the legislature intended to grant private citizens a right to enforce[.]" In other words, the county is the exclusive enforcing party of HRS chapter 205.

Even when it Abdicates? The third factor in the Rees test is whether the private right of action would be "consistent with the underlying purposes of the legislative scheme." Here, the scheme in HRS chapter 205 was to allow the State to zone land use. It created the Land Use Commission to make such changes. It also delegated the counties as the enforcing party. HRS § 205-12. In Lanai, the HSC more or less held that the county is the sole enforcer of land use laws. Thus, the ICA held that it would be illogical to extend a private cause of action to private parties. Other than the logic of the Lanai decision, nothing foreclosed the possibility that a private cause of action might have been consistent with the purposes behind the land use laws. But then again, the ICA stated that affording a private right of action based on mere legislative silence is a "hazardous enterprise, at best." Touche Ross & Co. v. Redington, 442 U.S. 560, 571 (1979).

So What do you do when the Government Doesn't act? This leads to an interesting point. Arguably, the County did nothing to enforce the land use provisions and, thus, the County--as sole enforcer of these laws--abdicated. Does Pono have standing to bring an action against the County (rather than the Ranch) seeking a declaratory order to enforce the land use laws? In other words, does Pono have a private right of action to compel the County to do its job? And do the Rees factors even apply? Probably not. It is unclear what statute requires the executive branch of any government to, well, enforce the laws. After all, a complaining witness cannot sue a prosecutor for refusing to bring criminal charges against a defendant. In that case, a private citizen may have to look for relief elsewhere--such as political pressure, lobbying, urging others to "vote the bums out." That, obviously, did not happen here.

Judge Foley's Concurrence. Judge Foley wrote separately because he believed that there was no error in dismissing for Pono's failure to exhaust administrative remedies. See Kona Old Hawaiian Trails v. Lyman, 69 Haw. 81, 73 P.2d 161 (1987). Judge Foley believed that Pono failed to exhaust its administrative remedies because it did not appeal the County's decision to allow the development to the BVA. As for the counts against the County, Judge Foley found no error. Judge Foley explained that the County officials had the authority, under HRS chapter 205, to interpret the land use laws and its procedure. Judge Foley did not address the majority's position.


LoF said…
I think the inquiry regarding compelling government action returns to the analysis under mandamus actions, primarily. Whether the government actor has discretion to do something or not do something. If the county has no discretion over whether to enforce zoning laws, mandamus or some kind of mandatory injunctive relief should lie.

If there is discretion, the question (in my mind and apparently in Foley's, in different ways) becomes one of whether that discretion is being exercised in a lawful manner -- did they adopt administrative rules pursuant to Chapter 91, Haw. Rev. Stat.).

The prosecutor is an exception to this because (1) the public prosecutor has been around since the 12th century and (2) the criminal legal system and the prosecutor is purely adjudicatory in nature and not subject to mandamus actions or administrative procedure.

In this case, where I think, the BVA option was foreclosed by the statute of repose. The next step should have been to challenge the issuance of the permits in quo warranto. This older legal form was designed specifically to attack actions of government officials who don't have the authority to do what they purport to do. Here, permits issued without authority are clearly subject to at least a writ of quo warranto.

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