Hawaii Supreme Court Holds that Agency Decision to Deny a Contested Case Hearing May be Appealed

In Kaleikini v. Thielen, Haw. S.Ct. No. 28491, Aug. 21, 2010, the Hawaii Supreme Court ("HSCT") held, among other things, that an agency's denial of a requested contested case hearing is an appealable issue.

This case arises in the context of Hawaii's Native Hawaiian burial laws pursuant to HRS chapter 6E. Kaleikini requested a contested case hearing regarding the Oahu Island Burial Council's decision to approve a burial treatment plan submitted by developer General Growth Properties ("GGP"). The burial treatment plan involved the disinterment of Native Hawaiian burial remains discovered at GGP's project site at the Ward Village Shops. Kaleikini's request was denied by the Chairperson of the Board of Land and Natural Resources, Department of Land and Natural Resources ("DLNR").

The right to a contested case hearing is found under HRS chapter 91, Hawaii's Administrative Procedure Act. A contested case is a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing. If a contested case hearing is held and a person intervenes therein that person becomes a party to the proceedings.  As a party, a person may participate in the decision-making process by providing evidence on the record and having input in the agency's preparation of findings and conclusions. In addition, a party to a contested case has the right to appeal the agency's decision to the circuit court.

Kaleikini appealed DLNR's decision to the circuit court.  The circuit court ruled that it did not have subject matter jurisdiction over DLNR's decision to deny Kaleikini's request for a contested case, because there was no contested case from which Kaleikini could appeal. Kaleikini appealed the circuit court's decision to the intermediate court of appeals ("ICA"), which held that the case was moot because the remains at issue were already reinterred. Consequently, the remedy sought by Kaleikini, preservation of burials in situ, was no longer available.

Kaleikini then appealed to the HSCT, which disagreed with both courts and held as follows:

. . . (1) DLNR's denial of Kaleikini s request for a contested case hearing represented a final decision and order; (2) Kaleikini followed the applicable agency rules and, therefore, was involved in the contested case; and (3) Kaleikini s legal interests were injured --i.e., she has standing to appeal. Accordingly, we hold that the circuit court erred in dismissing Kaleikini's agency appeal for a lack of subject matter jurisdiction. Consequently, we vacate the ICA's order dismissing Kaleikini s appeal for mootness and remand the case to the circuit court for further proceedings consistent with this opinion.

Before arriving at its ultimate holding, the HSCT decided two threshold issues. First, although Kaleikini 's appeal was moot (i.e., burials were already reinterred), it fell within the public interest exception to the mootness doctrine. In that regard, the HSCT agreed with Kaleikini that "the availability of judicial review of [a] decision relating to the removal of Native Hawaiian burial sites -- is of great public importance."

Second, the court held that a contested case hearing was "required by law, and would have determined the rights, duties, and privileges of specific parties had it been granted." (Emphasis added.) The "would have" language here is significant in that the HSCT "creates different standards for determining whether an agency action is a contested case[,]" as pointed out by the concurring opinion. Future cases will tell whether this new standard will open up the courts to more appeals in the absence of an agency contested case.

See Administrative Law and Historic Preservation for more on these and related issues.