No. SCWC-29440 Thursday, November 21, 2013, 11:15 a.m.

(Amended 09/16/13)

KAUAI SPRINGS, INC., Petitioner/Appellant-Appellee, vs. PLANNING COMMISSION OF THE COUNTY OF KAUA`I, Respondent/Appellee-Appellant.

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-Appellee:

Robert H. Thomas and Mark M. Murakami of Damon Key Leong Kupchak Hastert

Attorneys for Respondent/Appellee-Appellant:

Alfred B. Castillo, Jr. and Mauna Kea Trask, County Attorneys; David J. Minkin and Dayna H. Kamimura-Ching of McCorriston Miller Mukai MacKinnon LLP

NOTE: Order accepting Application for Writ of Certiorari, filed 09/04/13.

NOTE: Order granting motion for postponement of oral argument from 10/17/13 to 11/21/13 at 11:15 a.m., filed 9/16/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

This appeal arises out of a decision by the Respondent Planning Commission of the County of Kaua`i (Planning Commission) to deny the Petitioner Kauai Springs, Inc.’s (Kauai Springs) application for three permits related to the continued operation of Kauai Springs’ water bottling facility. The Circuit Court of the Fifth Circuit (circuit court) reversed in part and vacated in part the Planning Commission’s decision and ordered that all three permits be issued to Kauai Springs. The Intermediate Court of Appeals (ICA) subsequently vacated the circuit court’s judgment and remanded the case to the Planning Commission for consideration of whether Kauai Springs could satisfy the relevant permit requirements.

In its application, Kauai Springs argues that the ICA gravely erred by: 1) concluding that Kauai Springs impliedly assented to extend the time frame within which the Planning Commission was required to act on two of the permits; and 2) by remanding the case to the Planning Commission when the Commission already had the opportunity to make the relevant inquiries and denied the permits based on standards that the circuit court and ICA concluded were unreasonable, arbitrary and capricious. The Planning Commission responds that: 1) Kauai Springs’ conduct during the Commission’s proceedings was reasonably interpreted as manifesting assent to delaying action on the two permits; and 2) the ICA properly remanded the case because the circuit court’s conclusions of law with respect to the