Wednesday, July 14, 2010

HSCT Extends Enforcement of Hawaii's Land Use Laws to Private Citizens

The Hawaii Supreme Court's ("HSCT") recent decision in County of Hawaii v. Ala Loop Homeowners, July 9, 2010, holds that complainant had a private right of action under article XI, section 9 of the Hawai'i Constitution to enforce its HRS chapter 205 (Hawaii's land use law) claims against a landowner.

The decision abrogates the ICA’s decision in Pono v. Molokai Ranch, Ltd., 119 Hawai'i 164 (2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008).  In Pono, the ICA held that “private citizens do not have a private right of action to enforce the provisions of HRS chapter 205 and, therefore, lack standing to invoke a circuit court’s jurisdiction to determine their claims to enforce Chapter 205.” (Emphasis added.)

The HSCT opined that the Pono court failed to look at whether any of Hawaii's constitutional provisions provided a private right of action to enforce HRS chapter 205. In particular, article XI, section 9 of the Hawai'i Constitution provides as follows:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
The HSCT determined that this constitutional provision provides both substantive and procedural rights.  It then concluded that (1) article XI, section 9 applies to HRS chapter 205 because it is a "law[] relating to environmental quality"; (2) article XI, section 9 is self executing; and (3) the legislature did not limit or restrict the ability of private persons to enforce the provisions of HRS chapter 205.

The impact of this decision is far reaching. The broad interpretation of article XI, section 9 potentially expands the causes of action under various, as yet identified, "environmental quality" statutes. This will have an exponential effect on the number of plaintiffs' law suits. However, while creating more causes of action, the opinion does not change the requirements for establishing standing.  Standing must be established regardless of the existence of new and additional causes of action cognizable in Hawaii's courts.

A copy of the opinion is posted at

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