THEODORE K. BLAKE, Petitioner/Plaintiff-Appellant,
COUNTY OF KAUA'I PLANNING COMMISSION; COUNTY OF KAUA'I PLANNING DEPARTMENT; IAN COSTA, in his official capacity as Planning Director; DEPARTMENT OF LAND AND NATURAL RESOURCES; WILLIAM J. AILA, JR., in his official capacity as chair of the Department of Land and Natural Resources; and STACEY T.J. wOng, as Successor Trustee of the Eric A. Knudsen Trust, Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000342; CIV. NO. 09-1-0069)
David Kimo Frankel and Ashley K. Obrey for petitioner
Ian K. Jung for respondents County of Kaua#i Planning Commission, County of Kaua'i Planning Department, and Costa
Linda L.W. Chow for respondents DLNR and Aila
Michael D. Tom and Joseph F. Kotowski, III, for respondent Wong
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK JJ.
This case involves a challenge to the County of Kaua'i Planning Commission's approval of a subdivision application for the Eric A. Knudsen Trust's development of land in Koloa, Kaua'i. One of the challenged aspects of the proposed subdivision was the need for the Knudsen Trust to breach a historic road (Hapa Road) and its adjacent rock wall to provide access into the subdivision. During the Planning Commission's consideration of the Knudsen Trust's subdivision application, all the parties assumed that Hapa Road belonged to the County of Kaua'i. The Planning Commission eventually approved the Knudsen Trust's subdivision application.
Theodore K. Blake filed a civil complaint asserting six claims against the Defendants,  including, inter alia, alleged failure of the Defendants to follow the proper environmental and historic review processes, violations of Native Hawaiian rights, and breaches of the public trust. Blake subsequently amended his complaint in part because he discovered that Hapa Road belonged to the State of Hawai'i and not the County. In his amended complaint, Blake also asserted two additional claims of negligence and public nuisance against the Knudsen Trust for allegedly breaching Hapa Road and its adjacent rock wall.
On a motion for summary judgment brought by the State Defendants, the circuit court determined that, because the State had not given its approval to breach Hapa Road, the issues raised in Blake's complaint were not ripe, and therefore dismissed the claims for lack of subject matter jurisdiction. The circuit court also indicated that even though Blake may have had claims that were ripe and severable, in the interest of judicial economy, it had the discretion to dismiss those claims as well. The Intermediate Court of Appeals affirmed the circuit court's order.
In his application, Blake argues that all eight of his claims were ripe for adjudication. We agree. First, we hold that the Planning Commission's final approval of Knudsen's subdivision application constituted "final agency action" for purposes of ripeness. Based on this conclusion, we hold that the allegations in Counts 1-5 were ripe because they will not be affected by the BLNR's decision regarding Hapa Road, and that Count 6 is ripe because it requires no further factual development for purposes of ripeness. We also hold that the conduct alleged in Counts 7 and 8 has already occurred and therefore those claims are ripe. Lastly, we conclude that the circuit court erred in dismissing claims on the basis of judicial economy. Accordingly, we vacate the circuit court's final judgment and the ICA's judgment on appeal, and remand the case to the circuit court for further proceedings.
The following factual background is taken from the record on appeal.
A. Village at Po'ipu Development
On April 9, 2003, the Knudsen Trust filed an application with the Planning Commission to subdivide approximately 208 acres of land it owned in Koloa, Kaua'i, to implement Phase I of its planned residential community development, the Village at Po'ipu (hereinafter referred to as "the development"). The development consisted of approximately twenty acres of land bordered on the west by Hapa Road.
A copy of the Knudsen Trust's application was sent to the DLNR's State Historic Preservation Division (SHPD) . SHPD issued a letter to Planning Director Costa recommending that conditions be attached to the Village at Po'ipu project, including, inter alia: conducting an archaeological inventory survey of the parcels of land in the application, submitting a report to SHPD for review and approval, and developing detailed mitigation plans if significant historic sites are recommended for mitigation.
The Planning Commission subsequently granted tentative subdivision approval for the development project. To obtain final approval, the Knudsen Trust was required to comply with the requirements set forth by SHPD.
SHPD later received the "Interim Protection Plan" for the development, which identified numerous significant historic sites located in the vicinity of the development. One of the sites identified in the Interim Protection Plan was Hapa Road: "Hapa road is a single lane unpaved road connecting Koloa Town to the beach road (Po'ipu) . The road is marked by a stacked boulder wall on both sides."
The Interim Protection Plan called for "an orange colored plastic barricade fencing" along the east side of Hapa Road and the rock wall "during all construction and landscaping activities in the vicinity." The Interim Protection Plan also provided, "At no time shall any construction work take place within the buffer zone."
In a March 30, 2005 letter, SHPD Administrator Melanie Chinen "concur[red]" with the Interim Protection Plan.
In November 2006, the Knudsen Trust completed a final environmental impact statement (Final EIS) for its Village at Po'ipu development. The Final EIS discussed Hapa Road:
A portion of Hapa Road will be improved as a pedestrian and bicycle path as mandated by the County of Kaua'i. The historic rock walls will be preserved in place where they are in good condition and restored where they have collapsed or have been damaged by stone robbing.
The State Land Use Commission approved the Final EIS that same month.
In a January 8, 2009 letter, SHPD's administrator noted:
We have reviewed the Draft Archaeological Data Recovery Plan for an Approximately 60 ft Wide Portion of Hapa Road, SIHP # 50-30-10-0 992, Koloa Ahupuaa, Koloa District, Kauai. The breach of Hapa road will have an effect, with agreed upon mitigation, on a significant historic site. In order to mitigate the effect we have requested, and the Trust has agreed to restore 2, 000 Linear Feet of the west side of the Hapa Road Rock wall beginning at the railroad berm and heading north to roughly match the eastern rock wall at each corresponding point. This work is to be completed by January 8, 2029.
At a January 13, 2009 meeting, the Planning Commission granted final subdivision approval of the development.
B. Circuit Court Proceedings
Blake timely filed a complaint against the Defendants. In his complaint, Blake asserted six counts: (1) that the Defendants failed to fulfill the obligations imposed upon them by the public trust doctrine (Count 1); (2) that the County Defendants failed to "thoroughly investigate and protect Native Hawaiian rights" when they considered the Knudsen Trust's application (Count 2); (3) that the Defendants failed to comply with the requirements of Hawai'i Administrative Rules (HAR) chapter 13-284, the rules governing procedures for historic preservation review to comment on projects subject to Hawai'i Revised Statutes (HRS) chapter 6E (Count 3); (4) that the subdivision approval and construction, based upon an improper and incomplete historic preservation review process, threatened to cause irreparable injury to burial sites and other historic sites (Count 4); (5) that because the Knudsen Trust's land is located within the State's coastal zone management area, the Planning Commission was obligated to give "full consideration of historic and cultural values prior to decisionmaking[, ]" including consideration of the objectives of HRS chapter 205A, the Coastal Zone Management Act (CZMA), such as the protection, preservation, and restoration of historic and prehistoric resources in the coastal zone management area that are significant to Hawaiian history and culture (Count 5); (6) that the Knudsen Trust would breach a part of Hapa Road to allow vehicular traffic into its development; the impact of this breach, Blake argued, was not addressed in the Final EIS, even though the breach of Hapa Road was a "significant change in scope and use and is, as such, a different action for which a supplemental [EIS] is required" (Count 6) .
Blake subsequently filed a motion to amend his complaint. In his memorandum in support of his motion to amend his complaint, Blake stated that, contrary to all the parties' assumption, Hapa Road was owned by the State and not the County of Kaua'i. On August 20, 2009, Blake filed a first amended complaint. In his first amended complaint, Blake reasserted his previous six counts, alleged that "Hapa Trail is owned by the State of Hawai'i, " and added two additional counts: Count 7 alleged that the Knudsen Trust caused a public nuisance in altering Hapa Road without appropriate government authorization; and Count 8 alleged that the Knudsen Trust was negligent when it altered Hapa Road without appropriate government authorization.
The parties filed numerous motions for summary judgment and joinders. Relevant to this appeal, Blake filed a motion for partial summary judgment on Counts 1-6 of his first amended complaint.
The State Defendants filed a motion for summary judgment as to all counts of Blake's first amended complaint. In its memorandum in support of its motion, the State Defendants argued, inter alia, that Blake's claims were not ripe because the Knudsen Trust was "prohibited from going forward on [the development] until such time as [it] receives approval from the [BLNR] for an easement across Hapa Road." The State Defendants asserted that Blake failed to satisfy the two-pronged test for ripeness because final agency action was needed for the development to go forward.
The circuit court held a hearing on the various motions, but continued the hearing and requested supplemental briefing on the issue of the court's subject matter jurisdiction. The parties filed supplemental memoranda on the issue of ripeness and subject matter jurisdiction.
Following a continued hearing, the circuit court filed its order granting the State Defendants' motion for summary judgment. The circuit court determined:
Ripeness is an issue of subject matter jurisdiction. In determining whether a particular case is ripe the court must look at the facts as they exist today. The courts have developed a two part test to determine if a matter is ripe. The two prongs of the test are the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Both prongs must be present. The fitness element requires that the issue be primarily legal, need no further factual development, and involve a final agency action.
This [c]ourt finds that Hapa Road, also known as Hapa Trail, is owned by the State of Hawaii. The subdivision plan submitted by [the Knudsen Trust] to [the Planning Commission], which is the subject of this lawsuit, required access across Hapa Road. This [c]ourt further finds that there has been no final agency action as state agency action giving permission for the use and breach of Hapa Road has not been taken. This matter is not ripe and this [c]ourt lacks subject matter jurisdiction. To the degree that there may be issues that are severable and ripe, this [c]ourt will decline to exercise jurisdiction based on considerations of judicial economy. This matter is hereby dismissed as to all counts and all parties.
The circuit court entered its final judgment in favor of the Defendants and against Blake, and Blake timely filed a notice of appeal.
B. ICA Appeal
In his opening brief, Blake raised two ...