Electronically Filed

Supreme Court
SCWC-16-0000071
30-SEP-2019
07:16 PM

No.

IN THE SUPREME COURT OF THE STATE OF HAWAPI

HEALOHA CARMICHAEL, LEZLEY CIVIL NO. 15-1-0650-04 RAN

JACINTHO, and NA MOKU AUPUNI 0
KO' OLAU HUI,
Petitioners/Plaintiffs-
Appellees,
VS.
BOARD OF LAND AND NATURAL
RESOURCES, SUZANNE CASE, in her
official capacity as Chairperson of the
Board of Land and Natural Resources, the
DEPARTMENT OF LAND AND
NATURAL RESOURCES, COUNTY OF
MAUI, DEPARTMENT OF WATER
SUPPLY,
(Environment; Declaratory Judgment)
APPEAL FROM THE
ORDER GRANTING PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY
JUDGMENT, FILED OCTOBER 21, 2015;
CERTIFICATE OF SERVICE, filed herein
on January 8, 2016
and
CROSS APPEALS FROM THE ORDER
GRANTING PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY JUDGMENT, FILED
OCTOBER 21, 2015; CERTIFICATE OF
SERVICE, filed herein on January 8, 2016

Respondents/Defendants-
Appellees, FIRST CIRCUIT COURT

and JUDGE: HONORABLE

RHONDA A. NISHIMURA
ALEXANDER & BALDWIN, INC., EAST
MAUI IRRIGATION CO., LTD.,
HAWAIIAN COMMERCIAL AND
SUGAR CO.,

Respondents/Defendants-
Appellants,
COUNTY OF MAUI, DEPARTMENT OF
WATER SUPPLY,

Respondent/Defendant-
Appellee/Cross-Appellant,
VS.

BOARD OF LAND AND NATURAL

RESOURCES, SUZANNE CASE, in her
official capacity as Chairperson of the
Board of Land and Natural Resources, the
DEPARTMENT OF LAND AND
NATURAL RESOURCES,

Respondents/Defendants-
Appellees/Cross-Appellees,

and

ALEXANDER & BALDWIN, INC., EAST

MAUI IRRIGATION CO., LTD.,
HAWAIIAN COMMERCIAL AND
SUGAR CO.,

Respondents/Defendants
Appellants/Cross-Appellees,

BOARD OF LAND AND NATURAL

RESOURCES, SUZANNE CASE, in her
official capacity as Chairperson of the
Board of Land and Natural Resources, the
DEPARTMENT OF LAND AND
NATURAL RESOURCES,

Respondents/Defendants-
Appellees/Cross-Appellants,

VS.

ALEXANDER & BALDWIN, INC., EAST

MAUI IRRIGATION CO., LTD.,
HAWAIIAN COMMERCIAL AND
SUGAR CO., DEPARTMENT OF WATER
SUPPLY,
Respondents/Defendants-
Appellants/Cross-Appellees,
HEALOHA CARMICHAEL, LEZLEY )
JACINTH°, and NA MOKU AUPUNI 0 )
KO`OLAU HUT, )
)
Petitioners/Plaintiffs- )
Appellees/Cross-Appellants, )
)
vs. )
)
BOARD OF LAND AND NATURAL )
RESOURCES, SUZANNE CASE, in her )
official capacity as Chairperson of the )
Board of Land and Natural Resources, the )
DEPARTMENT OF LAND AND )
NATURAL RESOURCES, )
)
Respondents/Defendants- )
Appellees/Cross-Appellees, )
)
and )
)
ALEXANDER & BALDWIN, INC., EAST )
MAUI IRRIGATION CO., LTD., )
HAWAIIAN COMMERICAL AND )
SUGAR CO., )
)
Respondents/Defendants- )
Appellants/Cross-Appellees, )
)
and )
)
COUNTY OF MAUI, DEPARTMENT OF )
WATER SUPPLY, )
)
Respondents/Defendant- )
Appellee/Cross-Appellee. )

PETITIONERS/PLAINTIFFS-APPELLEES' APPLICATION FOR

WRIT OF CERTIORARI

APPENDIX "A"
NATIVE HAWAIIAN LEGAL CORPORATION
1164 Bishop Street, Suite 1205
Honolulu, Hawai` i 96813
Telephone: (808) 521-2302; Fax: (808) 537-4268
SUMMER L.H. SYLVA 9649 Email: summer.sylva@nhlchi.org
DAVID KAUILA KOPPER 9374 Email: david.kopper@nhlchi.org
ALAN T. MURAKAMI 2285 Email: alan.murakami@nhlchi.org
Attorneys for Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants
HEALOHA CARMICHAEL, LEZLEY JACINTH°
and NA MOKU AUPUNI 0 KO' OLAU HUT
 PETITIONERS/PLAINTIFFS-APPELLEES' APPLICATION FOR
WRIT OF CERTIORARI

Pursuant to HRAP Rule 40.1 and HRS §§ 602-5(a)(1) and 602-59, counsel for
Petitioners/Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants Healoha Carmichael, Lezley
Jacinth°, and Na Moku Aupuni 0 Ko'olau Hui (collectively Petitioners) hereby apply for a writ
of certiorari. Petitioners seek the immediate reversal of the Intermediate Court of Appeals' (ICA)
June 18, 2019 unpublished memorandum opinion to uphold the laws that protect Hawai`i's
public trust resources.
Since 1985, the Board of Land and Natural Resources (BLNR) has allowed Alexander &
Baldwin et al.' (A&B) to use 33,000 acres of state land in East Maui to divert up to 450 million
gallons of water daily by continuously issuing to A&B "temporary" revocable permits. In 2003,
BLNR issued A&B a long-term lease for its continued use of these public trust resources without
first requiring the preparation of an environmental assessment (EA). That lease was promptly
invalidated in a prior related case for the failure to prepare an EA. Rather than complete or
require an EA, BLNR resumed its practice of granting A&B's revocable permits annually. As a
result, BLNR has permitted A&B to use public trust resources for decades, unchecked by the
environmental review requirements of HRS chapter 343 and unfettered by HRS chapter 171's
one-year limitation on water rights disposed of by revocable permits. Petitioners filed this action
in 2015 to end this lawless practice. In 2016, the trial court below invalidated A&B's revocable
permits, and rejected A&B and BLNR's 30-year long charade of exploiting public trust resources
for commercial profit under the guise of temporary revocable permits.
In overturning the trial court's decision, the ICA sua sponte construed a statutory
provision expressly intended to exempt revocable permits from mandatory public auction
requirements to also mean that no environmental review under chapter 343 is needed and that
chapter 171's maximum term of one-year for water permits is superfluous. In so doing, the ICA
failed to give effect to chapter 171's clear legislative intent and willfully ignored binding
Hawai`i Supreme Court precedent vindicating Petitioners' statutory construction. With the stroke
of a pen the ICA eviscerated critical legal protections for HawaiTs public trust resources,
undermined decades of case law, and deprived Petitioners justice long overdue.

1 "Alexander& Baldwin et al." is defined herein as Respondent/Defendants-Appellants/Cross-

Appellees Alexander & Baldwin, Inc. and East Maui Irrigation Co., Ltd.

1
 The principal question on appeal is: what lawful authority, if any, BLNR acted under
when it placed the challenged revocable permits in holdover status and thereafter continued to
maintain them in holdover status for over a decade. The answer is: none. Petitioners apply for a
writ of certiorari because the ICA's opinion must be reversed immediately to end, once and for
all, BLNR's perverse practice of placing temporary permits authorizing the use of 33,000 acres
of state land to divert up to 450 million gallons of water daily in holdover status. This 30-year
practice has now far exceeded the last 21-year license that expired in 1986. JEFS #42:226.
I. QUESTIONS PRESENTED

1. Does HRS chapter 343 apply to BLNR's decision to continuously renew

revocable permits authorizing the daily use of public lands to divert millions of
gallons of water on a holdover basis for over a decade and counting?

2. Does HRS § 171-55 allow for the renewal of revocable permits for the use of state
land and water indefinitely despite the maximum term of one year prescribed by
HRS § 171-58 for the disposition of water rights specifically?

3. Did the Circuit Court err by refusing to grant summary judgment to Petitioners on
the grounds set forth in counts 1 and 2 of their First Amended Complaint?

4. Did the ICA err by concluding HRS § 171-55's "notwithstanding any other law to
the contrary" language nullifies (a) the maximum term of one year prescribed by
FIRS § 171-58 for "temporary" revocable permits and (b) HRS chapter 343 EA
and environmental impact statement (EIS) requirements for "temporary"
revocable permits where such interpretations conflict with well-settled case law,
are unsupported by the legislative history, and run contrary to the plain meaning
of the statutes?

5. Did the ICA err by refusing to rule that BLNR's decision to renew the Revocable
Permits on a holdover basis violated HRS chapter 171-55 as a matter of law due
to BLNR's failure to make findings that the permits are "temporary" and serve the
"best interests of the State?"

II. PRIOR PROCEEDINGS

The subject of this appeal is BLNR's December 2014 approval of the continuation of
A&B's revocable permits without first ordering or undertaking any environmental review for
A&B's commercial use of this environmentally and culturally significant area of Maui.
Petitioners filed their complaint on April 10, 2015 and their first amended complaint on
April 20, 2015. JEFS #42:20-34 and 60-75, in which they raised claims against State

2
Defendants2 and A&B. Petitioners alleged that State Defendants violated HRS chapter 343 by
failing to either declare that the renewal of the revocable permits were exempt from the
preparation of an EA or require A&B to prepare an EA. Petitioners also alleged that A&B
violated HRS chapter 343 by failing to prepare an EA.
On October 21, 2015, Petitioners filed a Motion for Partial Summary Judgment,
requesting declaratory relief that State Defendants and A&B violated HRS chapter 343, which
would have the legal effect of invalidating A&B's revocable permits and removing State
Defendants' legal and statutory basis to authorize A&B's continued use of these East Maui
public trust resources. JEFS #46:136
On January 8, 2016, the circuit court filed its Order Granting Plaintiffs' Motion for
Partial Summary Judgment. JEFS #46:292 (RP Invalidation Order). The order invalidated
A&B's revocable permits but not for the reasons Petitioners argued. The circuit court incorrectly
reasoned that "BLNR's December 2014 decision to continue the Revocable Permits does not
constitute an 'action' subject to the EA requirements of Chapter 343." The court instead declared
the permits invalid because "A&B's continuous, uninterrupted use of these public lands on a
holdover basis for the last 13 years is not the 'temporary' use that HRS Chapter 171 envisions."
On January 19, 2016, Maui County filed an application for leave to take interlocutory
appeal of the RP Invalidation Order and a motion for stay pending appeal. JEFS #46:401-15.
A&B and State Defendants filed joinders in Maui County's3 application to take interlocutory
appeal. Id. at 454-56, 687-90. On February 2, 2016, the circuit court denied A&B's motion for
rehearing on the RP Invalidation Order. Id. at 995. On February 5, 2016, the circuit court granted
leave to Maui County, State Defendants, and A&B to take an interlocutory appeal of the RP
Invalidation Order. Id. at 1002-06. A&B filed a notice of appeal on February 5, 2016. JEFS #1.
State Defendants and Maui County filed their notices of cross-appeal on February 8, 2016. JEFS
#4, 8. Petitioners filed their notice of cross-appeal only as to the Order's reasoning on February
16, 2016. JEFS #25.
On June 18, 2019, the ICA filed its unpublished memorandum opinion vacating the RP
Invalidation Order and remanding with instructions. JEFS #187. In its opinion the ICA held that

2 "State Defendants" are defined herein as Respondent/Defendant-Appellee/Cross-Appellant

BLNR, Suzanne Case in her official capacity as Chairperson of BLNR, and DLNR.
3 "Maui County" is defined herein as Respondent/Defendant-Appellee/Cross-Appellant County
of Maui, Department of Water Supply.

3
HRS § 171-55, which allows the BLNR to "issue permits for the temporary occupancy of state
lands or an interest therein on a month-to-month basis by direct negotiation without public
auction" "notwithstanding any other law to the contrary," implicitly exempts temporary
revocable permits allowing for the withdrawal of water from compliance with HRS chapter 343
and the maximum one-year term restriction otherwise imposed on temporary water dispositions
issued under HRS §171-58. Id. at 13-15. The ICA cited to no express exemption language nor
any legislative history indicating the legislature's intent to exempt such permits fitm the
requirements of HRS chapter 343 or chapter 171. Id. Because HRS § 171-55's notwithstanding
language was considered by the ICA sua sponte, Petitioners filed a timely Motion for
Reconsideration that included the statute's legislative history which confirms that the
notwithstanding clause was added only to "make it absolutely clear that such permits may be
issued without public auction" and nothing more. JEFS #189-201. The ICA denied Petitioner's
motion, JEFS #204, and thereafter issued its Judgment on Appeal on July 31, 2019. JEFS #206.
Petitioners obtained a Clerk's Extension To File Application For Writ of Certiorari on August
30, 2019. JEFS #208.
III. STATEMENT OF THE CASE

In May 2000, BLNR authorized A&B to use approximately 33,000 acres of state land and
to divert up to 450 million gallons of water every day from East Maui streams flowing through
the watershed covered by revocable permits 7263, 7264, 7265, and 7266 (Revocable Permits).
JEFS #42:243-78, 383, 446, 453 and 468.4 No EA or EIS analyzing the impact of the diversion
of East Maui streams was prepared prior to the BLNR's grant of these Revocable Permits. Id. at
395-96 r[r 48-49 and at 477 IN 48-49. The Revocable Permits represent a continuation of the
BLNR's practice of issuing consecutive, temporary revocable permits for this watershed on an
annual basis since 1985. JEFS #42:226.
In May 2001, A&B requested a 30-year lease of the lands covered by the Revocable
Permits, Id. at 235, and the "temporary continuation of the year-to-year revocable permit . . .
pending issuance of the lease." Id. at 237. In response, Nd. Moku Aupuni 0 Ko`olau Hui (Na
Moku) and others requested and were granted a contested case hearing on the disposition of

4A&B also delivers approximately 8.6 million gallons of water per day to Maui County. JEFS
#46:410. Petitioners have not challenged that use. See e.g., JEFS #42:73-74 ¶G; JEFS #46:52;
JEFS #87 TRANS:15-18.

4
these lands and waters. Id. at 284-86, 291-93. Rather than grant A&B's 30-year lease request
pursuant to HRS § 171-58(a), or otherwise vote to continue the Revocable Permits for another
year pursuant to HRS § 171-58(c), BLNR took the unprecedented step of granting what it called
a holdover permit on a month-to-month basis. Id. at 286.
In 2003, BLNR granted a 30-year lease to A&B without first requiring the preparation of
an "environmental assessment" ("EA") or "impact statement" ("EIS") as required by the
environmental review process prescribed by HRS chapter 343, a statutory scheme intended to
"alert decision makers to significant environmental effects which may result from the
implementation of certain actions." HRS § 343-1. Because of BLNR's failure to prepare or
require the preparation of an EA or EIS, the Circuit Court of the First Circuit reversed BLNR's
approval on appeal later that year. JEFS #42:289-310. Between 2005 and 2013, the BLNR
resumed voting annually to continue the Revocable Permits for additional one year periods. In all
that time, BLNR never required the preparation of environmental review documents to determine
the effects of A&B's continued, uninterrupted use of vast tracts of state lands and massive
volumes of water. Id. at 385-88, 463, 469-473, 660; JEFS #44:793 -815.5
BLNR's repeated failure to require an EA runs contrary to its admission in 2007 that "All
parties now concede that an EA (and potentially an environmental impact statement ('EIS') must
be prepared[.]" JEFS #42:911. Indeed, even after instructing the Department of Land and Natural
Resources (DLNR) "to take all administrative steps necessary to . . . prepare an EA in
accordance with HRS Chapter 343," Id. at 955, BLNR never ordered DLNR to comply. As a
result, no EA or EIS was commenced at all times relevant to this appeal.
In December 2014, as it had done for almost a decade, DLNR requested that BLNR:
lalpprove the continuation of the revocable permits. . . on a month-to-month basis for another
one-year period through December 31, 2015," collectively with hundreds of other permits
subject to BLNR's annual review. JEFS #42:320-21, 326-31. The BLNR adopted DLNR's
recommendation, approving the continuation of the Revocable Permits for another year. Id. at
346. As before, no EA, EIS, or exemption determination had been executed. Id. at 86-88 TT 19,
26, 31 and at 108 (admitting to paragraph 51 of the first amended complaint, found at Id. at 71-
72) and at 112-13 TT 22, 23, 24, 26, 27. By this time, the BLNR, entrusted with protecting and

5BLNR misled Na Moku into believing that there had been no further issuance of these permits.
JEFS #42:300, 318 ("there was no further request for issuance of a temporary permit").

5
administering state public trust resources, had allowed a private, commercial diverter essentially
unfettered use of tens of thousands of acres of state land and incalculable amounts of water daily
and cumulatively for three decades on the pretext of temporary permits without once considering
or examining their potential environmental impact.
The significant environmental harms to streams, habitats, and aquatic organisms as a
result of A&B's use of these lands and waters are well-documented. JEFS #42: 210, 217, 363-
366. A&B's diversions have caused significant harm to Petitioners' exercise of traditional and
customary practices in East Maui, including, but not limited to, fishing, gathering, and kalo
farming within and beyond the areas covered by the Revocable Permits. Id. at 157-166 and 208-
217. A&B's dewatering of East Maui's streams had devastating impacts: abandoned, dried out
lo`i; streams too bare of water and aquatic life to subsistence gather; and the aesthetic and
recreational character of the environment drastically altered. Id. at 157-58, 161-64, 207-08.
IV. ARGUMENT

The ICA erred when it failed to affirm the trial court's invalidation of the Revocable
Permits as there can be no dispute that an EA was required prior to the issuance of the permits.6
The ICA's ruling relies entirely on the effect of the clause "notwithstanding any other law to the
contrary" contained in the first sentence of HRS § 171-55 to exempt the Revocable Permits from
the requirements of HRS chapter 343 and HRS § 171-58. The Court's interpretation violates well
settled rules of statutory construction. And even if HRS § 171-55 does nullify the protections
contained in HRS chapter 343 and HRS § 171-58, the ICA erred by refusing to rule as a matter
of law that BLNR failed to issue requisite findings necessary to dispose of public trust resources.
A. THE ICA IGNORED RULES OF STATUTORY CONSTRUCTION

The ICA mangled well-settled rules of statutory construction by interpreting HRS § 171-
55 to exempt revocable permits allowing the diversion of water on public lands from: (1) the
one-year term restriction on dispositions of water rights pursuant to HRS § 171-58, and (2) HRS
chapter 343 requirements.
Courts must endeavor to interpret statutes based on their plain meaning and "give effect
to the legislature's intention and to implement that intention to the fullest degree. In ascertaining

'Petitioners incorporate the arguments made in their briefs before the ICA and do not repeat
them here.

6
intent [sic] language of a provision the provision must be read in context of the entire statute and
construed in a manner consistent with its purposes." State v. Dannenberg, 74 Haw. 75, 80-81,
837 P.2d 776, 777 (1992)(internal citations omitted). Statues are "presumptively valid," and
those which concern the same subject matter or simply overlap in their application shall be
construed with reference to each other and in a manner that gives effect to both. State v.
Casugay-Badiang, 130 Hawai`i 21, 27, 305 P.3d 437, 443 (2013). In the event of an
irreconcilable conflict, a specific statute will be favored over a general one. Id. (citing
Richardson v. City & Cty of Honolulu, 76 Hawai`i 46, 54-55, 868 P.2d 1193, 1201-02 (1994)).
1. THE PLAIN MEANING OF HRS § 171-55

On its face, HRS § 171-55's notwithstanding clause serves only to exempt revocable
permits for use of State lands from ch. 171's public auction requirements for land dispositions.
HRS § 171-55 provides:
Notwithstanding any other law to the contrary, the board of land and natural
resources may issue permits for the temporary occupancy of state lands or an interest
therein on a month-to-month basis by direct negotiation without public auction,
under conditions and rent which will serve the best interests of the State, subject,
however, to those restrictions as may from time to time be expressly imposed by the
board. A permit on a month-to-month basis may continue for a period not to exceed
one year from the date of its issuance; provided that the board may allow the permit to
continue on a month-to-month basis for additional one year periods.
Id. (emphases added). Indeed, this Court has specifically explained the notwithstanding phrase
applies only to those laws in direct conflict with the statute itself. Casugay-Badiang, 130
Hawai`i at 26, 305 P.3d at 442 ("Moreover, within the phrase 'notwithstanding any other law to
the contrary,' a plain language, dictionary definition of contrary is 'being opposite to or in
conflict with each other.' Two statutes conflict where it is not possible to give effect to both.")
(internal citation and quotations omitted).
HRS §171-55's notwithstanding clause plainly means that "notwithstanding" any law
requiring land dispositions be made by public auction, BLNR may issue month-to-month
revocable permits for land use "without public auction" if the permit will serve the best interests
of the State. This plain reading is confirmed when read together with HRS § 171-14, which
requires, "[e]xcept as otherwise specifically provided, all dispositions of public lands shall be
made at public auction[j")(emphasis added); Dannenberg, 74 Haw. at 80-81, 837 P.2d at 777
(to ascertain intent, "the provision must be read in context of the entire statute and construed in a
manner consistent with its purposes"); Casugay-Badiang, 130 Hawai`i at 27, 305 P.3d at 443

7
("laws in pall materia, or upon the same subject matter, shall be construed with reference to each
other"). HRS § 171-14's mandatory public auction requirement is precisely the type of "law to
the contrary" HRS § 171-55 clearly limits.
2. HRS 171-58 DOES NOT NULLIFY HRS § 171-55 OR HRS CH. 343

There is no basis to find that HRS § 171-55 conflicts with or supersedes HRS § 171-58 or
HRS chapter 343.
The ICA strained to interpret HRS § 171-55, which allows month-to-month permits to
continue for additional one year periods for land-specific dispositions, to be in conflict with
HRS § 171-58, which limits minerals and water rights-specific dispositions "to a maximum
term of one year." HRS §171-58. Given the ICA's acknowledgement that the "Revocable
Permits [themselves] expressly stated that they were issued pursuant to HRS § 171-58," JEFS
#187:12, there can be no dispute that HRS § 171-58 controls. Even if HRS § 171-58 and § 171-
55 do conflict, the well-settled rule that a specific statute (treating water as a single specific use)
be favored over a general statute (concerning the general disposition of public lands) controls.
See Casugay-Badiang, 130 Haw. at 27, 305 P.3d at 443. Not only did the ICA fail to give effect
to both statutes, it adopted the disfavored approach of "repeal by implication" when it nullified
HRS § 171-58's one-year limitation. See Dannenberg, 74 Haw. at 80-81, 837 P.2d at 777.
It was unnecessary and erroneous for the ICA to interpret the notwithstanding clause to
nullify HRS chapter 343 when there is no direct or irreconcilable conflict between the two
statutes. The purpose of HRS chapter 343 is "to establish a system of environmental review
which will ensure that environmental concerns are given appropriate consideration in decision
making along with economic and technical considerations." HRS § 343-1. HRS chapter 343 does
not bar BLNR from issuing month-to-month permits without public action for the use of state
lands. Nor does it affect how state lands may be used. It only requires environmental disclosure
prior to any decision to use state lands to ensure that BLNR engages in an "informed and
deliberate decision-making process." Umberger v. Dep't of Land & Natural Res., 140 Hawai`i
500, 519, 403 P.3d 277, 296 (2017). Informed decision-making does not conflict with the
issuance of permits for land; instead it is an absolute necessity if an agency is to discharge its
duty to issue such permits only when it serves the "best interest of the State." See HRS § 171-55.
This Court has consistently held that HRS chapter 343 does not conflict with other
statutes. In Kepo`o v. Watson, 87 Hawai'i 91, 99, 952 P.2d 379, 387 (1998), this Court addressed

8
"[w]hether HRS ch. 343 conflicts with the Hawaiian Homes Commission Act" -- an act that is
"part of the Hawaii Constitution" and normally supersedes "a state statute such as HRS ch. 343."
Id. at 98-99, 952 P.2d at 386-87. Even under those circumstances, this Court found no conflict
between HRS ch. 343 and the Hawaiian Homes Commission Act, id. at 102, 952 P.2d at 390,
explaining that chapter 343:
essentially requires decision makers to consider the potential impact of their projects on
the environment and to prepare informational documents disclosing these effects. . . .
The effect of HRS ch. 343 on the land is also incidental in that the statute does not
affirmatively require DHHL to use the land for any particular purposes. Whereas
application of other laws, such as zoning ordinances, would require DHHL to use
Hawaiian home lands for specific purposes, HRS ch. 343 merely places a hold on
particular DHHL projects until DHHL complies with the procedural and informational
requirements of the statute.

Id. at 100-01, 952 P.2d at 388-89 (emphasis added). In Umberger, this Court found no conflict
between HRS chapter 343 and HRS chapters 188 and 189, reasoning that when HRS chapter 343
"overlaps and is consistent with another chapter of the HRS" both should be given effect. 140
Hawai`i at 518, 403 P.3d at 295. The same rationale informed the ICA's finding of no conflict
between HRS chapter 343 and HRS chapter 150A more than a decade ago. `Ohana Pale Ke Ao
v. Bd. of Agric., 118 Hawai`i 247, 255, 188 P.3d 761, 769 (App. 2008) (noting "[w]hile HRS
chapters 150A and 343 may overlap in their application and purpose, they do not conflict and
both can be given effect.") There is no reason to break with precedent now when 33,000 acres of
state lands and hundreds of millions of gallons of water are at risk every day the status quo is
allowed to continue.
3. LEGISLATIVE HISTORY CONFIRMS THAT HRS § 171-55 DOES NOT
CONFLICT WITH HRS § 171-58 OR HRS CHAPTER 343

The legislative history of HRS § 171-55 makes clear that its notwithstanding phrase was
added for the sole purpose of allowing BLNR to issue revocable permits without public auction.
In interpreting statutes, courts may consult legislative history even where no ambiguity
exists. State v. Demello, 136 Haw. 193, 197, 361 P.3d 420, 424 (2015)("Even where statutory
language appears unambiguous upon initial review, an examination of sources other than the
language of the statute itself may be essential to adequately discern the underlying policy which
the legislature seeks to promulgate.")(internal quotations omitted). Legislative history can also be
consulted to ascertain the meaning of a "notwithstanding" clause. Dannenberg, 74 Haw. at 80-

9
81, 837 P.2d at 777 (examining legislative history to "ascertain and give effect to the
legislature's intention" behind a "notwithstanding any other law to the contrary" clause).
In amending HRS § 171-55 to include the notwithstanding clause, the legislature
expressly intended to provide temporary revocable permits only a narrow, limited exemption
from public auction requirements:
At a recent court proceeding, it was suggested that the practice of granting 30-day
revocable permits without regard to public auction requirements may be
unconstitutional [, and g]iven this, the Office of the Attorney General has suggested that it
is appropriate to make it absolutely clear that such temporary permits may be issued
without public auction. Your Committee finds that the Board of Land and Natural
Resources should be allowed to issue such permits and believes that this bill should serve
as the vehicle for it. Your Committee has therefore amended the bill by deleting it's
[sic] substance and inserting language allowing the Board of Land and Natural
Resources to issue permits for the temporary occupancy of State lands on a month-
to-month basis by direct negotiation without public auction.

See S. Stand. Comm. Rep. No. 2988, in 1990 Senate Journal, at 1218 (emphases added). JEFS
#189-97, 199-201. BLNR advocated for the insertion of the notwithstanding clause to "make it
absolutely clear that 30 day revocable PERMITS may be disposed of without public auction." Id.
There is no indication in the legislative history that the notwithstanding clause was inserted for
any other reason, including to create a broad, implied exemption from the requirements of HRS
chapter 343, HRS § 171-58, or any other regulatory scheme. The ICA did not reference or
examine relevant legislative history in its sua sponte decision. Its failure to do so resulted in a
ruling that contravenes the legislature's intent.
4. THE ICA'S INTERPRETATION LEADS To ABSURD RESULTS
Allowing the ICA's interpretation of HRS § 171-55 to stand will lead to an
unconscionably absurd and unjust result. E & J Lounge Op. Co. v. Liquor Comm'n of City &
Cty. of Honolulu, 118 Hawai`i 320, 349 (2008)("an interpreting court should not fashion a
construction of statutory text that. . .creates an absurd or unjust result."). If the ICA's reasoning
is carried to its logical conclusion, revocable permits issued pursuant to HRS § 171-55 by BLNR
would be immunized from any statue or regulation placing any restrictions on land use and
dispositions. Such a sweeping exemption would authorize the rapacious, long-term use of public
trust resources by way of revocable permits "temporary" in name only, and would eviscerate in
one fell swoop other statutes implementing land use regulations and vital resource protections.
See HRS 205A (Coastal Zone Management); HRS chapter 183 (Conservation District); HRS

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chapter 6E (Historic Preservation); HRS 174C (State Water Code); HRS §171-27 (requiring real
property taxes on all BLNR leases and licenses); Maui County Code of Ordinance Title 16 (Maui
County Building Code). Nothing in HRS § 171-55 or in its legislative history suggests any intent
to permit a state of lawlessness for land and water rights under "temporary" revocable permits.
B. THE BLNR DID NOT COMPLY WITH HRS § 171-55
Assuming arguendo the notwithstanding clause of HRS § 171-55 did somehow nullify
HRS § 171-58 and HRS chapter 343, the Revocable Permits are still invalid for BLNR's failure
to make any explicit findings that its decision satisfied the strict requirements of HRS § 171-55.
When making decisions, a state agency "must make its findings reasonably clear. The
parties and the court should not be left to guess, with respect to any material question of fact,
or to any group of minor matters that may have cumulative significance, the precise finding of
the agency." In re Water Use Permit Applications, 94 Haw. 97, 157-58, 9 P.3d 409, 469-70
(2000)(Waidhole I); Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw. App. 227,
230, 751 P.2d 1031, 1034 (1988) ("An agency's findings must be sufficient to allow the
reviewing court to track the steps by which the agency reached its decision."); Rife v. Akiba,
81 Haw. 84, 87-88, 912 P.2d 581, 584-85 (App. 1996) (noting findings facilitate judicial
review). An agency's duty to provide clear findings in its decision making is heightened where
public trust resources are at stake. Waiahole I, 94 Hawai`i at 157-58, 9 P.3d at 469-70("Clarity
in the agency's decision is all the more essential in a case such as this where the agency
performs as a public trustee and is duty bound to demonstrate that it has properly exercised the
discretion vested in it by the constitution and the statute."); Ka Pa'akai 0 Ka'Aina v. Land Use
Comm'n, 94 Hawai'i 31, 50, 7 P.3d 1068, 1087 (2000) ("If [] native Hawaiian rights being
exercised will be curtailed to some extent[,] . . . the promise of preserving and protecting
customary and traditional rights would be illusory absent findings on the extent of their
exercise").
The BLNR's December 2014 Decision to continue the holdover status of the Revocable
Permits for yet another year was invalid because BLNR made no relevant findings supporting its
decision despite its role as a public trustee over public trust resources in East Maui. The ICA
concedes that for BLNR to properly issue revocable permits pursuant to HRS §171-55, the law
requires "the permit holder's occupancy be temporary" and for the permit to be issued "under
conditions and rent which will serve the best interests of the State." BLNR failed to discharge its

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trustee duties with the openness, diligence, and foresight required by the public trust doctrine
when it reviewed and approved the renewal of these Revocable Permits en masse with over 300
other permits as part of its annual, year-end bulk review. See Waiahole I, 94 Hawaii at 143, 9
P.3d at 455 (noting that the public trust doctrine obligates agencies to discharge their trustee
duties with "openness, diligence, and foresight"). In so doing, BLNR made no finding that the
annual renewals were "temporary," nor could it, since the Revocable Permits were decades-old.
BLNR did not make any findings that considered how the use of East Maui water for profit at the
expense of the environment and Native Hawaiian taro farming communities furthered the "best
interests of the State." Given that BLNR's decision to renew the Revocable Permits was
considered with hundreds of other permits, it is of no surprise that BLNR did not make any
specific finding that HRS § 171-55's strict requirements were satisfied. BLNR's failure to issue
findings is inexcusable given that the Revocable Permits were continued during the pendency of
an ongoing contested case hearing that addressed these matters. For all these reasons, the
Revocable Permits were never properly issued pursuant to HRS § 171-55.
By holding that there are genuine issues of material fact as to the Revocable Permits'
compliance with HRS § 171-55, the ICA ignored that BLNR made no findings at all
demonstrating that its December 2014 Decision to continue the holdover status of the Revocable
Permits were for a temporary use and issued in the best interest of the State. Because there is no
genuine dispute as to whether BLNR's decision to continue the Revocable Permits were made
with required findings, the ICA erred in reversing the Circuit Court's ruling.
V. CONCLUSION

Based on the foregoing reasons and their briefs filed with the ICA, Petitioners
respectfully request this Court accept this application for writ of certiorari in view of the
significant public trust duties and resources at stake.
DATED: Honolulu, Hawai'i, September 30, 2019.

/s/ SUMMER L. H. SYLVA

SUMMER L.H. SYLVA
DAVID KAUILA KOPPER
ALAN T. MURAKAMI
Attorneys for Petitioners/Plaintiffs-Appellees/
Cross-Appellees/Cross-Appellants
HEALOHA CARMICHAEL, LEZLEYJACINTHO
and NA MOKU AUPUNI 0 KO'OLAU HUT

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