Maui Lani Neighbors v. State. ICA Opinion, filed 12/28/2023 [ada], 153 Haw. 527. Application for Writ of Certiorari, filed 03/25/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/24/2024 [ada].

majority opinion

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Electronically Filed

Supreme Court

SCWC-XX-XXXXXXX

12-SEP-2025

01:39 PM

Dkt. 74 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---MAUI LANI NEIGHBORS, INC., a Hawai‘i Nonprofit Corporation,

Petitioner/Plaintiff-Appellant,

vs.

STATE OF HAWAI‘I; STATE OF HAWAI‘I DEPARTMENT OF LAND AND NATURAL RESOURCES; STATE OF HAWAI‘I BOARD OF LAND AND NATURAL RESOURCES; DAWN N.S. CHANG, in her official capacity as chair of the State of Hawai‘i Board of Land and Natural Resources; COUNTY OF MAUI; COUNTY OF MAUI PLANNING COMMISSION; COUNTY OF MAUI DEPARTMENT OF

PLANNING; and KATE L.K. BLYSTONE, in her official capacity as

County of Maui Planning Director,

Respondents/Defendants-Appellees.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-XX-XXXXXXX; CASE NO. 2CC141000501)

SEPTEMBER 12, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, AND DEVENS, JJ.,

AND CIRCUIT JUDGE CASTAGNETTI IN PLACE OF GINOZA, J., RECUSED *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case requires us to consider how the neighbors of

a proposed public sports park could assert zoning and

environmental challenges to the project. Some of those

neighbors attended a County of Maui Planning Commission

(Planning Commission) meeting at which the Planning Commission

approved a special use permit that allowed the project to move

forward. Rather than appeal that decision within the applicable

deadlines, the neighbors formed a non-profit member corporation

called Maui Lani Neighbors, Inc. (MLN) to challenge the project

directly in the Circuit Court of the Second Circuit (circuit

court). The circuit court ruled that the neighbors had missed

the boat: they should have brought their challenges as an appeal

of the Planning Commission’s decision to grant the permit. The

circuit court eventually dismissed the lawsuit, and the

Intermediate Court of Appeals (ICA) affirmed.

With one exception, we reach the same result as the

ICA, although our reasoning differs on some points. The

neighbors are seeking relief under our declaratory judgment

statute, Hawai‘i Revised Statutes (HRS) § 632-1 (2016). That

statute contains a limitation that states “[w]here . . . a

statute provides a special form of remedy for a specific type of

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

case, that statutory remedy shall be followed.” HRS § 632-1(b).

Here, there is such a remedy: the right to appeal from the

Commission’s ruling granting the permit under HRS § 91-14

(2012). The lone exception relates to the neighbors’ claims

that environmental review of the project was insufficient under

HRS chapter 343, the Hawai‘i Environmental Policy Act (HEPA).

Unlike their other claims, the neighbors were not required to

assert that claim in an HRS chapter 91 appeal. Rather, HRS

§ 343-7 (Supp. 2014) provided the circuit court with original

jurisdiction to consider that claim in the first instance.

Thus, the circuit court and the ICA erred in dismissing it.

The neighbors also assert that article XI, section 9

of the Hawai‘i Constitution empowered the circuit court to

exercise jurisdiction over several of their claims in the first

instance, and particularly, those arising under HRS chapters 46,

205, and 343. Article XI, section 9 establishes the right to a

clean and healthful environment. In County of Hawai‘i v. Ala

Loop Homeowners, 123 Hawai‘i 391, 235 P.3d 1103 (2010), this

court for the first time recognized that the public can enforce

that right, “subject to reasonable limitations and regulation as

provided by law.”

In the circumstances of this case, we hold that the

jurisdictional limitation within HRS § 632-1 was a reasonable

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

limitation established by law, and that accordingly, the

neighbors were required to assert their claims arising under HRS

chapters 46 and 205 through an appeal of the Planning

Commission’s decision. In contrast, to the extent that

neighbors seek to assert their HRS chapter 343 claims in circuit

court pursuant to article XI, section 9, they may do so given

the statutory grant of jurisdiction reflected in HRS § 343-7.

It has been fifteen years since this court decided Ala

Loop, which established that article XI, section 9 means what it

says: Hawai‘i’s people have the right to a clean and healthful

environment, and they have the power to enforce that right. Our

holding in Ala Loop provided relief under article XI, section 9,

where it was previously unavailable elsewhere.

Our decision today reaffirms the framework for

protecting our environment established by article XI, section 9.

It acknowledges that the task of defining the substance of the

right to a clean and healthful environment is entrusted in the

first instance to the legislature. And it recognizes that

enforcement of that right should complement, rather than

supplant, other existing tools for protecting our environment,

with the important caveat that those tools cannot impose

unreasonable burdens on those who seek to use them. In the

circumstances of this case, the neighbors have failed to show

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

that it is unreasonable to require them to avail themselves of

the protections provided by an appeal from the Planning

Commission’s decision.

Accordingly, we affirm the judgment of the ICA except

to the extent that it restricts MLN’s ability to assert its

rights under HRS chapter 343.

II. BACKGROUND

A. The Special Use Permit

The dispute in this case arises from the Planning

Commission’s approval of a county special use permit (CUP)

allowing the State of Hawai‘i Department of Land and Natural

Resources (DLNR) to develop the Central Maui Regional Sports

Complex (Sports Park). The following recitation of facts is

based on express findings made by the circuit court, which are

unchallenged on certiorari.1

DLNR’s planned Sports Park would include playing

fields for general public use on a 65-acre parcel of land (the

Property) acquired by the DLNR from intervenor Alexander &

Baldwin, LLC (A&B). The subject land was zoned agricultural

under county zoning and was redistricted to the State Urban Land

1 As noted in the ICA opinion, MLN did briefly assert in its opening brief that the circuit court erred in entering certain findings of fact regarding the application of the futility exception to the doctrine of exhaustion. However, MLN failed to provide any argument as to why those specific findings were erroneous and, thus, the ICA concluded that any purported challenge to those findings had been waived. MLN does not dispute the ICA’s conclusion or renew its challenge to those findings on certiorari.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Use District pursuant to a June 21, 2012 State Land Use

Commission (LUC) Decision and Order (LUC D&O).

DLNR prepared a final environmental assessment (FEA)

for the Sports Park, which resulted in a finding of no

significant impact. No appeal of the environmental review was

filed, and State of Hawai‘i Board of Land and Natural Resources

(BLNR) accepted the document as final on October 11, 2013.

On October 10, 2013, DLNR applied to the County of

Maui for a CUP to develop the Sports Park. Twice, on October 9,

2013, and on November 14, 2013, DLNR sent notice of its

application to surrounding property owners but, on both

occasions, failed to send notice to all owners and lessees of

record located within a five-hundred-foot distance from the

Property. In January 2014, the Planning Commission scheduled

DLNR’s CUP application for a public hearing on February 11,

2014. However, after DLNR again failed to send notice to all

owners and lessees of record located within a five-hundred-foot

distance from the Property, the Planning Commission rescheduled

the hearing for March 25, 2014.

On February 12, 2014, DLNR once again mailed notice of

the hearing, this time to all owners and lessees of record

located within a five-hundred-foot distance from the Property.

The notice “identified the CUP Application, the Property, the

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

right to intervene, where and how to submit written testimony,

and the hearing date, time, and place.” Numerous individuals

who would later become members of MLN received actual notice of

the CUP hearing, including: president David Potter; vicepresident Dr. Harley Manner; treasurer Holden Gannon; former

president and current director Tina Hoenig; and members Mark

Hoenig, Neal Sorensen, and Dr. Mary Spencer. In addition to the

mailed notice, DLNR also published notice of the CUP hearing in

a local newspaper once a week for three consecutive weeks prior

to the hearing date.

On March 25, 2014, several future officers and members

of MLN attended the Planning Commission’s hearing on DLNR’s CUP

application. DLNR was the sole party to the proceeding. At

least one future member, Tina Hoenig, testified at the hearing,

but at no point prior to or during the March 25, 2014

proceedings did any of MLN’s future members petition to

intervene. The Planning Commission voted unanimously to approve

the CUP. At the conclusion of the hearing, the Planning

Commission publicly announced that it had approved the CUP with

the additional condition that “prior to initiation of

construction, the [DLNR] shall meet with the adjacent community

members to discuss [their] concerns.” Both Dr. Spencer and Dr.

Manner testified before the circuit court that they had heard

the Planning Commission’s decision.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

On April 29, 2014, DLNR held a public meeting for

community members to express their concerns regarding the Sports

Park development. Dr. Spencer, Dr. Manner, and Mr. Gannon all

attended the meeting, and Dr. Manner later testified that he

left the meeting believing the Sports Park was a “done deal.”

On May 12, 2014, future MLN president Tina Hoenig

filed a HRS § 91-14 appeal challenging the CUP in circuit court.

On June 12, 2014, MLN was incorporated as a non-profit member

corporation with the “express corporate purpose of supporting,

promoting, and advocating for sustainable and appropriate

community planning, and legal state and county zoning consistent

therewith, for the Central Maui region of the Island of Maui.”

On June 20, 2014, Tina Hoenig and defendant County of Maui

stipulated to dismiss the appeal without prejudice. MLN did not

call Tina Hoenig as a witness in the present case and there is

no evidence in the record explaining her reasons for agreeing to

the dismissal.

On July 12, 2014, MLN sent a cease-and-desist letter

to DLNR regarding the Sports Park. In its letter, MLN

acknowledged that the Planning Commission had granted DLNR a CUP

for the Sports Park on March 25, 2014.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

B. Circuit Court Proceedings2

On September 2, 2014, MLN filed a suit in circuit

court seeking declaratory, injunctive, and other relief related

to the Planning Commission’s March 25, 2014 approval of a CUP

authorizing DLNR’s proposed development of the Sports Park.

Named as defendants in the suit were the State of Hawai‘i, DLNR,

BLNR, and the BLNR Chairperson (collectively, the State), as

well as the County of Maui, the Planning Commission, the County

of Maui Planning Department (Planning Department), and the

County of Maui Department of Planning (Planning Director)

(collectively, the County).

On September 9, 2014, MLN filed its First Amended

Verified Complaint (Complaint), in which it asserted nine

counts. Count I alleged numerous violations of zoning under HRS

§ 46-4 (Supp. 2014), including: I.B., inconsistency with the

Wailuku-Kahului Community Plan; I.C., inconsistency with the

Maui Island Plan; I.D., violation of the Maui County Code (MCC)

Chapter 19.30A, which governs the agricultural district; I.E.,

violation of the special use permit ordinance, MCC § 19.510.070

(2013); and I.F., violation of the June 21, 2012 LUC D&O

redesignating the subject property from State Agricultural Land

Use District to State Urban Land Use District.

2 The Honorable Peter T. Cahill presided.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The Complaint also asserted: Count II, declaratory

relief that the CUP is void as a matter of law; Count III, the

special use ordinance is unconstitutionally vague and ambiguous;

Count IV, declaratory relief with respect to lot size

requirements within the regional park district; Count V,

violations of HEPA; Count VI, violation of article XI, section 9

of the Hawai‘i Constitution; Count VII, public nuisance; Count

VIII, violation of due process; and Count IX, declaratory and

other relief that notice to surrounding neighbors was

inadequate.

MLN asserted that the circuit court had jurisdiction

to adjudicate its claims under: HRS § 46-4, county zoning; HRS

chapter 343, HEPA; HRS chapter 632, declaratory judgments; and

the Hawai‘i Constitution.

On September 22, 2014, the County moved to dismiss

Counts I.D., I.F., II, III, and IV of MLN’s Complaint under

Hawai‘i Rules of Civil Procedure (HRCP) Rule 12(b)(6) (eff. 2000)

for failure to state a claim. The State joined the motion. On

October 6, 2014, with the County’s motion still pending before

the circuit court, MLN filed a petition with the LUC seeking a

declaratory ruling that the proposed Sports Park uses violated

conditions of the June 21, 2012 LUC D&O. After being made aware

of MLN’s petition to the LUC, the circuit court denied in part

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the County’s Rule 12(b)(6) motion to the extent it sought

dismissal of Count I.F. of the Complaint and further stayed all

proceedings pending a determination by the LUC “as to any

potential violation by any person or party of the [June 21, 2012

LUC D&O].”

At a public meeting on November 20, 2014, the LUC

voted to deny MLN’s petition for declaratory relief. 3 On

November 25, 2014, the circuit court lifted the stay and

subsequently denied the County’s motion to dismiss as to all

counts.

On December 5, 2014, the State filed its own motion

for partial dismissal, which the County and intervenor A&B later

joined.4 The State argued that Counts II, III, and V were timebarred and should be dismissed with prejudice. The circuit

court scheduled a hearing on the State’s motion for partial

dismissal and requested supplemental briefing on the issues of

subject matter jurisdiction and collateral estoppel. The State,

the County, and A&B each submitted supplemental briefing.

3 In denying MLN’s petition, the LUC cited to Hawai‘i Administrative Rules (HAR) § 15-15-100(a)(1)(C) (eff. 2013), which provided that the LUC shall deny a petition for declaratory order where “[t]he issuance of the declaratory order may adversely affect the interest of the State . . . in any litigation which is pending or may be reasonably be [sic] expected to arise.” The LUC entered its written order denying the petition on December 3, 2014.

4 A&B moved to intervene on December 9, 2014. The circuit court granted the motion on December 17, 2014.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

On December 22 and 23, 2014, the circuit court held

evidentiary hearings on the State’s motion for partial

dismissal. The court received evidence and heard testimony from

MLN member Mary Spencer, PhD, MLN treasurer Holden Gannon, MLN

vice president Harley Manner, PhD, DLNR engineer Carty Chang,

Planning Department senior planner Paul Fasi, and Planning

Director William Spence. At the conclusion of the December 23,

2014 hearing, the circuit court requested supplemental briefing

regarding MLN’s failure to challenge the Planning Commission’s

approval of the CUP through an administrative appeal and whether

such an appeal would have been futile in light our recent

opinion in Kellberg v. Yuen, 131 Hawai‘i 513, 319 P.3d 432

(2014).

On December 31, 2014, after review of the parties

supplemental briefing and further hearing, the circuit court

granted the State’s motion for partial dismissal. With the

exception of Count VII, public nuisance, the circuit court

dismissed all counts in the Complaint for lack of subject matter

jurisdiction.

On February 23, 2015, the circuit court entered its

written findings of fact, conclusions of law, and order granting

the State’s motion for partial dismissal.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Addressing the issue of subject matter jurisdiction,

the circuit court concluded that MLN was subject to the notice

received by its members, who, the court concluded, had “received

notice [of the CUP proceedings] in time to exhaust the

administrative remedies of intervention and an HRS § 91-14

appeal.”5 Because the circuit court also concluded that MLN’s

Counts I, II, III, IV, V, VI, VIII, and IX “could have been

addressed before the Planning Commission on intervention and on

appeal under HRS chapter 91,” it further concluded that those

claims were barred based on MLN’s failure to exhaust

administrative remedies. (Emphasis added.) Accordingly, the

circuit court dismissed each of the aforementioned counts with

prejudice, leaving only Count VII, public nuisance, pending.

On September 10, 2015, on a motion from MLN, the

circuit court dismissed Count VII without prejudice.

Subsequently, on May 19, 2016, the circuit court entered final

judgment in favor of the State, the County, and A&B. MLN timely

appealed.

5 Given the evidence of notice and MLN’s actions subsequent to the March 25, 2014 hearing, the circuit court found that MLN “knew no later than July 12, 2014 that the Commission had granted a [CUP] for the Sports Park.”

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

C. ICA Proceedings

1. MLN’s appeal to the ICA

MLN raised three points of error before the ICA, of

which two remain relevant to this appeal. 6 First, MLN asserted

that “the trial court erred by applying the doctrine of

exhaustion where the Planning Commission did not have exclusive

original jurisdiction over any of MLN’s claims.” Second, MLN

contended that “even if the doctrine of exhaustion were to apply

in this case, the trial court erred in ruling the futility

exception had not been met.”

On its first asserted point of error, MLN argued that,

under Hawai‘i law, “the doctrine of exhaustion is applied only

where the agency has exclusive original jurisdiction, meaning

that the trial court in that instance has no original

jurisdiction.” (Emphases omitted.) MLN then presented

arguments as to why the circuit court had original jurisdiction

over each of the claims asserted in the Complaint and, thus, why

exhaustion did not apply.

6 As a third point of error, MLN also asserted to the ICA that the circuit court erred by temporarily staying proceedings and referring Count I.F. to the LUC under the doctrine of primary jurisdiction. The ICA held that this issue was moot given the short duration of the stay and the circuit court’s ultimate dismissal of Count I.F. for failure to exhaust administrative remedies. Maui Lani Neighbors v. State, 153 Hawai‘i 527, 563-64, 542 P.3d 1222, 1258-59 (App. 2023). MLN does not challenge the ICA’s mootness holding on certiorari and, thus, we do not address the issue in this opinion.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

As to Count I, violations of zoning under HRS § 46-4,

MLN cited Pavsek v. Sandvold, 127 Hawai‘i 390, 397-98, 279 P.3d

55, 62-63 (App. 2012), to argue that, because MLN members were

real estate owners directly affected by the Sports Park uses,

MLN had a private right of action to sue to enforce zoning

ordinances under HRS § 46-4(a).

MLN next argued that the circuit court had original

jurisdiction over MLN’s constitutional claims. These claims

included Counts II, III and VIII, which MLN characterized as

constitutional due process claims under article I, section 5 of

the Hawai‘i Constitution, and Count VI, which alleged violations

of the constitutional right to a clean and healthful environment

under article XI, section 9. Specifically, in Count III, MLN

alleged that due process was violated because the special use

ordinance, MCC § 19.30A.060 (2013), was “unconstitutionally

vague and ambiguous.” As to Counts II and VIII, MLN alleged

that the “expedited special use process” that was utilized to

approve DLNR’s Sports Park uses deprived MLN members of due

process to the extent that the CUP “effectuate[d] what [was]

essentially an illegal rezoning.” Further, as to Count VI, MLN

argued, under Ala Loop, that article XI, section 9 of the Hawai‘i

Constitution provided the circuit court with original

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

jurisdiction “to hear claims brought to enforce ‘environmental

quality laws,’ such as HRS, chapters 46 and 343.”

As to Count V, violations of HEPA, HRS chapter 343,

MLN argued that the circuit court had original jurisdiction over

those claims pursuant to HRS § 343-7. Further, given the

express right of action provided under that statute, MLN argued

that the Planning Commission would not have exclusive original

jurisdiction over a HEPA challenge under any circumstances.

Finally, MLN argued that the circuit court also had

original jurisdiction to adjudicate MLN’s claims for declaratory

relief, Counts II, IV, and IX, under HRS § 632-1.

Regarding its second asserted point of error, MLN

argued that even if the doctrine of exhaustion were to apply in

this case, the circuit court should have retained jurisdiction

over MLN’s claims under the futility exception as articulated in

Kellberg. See 131 Hawai‘i at 531, 319 P.3d at 450 (“[W]henever

exhaustion of administrative remedies will be futile it is not

required.”) (quoting Poe v. Haw. Labor Rels. Bd., 97 Hawai‘i 528,

536, 40 P.3d 930, 938 (2002)). As expressed by MLN, the

futility exception applies in cases where the administrative

process is unable to provide appropriate relief, or where a lack

of appropriate notice results in a party being time-barred from

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

appealing an administrative decision. See id. at 531-32, 319

P.3d at 450-51.

As applied to the claims asserted in the Complaint,

MLN argued that the exhaustion of administrative remedies would

have been futile under either theory. First, MLN contended that

“the Planning Commission would have been powerless to adjudicate

any of MLN’s claims,” and thus provide appropriate relief,

because “the Planning Commission’s authority is expressly

limited to reviewing the eight criteria set forth in the [CUP

ordinance, MCC § 19.510.070(B)].” (Emphasis omitted.) Further,

MLN argued that its future members did not receive adequate

notice of the CUP proceedings.

In conclusion, MLN requested, inter alia, that the ICA

reverse the circuit court’s final judgment and relevant orders,

direct the circuit court to exercise jurisdiction over all of

MLN’s claims, and deem the CUP null and void as a matter of law.

The State and A&B each filed an answering brief addressing MLN’s

arguments and requesting that the circuit court’s judgment be

affirmed.

2. ICA opinion

In December 2023, the ICA issued its opinion affirming

in part and reversing in part. Maui Lani Neighbors v. State,

153 Hawai‘i 527, 542 P.3d 1222 (App. 2023). Broadly, the ICA

held that the circuit court lacked jurisdiction over MLN’s

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

claims to the extent that the asserted claims sought to

invalidate the CUP. See id. at 534, 542 P.3d at 1229. This

included all claims in Counts I, II, III, IV, VIII, and IX,

which the ICA concluded “were properly dismissed for failure to

exhaust administrative remedies, but for reasons different than

the [c]ircuit [c]ourt.” Id. With respect to Counts V and VI,

the ICA remanded to the circuit court to address the claims

alleged in those counts only “to the extent [those claims] seek

relief other than to invalidate the CUP.” Id.

In articulating the standard for the doctrine of

exhaustion of administrative remedies, the ICA clarified that

the correct inquiry is not merely whether a claim could have

been raised in the administrative process. Id. at 539-40, 542

P.3d at 1234-35. Rather, exhaustion applies only where an

agency has exclusive original jurisdiction to resolve the claim.

Id. at 540, 542 P.3d at 1235. Put differently, the doctrine of

exhaustion of administrative remedies “provides that where a

claim is cognizable in the first instance by an administrative

agency alone, judicial review of agency action will not be

available unless the party affected has taken advantage of all

the corrective procedures provided for in the administrative

process.” Id. (quoting Kellberg, 131 Hawai‘i at 527, 319 P.3d at

446). Further, “[i]n order for the exhaustion of administrative

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

remedies to apply, ‘the statute, ordinance or regulation under

which the agency exercises its power must establish clearly

defined machinery for the submission, evaluation and resolution

of complaints by aggrieved parties.’” Id. at 541, 542 P.3d at

1236 (quoting Kellberg, 131 Hawai‘i at 536, 319 P.3d at 455).

Reviewing the relevant statutes, ordinances, and rules, the ICA

concluded “that such ‘clearly defined machinery’ was in place

related to the issuance of the CUP in this case.” Id.

Addressing each count in the Complaint, the ICA held

that Counts I, II, III, IV, VIII, and IX were barred for failure

to exhaust administrative remedies. Beginning with Count I,

violation of zoning, the ICA rejected MLN’s argument that under

Pavsek, 127 Hawai‘i 390, 279 P.3d 55, HRS § 46-4(a) provided the

circuit court with concurrent jurisdiction to adjudicate MLN’s

zoning claims. The ICA disposed of MLN’s argument as follows:

Reading the relevant provisions of HRS § 46-4 in pari

materia, and under the circumstances in this case, we

construe the legislative intent as requiring the

administrative review process and appeal from the

administrative process as the exclusive route for obtaining

court review of the activity permitted under the CUP.

Pavsek is distinguishable because in that case the

plaintiffs challenged conduct that had not been permitted

under any administrative process.

Accordingly, the exhaustion of administrative

remedies doctrine applied to MLN’s claims under HRS § 46-4

in Count I, and MLN failed to exhaust its administrative

remedies.

Maui Lani Neighbors, 153 Hawai‘i at 547, 542 P.3d at 1242

(emphasis and italics omitted).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

As to MLN’s claims for declaratory relief under Counts

II and IV, the ICA held that those claims were barred by the

limitation under HRS § 632-1(b) that “[w]here . . . a statute

provides a special form of remedy for a specific type of case,

that statutory remedy shall be followed.” Id. (emphasis

omitted). Applying this court’s holding in Punohu v. Sunn, 66

Haw. 485, 487, 666 P.2d 1133, 1135 (1983), that “the remedy of

appeal provided by § 91-14, HRS, is a statutorily provided

special form of remedy,” the ICA held that “[t]he failure of MLN

members to intervene in the Planning Commission proceeding and

appeal from the issuance of the CUP under HRS § 91-14 precludes

declaratory relief under HRS § 632-1.” Maui Lani Neighbors, 153

Hawai‘i at 548, 542 P.3d at 1243.

The ICA next addressed MLN’s due process claims

asserted under Counts III and VIII. “As a general matter,” the

ICA first expressed that “claims based on constitutional rights

are subject to the exhaustion of administrative remedies

doctrine, unless an exception applies.” Id. at 549, 542 P.3d at

1244 (citing Kellberg, 131 Hawai‘i at 519, 531, 319 P.3d at 438,

450). Applied here, the ICA held that the CUP process and right

to appeal “provided an adequate remedy to address MLN’s claims

in Count III and Count VIII.” Id. at 550, 542 P.3d at 1245.

Further, and in response to MLN’s argument that its

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

constitutional due process claims were outside of the Planning

Commission’s jurisdiction, the ICA determined that Counts III

and VIII presented “claims challenging the validity of the CUP,”

which were based on the substance of the Planning Commission’s

decision and, thus, were subject to the “established regulatory

process for MLN members to intervene in the Planning Commission

proceeding and to seek judicial review by appealing under HRS

§ 91-14.” Id. at 551, 542 P.3d at 1246. Accordingly, the ICA

held that circuit court did not err in dismissing Counts III and

VIII for failure to exhaust administrative remedies. Id.

With respect to Count IX, the ICA credited the circuit

court’s uncontested findings and conclusion that “MLN members

and officers had notice that the Sports Park would be addressed

through a special use permit . . . but failed to intervene in

the CUP process or to maintain an appeal from the Planning

Commission’s decision to issue the CUP.” Id. at 553, 542 P.3d

at 1248. Thus, the ICA concluded, “[t]he [c]ircuit [c]ourt did

not err in dismissing Count IX.” Id.

The ICA also rejected MLN’s argument that the

exhaustion of administrative remedies would have been futile

under the circumstances of this case. Id. The ICA stated:

The assertion that MLN was provided inadequate notice

has been addressed above and we reject that argument. With

regard to MLN’s further argument, MLN fails to show that

the Planning Commission could not consider whether the CUP

application should have been denied in favor of seeking a

change in zoning. Indeed, MCC § 19.510.070(A), which the

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Planning Commission was required to follow, provides that

“[a] special use permit shall comply with the provisions of

this section and with the policies and objectives of the

general plan and community plans of the county, the Hawai‘i

Revised Statutes, and the revised charter of the county.”

Further, under MCC § 19.510.070(B), the Planning Commission

was required to find that eight criteria were met before

approving the CUP, including that “[t]he proposed request

meets the intent and purpose of the applicable district[.]”

MCC § 19.510.070(B)(3) (emphasis added). The Planning

Commission was thus required to find that the Sports Park

met the intent and purpose of the County’s agricultural

zoning district for the property.

Moreover, if an appeal had been asserted or

maintained from the CUP approval, MLN could have sought

judicial review pursuant to HRS § 91-14 and challenged

whether the Planning Commission’s decision was, inter alia,

“[i]n excess of the statutory authority or jurisdiction of

the agency” or “[a]ffected by other error of law[.]” HRS

§ 91-14(g).

Id. (brackets in original) (footnote omitted).

With regard to MLN’s HEPA claims under Count V, the

ICA first expressed that the “primary focus” of MLN’s Complaint

was “to seek declaratory and injunctive relief related to the

CUP.” Id. at 554, 542 P.3d at 1249. The ICA then concluded

that, “to the extent the Count V claims constitute a challenge

to the validity of the CUP, the claims were properly dismissed

for failure to exhaust administrative remedies.” Id. (emphasis

omitted). However, “[g]iven the allegations in the . . .

Complaint and MLN’s arguments on appeal,” the ICA concluded

that, “to the extent MLN’s Count V claims seek relief other than

invalidating the CUP, . . . dismissal of such claims on grounds

that MLN failed to exhaust administrative remedies was

improper.” Id. at 555, 542 P.3d at 1250 (emphasis omitted).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Finally, the ICA addressed MLN’s Count VI claims

brought under article XI, section 9 of the Hawai‘i Constitution.

Article XI, section 9 provides in full:

Each person has the right to a clean and healthful

environment, as defined by laws relating to environmental

quality, including control of pollution and conservation,

protection and enhancement of natural resources. Any person

may enforce this right against any party, public or

private, through appropriate legal proceedings, subject to

reasonable limitations and regulation as provided by law.

MLN asserted that its article XI, section 9 claims

arose under HRS chapters 46, 205, and 343. 7 The ICA acknowledged

that the application of the doctrine of exhaustion of

administrative remedies to these claims presented an issue of

first impression. Id. Reviewing the plain language and history

of the constitutional provision, as well as the relevant

caselaw, the ICA concluded that the court-developed doctrine of

exhaustion did not apply to MLN’s article XI, section 9 claims.

Id. at 561, 542 P.3d at 1256. Nonetheless, the ICA held that

MLN’s article XI, section 9 claims were still subject to the

jurisdictional limitations provided under HRS § 632-1, which the

ICA characterized as “akin to a legislative codification of the

exhaustion doctrine.” Id. at 562-63, 542 P.3d at 1257-58.

Applied to Count VI, the ICA concluded:

7 The ICA noted that “[t]he parties do not dispute that HRS Chapters 46, 205, and 343 establish ‘laws relating to environmental quality’ within the meaning of article XI, section 9.” Maui Lani Neighbors, 153 Hawai‘i at 560, 542 P.3d at 1255.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

This legislatively created limitation allowed for members

of MLN to participate in the agency action to enforce

existing zoning requirements and to decide whether approval

of the CUP was consistent with constitutional provisions,

statutes and County plans, codes and regulations, which

provided for a reasonable limitation. Therefore, HRS

§ 632-1 precludes MLN’s article XI, section 9 claims as

defined by HRS Chapters 46 and 205.

Id. at 563, 542 P.3d at 1258.

The ICA further concluded:

[T]o the extent MLN’s article XI, section 9 claim defined

by HRS chapter 343 seeks a declaratory judgment that the

CUP is invalid, HRS § 632-1 precludes that claim. To the

extent that MLN’s article XI, section 9 claim defined by

HRS chapter 343 seeks relief other than to invalidate the

CUP, such a claim is not precluded by HRS § 632-1.

Id.

D. Application for Writ of Certiorari

On March 25, 2024, MLN timely filed its application,

in which it presents seven questions to this court. 8 At bottom,

MLN’s questions presented are:

1. Whether the ICA erred in ignoring HRS § 91-14’s

express provision for “other means of review,

redress, [or] relief” to address an agency’s actions,

including review under the Hawai‘i Constitution, HEPA,

and HRS § 632-1.

2. Whether the ICA erred in concluding that a court can

only review claims that challenge the validity of an

agency’s actions through an appeal under HRS § 91-14,

where the claims are originally cognizable in court

and not in the agency.

3. Whether the ICA erred in concluding that HRS § 632-1

codifies the exhaustion doctrine, such that it bars

claims under article XI, section 9 of the Hawai‘i

Constitution; also, whether the plain language of HRS

§ 632-1 allows for declaratory relief, even where

other statutory remedies exist, provided that “the

other essentials to such relief are present.”

4. Whether the plain language of HRS § 46-4 allows a

directly affected landowner a private right of action

(continued . . .)

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

MLN’s questions, as argued, challenge the ICA’s conclusion that

the Planning Commission had exclusive original jurisdiction over

the claims asserted in MLN’s Complaint. Further, MLN reiterates

its argument below that, even if the Planning Commission had

exclusive original jurisdiction, exhaustion of the available

administrative remedies would have been futile and, thus, the

circuit court was not divested of jurisdiction to adjudicate

MLN’s claims. Specifically, as to Count V, MLN argues that “the

ICA erred in dismissing MLN’s HEPA claims, where HRS § 343-7

provides for original jurisdiction” in the circuit court.

Finally, as to Count VI, MLN argues that the ICA erred in

holding that MLN’s article XI, section 9 claims were precluded

by the jurisdictional limitation in HRS § 632-1. Given the

(. . . continued)

to seek a civil proceedings appeal from any final

order of a zoning agency.

5. Whether the exhaustion doctrine applies to an

original action under HRS § 46-4 that challenges an

agency’s issuance of an ultra vires permit; also,

whether such an illegal permit is void as a matter of

law and vests no property rights.

6. Whether the ICA erred in dismissing MLN’s HEPA

claims, where HRS § 343-7 provides for original

jurisdiction independent from an administrative

proceeding under HRS § 91-14.

7. Whether the exceptions to the exhaustion doctrine

apply in this case, where exhaustion was futile,

there were no effective remedies, and the policy

interests underlying the doctrine were clearly

outweighed by other interests.

(Brackets in original).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

foregoing arguments, MLN asks that we reverse the ICA and remand

to the circuit court for further proceedings.

Amici curiae David Kimo Frankel and Hui Ho‘opulapula Nā

Wai o Puna and Conservation Council of Hawai‘i filed briefs in

support of MLN’s application. Specifically, amici support MLN’s

arguments that HRS § 91-14 expressly allows for other means of

relief from an agency decision, the doctrine of exhaustion does

not apply to HEPA claims, and MLN’s article XI, section 9 claims

should not be precluded by HRS § 632-1.

The State and intervenor A&B filed separate responses

to MLN’s application and to each of the amici’s briefs. MLN

filed a reply in support of its application.

III. STANDARDS OF REVIEW

A. Subject Matter Jurisdiction

“The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard.” State

v. Nakanelua, 134 Hawai‘i 489, 501, 345 P.3d 155, 167 (2015)

(quoting Riethbrock v. Lange, 128 Hawai‘i 1, 11, 282 P.3d 543,

553 (2012)).

B. Statutory Interpretation

Questions of statutory interpretation are questions

of law to be reviewed de novo under the right/wrong

standard.

Our statutory construction is guided by the following

well established principles:

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

our foremost obligation is to ascertain and give

effect to the intention of the legislature, which is

to be obtained primarily from the language contained

in the statute itself. And we must read statutory

language in the context of the entire statute and

construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or

indistinctiveness or uncertainty of an expression

used in a statute, an ambiguity exists.

In construing an ambiguous statute, the meaning

of the ambiguous words may be sought by examining the

context, with which the ambiguous words, phrases, and

sentences may be compared, in order to ascertain

their true meaning. Moreover, the courts may resort

to extrinsic aids in determining legislative intent.

One avenue is the use of legislative history as an

interpretive tool.

This court may also consider the reason and spirit of

the law, and the cause which induced the legislature

to enact it to discover its true meaning.

Lingle v. Haw. Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO,

107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005) (quotations

omitted) (ellipses, brackets and quoting Guth v. Freeland, 96

Hawai‘i 147, 149-50, 28 P.3d 982, 984-85 (2001)).

C. Constitutional Law

“We review questions of constitutional law de novo,

under the right/wrong standard. Thus, this court exercises its

own independent constitutional judgment, based on the facts of

the case.” In re FG, 142 Hawai‘i 497, 503, 421 P.3d 1267, 1273

(2018) (internal quotations omitted) (citations omitted).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

IV. DISCUSSION

A. The Circuit Court Properly Dismissed Counts I, II, III, IV,

VIII, and IX

1. MLN failed to exhaust administrative remedies

It is well settled in our caselaw that the doctrine of

exhaustion of administrative remedies applies “where a claim is

cognizable in the first instance by an administrative agency

alone.” Kellberg, 131 Hawai‘i at 527, 319 P.3d at 446 (quoting

Kona Old Hawaiian Trails Grp. ex. rel. Serrano v. Lyman (Kona

Old), 69 Haw. 81, 93, 734 P.2d 161, 169 (1987)). In such cases,

where an agency has exclusive original jurisdiction over a

claim, “judicial review of agency action will not be available

unless the party affected has taken advantage of all the

corrective procedures provided for in the administrative

process.” Id. (brackets omitted) (quoting Kona Old, 69 Haw. at

93, 734 P.2d at 169). It is further established by our

precedent that “[i]n order for the doctrine to apply, the

statute, ordinance or regulation under which the agency

exercises its power must establish clearly defined machinery for

the submission, evaluation and resolution of complaints by

aggrieved parties.” Id. at 536, 319 P.3d at 455 (internal

quotation marks and brackets omitted) (quoting Pele Def. Fund v.

Puna Geothermal Venture, 9 Haw. App. 143, 152, 827 P.2d 1149,

1154 (App. 1992)). As the ICA correctly concluded, such

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

“clearly defined machinery” was in place here to address MLN’s

claims relating to the Sports Park and the Planning Commission’s

approval of DLNR’s CUP application.

Under HRS § 46-4, the County is vested with zoning

powers, which include the power to “prescribe rules,

regulations, and administrative procedures” necessary for the

enforcement of “any ordinance enacted in accordance with this

section.” HRS § 46-4(a). The zoning ordinances enacted by the

Maui County Council are codified in MCC title 19. Ordinances

relating to the agricultural district are codified in MCC

chapter 19.30A, an express purpose of which is to “[i]mplement

chapter 205, [HRS], and the goals and policies of the Maui

County general plan and community plans.” MCC §

19.30A.010(A)(1) (2013).

In certain circumstances, lands in the agricultural

district may be put to special uses, which under MCC

§ 19.30A.060(H) include “[o]pen land recreation uses, structures

or facilities . . . including . . . playing fields, accessory

buildings and structures.” This court has explained special

uses as uses “expressly permitted by ordinance or statute on

proof that certain facts and conditions exist, without altering

the underlying zoning classification.” Neighborhood Bd. No. 24

(Waianae Coast) v. State Land Use Comm’n, 64 Haw. 265, 271, 639

P.2d 1097, 1102 (1982). Special use permits for the Maui County

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

agricultural district are subject to the requirements of MCC §

19.510.070, which provides in part:

A. Compliance Required. A special use permit shall

comply with the provisions of this section and with

the policies and objectives of the general plan and

community plans of the county, the Hawaii Revised

Statutes, and the revised charter of the county.

B. Criteria for Permit. Subject to the provisions of

this chapter, the appropriate planning commission

shall review and, after a public hearing, may approve

a request for a special use if the commission finds

that each of the following criteria have been met:

1. The proposed request meets the intent of the

general plan and the objectives and policies of

the applicable community plan of the county;

2. The proposed request is consistent with the

applicable community plan land use map of the

county;

3. The proposed request meets the intent and

purpose of the applicable district;

4. The proposed development will not adversely

affect or interfere with public or private

schools, parks, playgrounds, water systems,

sewage and solid waste disposal, drainage,

roadway and transportation systems, or other

public requirements, conveniences, and

improvements;

5. The proposed development will not adversely

impact the social, cultural, economic,

environmental, and ecological character and

quality of the area;

6. That the public shall be protected from the

deleterious effects of the proposed use;

7. That the need for public service demands

created by the proposed use shall be fulfilled;

and

8. If the use is located in the state agricultural

and rural district, the commission shall review

whether the use complies with the guidelines

established in section 15-15-95 of the rules of

the land use commission of the State.

C. Application process. All applications for a special

use permit shall comply with the application

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

procedures established in sections 19.510.010 and

19.510.020 of this code; provided, that if a state

special use permit is required, requirements of

chapter 205 shall also apply.

E. The planning commission may impose conditions on the

granting of a request for a special use if the

conditions are reasonably conceived to mitigate the

impacts emanating from the proposed land use.

(Emphasis added.)

Under the County’s general application procedures, CUP

applicants are required to mail notice of both the application

and the public hearing “to all owners and lessees of record

located within a five-hundred-foot distance from the subject

parcel.” MCC §§ 19.510.010(E) (2013); 19.510.020(A)(4)(a)

(2013); see also 19.510.070(C). Further procedures are set

forth in the Maui Planning Commission Rules of Practice and

Procedure (MPC Rules), which expressly provide rights to

intervene in a CUP proceeding. MPC Rules § 12-201-39 (eff.

1993). Indeed, any person who “can demonstrate they will be so

directly and immediately affected by the matter before the

commission that their interest in the proceeding is clearly

distinguishable from that of the general public shall be

admitted as parties upon timely application for intervention.”

MPC Rules § 12-201-41(b) (eff. 2010).

Whether a petitioner is admitted as a party to the

proceeding or not, the rules expressly allow for judicial review

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

of the Planning Commission’s decision pursuant to HRS § 91-14.

MPC Rules §§ 12-201-46 (eff. 1993) (granting rights to appeal

from a denial of intervention), 12-201-85 (eff. 1993) (granting

parties to proceedings a right to appeal), 12-201-32 (eff. 1993)

(“Final decisions of the commission may be appealed pursuant to

chapter 91, HRS, as amended.”). HRS § 91-14(a) provides that

“[a]ny 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[.]” Further, under

HRS § 91-14(g), the circuit court is empowered to address claims

that an agency misapplied an ordinance, exceeded its statutory

authority, or violated constitutional provisions. HRS § 91-14(g) provides:

Upon review of the record, the court 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; or

(2) In excess of the statutory authority or jurisdiction

of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(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

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

of discretion or clearly unwarranted exercise of

discretion.

The record in this case plainly shows that MLN’s

members did not avail themselves of this “clearly defined

machinery” to challenge the issuance of the CUP. As recounted

above, numerous future members and officers of MLN received

actual notice of the CUP hearing, and of their rights to

intervene, more than a month in advance. And although several

of MLN’s future members testified at the CUP hearing, 9 none of

them petitioned to intervene in the proceedings. Nonetheless,

those individuals who participated in the CUP hearings had

standing to appeal the Planning Commission’s decision under HRS

§ 91-14(a). See In re Haw. Elec. Light. Co., 145 Hawai‘i 1, 22,

445 P.3d 673, 694 (2019) (quoting Mahuiki v. Plan. Comm’n, 65

Haw. 506, 515, 654 P.2d 874, 880 (1982)) (“Although an aggrieved

person must have participated in a contested case in order to

invoke judicial intervention, we have not ‘conditioned standing

to appeal from an administrative decision upon formal

intervention in the agency proceeding.’”); HRS § 91-14(a) (“Any

9 The parties do not dispute that the March 25, 2014 CUP hearing met the definition of a contested case under HRS § 91-1 (2012). A “contested case” is defined as “a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” HRS § 91-1(b). Here, the Planning Commission was required to hold a public hearing on the CUP application under MCC § 19.510.070. Further, under the MPC rules any proceeding “in which action by the commission will result in a final determination of the legal rights, duties or privileges of a specific party or parties” is considered a “contested case.” MPC Rules § 12-201-39.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

person aggrieved by a final decision and order in a contested

case . . . is entitled to judicial review thereof under this

chapter[.]”). However, even after being made aware that the

Planning Commission had granted the CUP, which was in no event

later than July 12, 2014, MLN failed to maintain an appeal of

the Planning Commission’s decision pursuant HRS § 91-14. 10

Accordingly, we affirm the ICA’s conclusion that MLN failed to

exhaust the available administrative remedies as to Counts I,

II, III, IV, VIII, and IX.

2. HRS § 91-14’s express provision for “other means of

review, redress, [or] relief” does not apply to MLN’s

claims challenging the CUP

In support of its request that we reverse and remand,

MLN argues that “[t]he ICA gravely erred in concluding that HRS

§ 91-14 provides an exclusive remedy, where, by its plain terms,

§ 91-14 is not exclusive.” (Emphases omitted.) MLN’s argument

is echoed by amici Hui Ho‘opulapula Nā Wai o Puna and

Conservation Council of Hawai‘i, who contend that “[t]he common

flaw pervading the ICA’s decision is its reliance on chapter 91

as an ‘exclusive’ remedy, directly contrary to the legislature’s

direction that it is not exclusive.” (Emphases omitted.)

10 We note that future MLN director Tina Hoenig filed a chapter 91 appeal on May 12, 2014. However, for reasons that do not appear in the record, Hoenig later stipulated to dismiss her appeal without prejudice after MLN was incorporated.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

MLN and the amici base these contentions on HRS § 91-14(a), which provides in part, “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.” Here, MLN emphasizes that HRS § 343-7, HRS §

632-1, and article XI, section 9 of the Hawai‘i Constitution each

provide “other means of review independent from the limited

jurisdiction of the Planning Commission.” (Emphases omitted.)

The argument follows that, if the remedies available under

chapter 91 are not “exclusive,” then the doctrine of exhaustion

of administrative remedies has no application to bar MLN’s

claims in the circuit court. See Pac. Lightnet, Inc. v. Time

Warner Telecom, Inc., 131 Hawai‘i 257, 269, 318 P.3d 97, 109

(2013) (citing Kona Old, 69 Haw. at 93, 734 P.2d at 169)

(“[A]pplying the doctrine of exhaustion requires that the claim

be only cognizable before the agency.”).

MLN and amici correctly note that HRS § 91-14 does not

preclude other remedies “provided by law.” We recognized as

much in Bush v. Hawaiian Homes Commission, a case in which we

articulated that, under HRS § 91-14(a), citizens “are not barred

from contesting [an agency’s] actions through alternative

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

means.”11 76 Hawai‘i 128, 137, 870 P.2d 1272, 1281 (1994).

However, we also clarified that parties “are prohibited from

accessing review of these actions through inappropriate means.”

Id. With the exception of MLN’s HEPA claims, discussed below,

there are no other remedies “provided by law” that are available

to MLN in the circumstances of this case. As discussed in

detail below, each of MLN’s alternative arguments for original

jurisdiction in the circuit court fails. Thus, HRS § 91-14’s

non-exclusivity clause has no application to MLN’s claims as

pleaded.

a. Zoning claims are barred by MLN’s failure to

exhaust administrative remedies

MLN maintains that it has a private right of action to

enforce its zoning claims under the plain language of HRS § 46-4(a), which provides that “ordinances may be enforced . . . at

the suit of the county or the owner or owners of real estate

directly affected by the ordinances.” (Emphasis added.) In

11 In Bush, appellants were precluded from obtaining appellate review pursuant to HRS § 91-14(a) because no contested case hearing had occurred. 76 Hawai‘i at 136, 870 P.2d at 1280. In that context, the court expressed that “[t]o disallow an appeal under HRS § 91-14(a) with no alternative would seem unjust inasmuch as the [agency] would therefore hold what appears to be unfettered discretion to grant or deny a contested case hearing, thereby controlling appellate review.” Id. at 136-37, 870 P.2d 1280-81. That is not the case here, where a contested case is mandatory for any CUP application under the MCC § 19.510.070(B), and where such hearing actually occurred. Thus, unlike the appellants in Bush, MLN through its members had rights to intervene in the CUP proceedings and to appeal the Planning Commission’s final decision under HRS § 91-14. See MPC Rules § 12-201-41; In re Haw. Elec. Light Co., 145 Hawai᷾i at 22, 445 P.3d at 694 (holding that an aggrieved party who participated in a contested case but did not formally intervene had standing to appeal under HRS § 91-14).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

support of this contention, MLN cites to the ICA’s previous

opinion in Pavsek, in which the ICA stated that “the plain

language of [HRS § 46-4(a)] clearly manifests the Legislature’s

intent to create a private right of action.” 127 Hawai‘i at 397,

279 P.3d at 62. This right of action, MLN argues, encompasses

the right to bring an enforcement action against the County

itself.

The ICA rejected MLN’s argument and found Pavsek to be

distinguishable from the circumstances of this case. Maui Lani

Neighbors, 153 Hawai‘i at 545, 542 P.3d at 1240. We agree. In

Pavsek, the plaintiffs brought suit against three neighboring

property owners who were allegedly operating short-term rentals

in violation of a land use ordinance. 127 Hawai‘i at 392-93, 279

P.3d at 57-58. Under those circumstances, where there had been

no agency process and the plaintiffs sought to enjoin nonpermitted activity, the ICA held that the circuit court had

subject matter jurisdiction over the plaintiffs’ zoning

enforcement claims. Id. at 399-400, 279 P.3d at 64-65. The

facts of that case clearly do not align with the circumstances

here, where the Sports Park uses that MLN has challenged are

permitted uses approved through the agency process prescribed by

ordinance pursuant to HRS § 46-4. Each of the zoning claims

brought under Count I could have been addressed by the Planning

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Commission and subsequently reviewed by the circuit court in the

context of a chapter 91 appeal.

Moreover, the ICA’s opinion in Pavsek lends further

support to the conclusion that MLN’s zoning claims needed to be

addressed by the Planning Commission in the first instance.

After concluding that the Pavsek plaintiffs had a private right

of action under HRS § 46-4, the ICA further concluded that those

claims were subject to the doctrine of primary jurisdiction.

Id. at 400, 279 P.3d at 65. Thus, even where the ICA recognized

a private right of action under HRS § 46-4(a) to seek judicial

enforcement of a land use ordinance against a third-party, it

held that plaintiffs were first “required to seek an

administrative determination of their claim . . . before

proceeding with their suit.” Id. at 393, 279 P.3d at 58

(emphasis added). The ICA explained its reasoning as follows:

The adjudication of the [Plaintiffs’] zoning

enforcement claim requires the resolution of whether

Defendants violated the [Land Use Ordinance]. The Hawai‘i

Legislature has granted to the City the power to establish

and enforce zoning laws, and the City, in turn, has placed

determinations of zoning violations within the special

competence of the Director of the [Department of Planning

and Permitting] and the [Zoning Board of Appeals]. Thus,

the [Plaintiffs’] zoning enforcement claim satisfies the

conditions for applying the primary jurisdiction doctrine.

Furthermore, the policy of promoting uniformity and

consistency in the regulatory process, which underlies the

primary jurisdiction doctrine, would be served by applying

the doctrine to the [Plaintiffs’] enforcement claim.

Id. at 400, 279 P.3d at 65 (footnotes omitted) (citations

omitted).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Applying the same reasoning here, the adjudication of

MLN’s claims first required a decision by the relevant county

agency, here the Planning Commission, whether the Sports Park

uses were in violation of the zoning ordinance. And unlike in

Pavsek, plaintiffs here had the opportunity to, and did in fact,

participate in an administrative process to determine whether

the proposed Sports Park uses were in compliance with county

zoning ordinances. By issuing the CUP, through procedures

prescribed by ordinance and the MPC Rules, the Planning

Commission determined that the Sports Park uses met the criteria

for a CUP. Under these circumstances, the appropriate means to

review the Planning Commission’s decision was through a chapter

91 appeal and not an original action in court. HRS § 91-14(a);

MPC Rules § 12-201-39.

Further, the plain language and legislative history of

HRS § 46-4(a) support the conclusion that the right of action

created under that statute is meant to supplement the counties’

enforcement authority and not to authorize a collateral attack

on an agency decision outside of the administrative appeals

process. HRS § 46-4(a) also provides:

The powers granted herein shall be liberally

construed in favor of the county exercising them, and in

such a manner as to promote the orderly development of each

county or city and county in accordance with a long-range,

comprehensive general plan to ensure the greatest benefit

for the State as a whole.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

In enacting the law now codified as HRS § 46-4, the

legislature in 1957 expressed that “[a]dequate controls must be

established, maintained and enforced by responsible agencies of

government.” 1957 Haw. Sess. Laws Act 234, § 1 at 253 (emphasis

added). This court has acknowledged that “[u]niformity and

consistency in the regulation of business entrusted to a

particular agency are secured . . . by preliminary resort for

ascertaining and interpreting the circumstances underlying legal

issues to agencies that are better equipped than courts by

specialization.” Kona Old, 69 Haw. at 93, 734 P.2d at 169

(quoting Far East Conf. v. United States, 342 U.S. 570, 574-75

(1952)). Here, allowing MLN to challenge the substance of the

Planning Commission’s decision through an original action

independent from an administrative proceeding under HRS § 91-14

would be counter to the uniform and consistent regulation of

land use contemplated by MCC chapter 19.30A and HRS § 46-4. See

id.

For the foregoing reasons, under the circumstances of

this case, we conclude that the circuit court did not have

original jurisdiction to adjudicate MLN’s violation of zoning

claims under HRS § 46-4.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

b. Declaratory relief under HRS § 632-1 is

unavailable

MLN also argues that the declaratory judgment statute,

HRS § 632-1, provides for other means of review independent of

the agency appeals process. This argument applies to Counts II,

IV, IX, and, to the extent that MLN seeks declaratory relief

related to all of its claims, to all other counts in the

Complaint.

HRS § 632-1, titled “Jurisdiction; controversies

subject to,” establishes the requisite elements for the circuit

court to exercise jurisdiction over a declaratory judgment

action. Within HRS § 632-1(b), there is provided a limitation

that states, “[w]here . . . a statute provides a special form of

remedy for a specific type of case, that statutory remedy shall

be followed.” This court has interpreted this limitation as a

bar to jurisdiction. Punohu, 66 Haw. at 487, 666 P.2d at 1134

(citing Traveler’s Ins. Co. v. Haw. Roofing, Inc., 64 Haw. 380,

641 P.2d 1333) (“We have held that where such a statutory remedy

exists, declaratory judgment does not lie.”). More, this court

has held that “the remedy of appeal” of a contested case

proceeding provided by HRS § 91-14, “is a statutorily provided

special form of remedy” such “that a declaratory judgment

action, pursuant to § 632-1, HRS, did not lie.” Id. at 487, 666

P.2d at 1135.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

In Punohu, individual welfare recipients brought

declaratory actions related to reductions in their public

assistance benefits. Id. at 486, 666 P.2d at 1134. There, the

record established that each of the plaintiffs were sent notice

informing them of intended reductions in their benefits.

The notices informed each of the appellees of their right

to appeal and have a fair hearing before the Department [of

Social Services and Housing]. Such a right of appeal and

hearing was mandated by the provisions of § 346-12, [HRS].

Such a hearing was held in each case and the reductions in

benefits were upheld.

Id.

On appeal, this court determined that the “fair

hearing” before the department was a contested case, “and as

such, was reviewable only in accordance with the provisions of

§ 91-14, HRS.” Id. at 487, 666 P.2d at 1135. Further, we held:

Since the scope of review vested in the circuit court in an

appeal pursuant to § 91-14, HRS, is much more limited than

the court’s plenary authority in an original action

commenced before it, it would be anomalous to permit a

declaratory judgment action to be substituted for an appeal

from an agency determination in a contested case.

Id.

Amici Hui Ho‘opulapula Nā Wai o Puna and Conservation

Council of Hawai‘i emphasize that Punohu did not address the

express savings clause provided in HRS § 91-14. As a counter to

Punohu, amici and MLN cite to a later case, Hawaii’s Thousand

Friends v. City & County of Honolulu, 75 Haw. 237, 858 P.2d 726

(1993). There, the plaintiff filed a petition under HRS § 632-1

seeking a declaration that the City and County of Honolulu’s

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Department of Parks and Recreation was required to obtain a

special management area use permit prior to its proposed

demolition of several structures located within the coastal zone

management area. Id. at 239-41, 858 P.2d at 728-29. The

defendant City argued that plaintiff’s declaratory action was

precluded because there was a specific statutory remedy

available under HRS § 205A-6 (1985). Id. at 451-242-858 P.2d at

729. This court rejected the City’s arguments as follows:

[T]he City’s contentions are without merit. As previously

noted, HRS § 205A-6(e) specifically provides that

“[n]othing in this section shall restrict any right that

any person may have to assert any other claim or bring any

other action.” HRS § 205A-6 therefore clearly allowed

[plaintiff] to bring a generic declaratory action under HRS

§ 632-1 without the need to proceed under HRS § 205A-6.

Id. at 245, 858 P.2d at 731.

Applied here, both MLN and the amici argue that

Hawaii’s Thousand Friends supports the conclusion that the

availability of an agency appeal under HRS § 91-14 does not

preclude a declaratory judgment action under HRS § 632-1. But

that conclusion ignores the express holding in Punohu that HRS

§ 91-14 is a special form of statutory remedy that precludes a

declaratory action. 66 Haw. at 487, 666 P.2d at 1135. The

similarity of the statutory language notwithstanding, Hawaii’s

Thousand Friends has no bearing on this court’s interpretation

of HRS § 91-14. Unlike the proceedings initiated under HRS

§ 91-14, in which the scope of review is limited to the

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

administrative record, HRS § 205A-6 provides for an original

action in court. Thus, the court’s reasoning in Punohu, that

“it would be anomalous to permit a declaratory judgment action

to be substituted for an appeal from an agency determination in

a contested case,” did not factor in the disposition of Hawaii’s

Thousand Friends. Punohu, 66 Haw. at 487, 666 P.2d at 1135.

Moreover, the present circumstances align far more

closely with the facts of Punohu than they do with those of

Hawaii’s Thousand Friends. MLN argues that “Punohu merely

confirms the basic proposition that where a plaintiff has

participated in a full and fair contested case hearing, a

plaintiff should appeal under HRS § 91-14 rather than seek to

duplicate the relief that the administrative agency could

provide in the first instance alone.” (Emphases omitted.) But

as intervenor A&B emphasizes in response, MLN “describes its own

circumstances.” (Emphases omitted.) Several individuals who

would later become officers and members of MLN received actual

notice of the CUP hearing and of their rights to intervene.

These same individuals were made aware of the Planning

Commission’s CUP decision in no event later than July 12, 2014.

Further, MLN does not dispute that it was subject to the notice

received by its members. Thus, an appeal after a full and fair

contested case hearing was available to MLN as a statutorily

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

provided special form of remedy under HRS § 91-14. See Punohu,

66 Haw. at 487, 666 P.2d at 1135.

Further, the declaratory relief MLN seeks in its

Complaint is duplicative of the relief that would have been

available to MLN through the administrative process. Through

Counts II and IV, MLN seeks declaratory judgment that the CUP is

void as a matter of law and cannot meet the minimum lot size

requirements of the regional park district. 12 Count VIII alleges

that the County violated MLN’s due process rights by employing

the “expedited special use process” and not “the more thorough

change in zoning process.” Each of these claims allege

violations of zoning and ultimately challenge the substance of

the Planning Commission’s decision to issue the CUP.

As to Count III, MLN seeks a declaration that the

special use ordinance, MCC § 19.30A.060(H), is

unconstitutionally vague and ambiguous. To the extent that this

claim represents an independent challenge to the ordinance

itself, rather than a further challenge to the CUP, it may be

cognizable in the circuit court. See Citizens for the Prot. of

the N. Kohala Coastline v. Cnty. of Hawai‘i (N. Kohala), 91

Hawai‘i 94, 102, 979 P.2d 1120, 1128 (1999) (allowing for a

12 The regional park district, defined and regulated under MCC § 19.615.040 (2013), is a specific county zoning district entirely separate from the agricultural district.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

declaratory action where the complaint went beyond the substance

of an agency’s decision to challenge the validity of the

underlying ordinance). However, as argued by MLN before the

circuit court, Count III does not present a challenge to the

special use ordinance as a matter of law. Rather, Count III is

a substantive, fact-dependent challenge to the Planning

Commission’s interpretation of the ordinance within the context

of the CUP approval.

Had MLN pursued judicial review of the CUP decision

pursuant to HRS § 91-14, each of the aforementioned claims could

have been appropriately addressed under HRS § 91-14(g). For the

foregoing reasons, we hold that the circuit court and the ICA

correctly relied on Punohu to determine that declaratory relief

was not available to MLN under the circumstances of this case.

B. MLN’s Article XI, Section 9 Claims

The ICA further applied Punohu to support its holding

that “HRS § 632-1 provides reasonable limitations and regulation

of MLN’s article XI, section 9 claims.” Maui Lani Neighbors,

153 Hawai‘i at 562, 542 P.3d at 1257. MLN argues that its

article XI, section 9 claims are not precluded by HRS § 632-1.

These constitutional claims, MLN emphasizes, can stand on their

own.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Enacted by constitutional amendment in 1978, article

XI section 9

has both a substantive and procedural component. First, it

recognizes a substantive right “to a clean and healthful

environment,” with the content of that right to be

established not by judicial decisions but rather “as

defined by laws relating to environmental quality.”

Second, it provides for the enforcement of that right by

“any person” against “any party, public or private, through

appropriate legal proceedings, subject to reasonable

limitations and regulation as provided by law.”

Ala Loop, 123 Hawai‘i at 409, 235 P.3d at 1121 (footnote

omitted).

Applying this two-step framework, the ICA first

acknowledged that there has been no challenge to the substantive

component of MLN’s claims. Maui Lani Neighbors, 153 Hawai‘i at

560, 542 P.3d at 1255. Here, MLN defines its claims as arising

under HRS chapters 46, 205, and 343. Progressing to the

procedural inquiry, the ICA next considered whether MLN’s

substantive rights, as asserted, were subject to any “reasonable

limitations and regulation as provided by law.” Haw. Const.

art. XI, § 9.

As pleaded, MLN’s article XI, section 9 claims are

simply an incorporation and reassertion of “[t]he violations set

forth in the allegations in the Counts above.” In dismissing

these claims, the circuit court concluded that article XI,

“[s]ection 9 does not provide a substantive claim independent

from the laws relating to environmental quality. Rather,

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

section 9 merely provides a private right of action.” Thus, the

circuit court concluded further, these claims “could have been

raised before the Planning Commission and/or on appeal under HRS

chapter 91” and are therefore “subject to the exhaustion

doctrine, which is a reasonable limitation as provided by law.”

(Internal quotations marks and brackets omitted.)

On appeal, the ICA disagreed with the circuit court’s

conclusion, not that exhaustion applied as a reasonable

limitation, but that it was a limitation “provided by law.”

Looking to the history of the constitutional provision, the ICA

concluded that the power to impose limitations and regulation to

enforce the substantive rights under article XI, section 9 was

given specifically to the legislature. Maui Lani Neighbors, 153

Hawai‘i at 561, 542 P.3d at 1256. Therefore, because exhaustion

and the related doctrine of primary jurisdiction are judicially

created, “they do not limit enforcement of article XI, section 9

claims.” Id.

With exhaustion off the board, the ICA next analyzed

whether HRS § 632-1 would provide a reasonable limitation MLN’s

article XI, section 9 claims. “Applied to this case,” the ICA

determined, “HRS § 632-1 would preclude a declaratory judgment

action because MLN had the opportunity to raise its article XI,

section 9 claims in the contested case before the Planning

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Commission and seek judicial review through an appeal provided

by HRS § 91-14.” Id. at 561-62, 542 P.3d at 1256-57. Under

these circumstances, the ICA determined “that HRS § 632-1

provides reasonable limitations and regulation of MLN’s article

XI, section 9 claims.” Id. at 562, 542 P.3d at 1257. This

limitation, the ICA explained, is consistent with the intent of

article XI, section 9 and functions to “preserve the integrity

of the administrative process.” Id. at 562, 542 P.3d at 1258.

MLN and the amici raise numerous challenges to the

ICA’s decision, which we distill into two primary inquiries.

First, whether HRS § 632-1 has any application to MLN’s claims

where article XI, section 9 itself creates a private right of

action. And second, if applicable, whether HRS § 632-1 provides

for reasonable limitation and regulation of MLN’s claims within

the meaning of article XI, section 9.

As to the first inquiry, we conclude that MLN’s claims

were subject to the jurisdictional limitation provided in HRS

§ 632-1. Count VI, although not expressly pleaded under HRS

chapter 632, clearly presents a claim for declaratory relief.

See Troyer v. Adams, 102 Hawai‘i 399, 411, 77 P.3d 83, 95 (2003)

(explaining that the character of an action “is determined from

the substance of the entire pleading, the nature of the

grievance, and the relief sought, rather than from the formal

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

language employed or the form of the pleadings”). The circuit

courts have jurisdiction to hear declaratory actions through HRS

§ 632-1. Thus, even though MLN’s cause of action arises out of

article XI, section 9, it is still subject to the jurisdictional

limitations of its chosen remedy.

Applied here, we agree with the ICA that HRS § 632-1

would preclude a declaratory judgment on MLN’s article XI,

section 9 claims as defined under HRS chapters 46 and 205.

Those claims reiterate and seek the same relief as MLN’s zoning

claims discussed above. Accordingly, MLN had opportunity to

raise those claims through the CUP process and on appeal

pursuant to HRS § 91-14 and is thus precluded from bringing them

in an original action before the court. The next inquiry is

whether such preclusion of MLN’s right to seek enforcement

pursuant to article XI, section 9 constitutes a “reasonable

limitation . . . as provided by law.” In answering this

inquiry, we address the application of the limitation in this

case within the context of the constitutional provision, its

history, and our own caselaw.

The further contours of article XI, section 9 are

described in its history as articulated by the Committee on

Environment, Agriculture, Conservation and Land from the 1978

Constitutional Convention. As to the procedural component, the

Committee’s report explains:

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Your Committee believes that this important right

deserves enforcement and has removed the standing to sue

barriers, which often delay or frustrate resolutions on the

merits of actions or proposals, and provides that

individuals may directly sue public and private violators

of statutes, ordinances and administrative rules relating

to environmental quality. The proposal adds no new duties

but does add potential enforcers. This private enforcement

right complements and does not replace or limit existing

government enforcement authority.

Your Committee intends that the legislature may

reasonably limit and regulate this private enforcement

right by, for example, prescribing reasonable procedural

and jurisdictional matters, and a reasonable statute of

limitations.

Your Committee believes that this new section

adequately recognizes the right to a clean and healthful

environment and at the same time would prevent abuses of

this right. Concern was expressed that the exercise of

this right to a clean and healthful environment would

result in a flood of frivolous lawsuits. However, your

Committee believes that if environmental law enforcement by

government agencies is adequate in practice, then there

should be few additional lawsuits, given the barriers that

litigation costs present.

Moreover, your Committee is convinced that the

safeguards of reasonable limitations and regulations as

provided by law should serve to prevent abuses of the right

to a clean and healthful environment.

Stand. Comm. Rep. No. 77 in 1 Proceedings of the

Constitutional Convention of Hawai‘i of 1978, at 690 (emphases

added).

As recounted above, the Committee contemplated that

the legislature would prescribe certain reasonable procedural

and jurisdictional limitations. In Ala Loop, we held that

“[t]he abolishment of the private right altogether . . . would

not be a ‘reasonable’ limitation within the meaning of the

provision.” 123 Hawai‘i at 418, 235 P.3d at 1130. Here, HRS §

632-1 precludes MLN from seeking a declaratory judgment on its

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

article XI, section 9 claims relating to the CUP and that is the

full extent of the preclusion. Unlike Ala Loop, where there was

no agency process and no permit was issued, in the present case

there was no bar to MLN asserting its article XI, section 9

rights before the Planning Commission or challenging an adverse

decision on appeal. Indeed, in Ala Loop, the question was

whether a charter school was required to obtain a special permit

for its uses in the state agricultural district. Id. at 395-96,

235 P.3d at 1107-08. The effective relief sought was that the

school would have to apply for a permit to the LUC, who would

then decide if the school’s uses were appropriate. See id. at

396, 235 P.3d at 1108. Here, the DLNR applied for and obtained

a permit from the Planning Commission through the prescribed

procedures. Thus, MLN’s claims do not evince a matter of

procedural injury, but rather a challenge to the substance of

the agency’s decision. As established above, the proper avenue

of relief in such case is through an administrative appeal under

HRS chapter 91.

MLN argues under In re Application of Maui Electric

Co. (MECO), 141 Hawai‘i 249, 267, 408 P.3d 1, 19 (2017), that

article XI, section 9 claims cannot be limited to an exclusive

process. But this argument is unavailing. For one, MECO is

distinguishable as the appellant in that case was denied the

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

right to intervene in a contested case hearing before the Public

Utilities Commission. Id. at 255, 408 P.3d at 7. Indeed, the

entire subject of the appeal was the appellant’s right to a

hearing before the agency, and not an original action in the

circuit court. Id. at 269, 408 P.3d at 21. Further, in

explaining our holding, we expressed why participation in a

contested case hearing is preferable to a declaratory action

when an agency decision implicates article XI, section 9 rights.

We reasoned that

A belated post-decision civil action for declaratory

relief is not a replacement for participation in a

hearing before the PUC, and it does not eliminate the

risk of wrongful deprivation. Short of the

“extraordinary remedy” of a preliminary injunction, an

administrative decision may go into effect during the

pendency of a suit for declaratory relief. This is of

particular concern in the context of environmental

regulations, where the damage caused by a violation is

not easily reversed. And requiring relitigation of

agency decisions is inefficient and imposes an

increased burden on the State in contrast to resolving

the challenge in the initial decision-making process.

Id. at 267, 408 P.3d at 19 (citation omitted) (footnote

omitted).

Any person may enforce their article XI, section 9

rights “through appropriate legal proceedings.” This private

enforcement right is intended to complement existing government

authority. Stand. Comm. Rep. No. 77 in 1 Proceedings of the

Constituional Convention of Hawaii of 1978, at 690. HRS § 632-1

bars a declaratory action where an administrative appeal is

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

available because as this court has recognized, “it would be

anomalous to permit a declaratory judgment action to be

submitted for an appeal from an agency determination in a

contested case.” Punohu, 66 Haw. at 487, 666 P.2d at 1135.

Here, the appropriate legal proceedings were the contested case

hearing and an administrative appeal under HRS § 91-14.

As to MLN’s article XI, section 9 claims as defined by

HRS chapter 46 and 205, we affirm the ICA and hold that those

claims are precluded by HRS § 632-1 under the circumstances of

this case. As to MLN’s article XI, section 9 claims as defined

by HRS chapter 343, we hold those claims may proceed on remand

pursuant to the discussion below.

C. The Doctrine of Exhaustion Is Inapplicable to MLN’s HEPA

Claims

Finally, addressing MLN’s HEPA claims, we agree with

MLN that the circuit court has original jurisdiction to address

these claims and, thus, exhaustion is inapplicable.

Accordingly, the circuit court erred in dismissing Count V for

lack of subject matter jurisdiction.

HRS chapter 343 establishes a system of environmental

review to ensure that environmental concerns are given

appropriate consideration along with economic and technical

considerations in decision-making processes. This allows for

parties to challenge agency actions directly through the court

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

system, as HRS § 343-7 explicitly contemplates a “judicial

proceeding.” Indeed, our courts frequently hear HEPA claims.

See, e.g., Umberger v. Dep’t of Land & Nat. Res., 140 Hawai‘i

500, 403 P.3d 277 (2017); Kepo‘o v. Kane, 106 Hawai‘i 270, 103

P.3d 939 (2005); N. Kohala, 91 Hawai‘i 94, 979 P.2d 1120.

Clearly, the circuit court has jurisdiction to hear challenges

brought pursuant to HRS § 343-7 given the plain language of the

statute and extensive history of our courts hearing such cases.

Further, the Planning Commission has no jurisdiction

to adjudicate MLN’s HEPA claims as pleaded. MLN’s allegations

here do not challenge the CUP. Instead, they challenge the

sufficiency of the FEA prepared by DLNR. Specifically, MLN

alleges that: (1) DLNR failed to supplement the Final

Environmental Impact Statement previously prepared for the

larger Wai‘ale development in violation of Hawai‘i Administrative

Rules (HAR) § 11-200-2 (eff. 1996) and (2) the Sports Park uses

constitute illegal segmentation in violation of HAR § 11-200-7

(eff. 1996). The zoning powers granted to the Planning

Commission under HRS § 46-4 vest the Commission with no

authority to rule on these allegations and, while MLN could have

raised issues with the FEA during the CUP process, ultimately, a

challenge to the State’s HEPA compliance is a claim properly

brought before the courts.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The ICA held that “to the extent Count V seeks to

invalidate the CUP, dismissal was warranted,” and similarly,

“[t]o the extent MLN’s article XI, section 9 claims as defined

by HRS [c]hapter 343 seek to invalidate the CUP, the [c]ircuit

[c]ourt lacks jurisdiction.” Maui Lani Neighbors, 153 Hawai‘i at

534, 542 P.3d at 1229. This is not a proper distinction within

the HEPA context. The sufficiency of environmental review is a

necessary prerequisite to the adequacy of the CUP. See Umberger,

140 Hawai‘i at 504, 403 P.3d at 281; Kepo‘o, 106 Hawai‘i at 291-92, 103 P.3d at 960-61. Thus, if the circuit court were to

determine that there was not a proper environmental review, the

CUP could be invalidated.

Unlike the other claims alleged in the complaint, the

HEPA challenge does not get to the substance of the Planning

Commission’s decision, i.e., whether the Sports Park uses were

consistent with county zoning requirements. Rather, a

successful HEPA challenge “merely places a hold” on the

development of the project until the agency “complies with the

procedural and informational requirements of the statute.”

Kepo‘o, 106 Hawai‘i at 292, 103 P.3d at 961 (citations omitted).

As we further explained in Kepo‘o, voiding the permit “does not

affirmatively dictate how the land may be used, . . . but,

rather, has the incidental effect of stalling the proposed

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

project.” Id. at 292-93, 103 P.3d at 961-62 (brackets omitted)

(internal quotation marks omitted).

To be clear, our holding that MLN’s HEPA claims may

proceed without application of the doctrine of administrative

remedies does not automatically vitiate the CUP. Indeed, the

record reflects that there are additional findings necessary to

resolving the HEPA issue on remand, including those regarding

the timeliness of MLN’s HEPA challenge.

Further, we recognize that should there be a

determination by the circuit court that environmental review was

insufficient, traditional remedies under HRS chapter 343 may not

be available due to the length of time this case has been

pending on appeal. Nonetheless, as we recently held in Unite

Here! Local 5 v. PACREP LLC, HEPA claims are not rendered moot

by a completed action. No. SCAP-XX-XXXXXXX, 2025 WL 573299, at

*15-16 (Haw. Feb. 21, 2025). At bottom, “the environmental

review process is intended to be informational and forwardlooking.” Id. at *16. Accordingly, where invalidating the

permit would not serve the interests of equity, “the issue of

remedies for a HEPA violation is one of equitable discretion.”

Id. (“Even if a project has been completed, completion of a

proper environmental review can provide forward-looking

information, including, but not limited to, possible mitigation

measures to ameliorate environmental effects.”).

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

V. CONCLUSION

For the reasons explained above, we affirm the ICA’s

January 23, 2024 Judgment on Appeal as to Counts I, II, III, IV,

VIII, IX, and parts of Count VI (the article XI, section 9 claim

defined by HRS chapters 46 and 205), and reverse as to Count V

and part of Count VI (the article XI, section 9 claim defined by

HRS chapter 343).

The case is remanded to the circuit court for further

proceedings consistent with this opinion.

Peter N. Martin /s/ Mark E. Recktenwald for petitioner

/s/ Sabrina S. McKenna

Miranda C. Steed, and

Daniel A. Morris /s/ Todd W. Eddins for respondents

State of Hawai‘i, State of /s/ Vladimir P. Devens Hawai‘i Department of Land

and Natural Resources, State /s/ Jeannette H. Castagnetti of Hawai‘i Board of Land and

Natural Resources,

Dawn N.S. Chang

Calvert G. Chipchase, and

Christopher T. Goodin

for intervenor

Alexander & Baldwin, LLC

David Kimo Frankel

on the briefs

for amicus curiae

David Kimo Frankel

Mahesh Cleveland, and

Isaac H. Moriwake,

on the briefs

for amici curiae

Hui Ho‘opulapula Nā Wai

o Puna and Conservation

Council for Hawai‘i

Maui Lani Neighbors v. State. ICA Opinion, filed 12/28/2023 [ada], 153 Haw. 527. Application for Writ of Certiorari, filed 03/25/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/24/2024 [ada].

Summary · law.co

Key issues

Procedural posture

Authorities cited

Opinion · public domain