*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Electronically Filed

Supreme Court

SCOT-XX-XXXXXXX

15-MAR-2023

08:04 AM

Dkt. 131 OP

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o--- ________________________________________________________________ IN THE MATTER OF THE PETITION OF KUULEI HIGASHI KANAHELE AND AHIENA KANAHELE, INDIVIDUALS, FOR A DECLARATORY ORDER CONCERNING

THE INVALID CLASSIFICATION OF THE DE FACTO AND IMPROPER INDUSTRIAL USE PRECINCT ON APPROXIMATELY 525 ACRES OF STATE LAND USE CONSERVATION DISTRICT LANDS LOCATED IN MAUNA KEA AND HILO,

COUNTY OF HAWAII, TAX MAP KEY NO.: 4-4-015:0090 (POR.) ________________________________________________________________

SCOT-XX-XXXXXXX

APPEAL FROM THE LAND USE COMMISSION

(DOCKET NO. DR-19-67 (Agency Appeal))

MARCH 15, 2023

RECKTENWALD, C.J., NAKAYAMA, J.,

CIRCUIT JUDGE CATALDO, ASSIGNED BY REASON OF VACANCY, AND WILSON, J., DISSENTING, WITH WHOM McKENNA, J., JOINS

OPINION OF THE COURT BY NAKAYAMA, J.

This is another case in the series of proceedings challenging the construction of the Thirty Meter Telescope (TMT). However, unlike prior proceedings that only sought to

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** prevent the TMT from being built, Appellants Kuʻulei Higashi Kanahele and Ahiena Kanahele (collectively, the Kanaheles) seek to use the Land Use Commission’s (the Commission or LUC) districting authority in a way that could compel the removal of all astronomy facilities located within the Astronomy Precinct by petitioning the Commission for declaratory relief.

On November 29, 2019, the Commission issued a written Order Denying Petition for Declaratory Order (LUC Order). The Commission explained that it lacked jurisdiction (1) to use the declaratory ruling procedure to undermine decisions already made, and (2) to regulate land uses in the Astronomy Precinct because the legislature granted such authority to the Department of Land and Natural Resources (the Department or DLNR).

The following day, the Kanaheles appealed to this court. The Kanaheles seek to use the Commission’s declaratory ruling authority (1) to challenge past decisions that astronomy facilities are permissible within conservation districts and (2) to contravene the Department’s power to regulate conservation district uses. Contrary to the Kanaheles’ claim that the Commission may restrict land uses through Hawaiʻi Revised Statutes (HRS) § 205-2(e),1 the statute merely identifies 1 HRS § 205-2 (2017) provides in relevant part:

(a) There shall be four major land use districts in

which all lands in the State shall be placed: urban, rural,

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agricultural, and conservation. The land use commission

shall group contiguous land areas suitable for inclusion in

one of these four major districts. The commission shall

set standards for determining the boundaries of each

district, provided that:

(1) In the establishment of boundaries of urban

districts those lands that are now in urban use

and a sufficient reserve area for foreseeable

urban growth shall be included;

(2) In the establishment of boundaries for rural

districts, areas of land composed primarily of

small farms mixed with very low density

residential lots, which may be shown by a minimum

density of not more than one house per one-half

acre and a minimum lot size of not less than one-

half acre shall be included, except as herein

provided;

(3) In the establishment of the boundaries of

agricultural districts the greatest possible

protection shall be given to those lands with a

high capacity for intensive cultivation; and

(4) In the establishment of the boundaries of

conservation districts, the “forest and water

reserve zones” provided in Act 234, section 2,

Session Laws of Hawaii 1957, are renamed

“conservation districts” and, effective as of July

11, 1961, the boundaries of the forest and water

reserve zones theretofore established pursuant to

Act 234, section 2, Session Laws of Hawaii 1957,

shall constitute the boundaries of the

conservation districts; provided that thereafter

the power to determine the boundaries of the

conservation districts shall be in the commission.

In establishing the boundaries of the districts in each

county, the commission shall give consideration to the

master plan or general plan of the county.

(b) Urban districts shall include activities or uses

as provided by ordinances or regulations of the county

within which the urban district is situated.

In addition, urban districts shall include geothermal

resources exploration and geothermal resources development,

as defined under section 182-1, as permissible uses.

. . . .

(e) Conservation districts shall include areas

necessary for protecting watersheds and water sources;

preserving scenic and historic areas; providing park lands,

wilderness, and beach reserves; conserving indigenous or

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** uses that are permitted within conservation districts. The statute does not authorize the Commission to exclude or enforce certain land uses within conservation districts.

I. BACKGROUND A. The Mauna Kea Observatories

In January 1964, Gerard Kuiper began investigating Mauna Kea as a possible observatory site. David Leverington, A History of Astronomy: From 1890 to the Present 276 (2012). That same year, the University of Hawaiʻi (UH) and the University of Arizona entered into an agreement to build a test telescope and dome on Mauna Kea. Id. An access road was built in May 1964, and the Mauna Kea Observatory was dedicated on July 20, 1964. Id. By 1970, UH completed a second telescope on Mauna Kea. Id. By 2008, thirteen telescopes had been constructed in the Astronomy Precinct. Mauna Kea Comprehensive Management Plan 93- 94 (Apr. 2009).

endemic plants, fish, and wildlife, including those which

are threatened or endangered; preventing floods and soil

erosion; forestry; open space areas whose existing

openness, natural condition, or present state of use, if

retained, would enhance the present or potential value of

abutting or surrounding communities, or would maintain or

enhance the conservation of natural or scenic resources;

areas of value for recreational purposes; other related

activities; and other permitted uses not detrimental to a

multiple use conservation concept. Conservation districts

shall also include areas for geothermal resources

exploration and geothermal resources development, as

defined under section 182-1.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** B. Hawaiʻi Land Use Laws

Hawaiʻi’s land use laws developed almost in parallel to the growth in astronomy on Mauna Kea. In 1961, the State adopted a statewide land use law. 1961 Haw. Sess. Laws Act 187, at 299-305. As a part of this law, the legislature established the Commission with significant powers. 1961 Haw. Sess. Laws Act 187, § 2 at 300. The legislature authorized the Commission to “group contiguous land areas suitable for one of . . . three major uses into a district and designate it as an urban district, agricultural district or conservation district, as the case may be.” 1961 Haw. Sess. Laws Act 187, § 3 at 300.

Notably, the legislature mandated that “the boundaries of the forest and water reserve zones theretofore established pursuant to Act 234, SLH 1957, shall constitute the [initial] boundaries of the conservation districts, provided, that thereafter the power to determine the boundaries of the conservation districts shall be in the commission.” 1961 Haw. Sess. Laws Act 187, § 3 at 300. Moreover, the legislature granted the Commission power to amend district boundaries, and even required the Commission to review district boundaries every five years. 1961 Haw. Sess. Laws Act 187, §§ 6, 12 at 301-03.

However, the legislature declined to provide the Commission with powers to regulate land uses within the

5 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** conservation districts. 1961 Haw. Sess. Laws Act 187, § 3 at 300 (“Zoning powers within conservation districts shall be exercised by the [board of commissioners of agriculture and forestry] to which is assigned the responsibility of administering the provisions of Act 234, SLH 1957.”); see also 1957 Haw. Sess. Laws Act 234, § 2 at 254-56.

In 1963, the legislature recognized a “demonstrated . . . need for clarifying the provisions of . . . Act 187 . . . with reference to the division of authority between the land use commission and the counties,” and therefore amended the land use laws. 1963 Haw. Sess. Laws Act 205, § 1 at 315. As a part of this effort, the legislature created a fourth district category — rural — and articulated:

Conservation districts shall include areas necessary for

protecting watersheds and water sources; preserving scenic

areas: [sic] providing park lands, wilderness and beach

reserves; conserving endemic plants, fish, and wildlife;

preventing floods and soil erosion; forestry; and other

related activities; and other permitted uses not

detrimental to a multiple use conservation concept. 1963 Haw. Sess. Laws Act 205, § 2 at 316-17. The legislature also transferred governing authority over the conservation districts to the Department. 1963 Haw. Sess. Laws Act 205, § 2 at 318. The legislature further provided that “[t]he appropriate . . . agency charged with the administration of . . . zoning laws shall enforce . . . the use classification districts adopted by the commission and shall report to the

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** commission all violations thereof.” 1963 Haw. Sess. Laws Act 205, § 2 at 320. However, the legislature retained the requirement that the Commission review district classifications every five years. 1963 Haw. Sess. Laws Act 205, § 2 at 320.

In 1975, the legislature repealed its mandate that the Commission regularly review the district boundaries, but expressly provided that the Commission still had authority to petition itself to redistrict district boundaries. 1975 Haw. Sess. Laws Act 193, §§ 5-6 at 443 (“Any department or agency of the State including the land use commission . . . may petition the land use commission for a change in the boundary of a district.”) (emphasis added), 445 (repealing the mandatory five- year review).

In 1985, the legislature re-enacted the mandatory five-year district boundary review requirement, but transferred the authority to periodically review and initiate district boundary amendment proceedings to the Department of Planning and Economic Development. 1985 Haw. Sess. Laws Act 230, § 2 at 417.2 The legislature subsequently transferred the authority to the 2 At the same time, the legislature amended HRS § 205-4 to delete the phrase “including the land use commission” from its articulation that “[a]ny department or agency of the State . . . may petition the land use commission for a change in the boundary of a district.” 1985 Haw. Sess. Laws Act 230, § 4 at 418. Thus, it appears that the legislature intended to strip the Commission of its authority to amend district boundaries sua sponte.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** Office of State Planning in 1988. 1988 Haw. Sess. Laws Act 352, § 3 at 679. The Office of State Planning – now the Office of Planning and Sustainable Development (the Planning Office) – retains the authority to review the districts to this day. See HRS § 205-18 (Supp. 2021).3 C. Astronomy Precinct Districting

The Commission issued its first state land use district boundary maps in 1964. See Land Use Comm’n, SLU District Boundary Maps, https://luc.hawaii.gov/maps/land-use- district-boundary-maps/. The Commission issued its second state land use district boundary maps in 1974. Id. The Commission did not change the Astronomy Precinct from a conservation district in either of these processes.

The Planning Office subsequently completed a state land use district boundary review in 1992. See Off. of State Planning, State Land Use District Boundary Review Hawaii (1992), http://files.hawaii.gov/dbedt/op/lud/20210500%20Boundary%20Revie w/1992HawaiiStateLandUseDistrictBoundaryReview.pdf (1992 Boundary Review). The Planning Office recognized that “[t]he University of Hawaii’s Master Plan for the Mauna Kea Science 3 In 2021, the legislature amended HRS § 205-18 to authorize, rather than require, the Planning Office to conduct district boundary reviews. Currently, HRS § 205-18 reads: “The office of planning and sustainable development may undertake a review of the classification and districting of all lands in the State.” HRS § 205-18 (Supp. 2021) (emphasis added).

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** Reserve calls for 13 telescopes by the year 2000.” Id. at 23. However, the Planning Office did not call for the Astronomy Precinct to be redistricted from a conservation district to an urban district.4 Id. at 121-27. D. Prior Proceedings Related to the TMT

Planning for the TMT began prior to 2010. Matter of Conservation Dist. Use Application HA 3568, 143 Hawaiʻi 379, 386, 431 P.3d 752, 759 (2018) (Mauna Kea II); see also Mauna Kea Anaina Hou v. Bd. of Land and Nat. Res., 136 Hawaiʻi 376, 381, 363 P.3d 224, 229 (2015) (Mauna Kea I). On September 2, 2010, UH submitted a Conservation District Use Application to the Department. Mauna Kea II, 143 Hawaiʻi at 387, 431 P.3d at 760. In 2013, the Department granted a conservation district use permit (2013 CDUP) before holding a contested case hearing. Id. This court vacated the 2013 CDUP and remanded for the Department to hold a contested case hearing. Id.; see also Mauna Kea I, 136 Hawaiʻi at 399, 363 P.3d at 247.

Between October 2016 and March 2017, a Department- appointed hearing officer conducted a contested case hearing 4 Most recently, the Planning Office completed another state land use district boundary review on January 28, 2022. Off. of Planning and Sustainable Development, State Land Use Review of Districts (Jan. 28, 2022), http://files.hawaii.gov/dbedt/op/lud/20220128%20State%20Boundary%20Review- Final/SLUReviewofDistricts1-28-22Final3.pdf (2022 Boundary Review). The Planning Office did not recommend that the Astronomy Precinct be redistricted from a conservation district to an urban district. Id. at 125-38, 35.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** over forty-four days. Mauna Kea II, 143 Hawaiʻi at 387, 431 P.3d at 760. Kuʻulei Kanahele was among the witnesses who testified in opposition to the Department issuing a conservation district use permit (CDUP) for the TMT.

On September 27, 2017, the Department issued its decision and order (DLNR Decision) authorizing the issuance of a conservation district use permit for the construction of the TMT. Mauna Kea II, 143 Hawaiʻi at 384, 387, 431 P.3d at 757, 760. The DLNR Decision was appealed to this court. Id.

On October 30, 2018, this court affirmed the DLNR Decision. Mauna Kea II, 143 Hawaiʻi at 409, 431 P.3d at 782. E. The Kanaheles’ Petition

On September 3, 2019, the Kanaheles filed the underlying petition with the Commission. In the petition, the Kanaheles asked the Commission to “issue declaratory orders stating:”

(1) current industrial research facility uses in the

[Astronomy Precinct5] are appropriate within the urban

district as prescribed by HRS § 205-2(b) and not the

conservation district;

(2) further industrial uses proposed for the

[Astronomy Precinct] must comply with HRS chapter 205 and

Commission procedures for obtaining a district boundary

amendment to reclassify conservation lands into the urban

district; and, 5 The Kanaheles refer to the 525-acre area in which the Mauna Kea observatories are located as a “de facto industrial precinct.” Because this court has identified the area as an “Astronomy Precinct” in prior decisions, this opinion continues to use that terminology. See Mauna Kea II, 143 Hawaiʻi at 385, 431 P.3d at 758; Mauna Kea I, 136 Hawaiʻi at 381, 363 P.3d at 229.

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(3) even if a single scientific laboratory or other

research facility may be appropriate within non-urban

districts, the successive, individual approval of thirteen

scientific laboratories, other research facilities, and

associated offices, parking lots, and utilities, within the

[Astronomy Precinct] constitutes urban uses inconsistent

with conservation district uses and/or detrimental to a

multiple use conservation concept for which a district

boundary amendment must be obtained.

On October 24 and 25, 2019, the Commission held a hearing on the Kanaheles’ petition. The Commission heard testimony from twenty-three witnesses; a representative of West Maui Preservation Association and Na Papaʻi Wawae ʻUlaʻula; and the Kanaheles; and heard a statement from the Kanaheles’ attorney.

The Kanaheles acknowledged that part of the purpose of their petition was to oppose the construction of the TMT. The Kanaheles also indicated that they were not asking the Commission to reclassify the Astronomy Precinct from a conservation district to an urban district, but rather to give the Kanaheles “the opportunity to say we don’t want rezoning” that already occurred through the construction of the astronomy facilities.

The Kanaheles’ attorney argued that the Commission’s authority to issue the requested declarations arose from HRS § 205-2(e). Specifically, the Kanaheles’ attorney reasoned that the Commission could use its “exclusive authority to determine the districts” and noted that the astronomy facilities “don’t

11 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** fit any –– industrial structures don’t fit any of the descriptions of conservation lands, including permitted uses that are not detrimental to a multiple use conservation concept.” Thus, the Kanaheles’ attorney explained that the Kanaheles were

asking [the Commission] just to interpret 205 and say the

concentration of industrial research facilities on Mauna

Kea are appropriate uses or are appropriate within the

urban district or in an urban district as prescribed by

205-2 and not the conservation district. Further

industrial uses must comply with boundary amendment

procedures to reclassify those lands into the urban

district. The Kanaheles’ attorney noted that the Kanaheles’ petition was “not seeking enforcement of anything except for [HRS chapter] 205.”

When asked about the practical result of the Kanaheles’ petition, the Kanaheles’ attorney acknowledged that “in order to keep things as they are,” “the legal effect of [the Kanaheles’] petition is to . . . force the State of Hawaiʻi or whoever might be considered the landowner of the land on which the telescopes sit to have to file a request for a [district] boundary amendment.” In the event the district boundary amendment request is denied, the astronomy facilities “would either have to come down, or they would reapply and try to find another way to mitigate it better.”

The Commission voted to deny the Kanaheles’ petition five to two.

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On November 29, 2019, the Commission issued its written LUC Order. As relevant here, the Commission cited to Citizens Against Reckless Development v. Zoning Board of Appeals of Honolulu, 114 Hawaiʻi 184, 196-97, 159 P.3d 143, 155-56 (2007) (CARD) and determined “that the declaratory ruling procedure could not be invoked by the Petitioner’s [sic] in this matter.” The Commission recognized that the Department has authority to govern conservation districts under HRS § 205-5(a).6 The 6 HRS § 205-5 (2017) provides:

(a) Except as herein provided, the powers granted to

counties under section 46-4 shall govern the zoning within

the districts, other than in conservation districts.

Conservation districts shall be governed by the department

of land and natural resources pursuant to chapter 183C.

(b) Within agricultural districts, uses compatible to

the activities described in section 205-2 as determined by

the commission shall be permitted; provided that accessory

agricultural uses and services described in sections 205-

2 and 205-4.5 may be further defined by each county by

zoning ordinance. Each county shall adopt ordinances

setting forth procedures and requirements, including

provisions for enforcement, penalties, and administrative

oversight, for the review and permitting of agricultural

tourism uses and activities as an accessory use on a

working farm, or farming operation as defined in section

165-2. Ordinances shall include but not be limited to:

(1) Requirements for access to a farm, including road

width, road surface, and parking;

(2) Requirements and restrictions for accessory

facilities connected with the farming operation,

including gift shops and restaurants;

(3) Activities that may be offered by the farming

operation for visitors;

(4) Days and hours of operation; and

(5) Automatic termination of the accessory use upon

the cessation of the farming operation.

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Each county may require an environmental assessment under

chapter 343 as a condition to any agricultural tourism use

and activity. Other uses may be allowed by special permits

issued pursuant to this chapter. The minimum lot size in

agricultural districts shall be determined by each county

by zoning ordinance, subdivision ordinance, or other lawful

means; provided that the minimum lot size for any

agricultural use shall not be less than one acre, except as

provided herein. If the county finds that unreasonable

economic hardship to the owner or lessee of land cannot

otherwise be prevented or where land utilization is

improved, the county may allow lot sizes of less than the

minimum lot size as specified by law for lots created by a

consolidation of existing lots within an agricultural

district and the resubdivision thereof; provided that the

consolidation and resubdivision do not result in an

increase in the number of lots over the number existing

prior to consolidation; and provided further that in no

event shall a lot which is equal to or exceeds the minimum

lot size of one acre be less than that minimum after the

consolidation and resubdivision action. The county may

also allow lot sizes of less than the minimum lot size as

specified by law for lots created or used for plantation

community subdivisions as defined in section 205-

4.5(a)(12), for public, private, and quasi-public utility

purposes, and for lots resulting from the subdivision of

abandoned roadways and railroad easements.

(c) Unless authorized by special permit issued

pursuant to this chapter, only the following uses shall be

permitted within rural districts:

(1) Low density residential uses;

(2) Agricultural uses;

(3) Golf courses, golf driving ranges, and golf-

related facilities;

(4) Public, quasi-public, and public utility

facilities; and

(5) Geothermal resources exploration and geothermal

resources development, as defined under section

182-1.

In addition, the minimum lot size for any low

density residential use shall be one-half acre and

there shall be but one dwelling house per one-half

acre, except as provided for in section 205-2.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** Commission also recognized that the legislature delegated authority to enforce uses within conservation districts to the Department.

The Commission consequently concluded:

20. Based on the information provided by Petitioners, the

Commission concludes that the Petition involves lands

that are currently classified within the State Land Use

Conservation District.

21. Based on the information provided by Petitioners, the

Commission concludes that it lacks authority under HRS

Chapter 205 to require a landowner to petition for

reclassification.

22. Based on the information provided by Petitioners, the

Commission concludes that pursuant to HRS §§ 205-5(a),

205-15, and HRS §§ 183C-3 and 183C-6(a), it is the

Department of Land and Natural Resources and not the

Commission, [sic] that is statutorily authorized to

determine, permit, and enforce land uses within the

State Conservation District.

23. The Commission concludes that the plain language of HRS

§ 205-5(a) makes clear that governance over the State

Conservation District is under the authority of the

DLNR pursuant to HRS § 183C. Therefore, the Commission

lacks subject matter jurisdiction and must deny the

Petition. The Commission summarized the reasons for its denial of the Kanaheles’ petition: “[t]he Petitioner[s] ha[ve] requested a ruling on a statutory provision not administered by the Commission and a matter that is not otherwise within the jurisdiction of the Commission.” F. The Kanaheles’ Appeal

The following day, the Kanaheles filed a notice of appeal before this court. This court granted intervenor status

15 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** to TMT International Observatory LLC (TIO) and UH over the Kanaheles’ objections.

The parties’ arguments and relevant procedural background are detailed as necessary in the Discussion section below. The Commission, TIO, and UH contend that this court lacks jurisdiction over the Kanaheles’ merits claims, and that the LUC Order was correctly decided. Meanwhile, the Kanaheles contend this court has jurisdiction to consider the appeal and raise four points of error, with multiple sub-arguments in each. The Kanaheles’ overarching points of error are:

(1) The LUC clearly erred, arbitrarily, and

incorrectly concluded, [sic] the Kanaheles “requested a

ruling on a statutory provision not administered by the

[LUC] and a matter that is not otherwise within the

jurisdiction of the [LUC].”

(2) Finding of fact (FOF) ¶22, which is a legal

conclusion in substance, constituted clear error and is

incorrect as a legal conclusion. FOF ¶22 provides: “Based

on the Petition, [the Kanaheles’] arguments and responses

to questions by the Commissioners, and the testimony of the

Petitioners, Petitioner’s [sic] seek a declaratory order

from the Commission requiring that a district boundary

amendment be obtained for the Property.”

(3) The LUC incorrectly concludes:

The Hawaiʻi Supreme Court has considered and

ruled on permitting and jurisdictional issues

regarding Mauna Kea [sic] in Mauna Kea Anaina Hou

v. Bd. Of Land & Nat. Res., 136 Hawaii 376, 363 P.3d 224 (2015) [Mauna Kea I] and Matter of

Conservation District Use Application HA-3568 for

the Thirty Meter Telescope, 143 Hawaii 379, 431 P.3d 752 (2018) [Mauna Kea I] [sic].

The Kanaheles’ [sic] rebutted this position through their

filings and oral statements.

(4) Under FOF ¶26, “the [LUC] further concludes that

the declaratory procedure could not be invoked by the

Petitioner in this matter. . .” FOF ¶26, which is a legal

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conclusion in substance, constitutes clear error and is an

incorrect legal conclusion. The Kanaheles pointed out that

CARD did not apply because they were “not seeking review of

BLNR’s decision because BLNR never had the authority to

redistrict lands and didn’t make a decision on that issue.” (Underscored [sic] notations in the Kanaheles’ Opening Brief) (citations omitted).

II. STANDARDS OF REVIEW A. Jurisdiction

“The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action.” Lingle v. Haw. Gov’t Emps. Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005) (quoting Amantiad v. Odum, 90 Hawaiʻi 152, 158-59, 977 P.2d 160, 166-67 (1999)). B. Statutory Interpretation

“The interpretation of a statute is a question of law which this court reviews de novo.” Keep the N. Shore Country v. Bd. of Land & Nat. Res., 150 Hawaiʻi 486, 506 P.3d 150 (2022) (citing State v. Ruggiero, 114 Hawai‘i 227, 231, 160 P.3d 703, 707 (2007)). C. Administrative Agency Appeals

This court’s review of administrative agency decisions is governed by HRS § 91-14(g). The statute provides:

Upon review of the record, the court may affirm the

decision of the agency or remand the case with instructions

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for further proceedings; or it may reverse or modify the

decision and order if the substantial rights of the

petitioners may have been prejudiced because the

administrative findings, conclusions, decisions, or orders

are:

(1) In violation of constitutional or statutory

provisions;

(2) In excess of the statutory authority or

jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary, or capricious, or characterized by

abuse of discretion or clearly unwarranted

exercise of discretion. HRS § 91-14(g) (Supp. 2016). “[U]nder HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and an agency’s exercise of discretion under subsection (6).” Paul’s Elec. Serv., Inc. v. Befitel, 104 Hawaiʻi 412, 416, 91 P.3d 494, 498 (2004) (brackets in original) (quoting In re Hawaiian Elec. Co., 81 Hawaiʻi 459, 465, 918 P.2d 561, 567 (1996)).

III. DISCUSSION A. This Court Has Jurisdiction over the Kanaheles’ Appeal.

The Commission, TIO, and UH argue that this court lacks jurisdiction to hear the Kanaheles’ direct appeal of the LUC Order. The Commission and TIO contend that because the

18 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** Kanaheles’ petition was not a contested case, this court does not possess jurisdiction under HRS § 205-19(a) (2017 and Supp. 2019), which only authorizes this court to directly review a final decision or order of contested cases under HRS chapter 205.

In contrast, the Kanaheles argue that this court has jurisdiction over the instant appeal pursuant to HRS §§ 205- 19(a), 91-8 (2012), and 91-14(b) (Supp. 2016), given this court’s statutory interpretation of HRS §§ 91-8 and 91-14 in Lingle, 107 Hawaiʻi 178, 111 P.3d 587. The Kanaheles posit that Lingle held that HRS §§ 91-8 and 91-14 are to be “read together,” making declaratory and contested case orders share the same status for purposes of judicial review. See id. at 185-86, 111 P.3d at 594-95. Therefore, because HRS § 205-19 authorizes this court to directly review orders from contested cases, HRS § 205-19 also authorizes this court to directly review orders granting or denying declaratory order petitions, given the shared status of declaratory and contested case orders.

The Kanaheles are correct that this court possesses jurisdiction to hear their appeal.

“The right to appeal is purely statutory and exists only when jurisdiction is given by some constitutional or statutory

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** provision.” Id. at 184, 111 P.3d at 593. The statutes pertinent to this court’s jurisdiction over the Kanaheles’ appeal are HRS §§ 91-8, 91-14, and 205-19.

HRS § 91-14 authorizes judicial review of a final decision or order in a contested case.7 However, the LUC Order denying declaratory relief did not result from a contested case, as the Kanaheles acknowledged. A contested case is “a proceeding in which the legal rights, duties, or privileges of 7 HRS § 91-14 (2012 and Supp. 2016) provides in relevant part:

(a) Any person aggrieved by a final decision and

order in a contested case or by a preliminary ruling of the

nature that deferral of review pending entry of a

subsequent final decision would deprive appellant of

adequate relief is entitled to judicial review thereof

under this chapter; but nothing in this section shall be

deemed to prevent resort to other means of review, redress,

relief, or trial de novo, including the right of trial by

jury, provided by law. Notwithstanding any other provision

of this chapter to the contrary, for the purposes of this

section, the term “person aggrieved” shall include an

agency that is a party to a contested case proceeding

before that agency or another agency.

(b) Except as otherwise provided herein, proceedings

for review shall be instituted in the circuit court or, if

applicable, the environmental court, within thirty days

after the preliminary ruling or within thirty days after

service of the certified copy of the final decision and

order of the agency pursuant to rule of court, except where

a statute provides for a direct appeal to the supreme court

or the intermediate appellate court, subject to chapter

602. In such cases, the appeal shall be treated in the

same manner as an appeal from the circuit court to the

supreme court or the intermediate appellate court,

including payment of the fee prescribed by section 607-

5 for filing the notice of appeal (except in cases appealed

under sections 11-51 and 40-91). The court in its

discretion may permit other interested persons to

intervene.

. . . .

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** specific parties are required by law to be determined after an opportunity for agency hearing.” HRS § 91-1 (Supp. 2017).

If the statute or rule governing the activity in question

does not mandate a hearing prior to the administrative

agency’s decision-making, the actions of the administrative

agency are not “required by law” and do not amount to “a

final decision or order in a contested case” from which a

direct appeal . . . is possible. Bush v. Hawaiian Homes Comm’n, 76 Hawaiʻi 128, 134, 870 P.2d 1272, 1278 (1994). “Stated differently, discretionary hearings are not contested cases because they are not required by law.” Lingle, 107 Hawaiʻi at 184, 111 P.3d at 593. The Commission’s hearing on the Kanaheles’ petition was purely discretionary: a hearing was not required by administrative rule, statute or constitution.8 The Commission’s discretionary hearing did not 8 Under HRS § 91-8, “[e]ach agency shall adopt rules prescribing . . . the procedure for . . . consideration” of petitions for declaratory rulings. The Commission’s rules provide:

Consideration of petition for declaratory order. (a) The

commission, within ninety days after submission of a petition for

declaratory order, shall:

(1) Deny the petitioner where:

(A) The question is speculative or purely

hypothetical and does not involve an

existing situation or one which may

reasonably be expected to occur in the near

future; or

(B) The petitioner’s interest is not of the type

which confers sufficient standing to

maintain an action in a court of law; or

(C) The issuance of the declaratory order may

adversely affect the interest of the State,

the commission, or any of the officers or

employees in any litigation which is pending

or may be reasonably be [sic] expected to

arise; or

(D) The petitioner requests a ruling on a

statutory provision not administered by the

commission or the matter is not otherwise

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** transform the LUC Order into a contested case decision. See id. As such, the Kanaheles were not parties to a contested case hearing and their petition could not be reviewed directly as a contested case order under HRS § 91-14.

However, HRS §§ 91-8, 91-14, and 205-19 together provide for this court’s review of the Kanaheles’ appeal of the LUC Order, even though the LUC Order was not part of a contested case. HRS § 91-8 establishes the framework for declaratory rulings by agencies, and provides that “[o]rders disposing of petitions [for declaratory rulings] shall have the same status as other agency orders.” This court interpreted the “same

within the jurisdiction of the commission;

or

(2) Issue a declaratory order on the matters

contained in the petition; or

(3) Set the petition for hearing before the

commission or a hearings officer in accordance

with this subchapter. The procedures set forth

in subchapter 7 shall be applicable. Hawaiʻi Administrative Rules (HAR) § 15-15-100(a) (2019). Relatedly, HAR § 15-15-103 (2019) provides:

Declaratory orders; request for hearing. The

commission may, but shall not be required to, conduct a

hearing on a petition for declaratory order. Any

petitioner or party in interest who desires a hearing on a

petition for a declaratory order shall set forth in detail

in the request the reasons why the matters alleged in the

petition, together with supporting affidavits or other

written briefs or memoranda of legal authorities, will not

permit the fair and expeditious disposition of the

petition, and to the extent that the request for a hearing

is dependent upon factual assertion, shall accompany the

request by affidavit establishing those facts. (Emphasis added.) Based on this language, the Commission was not required to hold a hearing to resolve the Kanaheles’ petition.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** status” language of HRS § 91-8 and held that orders disposing of petitions for declaratory rulings, like orders in contested cases, are subject to judicial review pursuant to HRS § 91-14. Lingle, 107 Hawaiʻi at 185-86, 111 P.3d at 594-95. Therefore, we held that a Hawai‘i Labor Relation Board order denying the petitioner for declaratory relief was subject to review by the circuit court, even though the decision did not result from a contested case. Id. at 185, 111 P.3d at 595.

Subsequently, in 2016 the legislature amended HRS § 91- 14(b) to provide for direct review by the supreme court or the intermediate appellate court when provided by statute. 2016 Haw. Sess. Laws Act 48, § 5 at 77.9 Now HRS § 91-14(b) provides that “proceedings for review shall be instituted in the circuit court . . . except where a statute provides for a direct appeal to the supreme court or the intermediate appellate court[.]” In the same 2016 Act, the legislature enacted HRS § 205-19, regarding contested cases arising under HRS chapter 205. 2016 Haw. Sess. Laws Act 48 § 3, at 76-77. HRS § 205-19 provides: “any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to 9 The legislature repealed and reenacted HRS § 91-14(b) without any changes to the language on July 1, 2019. See 2016 Haw. Sess. Laws Act 48, § 14 at 82; 2019 Haw. Sess. Laws Act 213, at 637.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** the supreme court for final decision.” This court must presume the legislature was aware of Lingle when it passed Act 48 in 2016. See Peer News LLC v. City & Cnty. of Honolulu, 138 Hawaiʻi 53, 69, 376 P.3d 1, 17 (2016) (“The legislature is presumed to know the law when it enacts statutes, including this court’s decisions, and agency interpretations.”) (citations omitted). Therefore, this court’s interpretation in Lingle of HRS §§ 91-8 and 91-14 that declaratory orders have the “same status” for judicial review as orders in contested cases applies to HRS § 205-19. See Lingle, 107 Hawaiʻi at 185-86, 111 P.3d at 594-95. Thus, pursuant to HRS §§ 91-8, 91-14 and 205-19, this court has jurisdiction to directly review the Kanaheles’ appeal. B. The Commission Correctly Determined That It Lacked

Jurisdiction over the Kanaheles’ Petition.

Before turning to the merits of the Kanaheles’ petition and appeal, some clarification regarding the Kanaheles’ requested relief is necessary. Again, the Kanaheles seek three declaratory orders stating:

(1) current industrial research facility uses in the

[Astronomy Precinct] are appropriate within the urban

district as prescribed by HRS § 205-2(b) and not the

conservation district;

(2) further industrial uses proposed for the

[Astronomy Precinct] must comply with HRS chapter 205 and

Commission procedures for obtaining a district boundary

amendment to reclassify conservation lands into the urban

district; and,

(3) even if a single scientific laboratory or other

research facility may be appropriate within non-urban

districts, the successive, individual approval of thirteen

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scientific laboratories, other research facilities, and

associated offices, parking lots, and utilities, within the

[Astronomy Precinct] constitutes urban uses inconsistent

with conservation district uses and/or detrimental to a

multiple use conservation concept for which a district

boundary amendment must be obtained.

The Kanaheles are not asking the Commission to issue a district boundary amendment to convert the Astronomy Precinct from a conservation district to an urban district. In fact, the Kanaheles made clear that they would oppose any district boundary amendment petition seeking such a reclassification.10

Instead, the Kanaheles are asking the Commission to determine what constitutes prohibited uses of conservation district lands via an interpretation of HRS § 205-2(e). As the Kanaheles’ counsel explained:

We’re asking you just to interpret 205 and say the

concentration of industrial research facilities on Mauna

Kea are appropriate uses or are appropriate within the

urban district or in an urban district as prescribed by

205-2 and not the conservation district. Further

industrial uses must comply with boundary amendment

procedures to reclassify those lands into the urban

district.

The Kanaheles sought this determination as a method for the Commission to enforce its prior districting of the Astronomy Precinct as a conservation district.11 At the October 10 In the declarations attached to the Kanaheles’ petition before the Commission, Kuʻulei Kanahele and Ahiena Kanahele both stated: “I would participate to strongly oppose a proposed boundary amendment to reclassify conservation district lands at the Maunakea [sic] summit into the Urban district.” 11 The dissent posits that the Commission possesses authority to consider the cumulative impacts of conservation district use permits (CDUPs) and determine whether the Astronomy Precinct is more appropriately classified as

25

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** 25, 2019 hearing on the Kanaheles’ petition before the Commission, the Kanaheles’ attorney stated: “We’re not seeking enforcement of anything except for [HRS chapter] 205.”12 The Kanaheles’ counsel acknowledged that “the legal effect of [the Kanaheles’] petition is to . . . force the State of Hawaiʻi or whoever might be considered the landowner of the land on which the telescopes sit to have to file a request for a [district] boundary amendment.” The Kanaheles’ counsel stated that in the event that a district boundary amendment petition is denied, the astronomy facilities “would either have to come down, or they would reapply and try to find another way to mitigate it better.” an urban rather than conservation district. The dissent cites to Lanihau Properties, LLC., No. A00-730, (Hawaiʻi Land Use Comm’n, 2003) in order to demonstrate this point. However, this argument is unavailing. In Lanihau Properties, a party with a property interest entitled to seek reclassification requested redistricting in order to develop a business park. Id. at 2, 7. In contrast, the Kanaheles explicitly stated that they are not seeking to reclassify lands. Rather, the Kanaheles are asking the Commission to determine what constitutes prohibited uses on conservation district land, and therefore to enforce the conservation district classification. The Commission does not have the authority to enforce uses on conservation district lands. See infra Section B(3)(a). As such, the dissent’s arguments in this regard are inapposite. 12 In the Kanaheles’ Reply to TIO’s Answering Brief, the Kanaheles argued HRS § 205-2(e) describes “uses of land that the LUC properly considers in determining and enforcing conservation district use boundaries.” (Emphasis added.)

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Moreover, as the Kanaheles acknowledged, the Kanaheles would use the district boundary amendment proceedings to protest the development of the Astronomy Precinct.13

In short, the Kanaheles requested the three declaratory rulings to enforce the Commission’s classification of the Astronomy Precinct as a conservation district and to protest the ongoing development of the Astronomy Precinct.

1. The Commission correctly determined that the Kanaheles

sought a declaratory order requiring a district

boundary amendment for the Astronomy Precinct.

The Kanaheles dispute the Commission’s finding that “[b]ased on the Petition, [the Kanaheles’] arguments and responses to questions by the Commissioners, and the testimony of the Petitioners, Petitioner’s [sic] seek a declaratory order from the Commission requiring that a district boundary amendment be obtained for the Property.” The Kanaheles contend they only “sought declaratory orders and not an order that a boundary amendment be obtained for the property,” and the requested declaratory orders would not compel UH to seek a district boundary amendment because UH would have the option to remove the astronomy facilities. 13 During the October 25, 2019 hearing before the Commission, Kuʻulei Kanahele stated: “we are asking for that district boundary amendment so we have the opportunity to protest.”

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However, the plain language of the Kanaheles’ petition requested a declaratory order that explicitly required a district boundary amendment. The Kanaheles’ third requested declaratory order would state that the current uses of the Astronomy Precinct “constitute[] urban uses inconsistent with conservation district uses and/or detrimental to a multiple use conservation concept for which a district boundary amendment must be obtained.” (Emphasis added.)

Consistent with the language of the third requested declaratory order, the Kanaheles consistently represented the requested declaratory relief would require a district boundary amendment to the Commission. At the October 25, 2019 hearing before the Commission, the Kanaheles admitted that “the legal effect of [the Kanaheles’] petition is to . . . force the State of Hawaiʻi or whoever might be considered the landowner of the land on which the telescopes sit to have to file a request for a boundary amendment.” The Kanaheles further explained that such a declaratory order by the Commission would create an enforcement requirement because, “by virtue of saying that those uses are outside or supposed to be in the urban district, that in itself, because the agencies are expected to comply, . . . would put them in a situation where, yes, they would have to do a [district] boundary amendment.” (Emphasis added.) The

28 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** Kanaheles also represented that a district boundary amendment must be filed and granted or else the astronomy facilities “would . . . have to come down.”

Because the plain language of the Kanaheles’ third requested declaratory order and their representations to the Commission make clear that the Kanaheles requested a declaratory order requiring a district boundary amendment, the Commission did not err by concluding the Kanaheles sought a declaratory order requiring a district boundary amendment be obtained.

Furthermore, the Kanaheles’ distinction that UH could simply remove the astronomy facilities is one without a difference. According to the Kanaheles, they did not seek a declaratory order requiring that a district boundary amendment be obtained because the Commission would only issue a declaratory ruling that a district boundary amendment must be obtained to continue existing uses “inconsistent with conservation district concepts.” Either way, the requested declaratory order would require a district boundary amendment, at which point UH would have two avenues to comply with the Commission’s determination: (1) UH could “voluntarily” request a district boundary amendment or (2) UH could comply through “removal of the industrial uses from the conservation district,” as the Kanaheles explained. The fact two avenues exist through

29 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** which compliance with the requested declaratory order is possible is irrelevant to the substance of the requested declaratory order. The Kanaheles’ requested declaratory relief would require a district boundary amendment in order for the astronomy facilities to continue operating. 2. The Commission correctly determined that it lacked

jurisdiction to issue the requested declaratory

orders.

The Kanaheles also argue “the LUC reversibly erred by ruling it lacked jurisdiction to issue declaratory orders on a matter not within its jurisdiction.” The Kanaheles argue that the Commission’s ruling: (a) “is inconsistent with the LUC’s own conclusion that it holds jurisdiction to issue the requested declaratory order”; (b) is invalid because it purports to alter and restrict HRS chapter 205; (c) is premised on incorrect legal conclusions; and (d) is premised on clear error.

a. The Commission possesses jurisdiction to

determine the boundaries of its jurisdiction.

The Kanaheles first challenge the Commission’s conclusion that:

The Commission has jurisdiction to issue this declaratory

order. HRS § 91-8, as implemented by the Commission’s

administrative rules, HAR [Hawaiʻi Administrative Rules]

§§ 15-15-98 through 15-15-104.1, authorize the Commission

to issue a declaratory order “as to the applicability of

any statutory provision or of any rule or order of the

commission to a specific factual situation.” The

Commission’s statutes, the applicability of which are put

at issue in this Petition, are those sections of HRS

Chapter 205 that govern the authority to reclassify land

and to govern the permitted uses on State Conservation

District Lands.

30 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** According to the Kanaheles, “LUC concedes it has jurisdiction to issue ‘this declaratory order’ and the Petition ‘put at issue’ the LUC’s statutes and rules,” so therefore the Commission’s “ruling that the Kanaheles requested a ruling on matters not administered or within the jurisdiction of the LUC must be incorrect.”

The Kanaheles misconstrue the Commission’s conclusion. The first sentence of the conclusion is: “The Commission has jurisdiction to issue this declaratory order” — i.e., the Commission has jurisdiction to enter a declaratory order concluding that it lacks jurisdiction. (Emphasis added.) This follows the axiom that a decision-making body always has authority to determine whether it has jurisdiction. See, e.g., State v. Brandimart, 68 Haw. 495, 497, 720 P.2d 1009, 1010 (1986) (“A court always has jurisdiction to determine whether it has jurisdiction over a particular case.”). If the decision- making body concludes it lacks jurisdiction, it may issue a decision stating as much. See id. The only prohibition is that the decision-making body “may not be able to maintain jurisdiction for the purpose of determining the merits of the case.” Id.

Moreover, although it is true that the Commission has the authority to issue “a declaratory order as to the

31

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** applicability of any statutory provision or of any rule or order of [LUC],” HRS § 91-8,14 this authority is not available when, for example, “[t]here is no longer a question of how the relevant laws . . . ‘apply.’” CARD, 114 Hawaiʻi at 156, 159 P.3d at 197. As discussed below, such is the case here. See infra Section B(3). Consequently, the declaratory ruling procedure is not available for determining the applicability of HRS chapter 205. See CARD, 114 Hawaiʻi at 156, 159 P.3d at 197.

b. The Commission’s ruling does not purport to alter

or restrict HRS chapter 205.

The Kanaheles next challenge the LUC Order by contending that the Commission improperly “attempt[ed] to modify, alter, or restrict the scope of HRS chapter 205.” The Kanaheles emphasize that HRS § 205-2 grants the Commission jurisdiction over “all land,” including “over the classification or reclassification of certain conservation district lands.”

But the fact that HRS §§ 205-2(a)(4) and 205-4 authorize the Commission to reclassify conservation district 14 HRS § 91-8 provides:

Any interested person may petition an agency for a

declaratory order as to the applicability of any statutory

provision or of any rule or order of the agency. Each

agency shall adopt rules prescribing the form of the

petitions and the procedure for their submission,

consideration, and prompt disposition. Orders disposing of

petitions in such cases shall have the same status as other

agency orders.

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** lands does not mean that the Commission can use its classification authority to enforce land uses within the Astronomy Precinct. Rather, the legislature vested such enforcement authority in the Department through HRS § 205-5(a). See HRS § 205-5(a) (“Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.”); HRS § 183C-3(7) (2011) (“The board and department shall . . . [e]stablish and enforce land use regulations on conservation district lands . . . .”). Had the legislature intended to grant the Commission any authority over the governance of conservation district lands, it could have done so. See, e.g., HRS § 205-5(b)-(c); HRS § 205-6(d) (2017). It did not. See generally HRS chapter 205. Insofar as this court “must read statutory language in the context of the entire statute,” it is the Kanaheles who cabin the scope of HRS chapter 205 by disregarding the powers granted to the Department through HRS § 205-5(a). See Gray v. Admin. Dir. of the Ct., 84 Hawaiʻi 138, 148, 931 P.2d 580, 590 (1997) (emphasis added) (quoting State v. Toyomura, 80 Hawaiʻi 8, 18, 904 P.2d 893, 903 (1995)).

c. The Commission’s ruling is not premised on

incorrect legal conclusions.

The Kanaheles also challenge the LUC Order for creating “a false equivalence between DLNR’s governance of the conservation district and the LUC’s jurisdiction to classify and

33 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** reclassify lands.” But it was the Kanaheles who articulated that equivalence by asking the Commission to use its classification power to determine what constitutes prohibited uses within the Astronomy Precinct and, in turn, to enforce the prior conservation district classification.

Under these circumstances, the LUC Order does not indicate that the Department’s granting of successive conservation district use permits precluded the Commission from reclassifying the Astronomy Precinct. Rather, the LUC Order simply recognized that the legislature delegated the authority to control land uses within conservation districts — and therefore the Astronomy Precinct — to the Department. Insofar as the legislature did not authorize the Commission to determine what constitutes prohibited uses of conservation district lands, the Commission’s use of its classification authority to govern the Astronomy Precinct would create the epitome of an administrative act “in excess of the statutory authority or jurisdiction of the agency.” See HRS § 91-14(g)(2); supra Section B(2)(b); infra Section (B)(3)(a).

d. The Commission’s ruling is not premised on clear

error.

The Kanaheles further challenge the LUC Order because the Commission denied the Kanaheles’ petition on the basis that “[t]he petitioner has requested a ruling on a statutory

34 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** provision not administered by the Commission . . . .” According to the Kanaheles, the requested declaratory rulings would only implicate HRS chapter 205 because “HRS chapter 205 puts the LUC in charge of amending land use district boundaries and DLNR does not have that power.” Again, however, the Kanaheles are not asking the Commission to reclassify the Astronomy Precinct from a conservation district to a different district. Instead, the Kanaheles are asking the Commission to determine what constitutes prohibited land uses within a conservation district and to thereby enforce the Astronomy Precinct’s conservation district designation. Insofar as the legislature delegated the authority to govern conservation district land uses to the Department under HRS § 205-5(a) and HRS chapter 183C, the Commission did not err in concluding that the Kanaheles “requested a ruling on a statutory provision not administered by the Commission.” 3. The Commission correctly interpreted CARD as

precluding the Kanaheles’ petition.

Lastly, the Kanaheles argue that the Commission improperly “interpreted CARD to require denial of the Kanaheles’ petition on the basis that [the Department] had already rendered a decision on the matter.” The Kanaheles insist that their petition does not run afoul of CARD because (a) it does not constitute an attempt to evade a prior decision; and (b) CARD

35 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** arose in a distinguishable procedural posture. The Kanaheles also contend that the Commission’s application of CARD “would cause an absurd situation in which any county or state agency decision concerning any land would foreclose the LUC’s power to reclassify that land or a larger area within which that land was located.” This point of error is meritless.

a. The Commission lacks jurisdiction to issue a

declaratory order to review the Department’s

already-made decisions.

Pursuant to HRS § 91-8:

Declaratory rulings by agencies. Any interested

person may petition an agency for a declaratory order as to

the applicability of any statutory provision or of any rule

or order of the agency. Each agency shall adopt rules

proscribing the form of the petitions and the procedure for

their submission, consideration, and prompt disposition.

Orders disposing of petitions in such cases shall have the

same status as other agency orders.

This court discussed the boundaries of agencies’ declaratory ruling authority in CARD, 114 Hawaiʻi 184, 159 P.3d 143. We explained:

As both the title (“Declaratory rulings by agencies”)

and the pertinent text (“a declaratory order as to the

applicability [of a statute, agency rule, or order]”) make

clear, the declaratory ruling procedure of HRS § 91-8 is

meant to provide a means of seeking a determination of

whether and in what way some statute, agency rule, or order

applies to the factual situation raised by an interested

person. It was not intended to allow review of concrete

agency decisions for which other means of review are

available. Reading HRS § 91-8 in a common sense fashion,

and bearing in mind the plain meaning of the term

“applicability,” it cannot seriously be maintained that the

procedure was intended to review already-made agency

decisions. For such decisions, . . . the agency has

already spoken as to the “applicability” of the relevant

law to the factual circumstances at hand — implicitly or

explicitly it has found the relevant legal requirements to

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be met. There is no longer a question of how the relevant

laws . . . “apply.”

Use of the declaratory ruling procedural device only

makes sense where the applicability of relevant law is

unknown, either because the agency has not yet acted upon

particular factual circumstances, or for some other reason

the applicability of some provisions of law have not been

brought into consideration. Id. at 196-97, 159 P.3d at 155-56.

In this case, the Department has already spoken to the applicability of the laws implicated by the Kanaheles’ petition. Pursuant to its statutory authority, the Department has determined that the astronomy facilities constitute permissible uses within the Astronomy Precinct.

According to the Kanaheles, CARD “prohibits using declaratory petitions to review specific decisions made by the same agency from which declaratory orders were requested.” Using this framework, the Kanaheles argue that their “petition could not constitute an attempt to evade a prior decision by the LUC or any other agency because no other agency has the authority to render declaratory rulings on the classification of lands into districts and the redistricting of lands.”

As a preliminary matter, the Kanaheles’ focus on the Commission’s reclassification powers is irrelevant. Again, the Kanaheles are not asking the Commission to reclassify the Astronomy Precinct from a conservation district into an urban district. The Kanaheles want a declaration that the astronomy facilities are not permitted land uses within a conservation

37 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** district. As such, the Kanaheles’ discussion of the Commission’s authority to amend district boundaries and reclassify lands is not relevant to their request for a declaration on permitted uses within conservation districts.

Additionally, the Kanaheles’ initial claim that CARD prohibits review of decisions “made by the same agency from which declaratory orders were requested” finds no footing in CARD. CARD’s key holding to this case is that HRS § 91-8 does not allow for review of already-made decisions because, in such scenarios, “[t]here is no longer a question of how the relevant laws . . . ‘apply.’” 114 Hawaiʻi at 197, 159 P.3d at 156. In other words, the declaratory ruling procedure is no longer available when a decision-making body with authority to address the question at issue provides an answer. See id. Such is the case here.

“An administrative agency can only wield powers expressly or implicitly granted to it by statute.” Morgan v. Planning Dep’t, Cnty. of Kauaʻi, 104 Hawaiʻi 173, 184, 86 P.3d 982, 993 (2004) (quoting TIG Ins. Co. v. Kauhane, 101 Hawaiʻi 311, 327, 67 P.3d 810, 826 (App. 2003)). The legislature did not grant the Commission any authority to restrict conservation district land uses; the legislature delegated that power to the Department. Pursuant to HRS § 205-5(a), “[c]onservation

38 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** districts shall be governed by the department of land and natural resources pursuant to chapter 183C.” Under HRS § 183C-3 (2011), the Department shall:

(1) Maintain an accurate inventory of lands classified

within the state conservation district by the state

land use commission, pursuant to chapter 205;

(2) Identify and appropriately zone those lands classified

within the conservation district;

(3) Adopt rules, in compliance with chapter 91 which shall

have the force and effect of law;

(4) Set, charge, and collect reasonable fees in an amount

sufficient to defray the cost of processing

applications for zoning, use, and subdivision of

conservation lands;

(5) Establish categories of uses or activities on

conservation lands, including allowable uses or

activities for which no permit shall be required;

(6) Establish restrictions, requirements, and conditions

consistent with the standards set forth in this chapter

on the use of conservation lands; and

(7) Establish and enforce land use regulations on

conservation district lands including the collection of

fines for violations of land use and terms and

conditions of permits issued by the department. (Emphasis added.)

In contrast, under HRS § 205-2,

(a) There shall be four major land use districts in

which all lands in the State shall be placed: urban, rural,

agricultural, and conservation. The land use commission

shall group contiguous land areas suitable for inclusion in

one of these four major districts. The commission shall

set standards for determining the boundaries of each

district, provided that:

. . . .

(1) In the establishment of the boundaries of

conservation districts, the “forest and water

reserve zones” provided in Act 234, section 2,

Session Laws of Hawaii 1957, are renamed

“conservation districts” and, effective as of

July 11, 1961, the boundaries of the forest and

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water reserve zones theretofore established

pursuant to Act 234, section 2, Session Laws of

Hawaii 1957, shall constitute the boundaries of

the conservation districts; provided that

thereafter the power to determine the boundaries

of the conservation districts shall be in the

commission.

. . . .

(e) Conservation districts shall include areas

necessary for protecting watersheds and water sources;

preserving scenic and historic areas; providing park lands,

wilderness, and beach reserves; conserving indigenous or

endemic plants, fish, and wildlife, including those which

are threatened or endangered; preventing floods and soil

erosion; forestry; open space areas whose existing

openness, natural condition, or present state of use, if

retained, would enhance the present or potential value of

abutting or surrounding communities, or would maintain or

enhance the conservation of natural or scenic resources;

areas of value for recreational purposes; other related

activities; and other permitted uses not detrimental to a

multiple use conservation concept. Conservation districts

shall also include areas for geothermal resources

exploration and geothermal resources development, as

defined under section 182-1. (Emphasis added.)

Reading these statutes in conjunction with one another, it is evident that the Commission lacks authority to prohibit land uses within the conservation districts. Under HRS § 205-2(a), the Commission “determine[s] the boundaries of the conservation districts.” (Emphasis added.) HRS § 205-2(e) identifies, in turn, areas and uses that “[c]onservation districts shall include[.]” While this language indicates what may be included within conservation districts, it does not grant the Commission authority to use the conservation district classification to exclude certain land uses from the conservation district boundaries. Had the legislature wished to

40 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** grant the Commission such power, it could have done so as it did with the agricultural and rural districts. For instance, the legislature dictates that “[w]ithin the agricultural district, all lands . . . shall be restricted to the following permitted uses.” HRS § 205-4.5(a) (2017). The legislature similarly mandates that “[u]nless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts.” HRS § 205-5(c). In these two cases, if an unauthorized land use is included within either the agricultural or rural district, either the governing county must terminate the use under HRS § 205-12 (2017) or the Commission could reclassify the land. At no point does HRS § 205-2(e) contain any of the limiting language used in HRS §§ 205-4.5 or 205-5(c). Nor does HRS § 205-2(e) identify any areas or land uses that the Commission may not include within conservation district boundaries. As such, HRS § 205-2(e) does not provide any basis by which the Commission can exclude land uses within the Astronomy Precinct, or be required to reclassify the Astronomy Precinct because such land uses are present.

Moreover, HRS chapter 183C and HRS § 205-5(a) establish that the Commission lacks authority to enforce land use restrictions within the conservation district boundaries. This is because HRS § 183C-3(7) authorizes the Department to

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** enforce conservation district land use restrictions. See also HRS § 205-12 (“The appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission”) (emphasis added).

Insofar as (1) it is the Department’s responsibility to identify permissible land uses within a conservation district and (2) the Department has determined that the astronomy facilities constitute permissible conservation district land uses, the Kanaheles may not use the declaratory ruling procedure to seek review of the Department’s prior determinations. See CARD, 114 Hawaiʻi at 196-97, 159 P.3d at 155-56. At this point, “[t]here is no longer a question of how the relevant laws . . . ‘apply.’” Id. The Commission is consequently barred from issuing any of the requested declaratory orders. See id.15 15 The Planning Office’s state land use district boundary reviews also align with the Department’s determination. Pursuant to HRS § 205-18, “[t]he office of planning and sustainable development may undertake a review of the classification and districting of all lands in the State” and “may initiate state land use boundary amendments which it deems appropriate to conform to these plans [the Hawaii state plan, county general plans, and county development and community plans].” The Planning Office completed its first state land use district boundary review in 1992. See 1992 Boundary Review. At that time, the Planning Office was aware that UH intended to construct thirteen telescopes within the Astronomy Precinct by 2000. 1992 Boundary Review at 23. These thirteen telescopes constitute the current uses the Kanaheles identify in requested declaratory orders one and three. The Planning Office did not recommend reclassifying the Astronomy Precinct from a conservation district into a different district at that time. 1992 Boundary Review at 121-27 (discussing recommended amendments). To the extent the Planning Office could have pointed to the thirteen telescopes and their associated facilities as a reason to reclassify the Astronomy Precinct, it did not. See id. Further, the 2022 Boundary Review was conducted long after

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b. The Kanaheles’ contention that they sought the

Commission’s interpretation of HRS chapter 205

rather than an enforcement order is irrelevant in

light of CARD.

Because the Commission is barred from issuing any of the requested declaratory orders, the Kanaheles’ contention that they merely “sought the LUC’s interpretation of HRS chapter 205 and implementing rules concerning certain uses of conservation lands and not an enforcement order assessing penalties or imposing injunctive relief for actual uses in violation of statutory requirements” is irrelevant. Because the sought declaratory orders would review the Department’s prior determinations, the Commission is barred from issuing the orders. See CARD, 114 Hawaiʻi at 196-97, 159 P.3d at 155-56.

c. CARD’s procedural posture is irrelevant.

The Kanaheles point out that “the procedural posture” of the present case and CARD “are entirely distinct.” However, the Kanaheles do not provide any explanation as to why this matters. Given that the Kanaheles do not articulate how or why the “entirely distinct” procedural postures must lead to different results, CARD’s procedural posture appears irrelevant. UH proposed the TMT and did not recommend reclassification of the Astronomy Precinct. Under these circumstances, the Planning Office appears to have implicitly adopted the Department’s determination that the current industrial research facility uses within the Astronomy Precinct are appropriate within the conservation district, and - contrary to the Kanaheles’ third requested declaratory order - are uses consistent “with conservation district uses” and not “detrimental to a multiple use conservation concept.”

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d. The LUC Order does not create an absurd result.

Finally, the Kanaheles protest that the Commission’s interpretation of CARD would preclude the Commission from ever reclassifying land after a county or the Department has made a decision concerning such land. The LUC Order has no such consequence.

Given that the Kanaheles did not ask the Commission to reclassify the Astronomy Precinct, the Commission did not conclude that it was precluded from ever reclassifying the Astronomy Precinct. Rather, the crux of the Commission’s decision was that it lacked authority to prohibit land uses within conservation districts. The Commission thereby determined that it lacked jurisdiction to exercise its declaratory ruling authority. 4. The Commission correctly interpreted Mauna Kea I and

Mauna Kea II.

The Kanaheles also argue that the “LUC incorrectly interpreted Mauna Kea I and Mauna Kea II” by concluding:

The Hawaiʻi Supreme Court has considered and ruled on

permitting and jurisdictional issues regarding Mauna Kea in

[sic] Mauna Kea Anaina Hou v. Bd. Of Land & Nat. Res., 136 Hawaii 376, 363 P.3d 224 (2015) and Matter of Conservation

District Use Application HA-3568 for the Thirty Meter

Telescope, 143 Hawaii 379, 431 P.3d 752 (2018). According to the Kanaheles, the Commission’s conclusion was erroneous because “[n]either Mauna Kea I nor Mauna Kea II passed

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** on the matter of the LUC’s jurisdiction to classify or reclassify lands within the conservation district.”

However, the Commission’s conclusion did not claim that either Mauna Kea I or Mauna Kea II passed on the Commission’s jurisdiction. The LUC Order simply stated that “[t]he Hawaiʻi Supreme Court has considered and ruled on permitting and jurisdiction issues regarding Mauna Kea[.]” The Commission therefore did not misinterpret Mauna Kea I or Mauna Kea II. Rather, the Kanaheles misread the LUC Order.

IV. CONCLUSION

This court’s role is to interpret the statutory scheme as enacted by the legislature. The dissent contends this opinion “eliminat[ed] . . . the Commission’s jurisdiction over conservation land bearing CDUPs granted by the Department.” Not so. This court has faithfully interpreted the relevant statutes and concluded the statutory scheme does not permit the Commission to enforce uses within a conservation district. This court did not, and indeed has no authority to, rewrite an existing statute. Rather, “[o]ur function is to interpret the statute [or statutory scheme] as it exists, not to indulge in judicial legislation in the guise of statutory construction.” Territory of Hawaii v. Shinohara, 42 Haw. 29, 34 (Haw. Terr. 1957). While the dissent appears to question the efficacy of

45 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** the statutory scheme to protect conservation district land, it is the legislature’s role, not ours, to amend existing law. See McIntosh v. Murphy, 52 Haw. 29, 39 469 P.2d 177, 182 (1970) (Kobayashi, J., dissenting); Yates v. United States, 574 U.S. 528, 570 (2015) (Kagan, J., dissenting) (“If judges disagree with Congress's choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.”).

For the foregoing reasons, the Kanaheles’ points of error lack merit, and the LUC Order is affirmed. Lance D. Collins /s/ Mark E. Recktenwald and Bianca Isaki for Appellants /s/ Paula A. Nakayama

/s/ Lisa W. Cataldo Miranda C. Steed (Patricia Ohara and Lori N. Tanigawa on the brief) for Appellee Land Use Commission, State of Hawaiʻi Jesse K. Souki and Joseph F. Kotowski, III, (Gary Y. Takeuchi also on the brief) for Intervenor-Appellee University of Hawaiʻi Ross T. Shinyama and J. Douglas Ing (Brian Kang and Summer H. Kaiawe also on the brief) for Intervenor-Appellee TMT International Observatory LLC

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