No. 30397, Wednesday, November 9, 2011, 9:00 a.m.

MAUNA KEA ANAINA HOU; ROYAL ORDER OF KAMEHAMEHA I; SIERRA CLUB, HAWAI`I CHAPTER; KAHEA; AND CLARENCE CHING, Petitioners/Appellants-Appellants, v. UNIVERSITY OF HAWAI`I AND UNIVERSITY OF HAWAI`I INSTITUTE OF ASTRONOMY, Respondents/Appellees-Appellees, and BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellee.

Attorney(s) for Petitioners/Appellants-Appellants: Colin A. Yost and Michael R. Cruise (Cruise and Yost)

Attorney(s) for Respondents/Appellees-Appellees: Darolyn H. Lendio and Bruce Y. Matsui
Lisa Woods Munger, Lisa A. Bail and Abigail M. Holden (Goodsill Anderson Quinn & Stifel)

Attorney(s) for Appellee-Appellee: Donna H. Kalama and Julie H. China, Deputy Attorneys General

COURT: Foley, Presiding J., Cir. Judges Browning and Castagnetti, in place of Nakamura, C.J., Fujise, Leonard, Reifurth, and Ginoza, JJ., all recused

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

In this secondary appeal, Petitioners/Appellants-Appellants Mauna Kea Anaina Hou; Royal Order of Kamehameha I; Sierra Club, Hawaii Chapter; KAHEA; and Clarence Ching (collectively, Petitioners) appeal from the Final Judgment filed on February 17, 2010 in the Circuit Court of the Third Circuit (circuit court). The circuit court filed the Final Judgment pursuant to the January 27, 2010 “Order Granting Appellees University of Hawaiʻi and University of Hawaiʻi Institute for Astronomy’s Motion to Dismiss Appeal Filed October 20, 2009.” The circuit court entered judgment in favor of Respondents/ Appellees-Appellees University of Hawai`i Institute for Astronomy and University of Hawai`i and Appellee-Appellee Board of Land and Natural Resources (BLNR) and against Petitioners as to all claims.

On appeal, Petitioners contend the circuit court erred in

(1) finding it did not have jurisdiction, pursuant to Hawaii Revised Statutes (HRS) § 91-14, to review BLNR’s approval of the Mauna Kea Comprehensive Management Plan, UH Management Areas, January 2009, when the court determined that the BLNR hearing (held on April 8 and 9, 2009) was not a contested case hearing;

(2) finding it did not have jurisdiction to review BLNR’s denial of Petitioners’ request for a contested case hearing in compliance with HRS Chapter 91 and Department of Land and Natural Resources regulations when the court determined that, pursuant to HRS § 91-14, the denial was not an appealable order;

(3) failing to consider whether it had jurisdiction to hear Petitioners’ appeal pursuant to Hawaiʻi Administrative Rules § 13-5-3 by failing to address whether BLNR’s decision to deny Petitioners’ request for a contested case hearing was a final order; and

(4) dismissing Petitioners’ appeal for lack of jurisdiction based on an incomplete record and misapplying the standard of review for a motion to dismiss for lack of subject matter jurisdiction.