HAWSCT: Supreme Court does not have Jurisdiction over Water Commission Appeals after July 1, 2006.

In In the Matter of Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waiahole Ditch Combined Contested Case Hearing, 113 Haw. 52 (2006), the HAWSCT held that an appeal from the Commission on Water Resource Management (“Water Commission”) are made to the Intermediate Court of Appeals (“ICA”) not the supreme court.

The instant case is an appeal filed pursuant to HRS § 174C-60 (1993), which authorizes an appeal “to the supreme court” of the Water Commission's final decision and order in a contested case. Prior to Act 202 (2004), the supreme court had jurisdiction over HRS § 174C-60 appeals. However, Act 202 changed Hawaii’s judicial appeal process to require that all appeals from trial courts and administrative agencies be submitted to the ICA subject to review by the supreme court only through (1) transfer by the ICA or (2) application for a writ of certiorari. To conform to Act 202, the legislature amended fifty-three HRS sections that authorized appeals from courts and agencies; however, it did not amended HRS § 174C-60 that authorizes an appeal from a Water Commission case "to the supreme court."

The court cured the perceived inconsistency by invoking HRS § 602-57(1) (Supp. 2005), which states that "[n]otwithstanding any other law to the contrary," the intermediate appellate court has jurisdiction over appeals from "any . . . agency." Thus the court reasoned as follows:

Pursuant to the principle of statutory construction of amendment by implication, the legislature will be held to have changed a law that it did not have under consideration while enacting a later law when "the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together." 1A Norman J. Singer, Statutes and Statutory Construction, § 22:13 (6th ed. 2002). HRS § 174C-60 (1993) is inconsistent with and cannot stand together with HRS §§ 602-5 and 602-57, as amended by Act 202, (6) and is deemed amended by implication, effective July 1, 2006, to authorize appeals from the Water Commission to the intermediate appellate court, not to the supreme court.

Interestingly, HRS § 174C-60 was not amended during the recent legislative session.