KILAKILA `O HALEAKALA, Petitioner/Appellant-Appellant, vs. BOARD OF LAND AND NATURAL RESOURCES, THE DEPARTMENT OF LAND AND NATURAL RESOURCES, AND WILLIAM AILA, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON OF THE BOARD OF LAND AND NATURAL RESOURCES, UNIVERSITY OF HAWAI`I, AND THOMAS M. APPLE, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE UNIVERSITY OF HAWAI`I AT MANOA, Respondents/Appellees-Appellees.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioner/Appellant-Appellant Kilakila `O Haleakala :
David Kimo Frankel, Sharla Ann Manley, and Camille Kaimalie Kalama of Native Hawaiian Legal Corporation
Attorneys for Respondents/Appellees-Appellees Board of Land & Natural Resources, Dept. of Land & Natural Resources, and William Aila, in his official capacity:
Donna H. Kalama and Julie H. China, Deputy Attorneys General
Attorneys for Respondents/Appellees-Appellees University of Hawai`i and Thomas M. Apple, in his official capacity:
Bruce Y. Matsui and Randall K. Ishikawa of Office of the General Counsel, University of Hawai`i; Lisa Woods Munger, Lisa A. Bail, and Adam K. Robinson of Goodsill Anderson Quinn & Stifel
NOTE: Order accepting Application for Writ of Certiorari, filed 11/13/12.
COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.
Petitioner Kilakila `O Haleakala (KOH) filed an application for writ of certiorari seeking review of the July 30, 2012 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its June 28, 2012 memorandum opinion. The ICA affirmed the Circuit Court of the First Circuit’s March 29, 2011 final judgment dismissing KOH’s agency appeal from the Board of Land and Natural Resources (BLNR) on the ground that it lacked jurisdiction under Hawai`i Revised Statutes (HRS) § 91-14. Before the BLNR, KOH had requested a contested case hearing to challenge an application filed by the University of Hawai`i (UH) for a conservation district use permit to commence construction of an advanced solar telescope near the summit of Haleakala on Maui. Without acting on KOH’s request, BLNR voted to grant the permit at a regularly scheduled board hearing. After KOH renewed its request immediately after the vote, BLNR granted the request and then held a contested case hearing. Meanwhile, the initial permit has remained valid, pending the contested case hearing.
In its application, KOH argues that the ICA erred in affirming the circuit court’s dismissal of the agency appeal on the ground that it did not have jurisdiction because the proceedings before BLNR did not constitute a contested case. BLNR and UH argue in response that the ICA correctly concluded that there was no contested case hearing from which KOH could appeal to circuit court, that the case is moot because BLNR ultimately granted KOH’s request for a contested case hearing, and that no appeal could therefore be taken while the contested case was still pending before BLNR.