In re: The Petition of Ku'ulei Higashi Kanahele and Ahiena Kanahele. ( 2023 )

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Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
15-MAR-2023
08:04 AM
Dkt. 131 OP
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
________________________________________________________________
IN THE MATTER OF THE PETITION OF KUULEI HIGASHI KANAHELE AND
AHIENA KANAHELE, INDIVIDUALS, FOR A DECLARATORY ORDER CONCERNING
THE INVALID CLASSIFICATION OF THE DE FACTO AND IMPROPER
INDUSTRIAL USE PRECINCT ON APPROXIMATELY 525 ACRES OF STATE LAND
USE CONSERVATION DISTRICT LANDS LOCATED IN MAUNA KEA AND HILO,
COUNTY OF HAWAII, TAX MAP KEY NO.: 4-4-015:0090 (POR.)
________________________________________________________________
SCOT-XX-XXXXXXX
APPEAL FROM THE LAND USE COMMISSION
(DOCKET NO. DR-19-67 (Agency Appeal))
MARCH 15, 2023
RECKTENWALD, C.J., NAKAYAMA, J.,
CIRCUIT JUDGE CATALDO, ASSIGNED BY REASON OF VACANCY,
AND WILSON, J., DISSENTING, WITH WHOM McKENNA, J., JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
This is another case in the series of proceedings
challenging the construction of the Thirty Meter Telescope
(TMT). However, unlike prior proceedings that only sought to
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prevent the TMT from being built, Appellants Kuʻulei Higashi
Kanahele and Ahiena Kanahele (collectively, the Kanaheles) seek
to use the Land Use Commission’s (the Commission or LUC)
districting authority in a way that could compel the removal of
all astronomy facilities located within the Astronomy Precinct
by petitioning the Commission for declaratory relief.
On November 29, 2019, the Commission issued a written
Order Denying Petition for Declaratory Order (LUC Order). The
Commission explained that it lacked jurisdiction (1) to use the
declaratory ruling procedure to undermine decisions already
made, and (2) to regulate land uses in the Astronomy Precinct
because the legislature granted such authority to the Department
of Land and Natural Resources (the Department or DLNR).
The following day, the Kanaheles appealed to this
court. The Kanaheles seek to use the Commission’s declaratory
ruling authority (1) to challenge past decisions that astronomy
facilities are permissible within conservation districts and
(2) to contravene the Department’s power to regulate
conservation district uses. Contrary to the Kanaheles’ claim
that the Commission may restrict land uses through Hawaiʻi
Revised Statutes (HRS) § 205-2(e),1 the statute merely identifies
1 HRS § 205-2 (2017) provides in relevant part:
(a) There shall be four major land use districts in
which all lands in the State shall be placed: urban, rural,
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agricultural, and conservation. The land use commission
shall group contiguous land areas suitable for inclusion in
one of these four major districts. The commission shall
set standards for determining the boundaries of each
district, provided that:
(1) In the establishment of boundaries of urban
districts those lands that are now in urban use
and a sufficient reserve area for foreseeable
urban growth shall be included;
(2) In the establishment of boundaries for rural
districts, areas of land composed primarily of
small farms mixed with very low density
residential lots, which may be shown by a minimum
density of not more than one house per one-half
acre and a minimum lot size of not less than one-
half acre shall be included, except as herein
provided;
(3) In the establishment of the boundaries of
agricultural districts the greatest possible
protection shall be given to those lands with a
high capacity for intensive cultivation; and
(4) In the establishment of the boundaries of
conservation districts, the “forest and water
reserve zones” provided in Act 234, section 2,
Session Laws of Hawaii 1957, are renamed
“conservation districts” and, effective as of July
11, 1961, the boundaries of the forest and water
reserve zones theretofore established pursuant to
Act 234, section 2, Session Laws of Hawaii 1957,
shall constitute the boundaries of the
conservation districts; provided that thereafter
the power to determine the boundaries of the
conservation districts shall be in the commission.
In establishing the boundaries of the districts in each
county, the commission shall give consideration to the
master plan or general plan of the county.
(b) Urban districts shall include activities or uses
as provided by ordinances or regulations of the county
within which the urban district is situated.
In addition, urban districts shall include geothermal
resources exploration and geothermal resources development,
as defined under section 182-1, as permissible uses.
. . . .
(e) Conservation districts shall include areas
necessary for protecting watersheds and water sources;
preserving scenic and historic areas; providing park lands,
wilderness, and beach reserves; conserving indigenous or
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uses that are permitted within conservation districts. The
statute does not authorize the Commission to exclude or enforce
certain land uses within conservation districts.
I. BACKGROUND
A. The Mauna Kea Observatories
In January 1964, Gerard Kuiper began investigating
Mauna Kea as a possible observatory site. David Leverington, A
History of Astronomy: From 1890 to the Present 276 (2012). That
same year, the University of Hawaiʻi (UH) and the University of
Arizona entered into an agreement to build a test telescope and
dome on Mauna Kea. Id. An access road was built in May 1964,
and the Mauna Kea Observatory was dedicated on July 20, 1964.
Id. By 1970, UH completed a second telescope on Mauna Kea. Id.
By 2008, thirteen telescopes had been constructed in the
Astronomy Precinct. Mauna Kea Comprehensive Management Plan 93-
94 (Apr. 2009).
endemic plants, fish, and wildlife, including those which
are threatened or endangered; preventing floods and soil
erosion; forestry; open space areas whose existing
openness, natural condition, or present state of use, if
retained, would enhance the present or potential value of
abutting or surrounding communities, or would maintain or
enhance the conservation of natural or scenic resources;
areas of value for recreational purposes; other related
activities; and other permitted uses not detrimental to a
multiple use conservation concept. Conservation districts
shall also include areas for geothermal resources
exploration and geothermal resources development, as
defined under section 182-1.
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B. Hawaiʻi Land Use Laws
Hawaiʻi’s land use laws developed almost in parallel to
the growth in astronomy on Mauna Kea. In 1961, the State
adopted a statewide land use law. 1961 Haw. Sess. Laws Act 187,
at 299-305. As a part of this law, the legislature established
the Commission with significant powers. 1961 Haw. Sess. Laws
Act 187, § 2 at 300. The legislature authorized the Commission
to “group contiguous land areas suitable for one of . . . three
major uses into a district and designate it as an urban
district, agricultural district or conservation district, as the
case may be.” 1961 Haw. Sess. Laws Act 187, § 3 at 300.
Notably, the legislature mandated that “the boundaries
of the forest and water reserve zones theretofore established
pursuant to Act 234, SLH 1957, shall constitute the [initial]
boundaries of the conservation districts, provided, that
thereafter the power to determine the boundaries of the
conservation districts shall be in the commission.” 1961 Haw.
Sess. Laws Act 187, § 3 at 300. Moreover, the legislature
granted the Commission power to amend district boundaries, and
even required the Commission to review district boundaries every
five years. 1961 Haw. Sess. Laws Act 187, §§ 6, 12 at 301-03.
However, the legislature declined to provide the
Commission with powers to regulate land uses within the
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conservation districts. 1961 Haw. Sess. Laws Act 187, § 3 at
300 (“Zoning powers within conservation districts shall be
exercised by the [board of commissioners of agriculture and
forestry] to which is assigned the responsibility of
administering the provisions of Act 234, SLH 1957.”); see also
1957 Haw. Sess. Laws Act 234, § 2 at 254-56.
In 1963, the legislature recognized a “demonstrated
. . . need for clarifying the provisions of . . . Act 187 . . .
with reference to the division of authority between the land use
commission and the counties,” and therefore amended the land use
laws. 1963 Haw. Sess. Laws Act 205, § 1 at 315. As a part of
this effort, the legislature created a fourth district category
— rural — and articulated:
Conservation districts shall include areas necessary for
protecting watersheds and water sources; preserving scenic
areas: [sic] providing park lands, wilderness and beach
reserves; conserving endemic plants, fish, and wildlife;
preventing floods and soil erosion; forestry; and other
related activities; and other permitted uses not
detrimental to a multiple use conservation concept.
1963 Haw. Sess. Laws Act 205, § 2 at 316-17. The legislature
also transferred governing authority over the conservation
districts to the Department. 1963 Haw. Sess. Laws Act 205, § 2
at 318. The legislature further provided that “[t]he
appropriate . . . agency charged with the administration of
. . . zoning laws shall enforce . . . the use classification
districts adopted by the commission and shall report to the
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commission all violations thereof.” 1963 Haw. Sess. Laws Act
205, § 2 at 320. However, the legislature retained the
requirement that the Commission review district classifications
every five years. 1963 Haw. Sess. Laws Act 205, § 2 at 320.
In 1975, the legislature repealed its mandate that the
Commission regularly review the district boundaries, but
expressly provided that the Commission still had authority to
petition itself to redistrict district boundaries. 1975 Haw.
Sess. Laws Act 193, §§ 5-6 at 443 (“Any department or agency of
the State including the land use commission . . . may petition
the land use commission for a change in the boundary of a
district.”) (emphasis added), 445 (repealing the mandatory five-
year review).
In 1985, the legislature re-enacted the mandatory
five-year district boundary review requirement, but transferred
the authority to periodically review and initiate district
boundary amendment proceedings to the Department of Planning and
Economic Development. 1985 Haw. Sess. Laws Act 230, § 2 at 417.2
The legislature subsequently transferred the authority to the
2 At the same time, the legislature amended HRS § 205-4 to delete the
phrase “including the land use commission” from its articulation that “[a]ny
department or agency of the State . . . may petition the land use commission
for a change in the boundary of a district.” 1985 Haw. Sess. Laws Act 230,
§ 4 at 418. Thus, it appears that the legislature intended to strip the
Commission of its authority to amend district boundaries sua sponte.
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Office of State Planning in 1988. 1988 Haw. Sess. Laws Act 352,
§ 3 at 679. The Office of State Planning – now the Office of
Planning and Sustainable Development (the Planning Office) –
retains the authority to review the districts to this day. See
HRS § 205-18 (Supp. 2021).3
C. Astronomy Precinct Districting
The Commission issued its first state land use
district boundary maps in 1964. See Land Use Comm’n, SLU
District Boundary Maps, https://luc.hawaii.gov/maps/land-use-
district-boundary-maps/. The Commission issued its second state
land use district boundary maps in 1974. Id. The Commission
did not change the Astronomy Precinct from a conservation
district in either of these processes.
The Planning Office subsequently completed a state
land use district boundary review in 1992. See Off. of State
Planning, State Land Use District Boundary Review Hawaii (1992),
http://files.hawaii.gov/dbedt/op/lud/20210500%20Boundary%20Revie
w/1992HawaiiStateLandUseDistrictBoundaryReview.pdf (1992
Boundary Review). The Planning Office recognized that “[t]he
University of Hawaii’s Master Plan for the Mauna Kea Science
3 In 2021, the legislature amended HRS § 205-18 to authorize, rather than
require, the Planning Office to conduct district boundary reviews.
Currently, HRS § 205-18 reads: “The office of planning and sustainable
development may undertake a review of the classification and districting of
all lands in the State.” HRS § 205-18 (Supp. 2021) (emphasis added).
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Reserve calls for 13 telescopes by the year 2000.” Id. at 23.
However, the Planning Office did not call for the Astronomy
Precinct to be redistricted from a conservation district to an
urban district.4 Id. at 121-27.
D. Prior Proceedings Related to the TMT
Planning for the TMT began prior to 2010. Matter of
Conservation Dist. Use Application HA 3568, 143 Hawaiʻi 379, 386,
431 P.3d 752, 759 (2018) (Mauna Kea II); see also Mauna Kea
Anaina Hou v. Bd. of Land and Nat. Res., 136 Hawaiʻi 376, 381,
363 P.3d 224, 229 (2015) (Mauna Kea I). On September 2, 2010,
UH submitted a Conservation District Use Application to the
Department. Mauna Kea II, 143 Hawaiʻi at 387, 431 P.3d at 760.
In 2013, the Department granted a conservation district use
permit (2013 CDUP) before holding a contested case hearing. Id.This court vacated the 2013 CDUP and remanded for the Department
to hold a contested case hearing. Id.; see also Mauna Kea I,
136 Hawaiʻi at 399, 363 P.3d at 247.
Between October 2016 and March 2017, a Department-
appointed hearing officer conducted a contested case hearing
4 Most recently, the Planning Office completed another state land use
district boundary review on January 28, 2022. Off. of Planning and
Sustainable Development, State Land Use Review of Districts (Jan. 28, 2022),
http://files.hawaii.gov/dbedt/op/lud/20220128%20State%20Boundary%20Review-
Final/SLUReviewofDistricts1-28-22Final3.pdf (2022 Boundary Review). The
Planning Office did not recommend that the Astronomy Precinct be redistricted
from a conservation district to an urban district. Id. at 125-38, 35.
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over forty-four days. Mauna Kea II, 143 Hawaiʻi at 387, 431 P.3d
at 760. Kuʻulei Kanahele was among the witnesses who testified
in opposition to the Department issuing a conservation district
use permit (CDUP) for the TMT.
On September 27, 2017, the Department issued its
decision and order (DLNR Decision) authorizing the issuance of a
conservation district use permit for the construction of the
TMT. Mauna Kea II, 143 Hawaiʻi at 384, 387, 431 P.3d at 757,
760. The DLNR Decision was appealed to this court. Id.On October 30, 2018, this court affirmed the DLNR
Decision. Mauna Kea II, 143 Hawaiʻi at 409, 431 P.3d at 782.
E. The Kanaheles’ Petition
On September 3, 2019, the Kanaheles filed the
underlying petition with the Commission. In the petition, the
Kanaheles asked the Commission to “issue declaratory orders
stating:”
(1) current industrial research facility uses in the
[Astronomy Precinct5] are appropriate within the urban
district as prescribed by HRS § 205-2(b) and not the
conservation district;
(2) further industrial uses proposed for the
[Astronomy Precinct] must comply with HRS chapter 205 and
Commission procedures for obtaining a district boundary
amendment to reclassify conservation lands into the urban
district; and,
5 The Kanaheles refer to the 525-acre area in which the Mauna Kea
observatories are located as a “de facto industrial precinct.” Because this
court has identified the area as an “Astronomy Precinct” in prior decisions,
this opinion continues to use that terminology. See Mauna Kea II, 143 Hawaiʻi
at 385, 431 P.3d at 758; Mauna Kea I, 136 Hawaiʻi at 381, 363 P.3d at 229.
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(3) even if a single scientific laboratory or other
research facility may be appropriate within non-urban
districts, the successive, individual approval of thirteen
scientific laboratories, other research facilities, and
associated offices, parking lots, and utilities, within the
[Astronomy Precinct] constitutes urban uses inconsistent
with conservation district uses and/or detrimental to a
multiple use conservation concept for which a district
boundary amendment must be obtained.
On October 24 and 25, 2019, the Commission held a
hearing on the Kanaheles’ petition. The Commission heard
testimony from twenty-three witnesses; a representative of West
Maui Preservation Association and Na Papaʻi Wawae ʻUlaʻula; and
the Kanaheles; and heard a statement from the Kanaheles’
attorney.
The Kanaheles acknowledged that part of the purpose of
their petition was to oppose the construction of the TMT. The
Kanaheles also indicated that they were not asking the
Commission to reclassify the Astronomy Precinct from a
conservation district to an urban district, but rather to give
the Kanaheles “the opportunity to say we don’t want rezoning”
that already occurred through the construction of the astronomy
facilities.
The Kanaheles’ attorney argued that the Commission’s
authority to issue the requested declarations arose from HRS
§ 205-2(e). Specifically, the Kanaheles’ attorney reasoned that
the Commission could use its “exclusive authority to determine
the districts” and noted that the astronomy facilities “don’t
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fit any –– industrial structures don’t fit any of the
descriptions of conservation lands, including permitted uses
that are not detrimental to a multiple use conservation
concept.” Thus, the Kanaheles’ attorney explained that the
Kanaheles were
asking [the Commission] just to interpret 205 and say the
concentration of industrial research facilities on Mauna
Kea are appropriate uses or are appropriate within the
urban district or in an urban district as prescribed by
205-2 and not the conservation district. Further
industrial uses must comply with boundary amendment
procedures to reclassify those lands into the urban
district.
The Kanaheles’ attorney noted that the Kanaheles’ petition was
“not seeking enforcement of anything except for [HRS chapter]
205.”
When asked about the practical result of the
Kanaheles’ petition, the Kanaheles’ attorney acknowledged that
“in order to keep things as they are,” “the legal effect of [the
Kanaheles’] petition is to . . . force the State of Hawaiʻi or
whoever might be considered the landowner of the land on which
the telescopes sit to have to file a request for a [district]
boundary amendment.” In the event the district boundary
amendment request is denied, the astronomy facilities “would
either have to come down, or they would reapply and try to find
another way to mitigate it better.”
The Commission voted to deny the Kanaheles’ petition
five to two.
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On November 29, 2019, the Commission issued its
written LUC Order. As relevant here, the Commission cited to
Citizens Against Reckless Development v. Zoning Board of Appeals
of Honolulu, 114 Hawaiʻi 184, 196-97, 159 P.3d 143, 155-56 (2007)
(CARD) and determined “that the declaratory ruling procedure
could not be invoked by the Petitioner’s [sic] in this matter.”
The Commission recognized that the Department has authority to
govern conservation districts under HRS § 205-5(a).6 The
6 HRS § 205-5 (2017) provides:
(a) Except as herein provided, the powers granted to
counties under section 46-4 shall govern the zoning within
the districts, other than in conservation districts.
Conservation districts shall be governed by the department
of land and natural resources pursuant to chapter 183C.
(b) Within agricultural districts, uses compatible to
the activities described in section 205-2 as determined by
the commission shall be permitted; provided that accessory
agricultural uses and services described in sections 205-
2 and 205-4.5 may be further defined by each county by
zoning ordinance. Each county shall adopt ordinances
setting forth procedures and requirements, including
provisions for enforcement, penalties, and administrative
oversight, for the review and permitting of agricultural
tourism uses and activities as an accessory use on a
working farm, or farming operation as defined in section
165-2. Ordinances shall include but not be limited to:
(1) Requirements for access to a farm, including road
width, road surface, and parking;
(2) Requirements and restrictions for accessory
facilities connected with the farming operation,
including gift shops and restaurants;
(3) Activities that may be offered by the farming
operation for visitors;
(4) Days and hours of operation; and
(5) Automatic termination of the accessory use upon
the cessation of the farming operation.
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Each county may require an environmental assessment under
chapter 343 as a condition to any agricultural tourism use
and activity. Other uses may be allowed by special permits
issued pursuant to this chapter. The minimum lot size in
agricultural districts shall be determined by each county
by zoning ordinance, subdivision ordinance, or other lawful
means; provided that the minimum lot size for any
agricultural use shall not be less than one acre, except as
provided herein. If the county finds that unreasonable
economic hardship to the owner or lessee of land cannot
otherwise be prevented or where land utilization is
improved, the county may allow lot sizes of less than the
minimum lot size as specified by law for lots created by a
consolidation of existing lots within an agricultural
district and the resubdivision thereof; provided that the
consolidation and resubdivision do not result in an
increase in the number of lots over the number existing
prior to consolidation; and provided further that in no
event shall a lot which is equal to or exceeds the minimum
lot size of one acre be less than that minimum after the
consolidation and resubdivision action. The county may
also allow lot sizes of less than the minimum lot size as
specified by law for lots created or used for plantation
community subdivisions as defined in section 205-
4.5(a)(12), for public, private, and quasi-public utility
purposes, and for lots resulting from the subdivision of
abandoned roadways and railroad easements.
(c) Unless authorized by special permit issued
pursuant to this chapter, only the following uses shall be
permitted within rural districts:
(1) Low density residential uses;
(2) Agricultural uses;
(3) Golf courses, golf driving ranges, and golf-
related facilities;
(4) Public, quasi-public, and public utility
facilities; and
(5) Geothermal resources exploration and geothermal
resources development, as defined under section
182-1.
In addition, the minimum lot size for any low
density residential use shall be one-half acre and
there shall be but one dwelling house per one-half
acre, except as provided for in section 205-2.
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Commission also recognized that the legislature delegated
authority to enforce uses within conservation districts to the
Department.
The Commission consequently concluded:
20. Based on the information provided by Petitioners, the
Commission concludes that the Petition involves lands
that are currently classified within the State Land Use
Conservation District.
21. Based on the information provided by Petitioners, the
Commission concludes that it lacks authority under HRS
Chapter 205 to require a landowner to petition for
reclassification.
22. Based on the information provided by Petitioners, the
Commission concludes that pursuant to HRS §§ 205-5(a),
205-15, and HRS §§ 183C-3 and 183C-6(a), it is the
Department of Land and Natural Resources and not the
Commission, [sic] that is statutorily authorized to
determine, permit, and enforce land uses within the
State Conservation District.
23. The Commission concludes that the plain language of HRS
§ 205-5(a) makes clear that governance over the State
Conservation District is under the authority of the
DLNR pursuant to HRS § 183C. Therefore, the Commission
lacks subject matter jurisdiction and must deny the
Petition.
The Commission summarized the reasons for its denial of the
Kanaheles’ petition: “[t]he Petitioner[s] ha[ve] requested a
ruling on a statutory provision not administered by the
Commission and a matter that is not otherwise within the
jurisdiction of the Commission.”
F. The Kanaheles’ Appeal
The following day, the Kanaheles filed a notice of
appeal before this court. This court granted intervenor status
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to TMT International Observatory LLC (TIO) and UH over the
Kanaheles’ objections.
The parties’ arguments and relevant procedural
background are detailed as necessary in the Discussion section
below. The Commission, TIO, and UH contend that this court
lacks jurisdiction over the Kanaheles’ merits claims, and that
the LUC Order was correctly decided. Meanwhile, the Kanaheles
contend this court has jurisdiction to consider the appeal and
raise four points of error, with multiple sub-arguments in each.
The Kanaheles’ overarching points of error are:
(1) The LUC clearly erred, arbitrarily, and
incorrectly concluded, [sic] the Kanaheles “requested a
ruling on a statutory provision not administered by the
[LUC] and a matter that is not otherwise within the
jurisdiction of the [LUC].”
(2) Finding of fact (FOF) ¶22, which is a legal
conclusion in substance, constituted clear error and is
incorrect as a legal conclusion. FOF ¶22 provides: “Based
on the Petition, [the Kanaheles’] arguments and responses
to questions by the Commissioners, and the testimony of the
Petitioners, Petitioner’s [sic] seek a declaratory order
from the Commission requiring that a district boundary
amendment be obtained for the Property.”
(3) The LUC incorrectly concludes:
The Hawaiʻi Supreme Court has considered and
ruled on permitting and jurisdictional issues
regarding Mauna Kea [sic] in Mauna Kea Anaina Hou
v. Bd. Of Land & Nat. Res., 136 Hawaii 376, 363
P.3d 224 (2015) [Mauna Kea I] and Matter of
Conservation District Use Application HA-3568 for
the Thirty Meter Telescope, 143 Hawaii 379, 431
P.3d 752 (2018) [Mauna Kea I] [sic].
The Kanaheles’ [sic] rebutted this position through their
filings and oral statements.
(4) Under FOF ¶26, “the [LUC] further concludes that
the declaratory procedure could not be invoked by the
Petitioner in this matter. . .” FOF ¶26, which is a legal
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conclusion in substance, constitutes clear error and is an
incorrect legal conclusion. The Kanaheles pointed out that
CARD did not apply because they were “not seeking review of
BLNR’s decision because BLNR never had the authority to
redistrict lands and didn’t make a decision on that issue.”
(Underscored [sic] notations in the Kanaheles’ Opening Brief)
(citations omitted).
II. STANDARDS OF REVIEW
A. Jurisdiction
“The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.
Questions regarding subject matter jurisdiction may be raised at
any stage of a cause of action.” Lingle v. Haw. Gov’t Emps.
Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587, 591
(2005) (quoting Amantiad v. Odum, 90 Hawaiʻi 152, 158-59, 977
P.2d 160, 166-67 (1999)).
B. Statutory Interpretation
“The interpretation of a statute is a question of law
which this court reviews de novo.” Keep the N. Shore Country v.
Bd. of Land & Nat. Res., 150 Hawaiʻi 486, 506 P.3d 150 (2022)
(citing State v. Ruggiero, 114 Hawai‘i 227, 231, 160 P.3d 703,
707 (2007)).
C. Administrative Agency Appeals
This court’s review of administrative agency decisions
is governed by HRS § 91-14(g). The statute provides:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
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for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.
HRS § 91-14(g) (Supp. 2016). “[U]nder HRS § 91-14(g),
conclusions of law are reviewable under subsections (1), (2),
and (4); questions regarding procedural defects under subsection
(3); findings of fact under subsection (5); and an agency’s
exercise of discretion under subsection (6).” Paul’s Elec.
Serv., Inc. v. Befitel, 104 Hawaiʻi 412, 416, 91 P.3d 494, 498
(2004) (brackets in original) (quoting In re Hawaiian Elec. Co.,
81 Hawaiʻi 459, 465, 918 P.2d 561, 567 (1996)).
III. DISCUSSION
A. This Court Has Jurisdiction over the Kanaheles’ Appeal.
The Commission, TIO, and UH argue that this court lacks
jurisdiction to hear the Kanaheles’ direct appeal of the LUC
Order. The Commission and TIO contend that because the
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Kanaheles’ petition was not a contested case, this court does
not possess jurisdiction under HRS § 205-19(a) (2017 and Supp.
2019), which only authorizes this court to directly review a
final decision or order of contested cases under HRS chapter
205.
In contrast, the Kanaheles argue that this court has
jurisdiction over the instant appeal pursuant to HRS §§ 205-
19(a), 91-8 (2012), and 91-14(b) (Supp. 2016), given this
court’s statutory interpretation of HRS §§ 91-8 and 91-14 in
Lingle, 107 Hawaiʻi 178, 111 P.3d 587. The Kanaheles posit that
Lingle held that HRS §§ 91-8 and 91-14 are to be “read
together,” making declaratory and contested case orders share
the same status for purposes of judicial review. See id. at
185-86, 111 P.3d at 594-95. Therefore, because HRS § 205-19
authorizes this court to directly review orders from contested
cases, HRS § 205-19 also authorizes this court to directly
review orders granting or denying declaratory order petitions,
given the shared status of declaratory and contested case
orders.
The Kanaheles are correct that this court possesses
jurisdiction to hear their appeal.
“The right to appeal is purely statutory and exists only
when jurisdiction is given by some constitutional or statutory
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provision.” Id. at 184, 111 P.3d at 593. The statutes
pertinent to this court’s jurisdiction over the Kanaheles’
appeal are HRS §§ 91-8, 91-14, and 205-19.
HRS § 91-14 authorizes judicial review of a final
decision or order in a contested case.7 However, the LUC Order
denying declaratory relief did not result from a contested case,
as the Kanaheles acknowledged. A contested case is “a
proceeding in which the legal rights, duties, or privileges of
7 HRS § 91-14 (2012 and Supp. 2016) provides in relevant part:
(a) Any person aggrieved by a final decision and
order in a contested case or by a preliminary ruling of the
nature that deferral of review pending entry of a
subsequent final decision would deprive appellant of
adequate relief is entitled to judicial review thereof
under this chapter; but nothing in this section shall be
deemed to prevent resort to other means of review, redress,
relief, or trial de novo, including the right of trial by
jury, provided by law. Notwithstanding any other provision
of this chapter to the contrary, for the purposes of this
section, the term “person aggrieved” shall include an
agency that is a party to a contested case proceeding
before that agency or another agency.
(b) Except as otherwise provided herein, proceedings
for review shall be instituted in the circuit court or, if
applicable, the environmental court, within thirty days
after the preliminary ruling or within thirty days after
service of the certified copy of the final decision and
order of the agency pursuant to rule of court, except where
a statute provides for a direct appeal to the supreme court
or the intermediate appellate court, subject to chapter
602. In such cases, the appeal shall be treated in the
same manner as an appeal from the circuit court to the
supreme court or the intermediate appellate court,
including payment of the fee prescribed by section 607-
5 for filing the notice of appeal (except in cases appealed
under sections 11-51 and 40-91). The court in its
discretion may permit other interested persons to
intervene.
. . . .
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specific parties are required by law to be determined after an
opportunity for agency hearing.” HRS § 91-1 (Supp. 2017).
If the statute or rule governing the activity in question
does not mandate a hearing prior to the administrative
agency’s decision-making, the actions of the administrative
agency are not “required by law” and do not amount to “a
final decision or order in a contested case” from which a
direct appeal . . . is possible.
Bush v. Hawaiian Homes Comm’n, 76 Hawaiʻi 128, 134, 870 P.2d
1272, 1278 (1994). “Stated differently, discretionary hearings
are not contested cases because they are not required by law.”
Lingle, 107 Hawaiʻi at 184, 111 P.3d at 593. The Commission’s
hearing on the Kanaheles’ petition was purely discretionary: a
hearing was not required by administrative rule, statute or
constitution.8 The Commission’s discretionary hearing did not
8 Under HRS § 91-8, “[e]ach agency shall adopt rules prescribing . . .
the procedure for . . . consideration” of petitions for declaratory rulings.
The Commission’s rules provide:
Consideration of petition for declaratory order. (a) The
commission, within ninety days after submission of a petition for
declaratory order, shall:
(1) Deny the petitioner where:
(A) The question is speculative or purely
hypothetical and does not involve an
existing situation or one which may
reasonably be expected to occur in the near
future; or
(B) The petitioner’s interest is not of the type
which confers sufficient standing to
maintain an action in a court of law; or
(C) The issuance of the declaratory order may
adversely affect the interest of the State,
the commission, or any of the officers or
employees in any litigation which is pending
or may be reasonably be [sic] expected to
arise; or
(D) The petitioner requests a ruling on a
statutory provision not administered by the
commission or the matter is not otherwise
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transform the LUC Order into a contested case decision. See id.
As such, the Kanaheles were not parties to a contested case
hearing and their petition could not be reviewed directly as a
contested case order under HRS § 91-14.
However, HRS §§ 91-8, 91-14, and 205-19 together provide
for this court’s review of the Kanaheles’ appeal of the LUC
Order, even though the LUC Order was not part of a contested
case. HRS § 91-8 establishes the framework for declaratory
rulings by agencies, and provides that “[o]rders disposing of
petitions [for declaratory rulings] shall have the same status
as other agency orders.” This court interpreted the “same
within the jurisdiction of the commission;
or
(2) Issue a declaratory order on the matters
contained in the petition; or
(3) Set the petition for hearing before the
commission or a hearings officer in accordance
with this subchapter. The procedures set forth
in subchapter 7 shall be applicable.
Hawaiʻi Administrative Rules (HAR) § 15-15-100(a) (2019). Relatedly, HAR
§ 15-15-103 (2019) provides:
Declaratory orders; request for hearing. The
commission may, but shall not be required to, conduct a
hearing on a petition for declaratory order. Any
petitioner or party in interest who desires a hearing on a
petition for a declaratory order shall set forth in detail
in the request the reasons why the matters alleged in the
petition, together with supporting affidavits or other
written briefs or memoranda of legal authorities, will not
permit the fair and expeditious disposition of the
petition, and to the extent that the request for a hearing
is dependent upon factual assertion, shall accompany the
request by affidavit establishing those facts.
(Emphasis added.) Based on this language, the Commission was not required to
hold a hearing to resolve the Kanaheles’ petition.
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status” language of HRS § 91-8 and held that orders disposing of
petitions for declaratory rulings, like orders in contested
cases, are subject to judicial review pursuant to HRS § 91-14.
Lingle, 107 Hawaiʻi at 185-86, 111 P.3d at 594-95. Therefore, we
held that a Hawai‘i Labor Relation Board order denying the
petitioner for declaratory relief was subject to review by the
circuit court, even though the decision did not result from a
contested case. Id. at 185, 111 P.3d at 595.
Subsequently, in 2016 the legislature amended HRS § 91-
14(b) to provide for direct review by the supreme court or the
intermediate appellate court when provided by statute. 2016
Haw. Sess. Laws Act 48, § 5 at 77.9 Now HRS § 91-14(b) provides
that “proceedings for review shall be instituted in the circuit
court . . . except where a statute provides for a direct appeal
to the supreme court or the intermediate appellate court[.]” In
the same 2016 Act, the legislature enacted HRS § 205-19,
regarding contested cases arising under HRS chapter 205. 2016
Haw. Sess. Laws Act 48 § 3, at 76-77. HRS § 205-19 provides:
“any contested case under this chapter shall be appealed from a
final decision and order or a preliminary ruling that is of the
nature defined by section 91-14(a) upon the record directly to
9 The legislature repealed and reenacted HRS § 91-14(b) without any
changes to the language on July 1, 2019. See 2016 Haw. Sess. Laws Act 48,
§ 14 at 82; 2019 Haw. Sess. Laws Act 213, at 637.
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the supreme court for final decision.” This court must presume
the legislature was aware of Lingle when it passed Act 48 in
2016. See Peer News LLC v. City & Cnty. of Honolulu, 138 Hawaiʻi
53, 69, 376 P.3d 1, 17 (2016) (“The legislature is presumed to
know the law when it enacts statutes, including this court’s
decisions, and agency interpretations.”) (citations omitted).
Therefore, this court’s interpretation in Lingle of HRS §§ 91-8
and 91-14 that declaratory orders have the “same status” for
judicial review as orders in contested cases applies to HRS
§ 205-19. See Lingle, 107 Hawaiʻi at 185-86, 111 P.3d at 594-95.
Thus, pursuant to HRS §§ 91-8, 91-14 and 205-19, this court has
jurisdiction to directly review the Kanaheles’ appeal.
B. The Commission Correctly Determined That It Lacked
Jurisdiction over the Kanaheles’ Petition.
Before turning to the merits of the Kanaheles’
petition and appeal, some clarification regarding the Kanaheles’
requested relief is necessary. Again, the Kanaheles seek three
declaratory orders stating:
(1) current industrial research facility uses in the
[Astronomy Precinct] are appropriate within the urban
district as prescribed by HRS § 205-2(b) and not the
conservation district;
(2) further industrial uses proposed for the
[Astronomy Precinct] must comply with HRS chapter 205 and
Commission procedures for obtaining a district boundary
amendment to reclassify conservation lands into the urban
district; and,
(3) even if a single scientific laboratory or other
research facility may be appropriate within non-urban
districts, the successive, individual approval of thirteen
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scientific laboratories, other research facilities, and
associated offices, parking lots, and utilities, within the
[Astronomy Precinct] constitutes urban uses inconsistent
with conservation district uses and/or detrimental to a
multiple use conservation concept for which a district
boundary amendment must be obtained.
The Kanaheles are not asking the Commission to issue a
district boundary amendment to convert the Astronomy Precinct
from a conservation district to an urban district. In fact, the
Kanaheles made clear that they would oppose any district
boundary amendment petition seeking such a reclassification.10
Instead, the Kanaheles are asking the Commission to
determine what constitutes prohibited uses of conservation
district lands via an interpretation of HRS § 205-2(e). As the
Kanaheles’ counsel explained:
We’re asking you just to interpret 205 and say the
concentration of industrial research facilities on Mauna
Kea are appropriate uses or are appropriate within the
urban district or in an urban district as prescribed by
205-2 and not the conservation district. Further
industrial uses must comply with boundary amendment
procedures to reclassify those lands into the urban
district.
The Kanaheles sought this determination as a method
for the Commission to enforce its prior districting of the
Astronomy Precinct as a conservation district.11 At the October
10 In the declarations attached to the Kanaheles’ petition before the
Commission, Kuʻulei Kanahele and Ahiena Kanahele both stated: “I would
participate to strongly oppose a proposed boundary amendment to reclassify
conservation district lands at the Maunakea [sic] summit into the Urban
district.”
11 The dissent posits that the Commission possesses authority to consider
the cumulative impacts of conservation district use permits (CDUPs) and
determine whether the Astronomy Precinct is more appropriately classified as
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25, 2019 hearing on the Kanaheles’ petition before the
Commission, the Kanaheles’ attorney stated: “We’re not seeking
enforcement of anything except for [HRS chapter] 205.”12 The
Kanaheles’ counsel acknowledged that “the legal effect of [the
Kanaheles’] petition is to . . . force the State of Hawaiʻi or
whoever might be considered the landowner of the land on which
the telescopes sit to have to file a request for a [district]
boundary amendment.” The Kanaheles’ counsel stated that in the
event that a district boundary amendment petition is denied, the
astronomy facilities “would either have to come down, or they
would reapply and try to find another way to mitigate it
better.”
an urban rather than conservation district. The dissent cites to Lanihau
Properties, LLC., No. A00-730, (Hawaiʻi Land Use Comm’n, 2003) in order to
demonstrate this point. However, this argument is unavailing. In Lanihau
Properties, a party with a property interest entitled to seek
reclassification requested redistricting in order to develop a business park.
Id. at 2, 7. In contrast, the Kanaheles explicitly stated that they are not
seeking to reclassify lands. Rather, the Kanaheles are asking the Commission
to determine what constitutes prohibited uses on conservation district land,
and therefore to enforce the conservation district classification. The
Commission does not have the authority to enforce uses on conservation
district lands. See infra Section B(3)(a). As such, the dissent’s arguments
in this regard are inapposite.
12 In the Kanaheles’ Reply to TIO’s Answering Brief, the Kanaheles argued
HRS § 205-2(e) describes “uses of land that the LUC properly considers in
determining and enforcing conservation district use boundaries.” (Emphasis
added.)
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Moreover, as the Kanaheles acknowledged, the Kanaheles
would use the district boundary amendment proceedings to protest
the development of the Astronomy Precinct.13
In short, the Kanaheles requested the three
declaratory rulings to enforce the Commission’s classification
of the Astronomy Precinct as a conservation district and to
protest the ongoing development of the Astronomy Precinct.
1. The Commission correctly determined that the Kanaheles
sought a declaratory order requiring a district
boundary amendment for the Astronomy Precinct.
The Kanaheles dispute the Commission’s finding that
“[b]ased on the Petition, [the Kanaheles’] arguments and
responses to questions by the Commissioners, and the testimony
of the Petitioners, Petitioner’s [sic] seek a declaratory order
from the Commission requiring that a district boundary amendment
be obtained for the Property.” The Kanaheles contend they only
“sought declaratory orders and not an order that a boundary
amendment be obtained for the property,” and the requested
declaratory orders would not compel UH to seek a district
boundary amendment because UH would have the option to remove
the astronomy facilities.
13 During the October 25, 2019 hearing before the Commission, Kuʻulei
Kanahele stated: “we are asking for that district boundary amendment so we
have the opportunity to protest.”
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However, the plain language of the Kanaheles’ petition
requested a declaratory order that explicitly required a
district boundary amendment. The Kanaheles’ third requested
declaratory order would state that the current uses of the
Astronomy Precinct “constitute[] urban uses inconsistent with
conservation district uses and/or detrimental to a multiple use
conservation concept for which a district boundary amendment
must be obtained.” (Emphasis added.)
Consistent with the language of the third requested
declaratory order, the Kanaheles consistently represented the
requested declaratory relief would require a district boundary
amendment to the Commission. At the October 25, 2019 hearing
before the Commission, the Kanaheles admitted that “the legal
effect of [the Kanaheles’] petition is to . . . force the State
of Hawaiʻi or whoever might be considered the landowner of the
land on which the telescopes sit to have to file a request for a
boundary amendment.” The Kanaheles further explained that such
a declaratory order by the Commission would create an
enforcement requirement because, “by virtue of saying that those
uses are outside or supposed to be in the urban district, that
in itself, because the agencies are expected to comply, . . .
would put them in a situation where, yes, they would have to do
a [district] boundary amendment.” (Emphasis added.) The
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Kanaheles also represented that a district boundary amendment
must be filed and granted or else the astronomy facilities
“would . . . have to come down.”
Because the plain language of the Kanaheles’ third
requested declaratory order and their representations to the
Commission make clear that the Kanaheles requested a declaratory
order requiring a district boundary amendment, the Commission
did not err by concluding the Kanaheles sought a declaratory
order requiring a district boundary amendment be obtained.
Furthermore, the Kanaheles’ distinction that UH could
simply remove the astronomy facilities is one without a
difference. According to the Kanaheles, they did not seek a
declaratory order requiring that a district boundary amendment
be obtained because the Commission would only issue a
declaratory ruling that a district boundary amendment must be
obtained to continue existing uses “inconsistent with
conservation district concepts.” Either way, the requested
declaratory order would require a district boundary amendment,
at which point UH would have two avenues to comply with the
Commission’s determination: (1) UH could “voluntarily” request a
district boundary amendment or (2) UH could comply through
“removal of the industrial uses from the conservation district,”
as the Kanaheles explained. The fact two avenues exist through
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which compliance with the requested declaratory order is
possible is irrelevant to the substance of the requested
declaratory order. The Kanaheles’ requested declaratory relief
would require a district boundary amendment in order for the
astronomy facilities to continue operating.
2. The Commission correctly determined that it lacked
jurisdiction to issue the requested declaratory
orders.
The Kanaheles also argue “the LUC reversibly erred by
ruling it lacked jurisdiction to issue declaratory orders on a
matter not within its jurisdiction.” The Kanaheles argue that
the Commission’s ruling: (a) “is inconsistent with the LUC’s own
conclusion that it holds jurisdiction to issue the requested
declaratory order”; (b) is invalid because it purports to alter
and restrict HRS chapter 205; (c) is premised on incorrect legal
conclusions; and (d) is premised on clear error.
a. The Commission possesses jurisdiction to
determine the boundaries of its jurisdiction.
The Kanaheles first challenge the Commission’s
conclusion that:
The Commission has jurisdiction to issue this declaratory
order. HRS § 91-8, as implemented by the Commission’s
administrative rules, HAR [Hawaiʻi Administrative Rules]
§§ 15-15-98 through 15-15-104.1, authorize the Commission
to issue a declaratory order “as to the applicability of
any statutory provision or of any rule or order of the
commission to a specific factual situation.” The
Commission’s statutes, the applicability of which are put
at issue in this Petition, are those sections of HRS
Chapter 205 that govern the authority to reclassify land
and to govern the permitted uses on State Conservation
District Lands.
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According to the Kanaheles, “LUC concedes it has jurisdiction to
issue ‘this declaratory order’ and the Petition ‘put at issue’
the LUC’s statutes and rules,” so therefore the Commission’s
“ruling that the Kanaheles requested a ruling on matters not
administered or within the jurisdiction of the LUC must be
incorrect.”
The Kanaheles misconstrue the Commission’s conclusion.
The first sentence of the conclusion is: “The Commission has
jurisdiction to issue this declaratory order” — i.e., the
Commission has jurisdiction to enter a declaratory order
concluding that it lacks jurisdiction. (Emphasis added.) This
follows the axiom that a decision-making body always has
authority to determine whether it has jurisdiction. See, e.g.,
State v. Brandimart, 68 Haw. 495, 497, 720 P.2d 1009, 1010
(1986) (“A court always has jurisdiction to determine whether it
has jurisdiction over a particular case.”). If the decision-
making body concludes it lacks jurisdiction, it may issue a
decision stating as much. See id. The only prohibition is that
the decision-making body “may not be able to maintain
jurisdiction for the purpose of determining the merits of the
case.” Id.Moreover, although it is true that the Commission has
the authority to issue “a declaratory order as to the
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applicability of any statutory provision or of any rule or order
of [LUC],” HRS § 91-8,14 this authority is not available when,
for example, “[t]here is no longer a question of how the
relevant laws . . . ‘apply.’” CARD, 114 Hawaiʻi at 156, 159 P.3d
at 197. As discussed below, such is the case here. See infra
Section B(3). Consequently, the declaratory ruling procedure is
not available for determining the applicability of HRS chapter
205. See CARD, 114 Hawaiʻi at 156, 159 P.3d at 197.
b. The Commission’s ruling does not purport to alter
or restrict HRS chapter 205.
The Kanaheles next challenge the LUC Order by
contending that the Commission improperly “attempt[ed] to
modify, alter, or restrict the scope of HRS chapter 205.” The
Kanaheles emphasize that HRS § 205-2 grants the Commission
jurisdiction over “all land,” including “over the classification
or reclassification of certain conservation district lands.”
But the fact that HRS §§ 205-2(a)(4) and 205-4
authorize the Commission to reclassify conservation district
14 HRS § 91-8 provides:
Any interested person may petition an agency for a
declaratory order as to the applicability of any statutory
provision or of any rule or order of the agency. Each
agency shall adopt rules prescribing the form of the
petitions and the procedure for their submission,
consideration, and prompt disposition. Orders disposing of
petitions in such cases shall have the same status as other
agency orders.
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lands does not mean that the Commission can use its
classification authority to enforce land uses within the
Astronomy Precinct. Rather, the legislature vested such
enforcement authority in the Department through HRS § 205-5(a).
See HRS § 205-5(a) (“Conservation districts shall be governed by
the department of land and natural resources pursuant to chapter
183C.”); HRS § 183C-3(7) (2011) (“The board and department
shall . . . [e]stablish and enforce land use regulations on
conservation district lands . . . .”). Had the legislature
intended to grant the Commission any authority over the
governance of conservation district lands, it could have done
so. See, e.g., HRS § 205-5(b)-(c); HRS § 205-6(d) (2017). It
did not. See generally HRS chapter 205. Insofar as this court
“must read statutory language in the context of the entire
statute,” it is the Kanaheles who cabin the scope of HRS chapter
205 by disregarding the powers granted to the Department through
HRS § 205-5(a). See Gray v. Admin. Dir. of the Ct., 84 Hawaiʻi
138, 148, 931 P.2d 580, 590 (1997) (emphasis added) (quoting
State v. Toyomura, 80 Hawaiʻi 8, 18, 904 P.2d 893, 903 (1995)).
c. The Commission’s ruling is not premised on
incorrect legal conclusions.
The Kanaheles also challenge the LUC Order for
creating “a false equivalence between DLNR’s governance of the
conservation district and the LUC’s jurisdiction to classify and
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reclassify lands.” But it was the Kanaheles who articulated
that equivalence by asking the Commission to use its
classification power to determine what constitutes prohibited
uses within the Astronomy Precinct and, in turn, to enforce the
prior conservation district classification.
Under these circumstances, the LUC Order does not
indicate that the Department’s granting of successive
conservation district use permits precluded the Commission from
reclassifying the Astronomy Precinct. Rather, the LUC Order
simply recognized that the legislature delegated the authority
to control land uses within conservation districts — and
therefore the Astronomy Precinct — to the Department. Insofar
as the legislature did not authorize the Commission to determine
what constitutes prohibited uses of conservation district lands,
the Commission’s use of its classification authority to govern
the Astronomy Precinct would create the epitome of an
administrative act “in excess of the statutory authority or
jurisdiction of the agency.” See HRS § 91-14(g)(2); supra
Section B(2)(b); infra Section (B)(3)(a).
d. The Commission’s ruling is not premised on clear
error.
The Kanaheles further challenge the LUC Order because
the Commission denied the Kanaheles’ petition on the basis that
“[t]he petitioner has requested a ruling on a statutory
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provision not administered by the Commission . . . .” According
to the Kanaheles, the requested declaratory rulings would only
implicate HRS chapter 205 because “HRS chapter 205 puts the LUC
in charge of amending land use district boundaries and DLNR does
not have that power.” Again, however, the Kanaheles are not
asking the Commission to reclassify the Astronomy Precinct from
a conservation district to a different district. Instead, the
Kanaheles are asking the Commission to determine what
constitutes prohibited land uses within a conservation district
and to thereby enforce the Astronomy Precinct’s conservation
district designation. Insofar as the legislature delegated the
authority to govern conservation district land uses to the
Department under HRS § 205-5(a) and HRS chapter 183C, the
Commission did not err in concluding that the Kanaheles
“requested a ruling on a statutory provision not administered by
the Commission.”
3. The Commission correctly interpreted CARD as
precluding the Kanaheles’ petition.
Lastly, the Kanaheles argue that the Commission
improperly “interpreted CARD to require denial of the Kanaheles’
petition on the basis that [the Department] had already rendered
a decision on the matter.” The Kanaheles insist that their
petition does not run afoul of CARD because (a) it does not
constitute an attempt to evade a prior decision; and (b) CARD
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arose in a distinguishable procedural posture. The Kanaheles
also contend that the Commission’s application of CARD “would
cause an absurd situation in which any county or state agency
decision concerning any land would foreclose the LUC’s power to
reclassify that land or a larger area within which that land was
located.” This point of error is meritless.
a. The Commission lacks jurisdiction to issue a
declaratory order to review the Department’s
already-made decisions.
Pursuant to HRS § 91-8:
Declaratory rulings by agencies. Any interested
person may petition an agency for a declaratory order as to
the applicability of any statutory provision or of any rule
or order of the agency. Each agency shall adopt rules
proscribing the form of the petitions and the procedure for
their submission, consideration, and prompt disposition.
Orders disposing of petitions in such cases shall have the
same status as other agency orders.
This court discussed the boundaries of agencies’
declaratory ruling authority in CARD, 114 Hawaiʻi 184, 159 P.3d
143. We explained:
As both the title (“Declaratory rulings by agencies”)
and the pertinent text (“a declaratory order as to the
applicability [of a statute, agency rule, or order]”) make
clear, the declaratory ruling procedure of HRS § 91-8 is
meant to provide a means of seeking a determination of
whether and in what way some statute, agency rule, or order
applies to the factual situation raised by an interested
person. It was not intended to allow review of concrete
agency decisions for which other means of review are
available. Reading HRS § 91-8 in a common sense fashion,
and bearing in mind the plain meaning of the term
“applicability,” it cannot seriously be maintained that the
procedure was intended to review already-made agency
decisions. For such decisions, . . . the agency has
already spoken as to the “applicability” of the relevant
law to the factual circumstances at hand — implicitly or
explicitly it has found the relevant legal requirements to
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be met. There is no longer a question of how the relevant
laws . . . “apply.”
Use of the declaratory ruling procedural device only
makes sense where the applicability of relevant law is
unknown, either because the agency has not yet acted upon
particular factual circumstances, or for some other reason
the applicability of some provisions of law have not been
brought into consideration.
Id. at 196-97, 159 P.3d at 155-56.
In this case, the Department has already spoken to the
applicability of the laws implicated by the Kanaheles’ petition.
Pursuant to its statutory authority, the Department has
determined that the astronomy facilities constitute permissible
uses within the Astronomy Precinct.
According to the Kanaheles, CARD “prohibits using
declaratory petitions to review specific decisions made by the
same agency from which declaratory orders were requested.”
Using this framework, the Kanaheles argue that their “petition
could not constitute an attempt to evade a prior decision by the
LUC or any other agency because no other agency has the
authority to render declaratory rulings on the classification of
lands into districts and the redistricting of lands.”
As a preliminary matter, the Kanaheles’ focus on the
Commission’s reclassification powers is irrelevant. Again, the
Kanaheles are not asking the Commission to reclassify the
Astronomy Precinct from a conservation district into an urban
district. The Kanaheles want a declaration that the astronomy
facilities are not permitted land uses within a conservation
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district. As such, the Kanaheles’ discussion of the
Commission’s authority to amend district boundaries and
reclassify lands is not relevant to their request for a
declaration on permitted uses within conservation districts.
Additionally, the Kanaheles’ initial claim that CARD
prohibits review of decisions “made by the same agency from
which declaratory orders were requested” finds no footing in
CARD. CARD’s key holding to this case is that HRS § 91-8 does
not allow for review of already-made decisions because, in such
scenarios, “[t]here is no longer a question of how the relevant
laws . . . ‘apply.’” 114 Hawaiʻi at 197, 159 P.3d at 156. In
other words, the declaratory ruling procedure is no longer
available when a decision-making body with authority to address
the question at issue provides an answer. See id. Such is the
case here.
“An administrative agency can only wield powers
expressly or implicitly granted to it by statute.” Morgan v.
Planning Dep’t, Cnty. of Kauaʻi, 104 Hawaiʻi 173, 184, 86 P.3d
982, 993 (2004) (quoting TIG Ins. Co. v. Kauhane, 101 Hawaiʻi
311, 327, 67 P.3d 810, 826 (App. 2003)). The legislature did
not grant the Commission any authority to restrict conservation
district land uses; the legislature delegated that power to the
Department. Pursuant to HRS § 205-5(a), “[c]onservation
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districts shall be governed by the department of land and
natural resources pursuant to chapter 183C.” Under HRS § 183C-3
(2011), the Department shall:
(1) Maintain an accurate inventory of lands classified
within the state conservation district by the state
land use commission, pursuant to chapter 205;
(2) Identify and appropriately zone those lands classified
within the conservation district;
(3) Adopt rules, in compliance with chapter 91 which shall
have the force and effect of law;
(4) Set, charge, and collect reasonable fees in an amount
sufficient to defray the cost of processing
applications for zoning, use, and subdivision of
conservation lands;
(5) Establish categories of uses or activities on
conservation lands, including allowable uses or
activities for which no permit shall be required;
(6) Establish restrictions, requirements, and conditions
consistent with the standards set forth in this chapter
on the use of conservation lands; and
(7) Establish and enforce land use regulations on
conservation district lands including the collection of
fines for violations of land use and terms and
conditions of permits issued by the department.
(Emphasis added.)
In contrast, under HRS § 205-2,
(a) There shall be four major land use districts in
which all lands in the State shall be placed: urban, rural,
agricultural, and conservation. The land use commission
shall group contiguous land areas suitable for inclusion in
one of these four major districts. The commission shall
set standards for determining the boundaries of each
district, provided that:
. . . .
(1) In the establishment of the boundaries of
conservation districts, the “forest and water
reserve zones” provided in Act 234, section 2,
Session Laws of Hawaii 1957, are renamed
“conservation districts” and, effective as of
July 11, 1961, the boundaries of the forest and
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water reserve zones theretofore established
pursuant to Act 234, section 2, Session Laws of
Hawaii 1957, shall constitute the boundaries of
the conservation districts; provided that
thereafter the power to determine the boundaries
of the conservation districts shall be in the
commission.
. . . .
(e) Conservation districts shall include areas
necessary for protecting watersheds and water sources;
preserving scenic and historic areas; providing park lands,
wilderness, and beach reserves; conserving indigenous or
endemic plants, fish, and wildlife, including those which
are threatened or endangered; preventing floods and soil
erosion; forestry; open space areas whose existing
openness, natural condition, or present state of use, if
retained, would enhance the present or potential value of
abutting or surrounding communities, or would maintain or
enhance the conservation of natural or scenic resources;
areas of value for recreational purposes; other related
activities; and other permitted uses not detrimental to a
multiple use conservation concept. Conservation districts
shall also include areas for geothermal resources
exploration and geothermal resources development, as
defined under section 182-1.
(Emphasis added.)
Reading these statutes in conjunction with one
another, it is evident that the Commission lacks authority to
prohibit land uses within the conservation districts. Under
HRS § 205-2(a), the Commission “determine[s] the boundaries of
the conservation districts.” (Emphasis added.) HRS § 205-2(e)
identifies, in turn, areas and uses that “[c]onservation
districts shall include[.]” While this language indicates what
may be included within conservation districts, it does not grant
the Commission authority to use the conservation district
classification to exclude certain land uses from the
conservation district boundaries. Had the legislature wished to
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grant the Commission such power, it could have done so as it did
with the agricultural and rural districts. For instance, the
legislature dictates that “[w]ithin the agricultural district,
all lands . . . shall be restricted to the following permitted
uses.” HRS § 205-4.5(a) (2017). The legislature similarly
mandates that “[u]nless authorized by special permit issued
pursuant to this chapter, only the following uses shall be
permitted within rural districts.” HRS § 205-5(c). In these
two cases, if an unauthorized land use is included within either
the agricultural or rural district, either the governing county
must terminate the use under HRS § 205-12 (2017) or the
Commission could reclassify the land. At no point does HRS
§ 205-2(e) contain any of the limiting language used in HRS
§§ 205-4.5 or 205-5(c). Nor does HRS § 205-2(e) identify any
areas or land uses that the Commission may not include within
conservation district boundaries. As such, HRS § 205-2(e) does
not provide any basis by which the Commission can exclude land
uses within the Astronomy Precinct, or be required to reclassify
the Astronomy Precinct because such land uses are present.
Moreover, HRS chapter 183C and HRS § 205-5(a)
establish that the Commission lacks authority to enforce land
use restrictions within the conservation district boundaries.
This is because HRS § 183C-3(7) authorizes the Department to
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enforce conservation district land use restrictions. See also
HRS § 205-12 (“The appropriate officer or agency charged with
the administration of county zoning laws shall enforce within
each county the use classification districts adopted by the land
use commission”) (emphasis added).
Insofar as (1) it is the Department’s responsibility
to identify permissible land uses within a conservation district
and (2) the Department has determined that the astronomy
facilities constitute permissible conservation district land
uses, the Kanaheles may not use the declaratory ruling procedure
to seek review of the Department’s prior determinations. See
CARD, 114 Hawaiʻi at 196-97, 159 P.3d at 155-56. At this point,
“[t]here is no longer a question of how the relevant laws . . .
‘apply.’” Id. The Commission is consequently barred from
issuing any of the requested declaratory orders. See id.15
15 The Planning Office’s state land use district boundary reviews also
align with the Department’s determination. Pursuant to HRS § 205-18, “[t]he
office of planning and sustainable development may undertake a review of the
classification and districting of all lands in the State” and “may initiate
state land use boundary amendments which it deems appropriate to conform to
these plans [the Hawaii state plan, county general plans, and county
development and community plans].” The Planning Office completed its first
state land use district boundary review in 1992. See 1992 Boundary Review.
At that time, the Planning Office was aware that UH intended to construct
thirteen telescopes within the Astronomy Precinct by 2000. 1992 Boundary
Review at 23. These thirteen telescopes constitute the current uses the
Kanaheles identify in requested declaratory orders one and three. The
Planning Office did not recommend reclassifying the Astronomy Precinct from a
conservation district into a different district at that time. 1992 Boundary
Review at 121-27 (discussing recommended amendments). To the extent the
Planning Office could have pointed to the thirteen telescopes and their
associated facilities as a reason to reclassify the Astronomy Precinct, it
did not. See id. Further, the 2022 Boundary Review was conducted long after
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b. The Kanaheles’ contention that they sought the
Commission’s interpretation of HRS chapter 205
rather than an enforcement order is irrelevant in
light of CARD.
Because the Commission is barred from issuing any of
the requested declaratory orders, the Kanaheles’ contention that
they merely “sought the LUC’s interpretation of HRS chapter 205
and implementing rules concerning certain uses of conservation
lands and not an enforcement order assessing penalties or
imposing injunctive relief for actual uses in violation of
statutory requirements” is irrelevant. Because the sought
declaratory orders would review the Department’s prior
determinations, the Commission is barred from issuing the
orders. See CARD, 114 Hawaiʻi at 196-97, 159 P.3d at 155-56.
c. CARD’s procedural posture is irrelevant.
The Kanaheles point out that “the procedural posture”
of the present case and CARD “are entirely distinct.” However,
the Kanaheles do not provide any explanation as to why this
matters. Given that the Kanaheles do not articulate how or why
the “entirely distinct” procedural postures must lead to
different results, CARD’s procedural posture appears irrelevant.
UH proposed the TMT and did not recommend reclassification of the Astronomy
Precinct. Under these circumstances, the Planning Office appears to have
implicitly adopted the Department’s determination that the current industrial
research facility uses within the Astronomy Precinct are appropriate within
the conservation district, and - contrary to the Kanaheles’ third requested
declaratory order - are uses consistent “with conservation district uses” and
not “detrimental to a multiple use conservation concept.”
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d. The LUC Order does not create an absurd result.
Finally, the Kanaheles protest that the Commission’s
interpretation of CARD would preclude the Commission from ever
reclassifying land after a county or the Department has made a
decision concerning such land. The LUC Order has no such
consequence.
Given that the Kanaheles did not ask the Commission to
reclassify the Astronomy Precinct, the Commission did not
conclude that it was precluded from ever reclassifying the
Astronomy Precinct. Rather, the crux of the Commission’s
decision was that it lacked authority to prohibit land uses
within conservation districts. The Commission thereby
determined that it lacked jurisdiction to exercise its
declaratory ruling authority.
4. The Commission correctly interpreted Mauna Kea I and
Mauna Kea II.
The Kanaheles also argue that the “LUC incorrectly
interpreted Mauna Kea I and Mauna Kea II” by concluding:
The Hawaiʻi Supreme Court has considered and ruled on
permitting and jurisdictional issues regarding Mauna Kea in
[sic] Mauna Kea Anaina Hou v. Bd. Of Land & Nat. Res., 136
Hawaii 376, 363 P.3d 224 (2015) and Matter of Conservation
District Use Application HA-3568 for the Thirty Meter
Telescope, 143 Hawaii 379, 431 P.3d 752 (2018).
According to the Kanaheles, the Commission’s conclusion was
erroneous because “[n]either Mauna Kea I nor Mauna Kea II passed
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on the matter of the LUC’s jurisdiction to classify or
reclassify lands within the conservation district.”
However, the Commission’s conclusion did not claim
that either Mauna Kea I or Mauna Kea II passed on the
Commission’s jurisdiction. The LUC Order simply stated that
“[t]he Hawaiʻi Supreme Court has considered and ruled on
permitting and jurisdiction issues regarding Mauna Kea[.]” The
Commission therefore did not misinterpret Mauna Kea I or Mauna
Kea II. Rather, the Kanaheles misread the LUC Order.
IV. CONCLUSION
This court’s role is to interpret the statutory scheme
as enacted by the legislature. The dissent contends this
opinion “eliminat[ed] . . . the Commission’s jurisdiction over
conservation land bearing CDUPs granted by the Department.” Not
so. This court has faithfully interpreted the relevant statutes
and concluded the statutory scheme does not permit the
Commission to enforce uses within a conservation district. This
court did not, and indeed has no authority to, rewrite an
existing statute. Rather, “[o]ur function is to interpret the
statute [or statutory scheme] as it exists, not to indulge in
judicial legislation in the guise of statutory construction.”
Territory of Hawaii v. Shinohara, 42 Haw. 29, 34 (Haw. Terr.
1957). While the dissent appears to question the efficacy of
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the statutory scheme to protect conservation district land, it
is the legislature’s role, not ours, to amend existing law. See
McIntosh v. Murphy, 52 Haw. 29, 39 469 P.2d 177, 182 (1970)
(Kobayashi, J., dissenting); Yates v. United States, 574 U.S.
528, 570 (2015) (Kagan, J., dissenting) (“If judges disagree
with Congress's choice, we are perfectly entitled to say so — in
lectures, in law review articles, and even in dicta. But we are
not entitled to replace the statute Congress enacted with an
alternative of our own design.”).
For the foregoing reasons, the Kanaheles’ points of
error lack merit, and the LUC Order is affirmed.
Lance D. Collins /s/ Mark E. Recktenwald
and Bianca Isaki
for Appellants /s/ Paula A. Nakayama
/s/ Lisa W. Cataldo
Miranda C. Steed (Patricia
Ohara and Lori N. Tanigawa
on the brief) for Appellee
Land Use Commission, State of
Hawaiʻi
Jesse K. Souki and
Joseph F. Kotowski, III,
(Gary Y. Takeuchi also on the
brief) for Intervenor-Appellee
University of Hawaiʻi
Ross T. Shinyama and
J. Douglas Ing (Brian Kang
and Summer H. Kaiawe also on
the brief) for Intervenor-Appellee
TMT International Observatory LLC
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