NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000717 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

MAUNA KEA AINAINA HOU, KEALOHA PISCIOTTA; 

PAUL K. NEVES; CLARENCE KU CHING; KALIKO KANAELE; 

CINDY FREITAS; WILLIAM FREITAS; LANNY ALAN SINKIN, 

Petitioners-Appellants, 

v. 

JOSHUA B. GREEN, M.D., Governor, State of Hawai‘i;1 

ANNE E. LOPEZ, Attorney General, State of Hawai‘i;2

DAWN N.S. CHANG, Chair, Board of Land and Natural Resources; 

RILEY SMITH, Board of Land and Natural Resources; 

DOREEN NĀPUA CANTO, Board of Land and Natural Resources; 

KAREN ONO, Board of Land and Natural Resources; 

AIMEE KELI‘I BARNES, Board of Land and Natural Resources; 

VERNON CHAR, Board of Land and Natural Resources; 

1 Pursuant to Hawai‘i Rules of Evidence (HRE) Rule 201 and Hawai‘i 

Rules of Appellate Procedure (HRAP) Rule 43(c)(1), we take judicial notice 

that Joshua B. Green, M.D. is the current Governor of the State of Hawai‘i, 

and he is automatically substituted as Respondent-Appellee in place of David 

Ige.

2 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial 

notice that Anne E. Lopez is the current Attorney General, State of Hawai‘i, 

and she is automatically substituted as Respondent-Appellee in place of Clare 

E. Connors.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000717

26-JUN-2024

07:57 AM

Dkt. 168 SO
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WESLEY "KAIWI" YOON, Board of Land and Natural, Resources;3 

MITCH ROTH, Mayor, County of Hawai‘i;4 

DAVID LASSNER, President, University of Hawai‘i; 

THIRTY METER TELESCOPE INTERNATIONAL OBSERVATORY (TIO), 

Respondents-Appellees 

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT 

(CIVIL NO. 19-1-0177) 

SUMMARY DISPOSITION ORDER 

(By: Nakasone, Presiding Judge, Circuit Court Judges To‘oto‘o and 

Kawashima, in place of Leonard, Acting Chief Judge, Hiraoka, 

Wadsworth, McCullen and Guidry, JJ., all recused) 

This is the third appeal arising out of challenges to 

Board of Land and Natural Resources (BLNR)'s approval of a 

Conservation District Use Permit (CDUP) for the construction of 

the Thirty Meter Telescope (TMT) on Mauna Kea.5 Following the 

Hawaiʻi Supreme Court's 2018 affirmance of BLNR's 2017 order 

granting the CDUP (2017 Order Granting CDUP), BLNR issued a 

notice authorizing TMT construction to proceed, which Appellants 

3 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial 

notice that Dawn N.S. Chang, Riley Smith, Doreen Nāpua Canto, Karen Ono, 

Aimee Keli‘i Barnes, Vernon Char, and Wesley "Kaiwi" Yoon are the current 

members of the Board of Land and Natural Resources, and they are 

automatically substituted as Respondents-Appellees in place of Suzanne Case, 

Stanley H. Roehrig, James A. Gomes, Thomas Oi, Samuel "Ohu" Gon III, and 

Christopher Yuen.

4 Pursuant to HRE Rule 201 and HRAP Rule 43(c)(1), we take judicial 

notice that Mitch Roth is the current Mayor for the County of Hawai‘i, and he 

is automatically substituted as Respondent-Appellee in place of Harry Kim.

5 The two prior appeals stemmed from the 2011 contested case 

hearing at issue in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res. (Mauna 

Kea I), 136 Hawaiʻi 376, 385, 363 P.3d 224, 233 (2015), and the 2016-2017 

contested case hearing at issue in Matter of Conservation Dist. Use 

Application HA-3568 (Mauna Kea II), 143 Hawaiʻi 379, 387, 431 P.3d 752, 760

(2018). 
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challenged via a petition for injunctive relief. This appeal 

arises out of the dismissal of the petition. 

Petitioners-Appellants Mauna Kea Ainaina Hou; Kealoha 

Pisciotta; Paul K. Neves; Clarence Ku Ching (Ching); Kaliko 

Kanaele; Cindy Freitas; William Freitas; and Lanny Alan Sinkin 

(collectively, Appellants) appeal from the: (1) "Order Granting 

Respondent State of Hawaii's Motion to Dismiss Petitioners' 

First Amended Petition for Declaratory Judgments, Preliminary 

and Permanent Injunction, Filed July 12, 2019, Filed July 29, 

2019"; (2) "Order Granting Respondent TMT International 

Observatory LLC's Motion to Dismiss First Amended Petition for 

Declaratory Judgments, Preliminary and Permanent Injunction 

Filed July 12, 2019, Filed July 29, 2019"; (3) "Order Granting 

Respondent Harry Kim, Mayor, County of Hawaiʻi's Motion to 

Dismiss Petitioners' First Amended Petition for Declaratory 

Judgments, Preliminary and Permanent Injunction, Filed July 12, 

2019, Filed July 29, 2019" (collectively, Orders Granting 

Dismissal); and (4) "Order Denying Petitioners' Motion for Leave 

to File Second Amended Petition, Filed August 5, 2019" (Order 

Denying Motion to Amend), all filed and entered by the Circuit 

Court of the Third Circuit (Circuit Court)6 on October 17, 2019.

On appeal, Appellants contend7 that the Circuit Court 

erred by (1) dismissing the petition by "applying res judicata

and collateral estoppel principles" to the Appellants' argument 

regarding "the applicability of the 1977 Mauna Kea Plan," and 

(2) denying Appellants' motion to amend the petition because the 

amendments would be futile. 

6 The Honorable Greg K. Nakamura presided.

7 We have restated and consolidated Appellants' points of error for 

clarity. 
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 Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the arguments advanced and the issues raised, we affirm. 

 Following the Hawaiʻi Supreme Court's affirmance of 

BLNR's 2017 Order Granting CDUP in Mauna Kea II, on June 19, 

2019, BLNR issued Respondent-Appellee TMT International 

Observatory LLC (TMT LLC) a notice authorizing TMT construction 

to proceed (Notice to Proceed). 

On July 12, 2019, Appellants filed a "First Amended 

Petition for Declaratory Judgments, Preliminary and Permanent 

Injunction" (Petition for Injunction) against RespondentsAppellees State of Hawaiʻi (State), BLNR, County of Hawaiʻi 

(County), the University of Hawaiʻi (UH), and TMT LLC 

(collectively, Appellees). Appellants requested the Circuit 

Court to find that Appellees "failed to comply with the 

requirement to post the security equivalent of the construction 

contract cost for the [TMT], as required by the 1977 Mauna Kea 

Plan," before initiating the TMT construction. 

On July 29, 2019, TMT LLC, the State, and the County 

all moved to dismiss the Petition for Injunction (collectively, 

Motions to Dismiss).8 TMT LLC, the State, UH, and the County 

argued that Appellants' claims were barred by res judicata and 

collateral estoppel because Appellants were parties to the 

second contested case hearing in Mauna Kea II, during which the 

applicability of the 1977 Mauna Kea Plan was already litigated. 

Appellants opposed the Motions to Dismiss. 

8 The State, County, and UH joined TMT LLC's Motion to Dismiss. 

The County joined the State's Motion to Dismiss.
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On August 6, 2019, Appellants filed a non-hearing 

Motion for Leave to File Second Amended Petition (Motion to 

Amend), requesting to add two new theories supporting their 

contention that security in the form of a performance bond was 

required under Hawaii Revised Statutes (HRS) § 103D-324 (HRS 

Chapter 103D amendment) and under the public trust doctrine 

(public trust amendment). 

On August 23, 2019, the Circuit Court conducted a 

hearing on the Motions to Dismiss and granted the motions, 

ruling that Appellants' claim alleging noncompliance with the 

required posting of a construction bond was barred "because of 

res judicata and collateral estoppel principles."9

On October 17, 2019, the Circuit Court filed its 

Orders Granting Dismissal and its Order Denying Motion to Amend 

concluding the two amendments would be "futile." The Circuit 

Court denied the HRS Chapter 103D amendment because the chapter 

"applie[d] to procurement contracts made by governmental bodies" 

and that "there [wa]s no allegation in the proposed [filing] 

that a 'governmental body' [wa]s entering into a contract for 

the construction of the [TMT]." The Circuit Court denied the 

public trust amendment because the Mauna Kea II footnote upon 

which Appellants relied, 143 Hawaiʻi at 402 n.29, 431 P.3d at 775 

n.29, "did not . . . impose a performance bond requirement based 

9 While the Motions to Dismiss were filed pursuant to Hawaiʻi Rules 

of Civil Procedure (HRCP) Rule 12(b)(6) for failure to state a claim upon 

which relief could be granted, the Circuit Court noted that both sides 

submitted materials that went outside of the pleadings, and considered the 

Motions to Dismiss as motions for summary judgment. See Wong v. Cayetano, 

111 Hawaiʻi 462, 476, 143 P.3d 1, 15 (2006) ("[A] motion seeking dismissal of 

a complaint is transformed into a [HRCP] Rule 56 motion for summary judgment 

when the circuit court considers matters outside the pleadings." (citation 

omitted)).
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upon public trust principles[,]" but rather, "left it to the 

discretion of the [BLNR] to determine what to require in order 

to assure site restoration at no cost to the State." Appellants 

timely appealed. 

(1) The Circuit Court did not err by granting summary 

judgment based on res judicata and collateral 

estoppel.10 

 "On appeal, the grant or denial of summary judgment is 

reviewed de novo." Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 

P.3d 701, 706 (2019) (citation omitted). "Summary judgment is 

appropriate if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to 

judgment as a matter of law." Id. (cleaned up). 

 Res judicata is reviewed de novo under the right/wrong 

standard. Dannenberg v. State, 139 Hawaiʻi 39, 50, 383 P.3d 

1177, 1188 (2016). "Res judicata prohibits the relitigation of 

all grounds . . . which might have been properly litigated in 

the prior action . . . ." Id. at 59, 383 P.3d at 1197 (citation 

omitted). 

Res judicata is applicable when: (1) the claim or cause 

of action in the present action is identical to the one 

decided in the prior adjudication; (2) there was a final 

judgment on the merits in the prior adjudication; and (3) 

the parties to the present action are the same or in 

privity with the parties in the prior action.[11] 

Id. (footnote added) (cleaned up). 

10 Appellants do not present any argument challenging the Circuit 

Court's application of collateral estoppel, and such challenge is waived. 

See HRAP Rule 28(b)(7) ("Points not argued may be deemed waived."). 

11 Appellants make no argument challenging their privity with the 

parties in the contested case for the 2017 Order Granting CDUP. We do not 

address it. See HRAP Rule 28(b)(7). 
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 Appellants argue that res judicata did not apply 

because the "two findings of fact made by the BLNR" in its 2017 

Order Granting CDUP were "insufficient to support the contention 

that the [bond] issue was fully and fairly litigated in the 

contested case"; that there were "no conclusions of law on the 

bond issue" in its Order Granting CDUP; and "[t]here [wa]s no 

final judgment on the question of the 1977 Plan's continued 

viability." Appellants also argue that they presented evidence 

and argument as to "whether later plans 'superseded' the 1977 

Plan," and as such, there were "fact disputes that should have 

foreclosed a [sic] summary judgment." 

 The record reflects the following pertinent findings 

of fact (FOFs) in the 2017 Order Granting CDUP: 

361. Petitioner Ching posited that the TMT Project has not taken 

proper steps to ensure funding of the project. Ching cites 

Section II(C) of the Mauna Kea Plan (1997), which provides that 

"[n]o application or any proposed facility shall have final 

approval without the applicant having first filed with [BLNR], 

adequate security equal to the amount of the contract to construct 

the telescope facilities, support facilities and to cover any 

other direct or indirect costs attributed to the project[.]" 

Ching argues that, to comply with the foregoing, a bond in the 

amount of the contract to construct the project (and ancillary 

facilities) must be posted before the CDUA [(Conservation District 

Use Application)] can be approved. Ex. B.19a at 6-7; Ex. B.17g; 

Vol. 29, Tr. 1/24/17 at 215:9-21. 

362. The Mauna Kea Plan (1977) is a "policy guide" and "a policy 

framework for the management of Mauna Kea." Ex. B.17g at 6, 16. 

The Plan indicates that it is "conceptual" and must be reviewed 

and updated as time goes on, and circumstances change. Id. at 16. 

It was the first "master plan" for Mauna Kea and consists of 17 

pages. It has obviously been superseded by the much more detailed 

and extensive planning efforts that are described elsewhere in 

these findings of fact. 

(Emphases added.) Appellants did not challenge these pertinent 

findings when they appealed the 2017 Order Granting CDUP to the 

Hawaiʻi Supreme Court in Mauna Kea II. See Mauna Kea II, 143 

Hawaiʻi at 421, 431 P.3d at 794 (Pollack, J., concurring) 
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(explaining that BLNR's finding that the "1977 Mauna Kea Plan 

has 'obviously been superseded by the much more detailed and 

extensive planning efforts'" was "not raised on appeal"); 

Eastern Savings Bank, FSB v. Esteban, 129 Hawaiʻi 154, 159, 296 

P.3d 1062, 1067 (2013) (stating that the remedy for 

"[u]nsatisfied litigants" is to "appeal through available 

channels[,]" but "they cannot, even if the first suit may appear 

to have been decided wrongly, file new suits" (citation 

omitted)); Kelly v. 1250 Oceanside Partners, 111 Hawaiʻi 205, 

227, 140 P.3d 985, 1007 (2006) (noting that unchallenged 

findings are binding). 

 The findings in the 2017 Order Granting CDUP support 

the Circuit Court's conclusion here, applying res judicata to 

bar the identical argument made by Appellants in this case that 

the 1977 Plan required a construction bond. See Dannenberg, 139 

Hawaiʻi at 59, 383 P.3d at 1197. The 2017 Order Granting CDUP 

affirmed in Mauna Kea II also constitutes "a final judgment on 

the merits in the prior adjudication[.]" Id. (citation 

omitted). Thus, the Circuit Court did not err by granting 

summary judgment in favor of Appellees based on res judicata and 

collateral estoppel. See Villaver, 145 Hawaiʻi at 34, 445 P.3d 

at 706. 

(2) The Circuit Court did not err by denying the 

Motion to Amend based on the futility of the 

amendments. 

 "Orders denying motions for leave to amend a complaint 

are reviewed for an abuse of discretion." Seki ex rel. Louie v. 

Hawaii Government Employees Ass'n, AFSCME Local No. 152, AFLCIO, 133 Hawaiʻi 385, 400, 328 P.3d 394, 409 (2014) (citation 

omitted). HRCP Rule 15(a)(2) provides, inter alia, that "leave 

[to amend] shall be freely given when justice so requires." 
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In the absence of any apparent or declared reason—such as 

undue delay, bad faith or dilatory motive on the part of 

the movant, repeated failure to cure deficiencies by 

amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, 

futility of amendment, etc.—the leave sought should, as the 

rules require, be "freely given." 

TRI-S Corp. v. W. World Ins. Co., 110 Hawaiʻi 473, 490, 135 P.3d 

82, 99 (2006) (emphasis added) (citation omitted). 

 Regarding Appellants' proposed HRS Chapter 103D 

amendment, Appellants argue that "HRS § 103D requires [TMT LLC] 

to post a surety[,]" as the "State may end up acquiring the TMT 

project"; and because "DLNR leased the land to [UH,]" which, in 

turn, subleased the land to TMT LLC, "the responsibility and 

costs to remove the TMT structures and restore the land will 

fall on the State." This argument lacks merit. 

 HRS § 103D-324(a)(1) (2012) requires a "performance 

bond . . . in an amount equal to one hundred per cent of the 

price specified in the contract[.]" HRS § 103D-102(a) (2012), 

entitled "Application of this chapter," states: "This chapter 

shall apply to all procurement contracts made by governmental 

bodies . . . ." (Emphasis added.) "Governmental body" is 

defined as "any department, commission, council, board, bureau, 

authority, committee, institution, legislative body, agency, 

government corporation, or other establishment or office of the 

executive, legislative, or judicial branch of the State, 

including the office of Hawaiian affairs, and the several 

counties of the State." HRS § 103D-104 (2012). 

 Here, Appellants acknowledge in their Opening Brief 

that TMT LLC is "a private corporation." HRS Chapter 103D only 

applies to procurement contracts by "governmental bodies." The 

Circuit Court did not abuse its discretion in denying the Motion 
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to Amend based on futility, and concluding that HRS Chapter 103D 

only "applies to procurement contracts made by governmental 

bodies[,]" and that "there is no allegation" by Appellants that 

"a 'governmental body' is entering into a contract for the 

construction of the [TMT]." See Seki ex rel. Louie, 133 Hawaiʻi 

at 400, 328 P.3d at 409; TRI-S Corp., 110 Hawai‘i at 490, 135 

P.3d at 99. 

 Regarding Appellants' proposed public trust amendment, 

Appellants argue that the Hawaiʻi Supreme Court in Mauna Kea II 

"identified" the construction bond "as necessary" and 

"requir[ed] [TMT LLC] to post a surety sufficient to guarantee 

funding for the restoration of the lands, should [TMT LLC] lack 

sufficient funds to do so." Appellants claim BLNR's issuance of 

the Notice to Proceed without requiring the construction bond 

breached BLNR's duty "to comply with all constitutional and 

public trust obligation [sic]." Appellants rely on footnote 29 

in Mauna Kea II to support their argument, which states: 

FOF 360 states that "[TMT LLC] has already received 

substantial funds and will undertake additional fundraising 

efforts once a decision has been made as to the project 

approval." Although the BLNR addressed funding of 

decommissioning after completion, it is unclear whether 

other than an agreement from [TMT LLC] to perform, the BLNR 

has adequately ensured that buildings or equipment will not 

be left behind and the areas used by TMT will be restored 

in the event full funding is not obtained for completion of 

construction or insufficient funds for decommissioning are 

available. Its duties as trustee require that it do so. 

The BLNR has discretion under Special Condition 43 to 

impose "[o]ther terms and conditions" on the CDUP. 

Therefore, the BLNR should ensure that the areas used by 

TMT will be restored to their natural states at no cost to 

the State, whether through requiring an appropriate 

performance bond or through imposing funding and/or other 

requirements. 

143 Hawaiʻi at 402 n.29, 431 P.3d at 775 n.29 (emphases added). 
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 The above language requires BLNR to impose terms and 

conditions on the CDUP to ensure proper restoration of the areas 

used by TMT at no cost to the State, due to BLNR's "duties as 

trustee." Id. The language, however, affords BLNR discretion 

to determine how this requirement should be satisfied, and 

suggests conditions as follows: "whether through requiring an 

appropriate performance bond or through imposing funding and/or 

other requirements." Id. (emphases added). The language does 

not inflexibly mandate a construction bond, as Appellants 

contend. We conclude that the Circuit Court did not abuse its 

discretion by denying the Motion to Amend based on futility, and 

by concluding that the Hawaiʻi Supreme Court's footnote "left it 

to the discretion of the [BLNR] to determine what to require in 

order to assure site restoration at no cost to the State" rather 

than "impos[ing] a performance bond requirement based upon 

public trust principles[.]" See Seki ex rel. Louie, 133 Hawaiʻi 

at 400, 328 P.3d at 409; TRI-S Corp., 110 Hawaiʻi at 490, 135 

P.3d at 99. 

 For the foregoing reasons, the (1) "Order Granting 

Respondent State of Hawaii's Motion to Dismiss Petitioners' 

First Amended Petition for Declaratory Judgments, Preliminary 

and Permanent Injunction, Filed July 12, 2019, Filed July 29, 

2019"; (2) "Order Granting Respondent TMT International 

Observatory LLC's Motion to Dismiss First Amended Petition for 

Declaratory Judgments, Preliminary and Permanent Injunction 

Filed July 12, 2019, Filed July 29, 2019"; (3) "Order Granting 

Respondent Harry Kim, Mayor, County of Hawaiʻi's Motion to 

Dismiss Petitioners' First Amended Petition For Declaratory 

Judgments, Preliminary and Permanent Injunction, Filed July 12, 

2019, Filed July 29, 2019"; and (4) "Order Denying Petitioners' 
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Motion for Leave to File Second Amended Petition, Filed 

August 5, 2019," all filed and entered by the Circuit Court of 

the Third Circuit on October 17, 2019, are affirmed. 

 DATED: Honolulu, Hawai‘i, June 26, 2024. 

On the briefs:

Gary C. Zamber, 

for Petitioners-Appellants. 

Lerisa L. Heroldt, 

Deputy Corporation Counsel 

for Respondent-Appellee MITCH 

ROTH, MAYOR, COUNTY OF HAWAI‘I 

William J. Wynhoff, 

Deputy Attorney General 

For Respondent-Appellee STATE 

OF HAWAI‘I 

Ross T. Shinyama, 

for Respondent-Appellee 

TMT INTERNATIONAL OBSERVATORY 

LLC

/s/ Karen T. Nakasone 

Presiding Judge 

/s/ Fa‘auuga To‘oto‘o 

Circuit Court Judge 

/s/ James S. Kawashima 

Circuit Court Judge