153 Hawai‘i 76
526 P.3d 601
FLORES-CASE ‘OHANA, Plaintiff-Appellant,
v.
UNIVERSITY OF HAWAI‘I, Defendant-Appellee.
SCRQ-22-0000118
Supreme Court of Hawai‘i.
March 15, 2023
Ashley K. Obrey, Daylin-Rose H. Heather, David Kauila Kopper, for Plaintiff-Appellant Flores-Case ‘Ohana.
Joseph F. Kotowski, III, Honolulu, for Defendant-Appellee University of Hawai‘i.
David D. Day, Kimberly T. Guidry, Honolulu, for Amicus Curiae, Attorney General of Hawai‘i.
RECKTENWALD, C.J., AND WILSON, J., WITH McKENNA, J., CONCURRING IN PART AND DISSENTING IN PART1
NAKAYAMA AND EDDINS, JJ., WITH McKENNA, J., CONCURRING IN PART AND DISSENTING IN PART
OPINION BY RECKTENWALD, C.J.
I. INTRODUCTION
In this case, a Native Hawaiian family challenges the constitutionality of administrative rules governing access to Mauna Kea's summit under article XII, section 7 of the Hawai‘i Constitution. The Circuit Court of the Third Circuit reserved the following questions to us pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 15 (2018), which we accepted:
In a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawai‘i State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, Section 7? If so, what standards govern its application?
In answering reserved questions, we apply the same principles we utilize in answering certified questions from federal courts. Specifically, "[t]his court may reformulate the relevant state law questions as it perceives them to be, in light of the contentions of the parties." See
Pac. Radiation Oncology, LLC v. Queen's Med. Ctr. , 138 Hawai‘i 14, 16, 375 P.3d 1252, 1254 (2016) (quotation marks omitted) (quoting Allstate Ins. Co. v. Alamo Rent–A–Car, Inc. , 137 F.3d 634, 637 (9th Cir. 1998) ). We see no reason why the framework applied to certified questions from federal courts would not apply to reserved questions from "circuit court, the land court, the tax appeal court [or] any other court empowered by statute." See HRAP Rule 15(a).
Accordingly, we "reformulate the question so that a negative answer to the first [reserved] question will not preclude us from answering the second [reserved] question." See Pac. Radiation Oncology, LLC , 138 Hawai‘i at 16, 375 P.3d at 1254. We also "reformulate the question" to remove any confusion about what standard applies to constitutional challenges arising from article XII, section 7. See id. As we explain, the standard does not require, as the circuit court's reserved questions imply, that plaintiffs must "prove that the rules are [un]reasonable and [ ] unduly limit the constitutional rights conferred in Article XII, Section 7."
Therefore, the reformulated reserved questions are as follows: (1) In a challenge to the constitutionality of administrative rules based on a violation of article XII, section 7 of the Hawai‘i Constitution, does the burden of proof shift to the government defendant? (2) What standard governs a challenge to the constitutionality of an administrative rule based on an alleged violation of article XII, section 7?
First, in Part IV(A), we hold that the burden does not shift to the government agency, and instead remains with the challenging party, in constitutional challenges to administrative rules arising from article XII, section 7. In general, the party challenging the constitutionality of an administrative rule bears the burden of proof. This longstanding general rule governs absent an exception, which we do not make today.
Second, in Part IV(B), we determine that the Ka Pa‘akai framework applies to rulemaking in addition to contested case hearings. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm'n , 94 Hawai‘i 31, 7 P.3d 1068 (2000), as amended (Jan. 18, 2001). There is no principled basis to exempt agency rulemaking from the State's constitutional obligations under article XII, section 7. In Ka Pa‘akai , we recognized that article XII, section 7 of the Hawai‘i Constitution "places an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights" during contested case hearings. Id. at 45, 7 P.3d at 1082 (emphasis added). That "affirmative duty" applies during rulemaking as well. See id.
Third, in Part IV(C) and consistent with the Ka Pa‘akai framework, we hold that agencies must engage in a contemporaneous analysis of the relevant factors prior to adopting a rule. That analysis should identify Native Hawaiian traditional and customary rights or practices affected by the proposed rule, if any, consider the scope and extent to which those rights or practices will be impaired, and explain how the proposed rule reasonably protects those rights and practices as balanced with the State's own regulatory right.
Fourth, in part IV(D), we hold that to succeed in an article XII, section 7 constitutional challenge to administrative rules, a plaintiff must show: (1) the agency failed to adequately consider "the identity and scope of" Native Hawaiian traditional and customary rights affected by the rule, if any; or (2) the agency failed to adequately consider "the extent to which" Native Hawaiian traditional and customary rights "will be affected or impaired by the [rule]"; or (3) the rule failed to " reasonably protect " Native Hawaiian traditional and customary rights, "if they are found to exist," as balanced with the State's own regulatory right. See id. at 47, 7 P.3d at 1084 (emphasis added). The test sets forth both the steps agencies must take prior to promulgating rules and the standard by which rules will be judged under article XII, section 7. This test necessarily requires agencies to consider a rule's impact on Native Hawaiian traditional and customary rights so that a court may determine whether that analysis and the rule passes constitutional muster.
As we explained in Ka Pa‘akai , "[r]equiring these minimal prerequisites facilitates precisely what the 1978 Constitutional Convention
delegates sought: ‘badly needed judicial guidance’ and the ‘enforcement by the courts of these rights[.]’ " Id. at 50, 7 P.3d at 1087 (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 640 (1980)). We apply the Ka Pa‘akai framework and its requirement of contemporaneous consideration of Native Hawaiian rights to administrative rulemaking because, if not, an agency's "promise of preserving and protecting customary and traditional rights would be illusory absent [consideration of] the extent of their exercise, their impairment, and the feasibility of their protection." Id. Put simply, today we hold the State and its agencies to the promise made in 1978: "The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." Haw. Const. art. XII, § 7 (emphasis added).
II. BACKGROUND
In 2009, the legislature passed Act 132,2 which empowered the University of Hawai‘i (UH) to promulgate administrative rules governing access to the summit of Mauna Kea.3 2009 Haw. Sess. Laws Act 132, § 1 at 362-65. Act 132 sought to "clarify and add certainty to the law relating to" UH's stewardship of Mauna Kea "by granting express authority to [UH] to adopt rules relating to public and commercial activities permitted or occurring on the Mauna Kea lands." Id. at 362. The law provided that "[a]ccess for traditional and customary native Hawaiian cultural and religious purposes shall be accommodated." Id.
UH did not formally draft administrative rules governing access to the summit of Mauna Kea until 2018. That August, UH circulated a notice of proposed rulemaking and, in September, held public hearings on O‘ahu, Maui, and the Island of Hawai‘i. After receiving comments, UH circulated a new draft of the rules for comment.4 A second round of public hearings took place in April 2019.5 The final administrative rules were adopted by a unanimous vote of the UH Board of Regents on November 6, 2019. And on January 13, 2020, Governor David Ige signed the administrative rules into law. See Hawai‘i Administrative Rules (HAR) § 20-26, et seq. (2020) (hereinafter "Chapter 20-26").
On June 29, 2020, Plaintiff-Appellant Flores-Case ‘Ohana (FCO)6 filed a complaint for declaratory and...
