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NO. CAAP-20-0000011

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KAUA#I SPRINGS, INC., Petitioner-Appellant-Appellee, v.

PLANNING DEPARTMENT OF THE COUNTY OF KAUA#I; 

PLANNING COMMISSION OF THE COUNTY OF KAUA#I, and

COUNTY OF KAUA#I, Respondents-Appellees-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CIVIL NO. 18-1-0192 (JKW)

SUMMARY DISPOSITION ORDER

(By: Hiraoka, Presiding Judge, and Wadsworth and Guidry, JJ.)

In this secondary appeal, Respondents-AppelleesAppellants Planning Department of the County of Kaua#i (Planning

Department), Planning Commission of the County of Kaua#i

(Planning Commission), and County of Kaua#i (collectively

Appellants) appeal from the Second Amended Final Judgment

(Judgment), entered in favor of Petitioner-Appellant-Appellee

Kaua#i Springs, Inc. (Kaua#i Springs), on January 7, 2020, by the

Circuit Court of the Fifth Circuit (Circuit Court).1/ Appellants

also challenge the Circuit Court's Findings of Fact, Conclusions

of Law, Decision and Order (FOFs/COLs/Order), entered on

November 1, 2019. The FOFs/COLs/Order "reverse[d] and vacate[d]"

the Planning Commission's Findings of Fact, Conclusions of Law,

and Decision and Order (Planning Commission FOFs/COLs/Order),

issued on November 26, 2018.

1/ The Honorable Kathleen N.A. Watanabe pesided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000011

23-SEP-2024

10:16 AM

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On appeal, Appellants contend that: (1) "the Circuit

Court's [COLs] 5, 6, 7 and 8 are clearly wrong"; (2) "the Circuit

Court's [COLs] 4, 9, 10, 11 and 12 are clearly erroneous for lack

of sufficient factual support"; and (3) "the Circuit Court's

[FOFs] 19, 22, 23, 25, 27, and 28 are clearly erroneous in view

of the reliable, probative, and substantial evidence on the whole

record." 

For the reasons discussed below, we vacate and remand.

I. Background

This agency appeal has a long and complex procedural

history. The Hawai#i Supreme Court's published opinion in Kauai

Springs, Inc. v. Planning Commission of the Cnty. of Kaua#i, 133

Hawai#i 141, 324 P.3d 951 (2014), recounts the factual and

procedural background of the case through early-2014.

In brief, Kaua#i Springs filed an application with the

Planning Department in 2006 for a Use Permit, a Class IV Zoning

Permit, and a Special Permit to continue operating a spring water

bottling facility on a parcel of land within the County of Kaua#i

that was zoned for agricultural use (collectively, the Permits). 

The Planning Commission denied Kaua#i Springs' application. 

Kaua#i Springs appealed to the Circuit Court. On September 17,

2008, the Circuit Court issued findings of fact, conclusions of

law, and an order reversing in part and vacating in part the

Planning Commission order. The Circuit Court ruled that Kaua#i

Springs had met its burden for the Permits and ordered that they

be issued. On September 23, 2008, the Circuit Court entered

final judgment in favor of Kaua#i Springs and against the

Planning Commission. 

The Planning Commission appealed from the Circuit

Court's judgment to this court. On April 30, 2013, this court

published an opinion vacating the Circuit Court's judgment and

remanding the case to the Planning Commission with instructions. 

See Kauai Springs, Inc. v. Planning Commission of the County of

Kauai, 130 Hawai#i 407, 312 P.3d 283 (App. 2013). 

The supreme court granted certiorari and issued its

published opinion on February 28, 2014. See Kauai Springs, 133

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Hawai#i at 141, 324 P.3d at 951. The supreme court concluded

that this court erred in certain respects, but affirmed this

court's judgment to the extent it vacated the Circuit Court's

judgment. Id. at 179-181, 324 P.3d at 989-91. Specifically, the

supreme court held that the Planning Commission's findings of

fact and conclusions of law were not wrong, and its decision to

deny the Permits was thus not arbitrary and capricious. Id. at

179-80, 324 P.3d at 989-90. However, the supreme court remanded

the case to the Planning Commission with instructions to clarify

its findings and conclusions in the underlying case consistent

with the supreme court's opinion. See id. at 181, 324 P.3d at

991. 

On remand, the Planning Commission referred the case to

a hearings officer to "[r]eceive evidence consistent with the

. . . [s]upreme [c]ourt [o]pinion to supplement the record" and

to "[p]rovide an amended decision and order, based on the

additional evidence, back to the Planning Commission for its

consideration." On May 31, 2016, the hearings officer conducted

a contested case hearing during which the Planning Department and

Kaua#i Springs agreed that the Planning Commission had "reopened

a contested case hearing[,]" under which the Commission "was not

limited to clarifying its findings and conclusions" and could

receive "further evidence . . . to permit [Kaua#i Springs] to

establish that it presently meets the requirements for issuance

of the Permits, including public trust and the respective

requirements under each permit regime."2/ Subsequent to the

hearing, the record remained open for limited purposes; the

contested case was closed on September 12, 2017. 

On November 26, 2018, the Planning Commission entered

the Planning Commission FOFs/COLs/Order, which denied Kaua#i

Springs' application for the Permits. 

2/ We note that the supreme court did not instruct the Planning

Commission to reopen the proceeding to take additional evidence and to

determine anew whether Kaua#i Springs "presently," i.e., following the

submission and consideration of the additional evidence, met the requirements

for issuance of the Permits. That said, it does not appear that the Planning

Commission was legally precluded from doing so, as long as its new or amended

findings and conclusions clarified its prior findings and conclusions

consistent with the supreme court's opinion.

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On December 21, 2018, Kaua#i Springs filed a notice of

appeal in the Circuit Court seeking appellate review of the

Planning Commission FOFs/COLs/Order pursuant to Hawaii Revised

Statutes (HRS) § 91-14(b) (Supp. 2019). Following briefing and a

hearing, on November 1, 2019, the Circuit Court entered its

FOFs/COLs/Order, which vacated the Planning Commission

FOFs/COLs/Order and affirmatively directed the Planning

Department to grant Kaua#i Springs' application for the Permits. 

On January 7, 2020, the Circuit Court entered the Judgment.

II. Discussion

In their first and second points of error, Appellants

contend that the Circuit Court's COLs 5 through 8 are clearly

wrong, and that COL 4 and COLs 9 through 12 are factually

unsupported. In this secondary appeal, we apply the standards in

HRS § 91–14(g) to the Planning Commission's decision to determine

whether the Circuit Court was right or wrong in vacating the

decision.3/ Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114,

120, 424 P.3d 469, 475 (2018).

Appellants argue that the Circuit Court erred in

concluding that Kaua#i Springs satisfied the public trust

requirements for issuance of the Permits. We thus briefly review

those requirements before addressing the challenged COLs. 

A. The Public Trust Doctrine

The supreme court recently summarized the scope and

purposes of the public trust doctrine as follows: 

"The public trust doctrine applies to all water

resources without exception or distinction." [In re Water

Use Permit Apps. (Waiâhole I)], 94 Hawai#i [97,] 133, 9 P.3d

[409,] 445[ (2000)].

We have recognized four types of water uses, or

"purposes," protected by the state water resources trust: 

3/ In their third point of error, Appellants also challenge several

of the Circuit Court's FOFs. A circuit court reviewing an agency's decision

and order in a contested case under HRS § 91-14 acts as an appellate court; it

does not review the evidence in the agency record to make its own findings of

fact. Sierra Club v. Bd. of Land & Nat. Res., 154 Hawai#i 264, 284, 550 P.3d

230, 250 (App. 2024), cert. granted, No. SCWC-22-0000516, 2024 WL 3378462

(July 11, 2024). We decline to review the Circuit Court's FOFs and instead

analyze the issues presented by Appellants' arguments.

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(1) maintenance of waters in their natural state; (2)

domestic water use, in particular, drinking water; (3) the

exercise of traditional and customary Native Hawaiian water

rights; and (4) the reservation of water enumerated by the

Water Code. Kauai Springs, 133 Hawai#i at 172, 324 P.3d at

982 (first citing Waiâhole I, 94 Hawai#i at 136-37, 9 P.3d

at 448-50; and then citing In re Wai#ola[ O Moloka#i, Inc.],

103 Hawai#i [401,] 431, 83 P.3d [664,] 694[ (2004)]). We

rejected, on the other hand, private commercial uses as not

protected by the public trust. Waiâhole I, 94 Hawai#i at

138, 9 P.3d at 450. We have acknowledged the public trust

"may allow grants of private interests in trust resources

under certain circumstances"; nonetheless, it has "never

been understood to safeguard rights of exclusive use for

private commercial gain." Id.

Surface Water Use Permit Applications, Integration of Appurtenant

Rts. & Amends. to Interim Instream Flow Standards, 154 Hawai#i

309, 339, 550 P.3d 1167, 1197 (2024).

In Kauai Springs, the supreme court explained the

duties of the State in enforcing these public trust principles,

as well as the burden on the permit applicant, in the context of

this case. The court stated in part:

When an agency is confronted with its duty to perform

as a public trustee under the public trust doctrine, it must

preserve the rights of present and future generations in the

waters of the state." Waiâhole I, 94 Hawai#i at 141, 9 P.3d

at 453. . . . The agency measures the proposed use under a

"reasonable and beneficial use" standard, which requires

examination of the proposed use in relation to other public

and private uses. Id. at 161, 9 P.3d at 473. The agency

must apply a presumption in favor of public use, access,

enjoyment, and resource protection. Id. at 142, 154 n. 59, 9

P.3d at 454, 466 n. 59. 

The agency is duty-bound to place the burden on the

applicant to justify the proposed water use in light of the

trust purposes. [In re Contested Case Hearing on Water Use

Permit Application Filed by] Kukui (Molokai), Inc., 116

Hawai#i [481,] 490, 174 P.3d [320,] 329[ (2007)]. Permit

applicants must demonstrate their actual needs, and, within

the constraints of available knowledge, the propriety of

draining water from public streams to satisfy those needs. 

Waiâhole I, 94 Hawai#i at 162, 9 P.3d at 474. If there is a

reasonable allegation of harm to one of the uses protected

by the public trust, then the applicant must demonstrate

that there is no harm in fact or that any potential harm

does not preclude a finding that the requested use is

nevertheless reasonable and beneficial. Kukui (Molokai),

Inc., 116 Hawai#i at 499, 174 P.3d at 338. 

The applicant is "obligated to demonstrate

affirmatively that the proposed use will not affect a

protected use, in other words, the absence of evidence that

the proposed use would affect a protected use is

insufficient." Wai#ola O Moloka#i, 103 Hawai#i at 442, 83

P.3d at 705 (emphases in original). See also Kukui

(Molokai), Inc., 116 Hawai#i at 509, 174 P.3d at 348 ("The

Water Commission's conclusion that 'no evidence was

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presented' . . . that the protected use would be adversely

affected erroneously shifted the burden of proof.")

Additionally, the applicant must demonstrate the

absence of a practicable alternative water source. Waiâhole

I, 94 Hawai#i at 161, 9 P.3d at 473. The applicant's

proposed use must be denied if the applicant does not show

that there is no practicable alternative water source. Id.

at 161 n. 65, 9 P.3d at 473 n. 65. "Such a requirement is

intrinsic to the public trust." Id.; see also Kukui

(Molokai), Inc., 116 Hawai#i at 496, 174 P.3d at 335 ("The

agency cannot fairly balance competing interests in a scarce

public trust resource if it renders its decision prior to

evaluating the availability of alternative sources of

water."). 

Lastly, if the impact is found to be reasonable and

beneficial, then in light of the cumulative impact of

existing and proposed diversions on trust purposes, the

applicant must implement reasonable measures to mitigate

this impact. Waiâhole I, 94 Hawai#i at 143, 161, 9 P.3d at

455, 473. 

When an agency or other deciding body considers an

application for permits under circumstances that requires

the deciding body to perform as a public trustee to protect

a public trust resource, the agency or other deciding body

must make findings sufficient to enable an appellate court

to track the steps that the agency took in reaching its

decision. Kilauea Neighborhood Ass'n[ v. Land Use Comm'n],

7 Haw. App. [277,] 230, 751 P.2d [1031,] 1034[ (1988)]

. . . . 

. . . . 

Under the foregoing principles and purposes of the

public trust, it is manifest that a government body is

precluded from allowing an applicant's proposed use to

impact the public trust in the absence of an affirmative

showing that the use does not conflict with those principles

and purposes. Therefore, the applicant is "obligated to

demonstrate affirmatively that the proposed use will not

affect a protected use," Wai#ola O Moloka#i, 103 Hawai#i at

442, 83 P.3d at 705 (emphases omitted). In other words,

"the absence of evidence that the proposed use would affect

a protected use is insufficient." Id. (emphasis added). 

Kauai Springs has asserted "the public trust doctrine

imposes a duty to assess, but does not empower an agency to

deny an application simply because it claims it lacks

information within its power to obtain, thus shifting the

burden to the applicant." However, contrary to Kauai

Springs' assertion, a lack of information from the applicant

is exactly the reason an agency is empowered to deny a

proposed use of a public trust resource.

Kauai Springs, 133 Hawai#i at 173-74, 324 P.3d at 983-84

(original brackets omitted).

With these principles in mind, we address Appellants'

contentions.

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B. The Challenged COLs

Appellants first contend that the Circuit Court's COLs

5 through 8 are clearly wrong. These COLs state:

5. There has been no actual evidence to indicate

that [Kaua#i Springs'] property and/or the water that flows

through [Kaua#i Springs'] property, was ever used by Native

Hawaiian practitioners. See In re Conservation Dist. Use

Application (CDUA) HA-3568, 431 P.3d 752, 769-70 (Haw.

2018).

6. There has been no specific findings of fact and

conclusions of law by the Planning Department or the

Planning Commission "identifying (1) the scope of valued

cultural, historical or natural resources in the relevant

area, (2) the extent to which those resources will be

affected or impaired, and (3) any feasible actions to be

taken by the agency to protect Native Hawaiian rights that

are found to exist at the relevant area." In re

Conservation Dist. Use Application (CDUA) HA-3568, 431 P.3d

752, 769-70 (Haw. 2018).

7. The reservation of water enumerated by the State

Water Code, which generally refers to: (i) the reservation

of sufficient water for current and foreseeable domestic,

stock water, aquaculture and irrigation activities on lands

leased to native Hawaiians pursuant to the HHCA, (ii) the

reservation of appurtenant water rights of kuleana and taro

lands, and (iii) those traditional and customary rights

otherwise assured under the code (See In re W[ai#]ola O

Moloka[#]i, Inc., 103 Haw[ai#i] 401, 431 (2004)) will not be

affected by [Kaua#i Springs'] proposed use.

8. Therefore, [Kaua#i Springs'] proposed use is

consistent with the four (4) protected trust purposes

enumerated by the Hawaii Supreme Court in Kauai Springs,

Inc. v. Planning Comm'n of Cty of Kauai, 133 Haw. 141,

(2014), to wit: (i) the maintenance of waters in their

natural state; (ii) the protection of domestic water use;

(iii) the protection of water in the exercise of Native

Hawaiian and traditional and customary rights; and (iv) the

reservation of water enumerated by the State Water Code.

COLs 5 and 6, when read together with COLs 7 and 8,

appear to conclude that Kaua#i Springs met its burden of

demonstrating that its proposed water use will not affect the

protected use of water in the exercise of Native Hawaiian and

traditional and customary rights, because (1) there was "no

actual evidence to indicate that [Kaua#i Springs'] property,

and/or the water that flows through [Kaua#i Springs'] property,

was ever used by Native Hawaiian practitioners"; and (2) the

Planning Commission did not properly conduct an analysis under Ka

Pa#akai O Ka #Aina v. Land Use Comm'n, 94 Hawai#i 31, 7 P.3d 1068

(2000), consistent with the supreme court's ruling in In re

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Conservation Dist. Use Application HA-3568, 143 Hawai#i 379, 431

P.3d 752 (2018). 

So read, COLs 5 through 8 are clearly wrong in their

application of the legal standards set forth in Kauai Springs. 

"If there is a reasonable allegation of harm to one of the uses

protected by the public trust" – here, the use of water in the

exercise of Native Hawaiian and traditional and customary rights

– "then the applicant must demonstrate that there is no harm in

fact or that any potential harm does not preclude a finding that

the requested use is nevertheless reasonable and beneficial. 133

Hawai#i at 173, 324 P.3d at 983 (emphasis added) (citing Kukui

(Molokai), Inc., 116 Hawai#i at 399, 174 P.3d at 338). "The

applicant is obligated to demonstrate affirmatively that the

proposed use will not affect a protected use, in other words, the

absence of evidence that the proposed use would affect a

protected use is insufficient." Id. (internal quotation marks

and brackets omitted; some emphasis added) (quoting In re Wai#ola

O Moloka#i, 103 Hawai#i at 442, 83 P.3d at 705).

Here, the Planning Commission concluded that "a

reasonable allegation of harm was evidenced in the record" in

part by testimony that "raised concerns over the resulting harm

to Native Hawaiian traditional and customary rights and the

maintenance of waters in [their] natural state that may sustain

downstream flora, fauna, and riparian and coastal ecosytems." 

Planning Commission COLs 60-61. The Planning Commission

summarized some of this testimony in COL 62 and there is more in

the record. The Planning Commission further concluded that

"[Kaua#i Springs] presented no evidence to demonstrate that there

is no harm in fact to the exercise of Native Hawaiian and

traditional and customary rights or the maintenance of waters in

[their] natural state, or that the requested use was nevertheless

reasonable and beneficial." Planning Commission COL 63. 

Substantial evidence supported the Planning

Commission's COLs 60-63 (as well as the related FOFs) and they

reflect an application of the correct legal standard. The

Circuit Court did not expressly rule otherwise. Instead, the

Circuit Court erroneously concluded that Kaua#i Springs met its

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burden based on an absence of evidence that Native Hawaiian

practitioners ever used Kaua#i Springs' property or the water

that flowed through it, and the absence of a related Ka Pa#akai

analysis. These conclusions do not reflect application of the

correct legal standard, as set forth in Kauai Springs.4/ See also

Wai#ola O Moloka#i, 103 Hawai#i at 442, 83 P.3d at 705 (where

intervenor Native Hawaiians presented evidence that they

traditionally and customarily gathered food and fish along the

Kamiloloa shoreline and that a private developer's proposed well

and related pumping would significantly reduce groundwater

discharge into the ocean, thereby adversely affecting the limu

growth and fish populations, the developer "was obligated to

demonstrate affirmatively that the proposed well would not affect

native Hawaiians' rights; in other words, the absence of evidence

that the proposed use would affect native Hawaiians' rights was

insufficient to meet the burden imposed upon [the developer] by

the public trust doctrine . . . ."); Kukui (Molokai), Inc., 116

Hawai#i at 509, 174 P.3d at 348 (where intervenors contended that

a private landowner's proposed diversion of well water could

result in a reduction of marine life that would diminish their

ability to practice their traditional and customary native

Hawaiian gathering rights, even if their access was not impaired,

"the Commission's conclusion that 'no evidence was presented' to

suggest that the rights of native Hawaiians would be adversely

affected erroneously shifted the burden of proof to [the

intervenors]"). COLs 5 through 8 are clearly wrong. 

Furthermore, because Kaua#i Springs did not meet its

burden under the public trust doctrine, COLs 11 and 125/ are, by

4/ We further conclude that although the Planning Commission was

required to "make findings sufficient to enable an appellate court to track

the steps that the agency took in reaching its decision[,]" Kauai Springs, 133

Hawai#i at 173, 324 P.3d at 983, it was not required to conduct a complete Ka

Pa#akai analysis in this context, where Kaua#i Springs failed to meet its

affirmative burden to demonstrate that its proposed use would not affect the

protected use of water in the exercise of Native Hawaiian and traditional and

customary rights, and the Commission denied the Permits on that basis.

5/ COLs 11 and 12 state:

11. [Kaua#i Springs's] proposed use of the water

flowing in the Waihohonu Stream is a reasonable, beneficial

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extension, also wrong. We need not reach Appellants' remaining

contentions regarding COLs 4, 9, and 10.

III. Conclusion

For the reasons discussed above, the January 7, 2020

Second Amended Final Judgment entered by the Circuit Court of the

Fifth Circuit is vacated. The case is remanded to the Circuit

Court for entry of judgment in favor of Respondents-AppelleesAppellants Planning Department of the County of Kaua#i, Planning

Commission of the County of Kaua#i, and County of Kaua#i, and

against Petitioner-Appellant-Appellee Kaua#i Springs, Inc., and

for further proceedings consistent with this summary disposition

order.

DATED: Honolulu, Hawai#i, September 23, 2024.

On the briefs:

Mark L. Bradbury,

Deputy County Attorney,

County of Kaua#i,

for Respondents-AppelleesAppellants.

Gregory H. Meyers

(Meyers & Meyers LLC)

for Petitioner-AppellantAppellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Kimberly T. Guidry

Associate Judge

and efficient use of Kauai's water for the benefit of the

public.

12. Given that the Waihohonu Stream is not otherwise

being used by any person or entity, there is no cumulative

impact of [Kaua#i Springs's] proposed use on the public

trust purposes."

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