No. SCWC-23-0000383, Tuesday, February 11, 2025, 10:30 a.m.

KIA‘I WAI O WAI‘ALE‘ALE, an unincorporated association, FRIENDS OF MĀHĀ‘ULEPŪ, a nonprofit corporation, Petitioners and Respondents/Plaintiffs-Appellants-Appellees, vs. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Respondent and Petitioner/Defendant-Appellee-Appellant, and KAUA‘I ISLAND UTILITY COOPERATIVE, a domestic cooperative association, Respondent/Defendant-Appellee-Appellee.

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The above-captioned case has been 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 will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo Community Television 55 (olelo.org/tv-schedule/).

Attorneys for Petitioners and Respondents/Plaintiffs-Appellants/Appellees KIA‘I WAI O WAI‘ALE‘ALE and FRIENDS OF MĀHĀ‘ULEPŪ :   

     Lance D. Collins of Law Office of Lance D. Collins and Bianca K. Isaki of Law Office of Bianca Isaki

Attorneys for Respondent and Petitioner/Defendant-Appellee/Appellant BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I:

     Colin J. Lau and Miranda C. Steed, Deputy Attorneys General 

NOTE: Order accepting Application for Writ of Certiorari, filed 09/24/24.

NOTE: Order accepting Application for Writ of Certiorari, filed 10/23/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This appeal arises out of a dispute over the State of Hawai‘i, Board of Land and Natural Resources’ (BLNR) denial of contested case hearings for the continuation of revocable water permits (RP) on Kaua‘i.  The RPs permitted the Kaua‘i Island Utility Cooperative (KIUC) to use State lands in the Līhu‘e-Kōloa Forest Reserve on a “month-to-month” basis to divert freshwater to power its hydropower plants.

At a 2020 BLNR public meeting, Petitioners/Plaintiffs-Appellants/Appellees Kia‘i Wai O Wai‘ale‘ale and Friends of Māhā‘ulepū (Plaintiffs) requested that BLNR hold a contested case hearing on KIUC’s application to renew its RP for 2021.  BLNR denied Plaintiffs’ request and renewed the 2021 RP.  Plaintiffs subsequently submitted written petitions for a contested case hearing on the 2021 RP.

A year later, at a 2021 BLNR public meeting, Plaintiffs requested a contested case hearing on KIUC’s application to renew its RP for 2022.  BLNR denied Plaintiffs’ written petitions for a contested case hearing on the 2021 RP; denied Plaintiffs’ requests for a contested case hearing on the 2022 RP; and renewed the 2022 RP.

Plaintiffs appealed to the Environmental Court.  During the pendency of the appeal, KIUC did not seek renewal of the RP for 2023. The Environmental Court, inter alia, concluded that (1) Plaintiffs had standing and protected property interests such that BLNR violated their due process rights by denying contested case hearings; and (2) because BLNR failed to enter findings of fact or conclusions of law, the court could not determine if BLNR properly exercised its discretion in approving the RPs.  The court vacated the 2021 and 2022 RPs. 

BLNR appealed to the Intermediate Court of Appeals (ICA), which determined that Plaintiffs had standing and protected property interests, but reversed the Environmental Court’s decision because Plaintiffs failed to designate a sufficient record to review the 2021 RP and also on mootness grounds as to the 2022 RP.

We granted both Plaintiffs’ and BLNR’s applications for writs of certiorari.  Plaintiffs assert that the ICA gravely erred by: (1) reversing the Environmental Court despite ongoing environmental damage from KIUC’s diversion structures and the absence of an RP; (2) holding that the Environmental Court lacked jurisdiction to issue declaratory relief; and (3) concluding the record was deficient. 

BLNR asserts that the ICA gravely erred in concluding that Plaintiffs had standing and protected property interests.