No. SCWC-28358 Wednesday, June 26, 2013, 9 a.m.

PILA`A 400, LLC, Petitioner/Appellant-Appellant, vs. BOARD OF LAND AND NATURAL RESOURCES and DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI`I, Respondents/Appellees-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner/Appellant-Appellant:

Wesley H.H. Ching and Kathleen M. Douglas of Fukunaga Matayoshi Hershey & Ching, LLP

Attorney for Respondent Dept. of Land & Natural Resources:

William J. Wynhoff, Deputy Attorney General

Attorneys for Respondent Board of Land & Natural Resources:

Diane Erickson and Russell Suzuki, Deputy Attorneys General

NOTE: Certificate of recusal, by Chief Justice Mark E. Recktenwald, filed 03/22/13.

NOTE: Order assigning Circuit Court Judge Rom A. Trader, in place of CJ Recktenwald, recused, filed 04/09/13.

NOTE: Order accepting Application for Writ of Certiorari, filed 05/01/13.

COURT: PAN, Acting CJ; SRA, SSM, & RWP, JJ; Circuit Court judge Trader, in place of CJ Recktenwald, recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

The Department of Land and Natural Resources (DLNR) brought an enforcement action against Pila`a 400, LLC (Pila`a 400) in response to a massive runoff event following a rainstorm on November 26, 2001. The rainstorm caused a large amount of sediment to flow from Pila` 400’s property onto State of Hawai`i conservation district land. Upon request by Pila`a 400, the Board of Land and Natural Resources (BLNR) conducted a contested case hearing. By order of June 30, 2005, the BLNR concluded that the mudflow and sedimentation constituted a violation of the rules governing the use of conservation district land and held Pila`a 400 liable for $3,963,000 in damages to State land and $69,996.93 in administrative costs.

Pila`a 400 appealed to the circuit court, which affirmed the BLNR’s order. On appeal to the Intermediate Court of Appeals (ICA), that court concluded that the circuit court had not erred in affirming the BLNR’s order.

Pila`a 400 timely filed an application for writ of certiorari to this court arguing that the ICA committed grave error when it held that: (1) the BLNR and the DLNR were not required to engage in rule-making to adopt a methodology for assessing damages to natural resources; (2) the BLNR had jurisdiction to institute an enforcement action for activities outside of the Conservation District; and (3) Pila`a 400 received adequate notice of the statutes and rules involved in the enforcement action.