Friday | October 20, 2017
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High court says BLNR did not need to grant contested case hearing

The state’s top court has rejected a Hawaii Island councilwoman’s request to protest the extension of a lease of state land to Parker Ranch.

Margaret Wille first appealed the Board of Land and Natural Resources’ adding an extra 20 years to three Parker Ranch leases on land that abuts Wille’s own property in 2011, after the land board approved the ranch’s request. Wille, who was elected to the council in 2012 to represent the Kohala District, said she did so on the grounds that state law requires the land board to consider public access before taking action regarding any public lands. The land board did not consider public access prior to approving the extensions, she claimed in court filings.

Three state Supreme Court justices — Chief Justice Mark Recktenwald, Paula A. Nakayama and Sabrina S. McKenna — ruled Wednesday against Wille’s request that the high court order a lower court to review Wille’s appeal. Their opinion did not include any discussion or argument, merely affirming the Intermediate Court of Appeals’ April rejection of Wille’s appeal of a 3rd Circuit Court decision.

Two Supreme Court justices, Simeon R. Acoba Jr. and Richard W. Pollack, filed a dissenting opinion, indicating they supported further review of the case.

“Inasmuch as Wille was an individual vindicating the public trust before the BLNR … she had a valid ‘property interest,’” the justices said. “Therefore, she was entitled as a matter of due process of law to a contested case hearing before the BLNR.”

Wille said Friday she was trying to get the court to enforce rights that exist, but for which the public apparently has no remedy if authorities deny.

“As (3rd Circuit) Judge (Elizabeth) Strance said, ‘Margaret, we’ve enforced these rights to the sea, but we’ve never enforced these rights to the forest,’” Wille said. “That’s why I’m here.”

Wille said she has 90 days to decide whether she will appeal to the U.S. Supreme Court. She said she would prefer to see Department of Land and Natural Resources officials sit down with her and come up with a plan to create a trail. Her vision, she said, was a trail for which access was allowed after members of the public took a class, creating a bit of stewardship for the trail.

“Here is all this public land, let’s open it to the public,” Wille said.

Wille attended land board meetings in 2011, presenting testimony in opposition to the lease extensions, according to court records. She then filed petitions asking for a contested case hearing, noting her land’s location right next to one of the leased parcels, saying she wanted access to the land “to hike for pleasure and health.”

The land board unanimously denied the contested case hearing petition in May 2011, prompting Wille to appeal the case in 3rd Circuit Court, which eventually ruled the court did not have jurisdiction. The Intermediate Court of Appeals in April affirmed that opinion.

“We conclude there is no statutory or rule-based requirement for the BLNR to hold a hearing on the extension of Parker Ranch’s leases,” ICA justices wrote in their ruling. “Moreover, nothing in the remainder of (the cited portions of Hawaii law) mandate a hearing on pasture leases.”

The law does lay out other circumstances in which hearings are required, including when leasing government-owned Hawaiian fishponds and water rights, before canceling a residential leasehold, before amending height, density or use restrictions imposed on certain leases or before entering or renewing any lease of public land to renewable energy producers, the ruling said. BLNR also must hold public hearings before designating an area a geothermal resources subzone.

The law does require BLNR to establish “a reasonable rights-of-way” before disposing of public lands, justices wrote, but that portion of the law does not mention hearings of any kind.

“Finally, our courts have never held that an individual’s status as the beneficiary of the ‘public trust’ constitutes a cognizable property interest warranting due process protection,” ICA justices wrote.