**FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER**
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-AUG-2026
10:00 AM
Dkt. 33 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
TYLER RALSTON,
Petitioner/Appellant-Appellant,
vs.
BOARD OF LAND AND NATURAL RESOURCES
and RESORTTRUST HAWAII, LLC,
Respondents/Appellees-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CCV-XX-XXXXXXX)
August 12, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND
CIRCUIT JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In Ralston v. Bd. of Land & Nat. Res., 158 Hawaiʻi 170, 589
P.3d 974 (2026), we vacated an Intermediate Court of Appeals’
(“ICA”) order denying Tyler Ralston’s (“Ralston”) request for an
award of attorney fees against Resorttrust Hawaii, LLC (“RTH”)
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pursuant to the private attorney general (“PAG”) doctrine. The
ICA correctly held that the State of Hawaiʻi Board of Land and
Natural Resources (“BLNR”) and the Circuit Court of the First
Circuit (“circuit court”) had erred by rejecting Ralston’s
request for a contested case hearing (“CCH”) for RTH’s request
to extend an annual permit for use of ceded lands fronting the
Kahala Hotel. But the ICA denied Ralston’s request for an award
of fees from RTH pursuant to the PAG doctrine on the grounds it
had yet to be determined what relief Ralston could obtain on
remand to the BLNR.
On certiorari, we held that Ralston had satisfied the PAG
doctrine. We ordered a remand to the ICA to determine the
reasonableness of Ralston’s request for fees incurred and to
determine RTH’s liability for the fees.
After our opinion was filed, Ralston moved for an award of
$9,139.17 in attorney fees against RTH under the PAG doctrine
for fees incurred on certiorari. The request consists of
$8,745.62 in attorney fees plus general excise tax (“GET”) of
4.5%.
As the certiorari proceeding dealt solely with the ICA’s
denial of Ralston’s PAG fees request against RTH, we hold that
RTH is liable to Ralston for all reasonable fees incurred on
certiorari. With respect to the reasonableness of Ralston’s
fees request before this court, we determine that the hours and
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rates per hour requested are reasonable. Based on a negligible
calculation error, we award Ralston $9,139.13 in reasonable
attorney fees against RTH based on the PAG doctrine for fees
incurred for the certiorari proceedings before this court.
As RTH is liable for fees to Ralston based on the PAG
doctrine, on remand, the ICA is to determine the amount of
reasonable fees for which RTH is liable for fees incurred before
the ICA pursuant to Kaleikini v. Yoshioka, 129 Hawaiʻi 454, 471-72, 283 P.3d 252, 269-70 (2013) (holding that when an award of
fees against the State is barred by sovereign immunity, it is
reasonable to allow PAG fees for work directed at all parties
but not for work clearly identifiable as being directed against
the State).
II. Background
A. Background up to May 15, 2026 opinion
In January 2019, BLNR issued RTH, owner and operator of the
Kahala Hotel, revocable permit number S-7915 (“RP 7915”) to use
ceded lands fronting the hotel known as Lot 41. 158 Hawaiʻi at
172, 589 P.3d at 976. RP 7915 required RTH to pay the State a
monthly rent of $1,320.50 to utilize Lot 41 for recreational and
maintenance purposes. Id. BLNR granted RTH consecutive oneyear extensions of RP 7915 in 2020 and 2021. Id.
The BLNR considered the 2022 renewal of RP 7915 at a
November 12, 2021 public meeting. Id. There, Ralston requested
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a CCH on the permit renewal and opposed the continuation of
permit conditions that allowed RTH to pre-set lounge chairs,
which Ralston contended “generally sends a message that this
land is for hotel guests and not for the public.” Id. At a
January 14, 2022 public meeting, BLNR denied Ralston’s petition
for a CCH and approved RP 7915 for the 2022 calendar year. 158
Hawaiʻi at 173, 589 P.3d at 977.
Ralston appealed to the circuit court, challenging BLNR’s
denial of a CCH and renewal of RTH’s permit without a CCH. Id.
The circuit court affirmed BLNR’s decisions. Id.
Ralston appealed to the ICA, arguing that the circuit court
erred when it affirmed BLNR’s decisions to (1) deny his request
for a CCH, and (2) renew RP 7915 for the 2022 calendar year.
158 Hawaiʻi at 174, 589 P.3d at 978. Ralston further argued that
the circuit court erred when it found that no CCH was required.
Id.
The ICA majority concluded that Ralston has a property
interest in a clean and healthful environment protected under
Article XI, Section 9 of the Hawaiʻi Constitution, as defined by
Hawaiʻi Revised Statutes (“HRS”) § 171-55 (2011), implicated by
RTH’s 2022 renewal of RP 7915. Id. It held that Ralston was
denied procedural due process and was entitled to participate in
a CCH on the renewal of RP 7915. Id.
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Although the ICA majority concluded that a CCH was required
to protect Ralston’s property interest, it also stated that his
appeal would likely be moot on remand, because the 2022 permit
had since expired. Id. Instead of vacating the expired permit,
the ICA remanded the case to circuit court “to determine what,
if any, relief is available to Ralston in these circumstances.”
Id.
After prevailing in the ICA, Ralston requested that it
approve $24,581.37 in attorney fees and $660.38 in costs against
RTH under the PAG doctrine. Id. The ICA granted Ralston’s
request for costs but denied his request for attorney fees. 158
Hawaiʻi at 175, 589 P.3d at 979. It denied his request for fees
on the grounds he had not met all three prongs of the PAG
doctrine because it had yet to be determined what relief he
could obtain on remand. 158 Hawaiʻi at 175-76, 589 P.3d at 979-80.
On certiorari, we published our opinion on May 15, 2026,
holding that (1) the PAG doctrine does not require the
prevailing party to obtain further relief before recovering PAG
attorney fees, and (2) the PAG doctrine was met and Ralston is
entitled to attorney fees. 158 Hawaiʻi 177, 589 P.3d at 981.
Accordingly, we reversed the ICA’s order denying Ralston’s
request for attorney fees and remanded the matter to the ICA to
determine the reasonableness of Ralston’s attorney fees and
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whether RTH was liable for them. 158 Hawaiʻi at 181, 589 P.3d at
985.
B. Ralston’s request for attorney fees on certiorari
1. Ralston’s request
On May 27, 2026, Ralston timely filed a request for
attorney fees incurred on certiorari, pursuant to the PAG
doctrine.1 Ralston seeks a total of $9,139.17 in fees and GET
against RTH. The initial declaration and timesheet from
attorney David Kimo Frankel (“Frankel”) requests 15.5644 hours
for the certiorari application and 1.8963 hours for the request
for fees, totaling 17.4607 hours, at a $450.00 per hour billable
rate, amounting to a subtotal of $7,857.32,2 plus GET. Ralston
also requests an additional 1.974 hours for drafting the reply
to his request for fees, subtotaling $888.30, plus GET.
Altogether, these requests total $9,139.17.
2. RTH’s opposition
RTH opposes the request, arguing that (1) Ralston’s request
is a personal matter and does not vindicate an important public
1 Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 39(d)(2) (eff. 2016) provides that a request for fees and costs must be filed “no later than 14 days after the time for filing a motion for reconsideration has expired[.]” The time for filing a motion for reconsideration in this case expired on May 25, 2026, ten days after our opinion was published. See HRAP Rule 40(a) (eff. 2000). Ralston’s request for attorney fees, filed two days after the motion for reconsideration was due, was therefore timely.
2 After reviewing Frankel’s timesheet, the total hours spent on the certiorari results in 15.5643 hours, and the total amount billed should be $7,857.28. Thus, the subtotal for this request should be $8,210.86.
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policy as required by the PAG doctrine and (2) Ralston has not
shown that fees are recoverable from RTH since the underlying
lawsuit concerns the denial of a CCH by BLNR, not RTH.
RTH contends that this appeal arises from the State’s
denial of a CCH, yet Ralston has not sought fees from the State
itself. RTH maintains that although it submitted testimony in
opposition to Ralston’s demand for a CCH, it had no decisionmaking ability. As the decision on whether to grant a CCH lay
exclusively with BLNR, RTH contends it should not be subject to
the penalty of paying Ralston’s attorney fees.
RTH also contends that PAG fees are not recoverable against
it as a private party. It argues that unlike the parties in
Unite Here! Local 5 v. PACREP LLC, 156 Hawai‘i 338, 343, 574 P.3d
1286, 1291 (2025), and Sierra Club v. Haw. Dep’t of Transp., 120
Hawai‘i 181, 225, 202 P.3d 1226, 1270 (2009) (“Superferry II”),
it neither engaged in deceptive conduct to manipulate BLNR’s
decision-making nor worked hand-in-hand with BLNR to implement a
broader project or policy.
RTH argues that in Unite Here!, this court awarded PAG fees
against a private developer when the developer took affirmative
steps to deceive the city and its consultants. RTH argues that,
in contrast, its opposition to a CCH and defense of BLNR’s
decision were reasonable and made in the ordinary course of
supporting the renewal of RP 7915.
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RTH further argues that in Superferry II, PAG fees were
awarded because Superferry worked hand-in-hand with the state
agency through the planning and implementation of a project to
promote Superferry’s own business interest. RTH argues that it
was not collaborating with BLNR for implementation of a project;
it was simply before the BLNR for a routine permit renewal.
RTH also argues that Ralston is not entitled to fees
incurred in seeking fees.
3. Ralston’s reply
In reply, Ralston contends that he should not be required
to relitigate the PAG analysis, as this court already determined
that his appeal falls within the scope of the PAG doctrine.
With respect to RTH’s argument that he should have instead
sought attorney fees from BLNR, Ralston points out that
sovereign immunity bars recovery of fees from the State absent a
waiver and that the State’s sovereign immunity does not shield
RTH.
Ralston also asserts that this court has approved PAG fee
awards against private parties for the State’s conduct. Ralston
argues that in Superferry II, this court applied the PAG
doctrine and required private co-defendants to pay fees even
when the underlying dispute was about the state agency’s
compliance with statutory obligations. Ralston also maintains
that Kaleikini supports RTH’s liability for attorney fees except
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for work that is “clearly identifiable as being directed at” the
agency. 129 Hawaiʻi at 471, 283 P.3d at 269.
Ralston emphasizes RTH’s active role in the litigation.
RTH filed a thirty-five-page answering brief with the ICA, which
was longer than BLNR’s brief, and it opposed the writ of
certiorari on this motion, while BLNR did not.
Finally, Ralston points out that Pub. Access Trails Hawaiʻi
v. Haleakala Ranch Co., 153 Hawai‘i 1, 28, 526 P.3d 526, 553
(2023), allows for “fees on fees” as “entirely consistent with
the purpose of vindicating public rights” without which there
would be a chilling effect on public interest litigation.
III. Discussion
A. Ralston is entitled to PAG fees from RTH
The “American Rule” provides that each party is normally
responsible for paying their own attorney fees. Attorney fees
are chargeable against the opposing party only when so
authorized by statute, rule of court, agreement, stipulation, or
precedent. Gurrobat v. HTH Corp., 135 Hawaiʻi 128, 131, 346 P.3d
197, 200 (2015).
One exception to the American Rule is provided by the PAG
doctrine, which “is an equitable rule that allows courts in
their discretion to award attorney’s fees to plaintiffs who have
vindicated important public rights.” Superferry II, 120 Hawaiʻi
at 218, 202 P.3d at 1263 (cleaned up). The PAG doctrine
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“remains an essential tool for promoting the vindication of
public rights” and “hinges on plaintiffs being able to rely on
the doctrine’s promise that they will receive reasonable
compensation for their efforts on behalf of the public.” Pub.
Access Trails Hawaiʻi, 153 Hawaiʻi at 4, 526 P.3d at 529.
All three prongs must be satisfied for the doctrine to
apply: “(1) the strength or societal importance of the public
policy vindicated by the litigation, (2) the necessity for
private enforcement and the magnitude of the resultant burden on
the plaintiff, [and] (3) the number of people standing to
benefit from the decision.” Superferry II, 120 Hawaiʻi at 218,
202 P.3d at 1263 (cleaned up).
We have already determined that all three prongs of the PAG
doctrine have been met:
(1) Ralston’s appeal to the ICA vindicated the due process
right to a contested case hearing before BLNR’s renewal of a
revocable permit to occupy public lands; (2) private
enforcement was necessary as Ralston was the sole party to
challenge the BLNR’s denial of a contested case hearing and
renewal of RP 7915; and (3) Ralston’s advocacy benefits the
public in vindicating procedural rights under HRS § 171-55,
a law of general applicability that governs the issuance of
permits for the temporary occupancy of state lands.
Ralston, 158 Hawaiʻi at 179, 589 P.3d at 983 (cleaned up).
Also, the PAG doctrine can apply to private parties that
advance their own interest in a subject litigation. Superferry
II, 120 Hawaiʻi at 225, 202 P.3d at 1270. In Superferry II, we
concluded the PAG doctrine was a proper basis for an award of
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attorney fees against the private defendant, Superferry, because
“[it] worked hand-in-hand with [the agency] throughout the
planning and implementation of the Superferry project and
throughout this litigation, in promoting its own private
business interests.” Id.
Pub. Access Trails Hawaiʻi also quoted an Arizona Court of
Appeals opinion that determined it appropriate to apply the PAG
doctrine to private defendants. 153 Hawaiʻi at 28, 526 P.3d at
553. The Arizona appellate court held:
[W]e do not find that the exclusive purpose of the [PAG]
doctrine is to impose the cost of vindicating public rights
on the public itself. Awarding [attorney’s [sic]] fees
against private defendants in appropriate cases will
promote important public rights to the same extent as
awarding fees against governmental defendants.
Pub. Access Trails Hawaiʻi, 153 Hawaiʻi at 28, 526 P.3d at 553
(quoting Ariz. Ctr. For Law in the Pub. Interest v. Hassell, 837
P.2d 158, 173 (Ariz. Ct. App. 1991)).
RTH argues that the facts here are distinguishable from
Superferry II and that its involvement in the permit process
failed to rise to the level of involvement in which liability
for attorney fees under the PAG doctrine is appropriate.
We disagree. RTH actively opposed Ralston at every stage
of the proceedings. Before the BLNR, RTH opposed Ralston’s
request for a CCH. At the circuit court, RTH defended BLNR’s
denial of a CCH and renewal of RTH’s permit without a CCH.
Ralston, 158 Hawaiʻi at 173, 589 P.3d at 977. Before the ICA,
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RTH continued to argue against a CCH and then opposed Ralston’s
request for PAG fees against it, arguing that Ralston failed to
satisfy the PAG doctrine, and even if the PAG doctrine applied,
it should not be liable for his fees. 158 Hawaiʻi at 175, 589
P.3d at 979. Before this court, BLNR did not respond to
Ralston’s certiorari application to overturn the ICA’s denial of
PAG fees against RTH; only RTH continued to argue that Ralston
failed to meet the PAG doctrine. 158 Hawaiʻi at 176, 589 P.3d at
980.
Thus, RTH actively and affirmatively supported BLNR’s
denial of Ralston’s CCH request through the ICA proceedings and
opposed PAG fees in the ICA and on certiorari. RTH’s positions
promoted its own interests to extend the revocable permit for
its use of State lands and to avoid payment of PAG fees.
And, on certiorari, the only issue was whether the ICA
erred in denying Ralston’s request for PAG fees against RTH.
Hence, we hold that, based on the PAG doctrine, RTH is
liable to Ralston for all reasonable fees incurred on
certiorari. Further, contrary to RTH’s argument, Ralston is
also entitled to reasonable fees incurred for seeking fees under
the doctrine. Pub. Access Trails Hawaiʻi, 153 Hawaiʻi at 22, 526
P.3d at 547.
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B. The requested attorney fees are reasonable
It is the prevailing party’s burden to prove that fees were
reasonably and necessarily incurred. DFS Grp. L.P. v. Paiea
Props., 110 Hawaiʻi 227, 226, 131 P.3d 500, 510 (2006). To
calculate reasonable attorney fees, this court employs the
lodestar method, “in which the number of hours reasonably
expended are multiplied by a reasonable hourly rate.” Gurrobat,
135 Hawai‘i at 138, 346 P.3d at 207 (citation omitted).
Frankel has been a licensed attorney since 1992 and has
handled numerous environmental law and PAG doctrine cases on
appeal. Frankel’s $450.00 hourly rate is not challenged by RTH,
and is reasonable in any event. With respect to the
reasonableness of the time incurred, the fee request is for
15.5644 hours for drafting the application for writ of
certiorari. However, Frankel’s timesheet actually indicates a
total of 15.5643 hours for this category, a negligible
difference amounting to $0.04. Frankel’s remaining time,
including his time for seeking fees, is reasonable. Also,
pursuant to County of Hawaiʻi v. C & J Coupe Family Ltd.
Partnership, 120 Hawaiʻi 400, 409-10, 208 P.3d 713, 722-23
(2009), GET is awardable; Frankel requests GET at the rate of
4.5%.
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We conclude that the 19.4346 hours spent on this certiorari
proceeding at $450.00 per hour, totaling $9,139.13, inclusive of
GET, is reasonable and is hereby approved.
V. Conclusion
For these reasons, Ralston is entitled to reasonable
attorney fees from RTH under the PAG doctrine, in the amount of
$9,139.13, inclusive of general excise tax.
As RTH is liable for fees to Ralston based on the PAG
doctrine, on remand, the ICA is to determine the amount of
reasonable fees for which RTH is liable for fees incurred before
the ICA pursuant to Kaleikini, 129 Hawaiʻi at 471-72, 283 P.3d at
269-70 (holding that when an award of fees against the State is
barred by sovereign immunity, it is reasonable to allow PAG fees
for work directed at all parties but not for work clearly
identifiable as being directed against the State).
David Kimo Frankel /s/ Vladimir P. Devens for petitioner
/s/ Sabrina S. McKenna
William M. Harstad
Puananionaona P. Thoene, and /s/ Todd W. Eddins Derek B. Simon
for respondent /s/ Lisa M. Ginoza
/s/ Jeannette H. Castagnetti
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