NO. 28491 – Thursday, December 17, 2009 – 10 a.m.

PAULETTE KA`ANOHIOKALANI KALEIKINI, Petitioner/Appellant-Appellant, vs. LAURA H. THIELEN, in her official capacity as Chairperson of the Board of Land and Natural Resources, BOARD OF LAND AND NATURAL RESOURCES, and the DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Appellees-Appellees. (Agency Appeal)

Attorney(s) for Petitioner/Appellant-Appellant(s)
Moses K. N. Haia, III, and David K. Frankel (Native Hawaiian Legal Corporation)

Attorney(s) for Respondent/Appellee-Appellee(s)
Honorable Mark J. Bennett, Attorney General, and Linda L. W. Chow, Deputy Attorney General, State of Hawai`i

NOTE: Order granting motion for postponement of oral argument filed 11/9/09.

COURT: RTYM, CJ; PAN, SRA, JED & MER, JJ.

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Brief description

On November 4, 2009, this court accepted the application for a writ of certiorari, filed on September 28, 2009, by petitioner/ appellant-appellant Paulette Ka?anohiokalani Kaleikini, to review the Intermediate Court of Appeals’ (ICA) July 9, 2009 order dismissing as moot the appeal from the Circuit Court of the First Circuit’s March 16, 2007 order and April 4, 2007 final judgment. Therein, the circuit court dismissed Kaleikini’s notice of administrative appeal on the basis that it lacked subject matter jurisdiction.

Briefly stated, the O`ahu Island Burial Council (OIBC) approved a burial treatment plan submitted by developer General Growth Properties (GGP), involving the disinterment of Native Hawaiian burial remains or “iwi” discovered at GGP’s project site at the Ward Village Shops. Thereafter, Kaleikini, pursuant to Hawai`i Revised Statutes (HRS) § 6E-43 (1993), requested a contested case hearing, which was denied by respondents/ appellees-appellees Laura H. Thielen, in her official capacity as Chairperson of the Board of Land and Natural Resources (BLNR), the BLNR, and the Department of Land and Natural Resources (DLNR) [hereinafter, collectively, DLNR]. Kaleikini then sought judicial review of DLNR’s denial; however, the circuit court dismissed, sua sponte, her administrative appeal and an accompanying motion for stay, ruling that it lacked subject matter jurisdiction. Kaleikini appealed, and the ICA, thereafter, dismissed her appeal as moot, reasoning that “the remedy sought by Kaleikini — [i.e.,] a determination that the circuit court had jurisdiction to review the denial of Kaleikini’s request for a contested-case hearing — [was] no longer necessary[.]”

On application, Kaleikini essentially argues that the ICA gravely erred in dismissing her appeal as moot.