In Re Contested Case Hearing on the Water United Statese Permit Application Originally Filed by Kukui (Molokai), Inc.

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Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
10-DEC-2018
01:32 PM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
IN THE MATTER OF THE CONTESTED CASE HEARING ON THE WATER USE
PERMIT APPLICATION ORIGINALLY FILED BY KUKUI (MOLOKAI), INC., NOW
REFILED AS A NEW GROUND USE BY MOLOKAI PUBLIC UTILITIES, LLC.
SCOT-XX-XXXXXXX
APPEAL FROM THE COMMISSION ON WATER RESOURCE MANAGEMENT
(CASE NO. CHH-MO-97-01)
DECEMBER 10, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, JJ., AND CIRCUIT
JUDGE GARIBALDI, IN PLACE OF WILSON, J., RECUSED
OPINION OF THE COURT BY POLLACK, J.
When this court first considered this case over a
decade ago, we vacated the issuance of two water use permits and
remanded the matter to the State of Hawaii Commission on Water
Resource Management (Commission) for further proceedings. On
remand, parties indicating that they were the applicant’s
successors in interest submitted a letter to the Commission
stating that they lacked the financial resources to continue to
pursue the case. When these same parties filed a new water use
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application years later, the Commission initially treated it as
a continuation of the remanded case before concluding that the
letter had constituted a waiver of the applicants’ right to
continue the original proceedings. The applicants now challenge
this conclusion, arguing that the letter was at best ambiguous
as to their intention to relinquish the rights at issue.
Because we hold that the Commission did not err in finding that
the letter was a clear and unambiguous waiver of the right to
proceed on the contested case, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. In Re Kukui (Molokai), Inc.
On May 13, 1992, the Commission designated Molokai as
a water management area.1 The designation took effect on July
15, 1992, thereby triggering a one-year period during which all
existing users of water from the area’s aquifers were required
to submit applications for existing water use permits, which if
granted would entitle the permittee to continue utilizing the
approved amount of water. See HRS § 174C-50(c) (1993).
Approximately a year later, on June 8, 1993, the Commission
accepted a joint existing water use permit application submitted
1
Hawaii Revised Statutes (HRS) § 174C-41(a) (1987) provides that
the Commission shall designate areas “threatened by existing or proposed
withdrawals” as water management areas “to ensure reasonable-beneficial use
of the water resources in the public interest.”
2
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by Molokai Irrigation System and Molokai Ranch that sought to
pump water from Well No. 0901-01 (Well 17).2 In 1993, however,
ownership of the land overlying Well 17 was transferred to Kukui
(Molokai), Inc. (Kukui).3
In light of this transfer, Kukui submitted its own
existing use application on December 15, 1993, seeking to divert
2 million gallons of water a day (gpd) from Well 17. Although
the statutory one-year period for submitting existing use
applications had expired, the Commission treated Kukui’s
application as timely, considering it an amendment to the
existing use application submitted by Molokai Irrigation System
and Molokai Ranch rather than as a new application.
After several revisions, the Commission responded to
Kukui’s application on March 14, 1995, by authorizing an interim
use permit of 871,420 gpd and deferring final action until all
existing uses could be established. Approximately a year later,
the Commission reviewed a staff recommendation to amend the
interim permit to increase Kukui’s allowable withdrawal to 1.169
million gpd. The Commission rejected the recommendation and
reaffirmed the March 14, 1995 interim existing use allocation of
2
Well 17 draws water from the Kualapuu Aquifer on the island of
Molokai.
3
At the time, Kukui was the owner of Kaluakoi Resort.
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871,420 gpd. Kukui requested a contested case hearing
challenging this decision.
Prior to commencement of the contested case hearing,
the Department of Hawaiian Home Lands (DHHL), the Office of
Hawaiian Affairs (OHA), and individuals Sarah Sykes, Judy
Caparida, and Georgina Kuahuia were granted permission to
intervene. The hearing was held over the course of eight days
beginning on November 23, 1998. The Commission issued its final
“Findings of Fact, Conclusions of Law, and Decision and Order”
on December 19, 2001 (2001 Order), awarding Kukui an existing
use permit authorizing the withdrawal of 936,000 gpd and a
proposed new use permit authorizing the withdrawal of an
additional 82,000 gpd.
DHHL, OHA, Caparida, and Kuahuia (collectively, the
Intervenors) appealed from the 2001 Order. During the pendency
of the appeal, Kaluakoi Land LLC (Kaluakoi Land), a wholly-owned
subsidiary of Molokai Properties Limited (Molokai Properties),
acquired the assets of Kukui and was substituted as a party for
Kukui.
On appeal, this court held that, because Kukui’s
request for an existing use permit should have been treated as a
new existing use application rather than an amendment to the
original application, it was untimely, thus rendering the
existing use permit void. In the Matter of the Contested Case
4
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Hearing on the Water Use Permit Application Filed by Kukui
(Molokai), Inc., 116 Hawaii 481, 501, 174 P.3d 320, 340 (2007)
(hereafter In Re Kukui (Molokai), Inc.). Accordingly, the
existing water uses at issue were “presumed abandoned,” we
concluded, and Kaluakoi Land was required to apply for a new use
permit under HRS § 174C-51 if it sought to “‘revive’ these
expired uses.”4 Id. This court further held that the Commission
had erred in granting Kukui the additional proposed new use
permit because the Commission had, inter alia, failed to apply
the requisite level of scrutiny and impermissibly shifted the
burden of demonstrating that the use would interfere with
constitutional public trust purposes onto the intervenors. Id.
at 506-08, 174 P.3d at 345-47. We therefore vacated the
Commission’s 2001 Order and remanded the case for further
proceedings consistent with the opinion.
B. Remand Before the Commission
On remand, the Commission issued a “Minute Order
Setting Status Conference” on February 25, 2008, to which
Kaluakoi Land did not respond.5 In its place, Molokai Properties
4
This portion of the In Re Kukui (Molokai), Inc. opinion makes
reference to Kukui instead of its successor in interest, Kaluakoi Land. See
116 Hawai‘i at 501, 174 P.3d at 340.
5
Although the parties refer to the “Minute Order Setting Status
Conference” numerous times in their subsequent filings, the February 25
Minute Order itself is absent from the record.
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filed a joint Status Conference Statement with its wholly-owned
subsidiaries Kaluakoi Water LLC (Kaluakoi Water)6 and Molokai
Public Utilities, Inc. (MPU).7 The Intervenors also filed a
Joint Status Conference Statement. The Commission held the
status conference on March 3, 2008, to discuss the hearing on
remand. On March 10, 2008, the Commission directed the
Intervenors to submit “memoranda regarding their respective
position[s] on the scope of the hearing on remand” by May 2,
2008. In addition, the Commission directed MPU, Molokai
Properties, and Kaluakoi Water to (1) file a separate pleading
identifying Kukui’s successor-in-interest that would be the
applicant on the amended permit application8 and (2) respond to
the Intervenors’ memoranda regarding the scope of the hearing by
June 16, 2008.
On March 24, 2008, however, Molokai Properties
announced its intention to shut down operations via a press
release and an internal memorandum circulated to its employees.
When the Intervenors submitted a joint “Memorandum Regarding
6
Kaluakoi Water is a wholly-owned subsidiary of Kaluakoi Land,
which as stated is itself a wholly-owned subsidiary of Molokai Properties.
7
MPU is a licensed public utility and wholly owned subsidiary of
Kaluakoi Water that provides water in the Kaluakoi area of West Molokai.
8
Although the Commission refers to the “amended permit
application,” this court expressly required the former applicant to submit a
new application on remand if it sought to revive expired uses. In Re Kukui
(Molokai), Inc., 116 Hawaii at 501, 174 P.3d at 340.
6
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Scope of Hearing on Remand” on May 2, 2008, it was accompanied
by a “Joint Motion to Dismiss in Part Molokai Properties,
Limited’s Application for Water Use Permit” (Motion to Dismiss)
which sought to dismiss the application based on Molokai
Properties’ upcoming cessation of operations. Neither Molokai
Properties, MPU, nor Kaluakoi Water filed any response to the
Intervenors’ memorandum or to the Motion to Dismiss.
On May 27, 2008, Molokai Properties informed the
Commission by letter that MPU “[did] not intend to continue to
pursue this case on remand” (May 27 letter). Molokai Properties
disclosed that it had been operating MPU at a loss for years and
was shutting down its operations due to insolvency. The letter
stated in relevant part as follows:
This letter is to inform you that Molokai Public Utilities
(MPU) does not intend to continue to pursue this case on
remand. As has been discussed with staff and the [Public
Utilities Commission], MPU has been operating at a
significant loss for several years and is essentially
insolvent.
. . . .
As a result of this insolvency, we do not have the
resources to pursue this very expensive remand proceeding.
. . . We are actively seeking a new owner for MPU that will
have the resources to continue operation and hopefully,
they will be capable of resolving this matter. However, as
previously stated, we cannot actively pursue this matter
before the Commission.
In a second letter dated May 30, 2008 (May 30 letter),
Molokai Properties informed the Public Utilities Commission
(PUC) that MPU would cease providing water utilities to West
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Molokai by the end of August 2008. MPU further stated that it
did not have the funds to make a reapplication for a permit to
operate Well 17 and that there would “probably” be an
unavoidable termination of service to customers unless another
entity was located to take over operations.
In response, the PUC ordered a temporary rate increase
to enable MPU to continue operating until it transferred its
Certification of Public Convenience and Necessity to another
entity.9 Additionally, the Director of Health issued an order on
July 21, 2008, requiring Molokai Properties and MPU to continue
to provide drinking water and wastewater systems for ninety days
to prevent “imminent peril to the public health and safety.”
Molokai Properties and its subsidiaries continued to operate and
utilize water from Well 17 without a water use permit for
several years.
C. MPU’s New Application
In December 2012, MPU filed an application for a new
ground water use permit (MPU’s application) seeking to withdraw
1,026,518 gpd from Well 17.10 The Commission worked with MPU
over the next few years to assist it in completing the
9
The Certification of Public Convenience and Necessity essentially
gave MPU an exclusive right to operate water utilities in specific regions on
Molokai and charge rates approved by the PUC.
10
The application itself is absent from the record.
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application, formally accepting the completed application on
October 12, 2015. The application was not served upon the other
parties to the 1997 contested case.
On October 20, 2015, the Commission informed DHHL by
letter that it, MPU, and the Maui Department of Water Supply
(MDWS) all had pending ground water use permit applications that
were potentially competing for water access, and the Commission
therefore intended to consolidate the applications and
incorporate them into the original contested case proceeding
that had continued after this court’s remand in In Re Kukui
(Molokai), Inc. On October 23 and 30, 2015, the Commission
published a notice inviting affected persons to object or
comment on MPU’s application, stating that “[t]his case will
continue as a contested case hearing, and parties previously
involved in the contested case hearing culminati[ng] in the
December 19, 2001 Decision & Order shall respond in writing of
their intention to continue in the case or to withdraw.” On
October 30, 2015, the Commission issued a minute order in the
original contested case docket setting a status conference for
November 9, 2015, which was served upon MPU, Kaluakoi Land, the
Intervenors, and MDWS.
Thereafter, at a hearing held on February 16, 2016,
testimony was presented regarding the propriety of handling
MPU’s application as part of the original contested case rather
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than as a distinct new matter. On March 7, 2016, the Commission
issued a minute order stating that the parties would be
permitted to submit briefs and present oral arguments to address
whether, pursuant to this court’s order remanding the case for
further proceedings and in light of In Re Waiola O Molokai, 103
Hawaii 401, 83 P.3d 664 (2004), the original contested case
hearing should continue or be dismissed. Briefs were filed by
MPU, the Intervenors, and MDWS, and the Commission heard oral
argument on April 19, 2016.
Before the Commission, the Intervenors and MDWS argued
that the Commission should formally deny the outstanding two-
decade-old Kukui application, officially dismiss the 1997
contested case, and treat MPU’s 2014 application as a new,
separate application. The Intervenors and MDWS contended that
MPU waived any interest it had in the 1997 proceedings through
its May 27 letter.11
11
Though making substantially the same argument, DHHL and OHA
characterize MPU’s letter as an abandonment rather than a waiver.
Additionally, Caparida and Kuahuia argued that, because Molokai Properties
and its subsidiaries did not respond to the Commission’s directive to file
pleadings identifying Kukui and Kaluakoi Land’s successor in interest, they
were never formally substituted for the original applicant, and therefore MPU
had no recognized interest in the 2007 proceeding to waive. At oral argument
in this case, however, Caparida and Kuahuia acknowledged that MPU had the
“technical right” to seek review of the Commission’s dismissal order. Oral
Argument at 47:08, In the Matter of the Contested Case Hearing on the Water
Use Permit Application Originally Filed by Kukui (Molokai), Inc., Now Refiled
as a New Ground Use by Molokai Public Utilities, LLC. (No. SCOT-XX-XXXXXXX),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_053118_SCOT_17_184.mp3. Therefore this
issue will not be further addressed.
10
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The Intervenors and MDWS also asserted that the facts
and circumstances surrounding Kukui’s 1993 application had
significantly changed, especially in light of the two competing
water use applications that were now under consideration, and
the Commission’s findings in the case were accordingly outdated
and no longer relevant to MPU’s application. Further, they
contended, considering MPU’s application for the new ground use
water permit within the context of the original contested case
hearing would deprive the public and other interested parties of
the opportunity to meaningfully participate in the hearing, and
relying on the Commission’s 2001 Order would violate the basic
elements of procedural due process by improperly and
prejudicially binding the new parties to an old record that they
did not participate in developing.
They additionally argued that the holding in In Re
Kukui (Molokai), Inc. had settled all issues regarding Kukui’s
1993 permit application and thus rendered the original contested
case moot. And, they concluded, the Commission’s and MPU’s
conduct in relation to the application--which included a failure
to serve the application on the other parties to the 1997
contested case hearing and an initial refusal to allow the other
parties access to relevant filings upon request--indicated that
MPU’s application was an entirely new and separate matter from
the 1997 contested case.
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In response, MPU contended that it was a valid party
to the case as the successor to Kaluakoi Land and that it had
complied with this court’s order directing that a new
application be filed under HRS § 174C-51 on remand. MPU further
asserted that it did not abandon its right to participate in the
contested case because the May 27 letter represented MPU’s hope
to pursue the matter in the future when it had the funds. MPU
argued that the elapsed time since the commencement of the
contested case was not unreasonable because it “was spent in
administrative and judicial review of the requested water uses”
and, in any event, the case could not be dismissed on this
ground alone.
MPU further argued that the Commission lacked the
discretion to dismiss the contested case in light of the court’s
order to vacate and remand in In Re Kukui (Molokai), Inc. The
supreme court stated that the case should continue, MPU argued,
and the parties should not have to re-prove findings of fact
that were not disturbed in that appeal.
Finally, MPU emphasized that introducing new parties
and evidence on remand for a contested case is not impractical
or unworkable but rather quite common. MPU claimed that this
practice would not deprive any party of the opportunity to
participate in the matter and introduce new evidence because the
Commission’s Public Notice expressly requested that “[n]ew
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parties wishing to intervene should file their objections.”12
Therefore, MPU stated, the parties’ participation would not be
limited if the case were continued. Even if binding the new
parties to the original record was problematic, MPU contended,
the continuation of the contested case and the consolidation of
the applications were separate issues, and the case could be
continued without the addition of the other parties.
D. The Commission’s Order Dismissing the Contested Case
On February 17, 2017, the Commission issued an Order
Dismissing the Contested Case. The Commission found that “MPU
waived its right to continue this contested case when it
submitted the May 27, 2008 letter to the Commission that clearly
stated that it did not intend to pursue the case on remand.”
MPU’s subsequent communications supported this interpretation of
the letter, the Commission stated, citing as an example the May
30 letter to the PUC that notified the State of Hawaii, County
of Maui, and all MPU customers of Molokai Properties’ intent to
cease operating MPU in August 2008. The Commission stated that
it was “not reasonable for MPU to believe that it can undo its
12
In its initial brief, MPU made three additional arguments arguing
against dismissal. MPU argued that dismissal would: (1) result in piecemeal
appeals; (2) be inconsistent with the Commission’s actions, including
notifying the parties and the public that the contested case hearing was
continuing; and (3) be inconsistent with the Commission’s actions in other
similar contested case hearings. However, none of these arguments are
presented on appeal and are therefore not furthered addressed.
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clear expression that it did not want to pursue the contested
case by filing a new use water permit application four years
later.” Responding to MPU’s argument that the outstanding
applications involved issues that had either been resolved in
the 1997 contested case or remanded in In Re Kukui (Molokai),
Inc., the Commission encouraged the parties to stipulate to
uncontroverted facts in future proceedings when possible and
stated that it would follow this court’s guidance in any future
decision making.
MPU filed a timely appeal directly to this court
pursuant to HRS § 174C-60 (2011).
II. ARGUMENTS ON APPEAL
On appeal, MPU challenges the Commission’s findings on
the basis that, whether express or implied, a waiver of rights
must be clear and unambiguous. The May 27 letter was “at best”
equivocal, MPU argues, and it thus cannot constitute a waiver.
MPU contends that the May 27 letter merely stated
“that the current owner [of MPU] would not actively pursue the
matter and [] the future owner may,” which left an “‘opportunity
for a reasonable inference’ that MPU did not intend to waive its
right to continue with the contested case.” Rather, MPU
asserts, the language of the May 27 letter is best understood as
a request for a stay of proceedings, which “is effectively what
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happened.”13 This interpretation is supported by its continued
operations after the May 27 letter pursuant to the Department of
Health order, MPU argues, as well as its submission of a new
water use permit application, which together indicate that the
letter was not expressing an intent to abandon the matters at
issue in the contested case. Similarly, MPU notes that after
receiving the May 27 letter, the Commission did not dismiss the
original contested case but rather kept the case on its docket
and processed the new application under the same case number.
MPU concludes that these acts, collectively, demonstrate that
the May 27 letter was ambiguous and therefore did not constitute
a waiver.
MPU also contends that it will suffer prejudice as a
result of the Commission’s dismissal of the contested case. MPU
argues that the record developed in the 2001 “Findings of Fact”
was not disturbed in the previous appeal because this court
vacated the 2001 Decision and Order only “to the extent it
grant[ed] [MPU] a permit for existing uses.”14 (Quoting In Re
13
Although this argument appears to have been raised for the first
time in MPU’s reply brief, we do not find it necessary to determine whether
the issue of a stay was properly preserved given our disposition of the case.
See Hawaii Rules of Appellate Procedure Rule 28(b)(4).
14
In In Re Kukui (Molokai), Inc., this court expressly stated that
“we [also] vacate the Commission’s Decision and Order to the extent that it
grants KMI a permit for proposed uses.” 116 Hawai‘i at 506, 174 P.3d at 345
(emphasis added).
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Kukui (Molokai), Inc., 116 Hawai‘i at 501, 174 P.3d at 340.)
“MPU should not be forced to relitigate facts and issues” that
are essential to its new use application, it argues.
In response, the Intervenors and MDWS reiterate their
arguments before the Commission. Additionally, Caparida and
Kuahuia argue that, even assuming the Commission erred in
finding a waiver, the Commission still acted within its
discretion because, inter alia, the new use permit and the
contested case should be adjudicated under different standards
and the Commission’s findings under the contested case,
including MPU’s water usage, are outdated.
MPU replies that this court’s order in In Re Kukui
(Molokai), Inc. clearly contemplated that the contested case
would continue notwithstanding the need to evaluate the
application under a different standard. MPU further argues that
the Commission’s findings remain relevant despite the passage of
time and points out the Commission did not state that it was
exercising its discretion to control its docket when it
dismissed the contested case. This alternative reasoning
therefore cannot now justify affirming the decision on appeal,
MPU concludes.
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III. STANDARDS OF REVIEW
The issue of whether a waiver exists is “generally a
question of fact.”15 Coon v. City & Cty. of Honolulu, 98 Hawaii
233, 261–62, 47 P.3d 348, 376–77 (2002) (citing Hawaiian Homes
Comm’n v. Bush, 43 Haw. 281, 286 (Haw. Terr. 1959)). Findings
of fact are reviewable under the clearly erroneous standard.
Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87
Hawaii 217, 229, 953 P.2d 1315, 1327 (1998) (citation omitted);
Bragg v. State Farm Mut. Auto. Ins. Co., 81 Hawaii 302, 304-05,
916 P.2d 1203, 1205-06 (1996). The court will vacate findings
under the clearly erroneous standard “if [the] court is left
with the definite and firm conviction that a mistake has been
made.” DeFries v. Ass’n of Owners, 999 Wilder, 57 Haw. 296,
302–03, 555 P.2d 855, 859 (1976) (citation omitted).
“[W]hen the facts [underlying a waiver] are undisputed
it may become a question of law.” Coon, 98 Hawai‘i at 262, 47
P.3d at 377 (quoting Bush, 43 Haw. at 286). “Questions of law
are reviewable de novo under the right/wrong standard of
review.” Bank of Hawaii v. DeYoung, 92 Hawai‘i 347, 351, 992
15
MPU contends that a waiver must be unambiguous and, relying on
several cases concerning the interpretation of contracts, argues that whether
a document like the May 27 letter is ambiguous is a question of law that is
reviewable de novo. (Citing, inter alia, Gustafson v. Fukino, Civil No. 09-
00565 SOM/KSC, 2010 WL 2900434, at *2 (D. Haw. Jul. 20, 2010).) Whether a
contract between private parties is ambiguous is a different question than
whether a party has waived a procedural right in an agency adjudication,
however, and we find these cases inapposite.
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P.2d 42, 46 (2000) (quoting Ditto v. McCurdy, 90 Hawai‘i 345,
351, 978 P.2d 783, 789 (1999)).
IV. DISCUSSION
A. The Commission Did Not Err in Finding MPU Expressly Waived
its Right to Proceed With the Contested Case By its May 27
Letter.
MPU challenges the Commission’s conclusion in its
Order Dismissing the Contested Case that “MPU waived its right
to continue this contested case when it submitted the May 27,
2008 letter to the Commission that clearly stated it did not
intend to pursue this case on remand.” As we have long held, a
waiver is either “a voluntary and intentional relinquishment of
a known right[] or such conduct as warrants an inference of the
relinquishment of such right.” Hewahewa v. Lalakea, 35 Haw.
213, 218 (Haw. Terr. 1939) (internal quotations and alterations
omitted). This to say that, although a waiver must be knowing
and intentional, it “may be expressed or implied,” meaning “it
may be established by express statement or agreement, or by acts
and conduct from which an intention to waive may be reasonably
inferred.” Coon v. City & Cty. of Honolulu, 98 Hawaii 233, 261,
47 P.3d 348, 376 (2002) (citations and internal quotation marks
omitted).
By stating in its order that MPU’s May 27 letter
“clearly stated it did not intend to pursue this case on
remand,” the Commission indicated that it had found an express
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waiver of MPU’s right to continue the contested case. We
therefore consider whether MPU’s May 27 letter constituted a
waiver through an “express statement or agreement.” Id. at 261,
47 P.3d at 376 (citations omitted).
MPU’s May 27 letter began by stating, “This letter is
to inform you that Molokai Public Utilities (MPU) does not
intend to continue to pursue this case on remand.” This
statement clearly reflects MPU’s knowledge of its right to
pursue the case on remand, and it unambiguously indicates MPU’s
intention to relinquish that right, thus satisfying the key
elements of a waiver.16 See Coon, 98 Hawaii at 261-62, 47 P.3d
at 376-77 (“[W]aiver is defined as an intentional relinquishment
of a known right . . . . To constitute a waiver . . . the
waiving party must have had knowledge, actual or constructive,
of the existence of such a right at the time of the purported
16
As discussed supra, note 15, MPU relies primarily on cases from
other jurisdictions interpreting parties’ contractual obligations to argue
that a waiver must be unambiguous and unequivocal. (Citing, inter alia,
Office of the Att’y Gen. v. Tennessee Regulatory Auth., No. M2003-01363-CAO-
R12-CV, 2005 WL 3193684, at *12 (Tenn. Ct. App. Nov. 29, 2005); In re Nw.
Liquor Indus., Inc., 107 B.R. 616, 619 (Bankr. W.D. Wis. 1988); Meyer v. Mack
Motor Trucks, Inc., 141 So.2d 427, 429 (La. Ct. App. 1962).) We have indeed
often held that a party’s relinquishment of constitutional rights must be
clear and unmistakable. See, e.g., State v. Deming, 137 Hawai‘i 18, 364 P.3d
535 (2015) (right to counsel); Lii v. Sida of Hawaii, Inc., 53 Haw. 353, 355,
493 P.2d 1032, 1034 (1972) (right to trial by jury). Thus far, however, we
have not applied the same high standard to the waiver of what appears to be a
purely procedural right in an administrative adjudication. Because we find
that in any event MPU unambiguously and unequivocally communicated a waiver
of its right to proceed with the contested case, we need not now decide
whether the high standard we have articulated in other contexts would
otherwise apply in this setting.
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waiver.”). This court need not speculate as to MPU’s genuine
intention because MPU expressed its intent by using the word
“intend.” Thus, MPU’s statement that it did not intend to
“continue to pursue this case” is a clear representation that
MPU would no longer continue to pursue a new use permit to
revive expired uses through the remanded case.
Other statements made in the May 27 letter underscore
MPU’s intent to relinquish its right to the contested case
proceeding. The letter stated that “we do not have the
resources to pursue this very expensive remand proceeding” and
“we cannot actively pursue this matter before the Commission.”
The language “we do not have the resources” and “we cannot
actively pursue” unequivocally expresses that MPU could not and
would not pursue the case on remand.
MPU contends that its statement that, “We are actively
seeking a new owner for MPU that will have the resources to
continue operation and hopefully, they will be capable of
resolving this matter,” indicates that although Molokai
Properties, as the current owner, would not pursue the matter, a
future owner might resume the contested case at a later date.
While MPU points to the stated efforts to find a new owner that
would have had the resources to continue operations, even that
speculation is couched as a “hope” that if a new owner was
found, that owner would “be capable of resolving the matter.”
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Moreover, the next sentence of the letter emphasizes that,
“However, as previously stated, we cannot actively pursue this
matter before the Commission.” Thus, the May 27 letter
unequivocally stated that MPU did not intend to go forward with
the contested case, which constitutes an express waiver of MPU’s
right to proceed with the contested case.
Not surprisingly, the Commission reached the same
conclusion in its Order Dismissing the Contested Case. The
Commission determined that “MPU waived its right to continue
this contested case when it submitted the May 27, 2008 letter to
the Commission that clearly stated that it did not intend to
pursue this case on remand.” The Commission found that “the
wording of the letter itself . . . supports the interpretation
that MPU had no intent to continue to provide water service on
Molokai and . . . was waiving its request for a contested case
on remand.” Further, the Commission found that MPU’s statement
that it was looking for a new owner “does not indicate that the
contested case would continue to be pursued,” which was
confirmed by the May 27 letter’s reiteration that “as previously
stated, [MPU] cannot pursue this matter before the Commission.”
The Commission duly considered the May 27 letter that
it had received regarding MPU’s intentions and determined that
MPU had expressly relinquished its right to continue with the
contested case. Therefore, the Commission’s finding of a waiver
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of MPU’s right to continue the contested case was not clearly
erroneous or wrong as the letter unequivocally stated that it
did “not intend to continue to pursue this case on remand.”17
B. The May 27 Letter Was Not a Request for a Stay.
MPU belatedly asserts in its reply brief to this court
that the May 27 letter was an inartful request for a stay of
proceedings.18 A “stay” is defined as “1. The postponement or
halting of a proceeding . . . . [or] 2. An order to suspend all
or part of a judicial proceeding . . . .” Black’s Law
Dictionary 1639 (10th ed. 2014).
Despite MPU’s contention, the May 27 letter does not
contain any indicia of a request for a stay. As an initial
matter, the May 27 letter does not contain a statement that
17
Even if the statements in MPU’s May 27 letter had been
insufficient to constitute a waiver in their own right, an implied waiver may
be made “by acts and conduct from which an intention to waive may be
reasonably inferred.” Coon, 98 Hawai‘i at 261, 47 P.3d at 376 (citations
omitted). At the time that MPU sent the May 27 letter, MPU was still under
an obligation to reply to the Intervenors’ motion to dismiss by June 16,
2008, and to comply with the Commission’s minute order directing it to file a
separate pleading identifying Kukui’s successor-in-interest. MPU never made
either filing. A reasonable inference stemming from this inaction is that
after MPU notified the Commission that it “[did] not intend to continue to
pursue this case on remand,” MPU no longer felt obligated to participate in
the proceedings by responding to the Intervenors’ memoranda or complying with
the Commission’s Minute Order of March 10, 2008. Thus, as a permit applicant
that could choose to reapply at any time, MPU’s intent to waive its right to
pursue the case on remand “may be reasonably inferred” by these cumulative
actions, which would accordingly constitute an implied waiver. Id.18
MPU also relied significantly on this characterization of the
letter during oral argument before this court. See Oral Argument at 13:10-
14:40, In the Matter of the Contested Case Hearing on the Water Use Permit
Application Originally Filed by Kukui (Molokai), Inc., Now Refiled as a New
Ground Use by Molokai Public Utilities, LLC. (No. SCOT-XX-XXXXXXX),
http://oaoa.hawaii.gov/jud/oa/18/SCOA_053118_SCOT_17_184.mp3.
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could be understood as a “request.” A “request” is “[a] motion
by which a member invokes a right, seeks permission for the
exercise of a privilege, or asks a question.” Black’s Law
Dictionary 1497 (10th ed. 2014). The May 27 letter neither
attempts to invoke a right, seek permission, nor ask a question.
Rather the letter’s purpose is “to inform” the Commission of its
intent not to pursue the case on remand. As discussed supra,
this language is consistent with an express statement that MPU
could not and would not proceed on remand.
Additionally, the May 27 letter does not satisfy the
procedural requirements for motions set forth by the Commission
under Hawaii Administrative Rules (HAR) § 13-167-58(a).
Pursuant to HAR § 13-167-58(a), “All motions other than those
made during a hearing shall be made in writing to the
commission, shall state the relief sought, and shall be
accompanied by an affidavit or memorandum setting forth the
grounds upon which they are based.” Here, the May 27 letter does
not state the relief sought--which would presumably be a stay if
it were intended as MPU now claims. Similarly, the May 27
letter is unaccompanied by, and fails to state, grounds for the
purported request for a stay. And, merely disclosing financial
difficulties and the “hope” that a successor in interest will be
able resolve the matter is insufficient to constitute either a
request for a stay or grounds in support thereof. Furthermore,
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assuming without deciding that the Commission has the authority
to grant an indefinite stay of the type MPU appears to
contemplate, the record does not demonstrate that the Commission
treated the May 27 letter as a request for a stay or that it
ruled on such a request. Thus, we hold that the May 27 letter
was not a request for a stay and that no stay was considered or
granted in the contested case.
V. CONCLUSION
Based on the foregoing, the Commission’s finding that
MPU waived its right to continue the contested case was not
clearly erroneous or wrong and therefore we affirm the circuit
court’s Order Dismissing the Contested Case.
Calvert G. Chipchase /s/ Mark E. Recktenwald
Christopher T. Goodin
Trisha Akagi /s/ Paula A. Nakayama
for applicant-appellant
/s/ Sabrina S. McKenna
Camille Kalama
David K. Kopper /s/ Richard W. Pollack
Sharla Ann Manley
for appellees /s/ Colette Y. Garibaldi
Judy Caparida and Georgina
Kuahuia
Ryan Kanaka‘ole
Diane K. Taira
Matthew S. Dvonch
for appellee
Department of Hawaiian Home
Lands
Sherry P. Broder
for appellee
Office of Hawaiian Affairs
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Caleb P. Rowe
Kristin K. Tarnstrom
for appellee
County of Maui,
Department of Water Supply
25