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Oral Argument Before the Hawaii Intermediate Court of Appeals–CAAP-22-0000516 (Consolidated with CAAP-22-0000519)

CAAP-22-0000516 (Consolidated with CAAP-22-0000519), Wednesday, December 13, 2023, 10 a.m.

SIERRA CLUB, Appellant-Appellee/Appellee-Cross-Appellee, v. BOARD OF LAND AND NATURAL RESOURCES, Appellee-Appellee/ Appellee-Cross-Appellee, and COUNTY OF MAUI, Appellee-Appellee/Appellee-Cross-Appellant, and ALEXANDER AND BALDWIN, INC., Appellee-Appellant/Appellee-Cross-Appellee, and EAST MAUI IRRIGATION COMPANY, LLC, Appellee-Appellant/ Appellee-Cross-Appellee.

The above-captioned case was set for oral argument on the merits at:

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

The oral argument was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo TV 55.

Attorneys for Appellees-Appellants/Appellees-Cross-Appellees ALEXANDER AND BALDWIN, INC., and EAST MAUI IRRIGATION COMPANY, LLC:

David Schulmeister, Trisha H.S.T. Akagi, and Mallory T. Martin of Cades Schutte LLP

Attorneys for Appellee-Appellee/Appellee-Cross-Appellant COUNTY OF MAUI:

Mariana Lowy-Gerstmar and Kristin K. Tarnstrom, Deputies Corporation Counsel

Attorney for Appellant-Appellee/Appellee-Cross Appellee SIERRA CLUB:

David Kimo Frankel

Attorneys for Appellee-Appellee/Appellee-Cross-Appellee BOARD OF LAND AND NATURAL RESOURCES:

Julie H. China, Linda L.W. Chow, and Melissa D. Goldman, Deputy Attorneys General

COURT: Leonard, Hiraoka, and Nakasone, JJ.

Listen to the entire audio recording in mp3 format ]

Brief Description:

These consolidated secondary appeals arise from continuances of four one-year Revocable Permits issued by the Board of Land and Natural Resources (BLNR) to Alexander & Baldwin, Inc. (A&B) and East Maui Irrigation Company, Limited (EMI). The Permits allowed A&B and EMI to divert water from certain streams in West Maui to Central and Upcountry Maui for agricultural, domestic, and other purposes.

In 2020, Sierra Club petitioned BLNR for a contested case over continuing the Permits for 2021. BLNR denied the petition and continued the Permits during a regular meeting, without conducting a contested case hearing. Sierra Club appealed to the circuit court. The circuit court allowed the County of Maui to intervene in the appeal.

The circuit court remanded the case and ordered that BLNR hold a contested case hearing, but retained jurisdiction to modify the Permits. The circuit court modified the Permits before entering a final judgment. The judgment included an award of attorney fees and costs to Sierra Club from A&B, EMI, and the County.

On appeal, A&B, EMI, and BLNR argue that the circuit court erred by concluding that a contested case was required by law, and by modifying the Permits. BLNR argues that the circuit court erred by retaining jurisdiction to modify the Permits, rather than vacating them, after concluding that a contested case was required by law. A&B and EMI argue that even if a contested case was required by law, the circuit court was not required to vacate the Permits, and erred by modifying them.

BLNR argues that the circuit court erred by denying its motion for entry of an appealable judgment or for leave to file an interlocutory appeal.

A&B, EMI, and the County argue that the circuit court erred by awarding attorney fees and costs to Sierra Club. The County also argues that the circuit court assessed a disproportionate amount of fees and costs against the County.

Sierra Club argues that BLNR was required by law to conduct a contested case hearing, and that the circuit court had authority to modify the Permits, appropriately denied BLNR’s motion for entry of an appealable judgment or for leave to file an interlocutory appeal, and properly awarded attorney fees and costs to Sierra Club under the private attorney general doctrine.