Agency's Approval of Developer's plan to Remove Skeletal Remains Subject to Judicial Review

Kaleikini v. Theilen (HSC August 18, 2010)

Background. General Growth Properties (GGP) discovered remains of ancient Hawaiians, or iwi, on its property near Ward Center in Honolulu. GGP discovered the iwi as it was constructing the Ward Village Shops. A hearing was held before the Oahu Island Burial Council. At the hearing, GGP sought permission to remove the iwi into an area that would be safe. GGP also maintained that there was no way to alter the current construction plan. Keleikini testified at the hearing. She opposed GGP's plan and testified that she is a "cultural descendant" of the iwi and that Native Hawaiian cultural practices require undisturbed treatment of the iwi. Kaleikini argued that GGP should have been more careful in their construction plans. The burial council approved of GGP's plan.

Kaleikini wrote a letter to the Department of Land and Natural Resources (DLNR) to review the burial council's decision at a contested case hearing. Kaleikini maintained that she was entitled to a contested case hearing because the burial council adversely affected her rights as a cultural descendant and a Native Hawaiian. The DLNR denied her request on the grounds that she must make an agency appeal. Kaleikini then filed a notice of agency appeal before the circuit court and a separate action seeking declaratory and injunctive relief. Kaleikini filed a motion to stay the final approval of GGP's plan by the DLNR, pending the outcome of her agency appeal. The circuit court concluded that since there was no contested case hearing to appeal from, it had no jurisdiction. The case was dismissed. Kaleikini appealed.

In Kalekini's declaratory judgment action, however, the circuit court sua sponte filed Kaleikini's motion to stay. That motion was denied. Kalekini then filed a motion for a preliminary injunction and a motion for summary judgment. Those too were denied. The DLNR--joined by GGP--filed a motion for summary judgment. It granted the motion in part. The parties eventually settled. The ICA dismissed Kaleikini's appeal as moot.

Mootness Based on a Concession. At oral argument, Kaleikini conceded that her case was moot. The HSC held that the case was moot based on her concession. The issue now turned on whether it met any of the exceptions to the mootness doctrine.

But the Public-Interest Exception Applies. The application of the public-interest exception depends on "(1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question." Hamilton v. Lethem, 119 Hawai'i 1, 6-7, 193 P.3d 839, 844-45 (2008). According to the HSC, the issue here is "the availability of judicial review of decisions relating to the removal of Native Hawaiian burial sites." This issue is of "great public importance" based on the policy statements of the Legislature that amended laws related to the treatment of discovered human skeletal remains in HRS Chapter 6E. Secondly, there is a need for an authoritative determination on the issue of whether an appellant can seek judicial review for the agency's denial of a request for a contested case hearing; and that determination would guide "public officials"--like the agencies and the courts. Finally, the HSC concluded that this issue with the iwi will arise again "as it seems probable that iwi will continue to be unearthed at future construction projects."

Kaleikini Entitled to a Contested Case Hearing. Kaleikini requested a contested case hearing, but the circuit court dismissed her case based on a lack of jurisdiction. "The right to appeal is purely statutory and exists only when jurisdiction is given by some constitutional or statutory provision." Lingle v. Hawai'i Gov't Employees Ass'n, 107 Hawai'i 178, 184, 111 P.3d 587, 593 (2005). HRS § 91-14 provides jurisdiction to review the final decisions and orders in "contested case[s]." This statute applies when (1) the agency ruled in a "contested case" (i.e. it is "required by law" and "determines the rights, duties, and privileges of specific parties"); (2) the agency's action is a "final decision and order" or is a "preliminary ruling" that nonetheless deprives the claimant of adequate relief; (3) the claimant followed the applicable agency rules and participated in the contested case; and (4) the claimant had standing (i.e. his or her "legal interests must have been injured."). Public Access Shoreline Hawai'i v. Hawai'i County Planning Com'n, 79 Hawai'i 425, 431, 903 P.2d 1246, 1252 (1995).

The HSC concluded that this was a "contested case" because it was required by HRS § 6E-43 and HAR § 13-300-51. Because there was no "contested case," the HSC speculated that to determine whether such a hearing would have affected GGP's rights, duties, and privileges. The HSC held that it did; the approval of GGP's burial plan implicated GGP's right to use the property and determined its duties to the iwi discovered on its property. As to the other prongs, the HSC held that the denial of the request for a hearing constituted a "final decision and order" by the agency, that Kaleikini followed the rules of the agency, and Kaleikini has standing based on her status as a "cultural descendant" and her rights as a Native Hawaiian which are protected in Art. XII, section 7 of the Hawai'i Constitution. Because she met the prongs of PASH, the circuit court erred in dismissing her agency appeal based on a lack of jurisdiction.

Justice Acoba's Concurrence. Justice Acoba concurred with the result, but disagreed with the majority's analysis. Justice Acoba believed that the contested case was not mandated by a statute or agency, but rather was required by the due process rights of the Hawai'i Constitution. Justice Acoba would have held that Kaleikini's "constitutional due process right as a Native Hawaiian practicing the native and customary traditions of protecting iwi mandated a contested case hearing[.]" In order for an agency hearing to be "required by law" (and, thus, a "contested case" subject to judicial review), the hearing must be required by an agency rule, statute, or constitutional due process. PASH, 79 Hawai'i at 431, 903 P.2d at 1252. Justice Acoba examined the applicable statutes and agency rules and determined that they do not require a hearing. The only possibility, then, was the constitution. Justice Acoba recognized GGP's property interests affected by the burial council's decision. He also recognized Kaleikini's traditional and customary practice "to ensure that the iwi receive proper care and respect." The Hawai'i Constitution protects these rights and affords her with a contested case hearing where these rights are affected.

Justice Acoba also disputed the majority's interpretation of the BLNR's authority to determine specific hearings in this area. The issues here are very specific, and are not reported here.

Justice Recktenwald's Concurrence. Justice Recktenwald wrote separately to address the circuit court's application of Kaniakapupu v. Land Use Commission, 111 Hawai'i 124, 139 P.3d 712 (2006). The circuit court relied on Kaniakapupu as authority to dismiss Kaleikini's agency appeal. In that case, the HSC held that there was no "contested case" arising from the agency's denial of a claimant's motion to show cause. Id. at 132-34, 139 P.3d at 720-22. In this case, wrote Justice Recktenwald, the relevant statutes and rules provided for a contested case hearing. It was clear that Justice Recktenwald agreed with the majority's analysis that the agency rules and statutes required the hearing, and there was no need look to the Hawai'i Constitution--as Justice Acoba believed.

Interestingly, Justice Recktenwald added that "it is appropriate to consider this case under the public interest exception to the mootness doctrine in order to clarify the scope of the holding in Kaniakapupu." Why is this sentence interesting? It seems to Justice Recktenwald that the public-interest exception includes those cases that should clarify the law. That may be so, but it does not squarely fit with the three-prong analysis in Hamilton. Then again, Justice Recktenwald's sentence fits in with the second prong--the need for an authoritative determination for guidance of public officials. But that is only one of three factors.


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