Opinion
SCRQ-22-0000118
03-15-2023
FLORES-CASE ‘OHANA, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI‘I, Defendant-Appellee.
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.
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 PART
Chief Justice Recktenwald, joined by Justices McKenna and Wilson, writes for a majority of the court in Parts II, III, IV(A), IV(B), and IV(D). Justice McKenna does not join Chief Justice Recktenwald as to Parts I and IV(C).
NAKAYAMA AND EDDINS, JJ., WITH McKENNA, J., CONCURRING IN PART AND DISSENTING IN PART
OPINION BY RECKTENWALD, C.J.
[153 Hawai'i 78]
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
[153 Hawai'i 79] 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
[153 Hawai'i 80] 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, which empowered the University of Hawai‘i (UH) to promulgate administrative rules governing access to the summit of Mauna Kea. 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.
Act 132 is codified at Hawai‘i Revised Statutes (HRS) §§ 304A-1901 to -1905 (2020).
Specifically, Act 132 granted UH rulemaking authority over "Mauna Kea lands" – that is:
the lands that [UH] is leasing from the board of land and natural resources, including the Mauna Kea Science Reserve, Hale Pohaku, the connecting roadway corridor between Hale Pohaku and the Mauna Kea Science Reserve, and any other lands on Mauna Kea that [UH] leases or over which the University of Hawai‘i acquires control or jurisdiction.
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. A second round of public hearings took place in April 2019. 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").
According to UH, the rules received 406 written submissions during the comment period (August 19 to September 28) and ninety-two oral comments.
During this round of comments (April 28 to June 7), UH received 332 written submissions and 133 oral comments.
On June 29, 2020, Plaintiff-Appellant Flores-Case ‘Ohana (FCO) filed a complaint for declaratory and injunctive relief against UH in the Circuit Court of the Third Circuit, seeking invalidation of the rules. The circuit court certified to us the following reserved questions:
The complaint identified FCO as:
an unincorporated association of a Kanaka Maoli (also identified as a Native Hawaiian) family who descends from the aboriginal people who occupied and exercised sovereignty in the area that is now occupied by the State of Hawai‘i prior to 1778, resides on Hawai‘i Island, and engages in traditional and cultural practices throughout Mauna Kea, including on lands managed by the University of Hawai‘i.
The Honorable Robert D.S. Kim presided.
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?
As noted above, we reformulated the reserved questions as follows: (1) In a challenge to the constitutionality of administrative rules based on a violation of article XII,
[153 Hawai'i 81] 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 ?
III. STANDARD OF REVIEW
123 A reserved question that presents a question of law is "reviewable de novo under the right/wrong standard of review." State v. Jess , 117 Hawai‘i 381, 391, 184 P.3d 133, 143 (2008) (quoting Roes v. FHP, Inc. , 91 Hawai‘i 470, 473, 985 P.2d 661, 664 (1999) ). "On a reserved question we are required to answer a question of law based on facts reported to this court by the circuit judge. We may not express an opinion on a question of law by assuming certain facts as to which the circuit judge has made no finding." Cabrinha v. Am. Factors, Ltd. , 42 Haw. 96, 100 (Haw. Terr. 1957).
IV. DISCUSSION
A. The Burden of Proof Does Not Shift to the Government Defendant in Constitutional Challenges Arising from Article XII, Section 7 of the Hawai‘i Constitution
4567 The "general rule [is] that one seeking relief bears the burden of demonstrating that [they are] entitled to it." Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (declining to deviate from the general rule in a First Amendment constitutional challenge). We decline to deviate from the general rule here. We therefore hold that the burden of proof rests with the challenging party, not the government defendant, when challenging the constitutionality of an administrative rule under article XII, section 7. See Westlawn Cemeteries, L.L.C. v. La. Cemetery Bd. , 339 So. 3d 548, 560 (La. 2022) ("[It is] proper to place the burden of proving unconstitutionality on the party challenging the administrative rule, as is clearly the case with statutes or ordinances."). We agree with the Louisiana Supreme Court that "[p]lacing the burden of proof on the party challenging a rule is consistent with other situations whereby the moving party has the burden of proof ( e.g. , summary judgment motions and exceptions)." Id.
We note however that the burden of proof does shift to the government defendant in certain types of constitutional challenges. For example, in Nagle v. Bd. of Educ., we held that strict scrutiny applies to challenges that involve suspect classifications or fundamental rights. 63 Haw. 389, 392, 629 P.2d 109, 111 (1981). "Under the strict scrutiny standard, the State carries a heavy burden in arguing for the validity of a statute." Id. (emphasis added).
In Westlawn, the Louisiana Supreme Court examined the principles governing constitutional challenges to statutes and administrative rules. 339 So. 3d at 552-62. The court explained that "[a]ll statutory enactments are presumed constitutional" and that "[t]his presumption is based on the premise that legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation." Id. at 559 (emphasis added) (quotation marks omitted). Administrative rules "on the other hand, [are] not one enacted by a legislative body," and accordingly, the Louisiana Supreme Court declined to "apply a presumption of constitutionality to an administrative rule." Id.
Westlawn is consistent with our own case law. We have previously explained that in constitutional challenges to statutes, there is a "presumption that every enactment of the Legislature was adopted in accordance with the Constitution." League of Women Voters of Honolulu v. State, 150 Hawai‘i 182, 194, 499 P.3d 382, 394 (2021), as corrected (Nov. 4, 2021). But we have never extended that presumption to administrative rules. We agree with the Westlawn court that "[u]nlike an elected legislature, an administrative agency is not presumed to have weighed principles of constitutionality in promulgating its rules and regulations." 339 So. 3d at 560. Accordingly, we decline to extend a presumption of constitutionality as to administrative rules.
We do not, however, agree with or adopt Westlawn's formulation of the standard of review for facial challenges: "To establish that a statute, or as here, an administrative rule, is facially unconstitutional, the party challenging it ‘must establish that no set of circumstances exists under which [it] would be valid, that is, that the law is unconstitutional in all its applications.’ " Id. at 561 (footnote omitted) (alteration in original). As we explain infra, the relevant constitutional test is not Salerno's "no set of circumstances" test.
Westlawn is also consistent with our own precedents. For example, in our previous cases addressing the burden of proof in constitutional challenges arising from article XII, section 7 in the criminal context, we held that the burden rests on the challenging
[153 Hawai'i 82] party in the criminal context. In State v. Hanapi , we determined that the initial burden of proof rests with the defendant claiming a privilege based on article XII, section 7. 89 Hawai‘i 177, 184, 970 P.2d 485, 492 (1998) ("[I]t is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is protected."). We see no reason to shift the burden in challenges to administrative rules in the civil context.
B. The State's Affirmative Duty to Protect Native Hawaiian Rights Applies to Administrative Rulemaking in Addition to Contested Case Hearings
8 We next examine whether the Ka Pa‘akai framework should be applied outside of the contested case hearing context. FCO contends that "an agency's duty to identify traditional [and] customary practices, determine how those interests will be affected by a proposed rule, and to take feasible action to reasonably protect them, applies not only when it sits in a quasi-judicial capacity; it bears the same obligations when it acts to adopt rules." We agree. Our decisions have made clear that Native Hawaiian traditional and customary rights and practices have broad-ranging protections under article XII, section 7. These protections are flexible and must be adapted to the particular context or situation where they are implicated, whether during administrative adjudications, like contested case hearings, or administrative rulemaking, like the promulgation of Chapter 20-26.
Where quoted language in this opinion uses "native Hawaiian" or "Hawaiian," we clarify those references to encompass all Native Hawaiians, which refers to descendants of the indigenous peoples who inhabited the Hawaiian Islands prior to 1778, regardless of blood quantum.
9 We hold that the Ka Pa‘akai framework for contested case hearings applies to administrative rulemaking. We reiterate that agencies " may not act without independently considering the effect of their actions on Hawaiian traditions and practices." 94 Hawai‘i at 46, 7 P.3d at 1083 (emphasis added). When agencies act prospectively, by promulgating rules, instead of retrospectively, by adjudicating individual rights or claims in contested case hearings, they are no less obligated to abide by their duties under article XII, section 7. There is no principled basis to exempt agency rulemaking from the State's constitutional obligations.
10 Administrative rules are potentially far-reaching statements of policy with the force and effect of law. See HRS § 91-1(4) (Supp. 2021) (defining a rule in relevant part as an "agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy"). Rules are no less significant, nor less susceptible to constitutional challenges, than are specific agency actions like contested case hearings. See HRS § 91-7 (Supp. 2021) (providing that "[a]ny interested person" may seek to invalidate a rule, inter alia , based on conflict with a constitutional provision).
1112 Our cases analyzing article XII, section 7 emphasize two competing principles: first, that the State is "obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians;" and second, that the State is "authorized to impose appropriate regulations to govern the exercise of native Hawaiian rights." See Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm'n ( PASH ), 79 Hawai‘i 425, 450-51, 450 n.43, 903 P.2d 1246, 1271-72, 1271 n.43 (1995). Thus, while agencies have the power to regulate "traditionally exercised rights of Hawaiians" in contested case hearings or through administrative rulemaking, that regulatory power is constrained by the State's obligation to protect those rights when exercising that power. Id. at 450 n.43, 903 P.2d at 1271 n.43.
13 In PASH we made clear that the State's authority to regulate Native Hawaiian rights, although substantial, is not unfettered. In that case, the plaintiffs challenged the Hawai‘i County Planning Commission's (HPC) decision to grant a development permit for a resort on the Kona coast while denying Native Hawaiian practitioners' request for a contested case hearing.
[153 Hawai'i 83] Id. at 429-30, 903 P.2d at 1250-51. We reiterated that "the State retains the ability to reconcile competing interests under article XII, section 7" and that the provision "accords an ample legal basis for regulatory efforts by the State." Id. at 447, 451, 903 P.2d at 1268, 1272. This authority "necessarily allows the State to permit development that interferes with ... [traditional and customary] rights in certain circumstances," for example, where the "protection of such rights would result in ‘actual harm.’ " Id. at 450 n.43, 903 P.2d at 1271 n.43 (quoting Kalipi v. Hawaiian Tr. Co. , 66 Haw. 1, 12, 656 P.2d 745, 752 (1982) ).
However, we also held that "the State does not have the unfettered discretion to regulate the rights of ahupua‘a tenants out of existence." Id. at 451, 903 P.2d at 1272. This is because "legitimate customary and traditional practices must be protected to the extent feasible in accordance with article XII, section 7." Id. (emphasis added). Thus, we held that, "to the extent feasible, ... HPC must protect the reasonable exercise of customary or traditional rights that are established by PASH on remand." Id.
Following up on PASH , we recognized in Ka Pa‘akai that in contested case hearings, the State and its agencies have an "affirmative duty ... to preserve and protect traditional and customary native Hawaiian rights" and provided a framework "to effectuate the State's obligation to protect native Hawaiian customary and traditional practices while reasonably accommodating competing private interests." 94 Hawai‘i at 45-47, 7 P.3d at 1082-84. There, community groups challenged the Land Use Commission's (LUC) decision to grant a developer's petition to reclassify over 1,000 acres from conservation to urban use. Id. at 34, 7 P.3d at 1071.
14 We held that in order to fulfill its "affirmative duty," the LUC was required to " at a minimum — make specific findings" regarding (1) "the identity and scope of" traditional resources and customary rights in the impacted area; (2) the extent to which those rights and resources would be "affected or impaired by the proposed action;" and (3) "the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist." Id. at 45, 47, 7 P.3d at 1082, 1084 (emphasis in original). We concluded that the LUC's findings were "insufficient to determine whether it discharged its duty to protect customary and traditional practices of native Hawaiians to the extent feasible." Id. at 48, 7 P.3d at 1085. In sum, these cases establish that the State bears an "affirmative duty" to protect the reasonable exercise of Native Hawaiian traditional and customary practices, but this duty is qualified by the State's right to accommodate competing interests. See id. at 45, 7 P.3d at 1082.
We also held that the reclassification's condition that the developer protect the gathering and access rights of Native Hawaiian practitioners granted it "unfettered authority to decide which native Hawaiian practices are at issue and how they are to be preserved or protected," and thus invalidly delegated the LUC's obligation to protect those practices to a private party. Id. at 51, 7 P.3d at 1088.
15 None of our cases suggest that agencies are bound by these protections only in contested case hearings. To the contrary, article XII, section 7 protects "the broadest possible spectrum of native rights" and was not intended to be narrowly construed. Pele Def. Fund v. Paty , 73 Haw. 578, 619-20, 837 P.2d 1247, 1271 (1992) (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 640 (1980)). And, as we explained in Ka Pa‘akai in the contested case hearing context, "[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[.]’ " 94 Hawai‘i 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)). That same reasoning applies 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.
Applying the Ka Pa‘akai framework to rulemaking is consistent with the intent of
[153 Hawai'i 84] the framers of article XII, section 7. That provision "grew out of a desire to ‘preserve the small remaining vestiges of a quickly disappearing culture [by providing] a legal means by constitutional amendment to recognize and reaffirm native Hawaiian rights.’ " Id. at 45, 7 P.3d at 1082 (alteration in original) (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 640 (1980)). The framers recognized that "[s]ustenance, religious and cultural practices of native Hawaiians are an integral part of their culture, tradition and heritage, with such practices forming the basis of Hawaiian identity and value systems," id. (quoting Comm. Whole. Rep. No. 12, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 1016 (1980)), and accordingly " did not intend to have the section narrowly construed ." Pele Def. Fund , 73 Haw. at 620, 837 P.2d at 1271 (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 640 (1980) (emphasis in original)). Native Hawaiian traditional and customary rights do not exist at the sufferance of the State and its agencies.
In sum, the Ka Pa‘akai framework applies to administrative rulemaking in addition to contested case hearings. Requiring the State and its agencies to consider Native Hawaiian traditional and customary rights in these contexts "effectuate[s] the State's obligation to protect native Hawaiian customary and traditional practices[.]" Ka Pa‘akai , 94 Hawai‘i at 47, 7 P.3d at 1084.
C. Agencies Must Engage in a Contemporaneous Ka Pa‘akai Analysis When Promulgating Administrative Rules
Having determined that the Ka Pa‘akai framework applies to administrative rulemaking, we now elaborate on what is required of an agency under that framework when promulgating administrative rules. In Ka Pa‘akai , we explained that "[i]n order for native Hawaiian rights to be enforceable, an appropriate analytical framework for enforcement is needed" for contested case hearings. Id. at 46, 7 P.3d at 1083. We now set forth the "appropriate analytical framework" for administrative rulemaking so that "native Hawaiian rights [are] enforceable." See id.
In its amicus brief, the Attorney General (AG) argues that while "[r]equiring findings of fact regarding the assessment of traditional and customary rights may work in the contested-case setting, [ ] it does not in the rule-making setting." According to the AG, "[t]he resolution of the Ka Pa‘akai analysis and the making of factual findings depends on record evidence," whereas rulemaking produces no evidentiary record. The AG asserts that it is "fundamentally unreasonable" to apply Ka Pa‘akai "where there is no evidentiary record and nobody's rights, duties, or privileges are judicially determined." The AG's argument fails because it does not acknowledge that the requirements of Ka Pa‘akai can be adapted to the rulemaking context.
Just because Ka Pa‘akai may not apply in the same way to rulemaking as it does to contested case hearings does not mean that its principles do not apply. To the contrary, Ka Pa‘akai spoke about agency action in broad terms. 94 Hawai‘i at 46, 7 P.3d at 1083. And its framework can and should be broadly applied to rulemaking; the State has an "affirmative duty ... to preserve and protect traditional and customary native Hawaiian rights," and doing so requires identifying the scope and extent of impacted rights and the feasible steps taken to protect them. Id. at 45, 47, 7 P.3d at 1082, 1084.
At its core, Ka Pa‘akai concluded the State's constitutional duty means that its agencies " may not act without independently considering the effect of their actions on Hawaiian traditions and practices." Id. at 46, 7 P.3d at 1083 (emphasis added). This procedural requirement, that agency action must be preceded by consideration of Native Hawaiian traditional and customary rights, should apply equally when agencies act in a quasi-judicial manner (contested case hearings) and in a quasi-legislative manner (administrative rulemaking). State agencies perform different functions and roles when exercising their quasi-judicial and quasi-legislative powers and as such, the process by which agencies demonstrate they have met their affirmative duty under the constitution
[153 Hawai'i 85] may necessarily differ depending on which power is exercised. See Green Party of Haw. v. Nago , 138 Hawai‘i 228, 238, 378 P.3d 944, 954 (2016) ("This court has recognized that rule-making is essentially legislative in nature because it operates in the future; whereas, adjudication is concerned with the determination of past and present rights and liabilities of individuals where issues of fact often are sharply controverted." (internal quotation marks omitted)).
In contested case hearings, where agencies wear a quasi-judicial hat, Ka Pa‘akai requires that agencies " at a minimum " issue "specific findings and conclusions" on:
(1) the identity and scope of "valued cultural, historical, or natural resources" in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources—including traditional and customary native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist.
94 Hawai‘i at 47, 7 P.3d at 1084 (footnote omitted) (emphasis in original).
In a contested case hearing appeal, the State agency acts like a court. It makes sense then to require the agency, acting in a quasi-court capacity, to issue findings of fact and conclusions of law similar to the manner in which courts issue findings of fact and conclusions of law. This permits courts to review the agency's decisions to determine if the agency, prior to acting, properly " consider[ed] the effect of their actions on Hawaiian traditions and practices" as required by article XII, section 7. Id. at 46, 7 P.3d at 1083 (emphasis added).
Indeed, the Hawai‘i Administrative Procedures Act requires that "[e]very decision and order ... rendered by an agency in a contested case ... be in writing or stated in the record and ... be accompanied by separate findings of fact and conclusions of law." HRS § 91-12.
When rulemaking, an agency does not sit as a quasi-judicial body whose work must be reviewed. The agency need not issue findings of fact or conclusions of law as in contested case hearings because it does not sit as a quasi-court. Different roles require different methods of review to hold the State accountable to its constitutional duties.
Therefore, applying the Ka Pa‘akai framework to rulemaking, we hold that before adopting rules, agencies must consider : (1) "the identity and scope of" Native Hawaiian traditional and customary rights affected by the rule, if any; (2) "the extent to which" Native Hawaiian traditional and customary rights "will be affected or impaired by the [rule]"; and (3) whether the proposed rules "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).
If an agency determines that a proposed rule will not impact any Native Hawaiian traditional and customary practices, the analysis ends there and the agency will have met its constitutional obligations. Compare In re Conservation Dist. Use Application HA-3568, 143 Hawai‘i 379, 396-98, 431 P.3d 752, 769-71 (2018) (holding the agency complied with Ka Pa‘akai because it identified no Native Hawaiian cultural resources or traditional or customary practices within the project area and found that no traditional and customary rights would be affected or impaired by the proposed action) with In re ‘Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawai‘i 228, 248, 287 P.3d 129, 149 (2012) (finding the agency failed to properly apply the Ka Pa‘akai framework because although it identified and documented the project area's Native Hawaiian practices, the agency did not demonstrate the effect of the project on the identified Native Hawaiian practices or make any findings about the feasibility of protecting the identified practices).
Although formal findings of fact and conclusions of law are not required, agencies must prepare a written statement summarizing the above analysis prior to adopting a proposed rule, and make that analysis available to the public. When undertaking this analysis, the agency is not required to "negative any and all native Hawaiian rights claims regardless of how implausible the claimed right may be."
In cases where there is no readily apparent impacted Native Hawaiian traditional or customary right or practice, we suggest making the analysis public when the agency notices a public hearing under HRS § 91-3(1). The agency can provide a simple statement with its notice saying it identified no impacted rights or practices. Interested parties can then review the agency's analysis and bring forth any rights or practices the agency failed to identify during a public hearing or through written and oral submissions. See HRS § 91-3(2). The agency, if it receives any comments raising impacted rights or traditions, can then engage in the analysis outlined above and issue a revised analysis reflecting public input prior to promulgating a rule.
In cases, such as this one, where Native Hawaiian traditional and customary rights and practices are plainly implicated, the agency can wait to issue its analysis until after the notice-and-comment period so it can appropriately conduct the required analysis. We require only that prior to, or contemporaneously with, adopting administrative rules, agencies engage in and make public the required analysis. Agencies have discretion to determine when during the rulemaking process to make public the required analysis, but the context of the rulemaking should guide that decision.
[153 Hawai'i 86] Hanapi , 89 Hawai‘i at 184, 970 P.2d at 492. Where no Native Hawaiian right or practice is identified or implicated, the agency may say so in a short statement and the need for analysis ends there.
Requiring a contemporaneous, written analysis will not unduly burden agencies. Agencies are already required to provide reasoned justifications for the decisions they made during the rulemaking process. The procedures agencies must follow when adopting, amending, and repealing administrative rules are set forth in HRS § 91-3. The agency must first "[g]ive at least thirty days' notice for a public hearing." HRS § 91-3(1). That notice must clearly indicate the topic of the proposed rule or amendment, must offer to mail a copy of the rule or amendment to interested parties, must indicate where and when a copy is available for review, and must give the time and place of the public hearing. HRS §§ 91-3(1)(A)-(D). The agency must afford any interested party an opportunity to submit "data, views, or arguments" and shall "fully consider all written and oral submissions." HRS § 91-3(2) ; see also Aguiar v. Haw. Hous. Auth. , 55 Haw. 478, 487–88, 522 P.2d 1255, 1262 (1974) ("[A]n agency must consider the views of interested persons where it seeks to promulgate a rule, no matter how complex is the data that goes into the rule's formulation." (internal quotations omitted)). Upon taking its final action, the agency must "issue a concise statement of the principal reasons for and against its determination" to any interested party. HRS § 91-3(2). The agency's final decision is then subject to approval by the governor, who can require a statement of the agency's reasons for adopting the rule. HRS § 91-3(2).
In sum, it would not unduly burden an agency promulgating a rule that potentially impacts Native Hawaiian customary and traditional rights or practices to engage in this analysis because agencies must already be prepared to provide justifications for their proposed rules. Our holding today only requires agencies to show that they met their obligations under the constitution so that the public can evaluate an agency's decision, and courts have a basis to review that decision if subsequently challenged in court.
We note that under the Administrative Procedure Act, federal agencies are required to provide reasoned justifications when rulemaking. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (holding that agencies must provide a clear basis for their determinations in order for those determinations to withstand judicial review); Motor Vehicle Mfrs. Ass'n of U.S., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (invalidating an agency's decision to rescind a rule because it failed to provide a "reasoned analysis" for changing its course); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (holding an agency must provide a reasoned explanation for departing from a prior policy and show that there are "good reasons" for the new policy, though these reasons need not be "better than the reasons for the old one").
Our holding here does not apply to the legislature or to constitutional challenges to statutes enacted by the legislature. We hold administrative agencies to different standards because "[u]nlike an elected legislature, an administrative agency is not presumed to have weighed principles of constitutionality in promulgating its rules and regulations." Westlawn, 339 So. 3d at 560. While agencies may act as quasi-legislative bodies, they are not directly responsible to voters. Cf. Citizens Ass'n of Georgetown, Inc. v. Zoning Comm'n of D.C., 477 F.2d 402, 409 n.28 (D.C. Cir. 1973) (explaining that courts apply a different standard of review to agency rulemaking and legislative enactments because Congress is responsible to voters and agencies are not).
After the agency has prepared and made public a written statement of the analysis described above and the rule has been adopted, plaintiffs may challenge the constitutionality
[153 Hawai'i 87] of the rule under article XII, section 7. As we explain, the burden then rests on the plaintiff to show that agency did not adequately consider or reasonably protect Native Hawaiian traditional and customary rights or practices as balanced with the State's own right to regulate.
D. To Succeed in an Article XII, Section 7 Challenge to an Administrative Rule, a Plaintiff Must Show the Agency Failed to Adequately Consider or Reasonably Protect Native Hawaiian Traditional and Customary Rights
16 Having determined that the Ka Pa‘akai framework applies to rulemaking, we also conclude that the framework provides the relevant test for determining whether an administrative rule is constitutional under article XII, section 7. And as we explained, different contexts require different approaches. Accordingly, 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).
We note the use of "or" in this test. If the plaintiff meets its burden as to any one of the three prongs, the rule is unconstitutional.
This 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 places the burden on a plaintiff challenging an administrative rule under article XII, section 7, to show that the analysis undertaken during rulemaking did not adequately consider the scope or impact of a rule on Native Hawaiian traditional and customary practices or that the rule did not reasonably protect those rights as balanced with the State's right to regulate. This test requires courts to balance an agency's "affirmative duty" to protect these rights with "the right of the State to regulate such rights." See id. at 45, 7 P.3d at 1082 ; Haw. Const. art. XII, § 7.
Balancing the State's "affirmative duty" with its "right" to regulate is consistent with our past precedents. From the outset, we have interpreted article XII, section 7 to require a contextual balancing approach that weighs Native Hawaiian rights against other State interests. In Kalipi , the first case to interpret article XII, section 7, William Kalipi asserted a right to gather traditional agricultural products on land belonging to the defendant in accord with his family's longstanding practice. 66 Haw. at 3-4, 656 P.2d at 747. Chief Justice Richardson, writing for the court, held "that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area." Id. at 10, 656 P.2d at 751. For example, traditional and customary usage may continue "so long as no actual harm is done thereby." Id. However, the court held that these rights may be reasonably regulated, for example by preventing gathering on "fully developed property." Id. at 8-9, 656 P.2d at 750.
The same balancing principles articulated in Kalipi are also relevant here. When courts review the constitutionality of administrative rules under article XII, section 7, they should look to the process by which the rules were adopted. Did the agency adequately consider whether its proposed rule would impact Native Hawaiian traditional and customary rights or practices? If the agency identified impacted rights or practices, did it adequately consider the extent to which those rights or practices would be impaired? And finally, did the agency reasonably protect those rights or practices as balanced with the State's right to regulate?
We reiterate that the burden of showing the agency failed to adequately consider or reasonably protect Native Hawaiian traditional
[153 Hawai'i 88] and customary rights or practices remains with the plaintiff. The plaintiff must make affirmative arguments as to why the agency's analysis fails to pass constitutional muster. It is the plaintiff's burden to show the rule is unconstitutional.
At bottom, the constitution requires that agencies " may not act without independently considering the effect of their actions on Hawaiian traditions and practices." Ka Pa‘akai , 94 Hawai‘i at 46, 7 P.3d at 1083 (emphasis added). Thus, when agencies fail to adequately consider or reasonably protect Native Hawaiian traditional or customary rights or practices during rulemaking, the rule is unconstitutional.
1. Salerno 's "No Set of Circumstances" Test Does Not Apply to Constitutional Challenges Arising from Article XII, Section 7
In its amicus brief, the Attorney General (AG) argues that FCO brings a facial challenge and that "[w]hen an administrative rule is subject to a facial constitutional challenge, the challenger must establish that no set of circumstances exists under which the rule would be valid." The AG argues that Salerno 's "no set of circumstances" test "is the national standard" for reviewing facial challenges and should be applied to constitutional challenges arising from article XII, section 7. This is incorrect, and even if it were, the U.S. Supreme Court's determination in Salerno would not control how this court interprets the Hawai‘i Constitution. See State v. Hoey , 77 Hawai‘i 17, 36, 881 P.2d 504, 523 (1994) (explaining that the Hawai‘i Supreme Court is "the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai‘i Constitution"). We hold that the relevant constitutional test for determining the constitutionality of an administrative rule for the purposes of article XII, section 7 is not Salerno 's "no set of circumstances" test. We reiterate that the relevant constitutional test is as follows: 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 Ka Pa‘akai , 94 Hawai‘i at 47, 7 P.3d at 1084 (emphasis added).
In United States v. Salerno, the U.S. Supreme Court initially explained that facial challenges are "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). But as the Tenth Circuit explained in Doe v. City of Albuquerque:
The [U.S.] Supreme Court has repeatedly entertained facial challenges without engaging in th[e] hypothetical exercise [required by Salerno ]. Instead, the Court has properly applied the appropriate constitutional test to the restriction at issue; for example, the Ward [v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)] test to a content-neutral restriction on free speech rights. Thus, Salerno is correctly understood not as a separate test applicable to facial challenges, but a description of the outcome of a facial challenge in which a statute fails to satisfy the appropriate constitutional framework.
667 F.3d 1111, 1123 (10th Cir. 2012).
Salerno "is accurately understood not as setting forth a test for facial challenges, but rather as describing the result of a facial challenge in which a statute fails to satisfy the appropriate constitutional standard." Doe, 667 F.3d at 1127 (emphasis added).
V. CONCLUSION
Native Hawaiian traditional and customary rights do not exist at the sufferance of the State and its agencies. These rights must be protected and indeed, the State and its agencies have a constitutional obligation to do so. For the foregoing reasons, we remand this matter to the circuit court for further proceedings consistent with this opinion.
OPINION BY EDDINS, J.
In a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawai‘i State
[153 Hawai'i 89]
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?
Burden-shifting makes no sense to our fact-intensive article XII, section 7 balancing framework, where both the individual and the government bear a burden. So I answer no to the reserved question.
The Chief Justice reimagines the reserved question. Cf. Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 138 Hawai‘i 14, 16, 375 P.3d 1252, 1254 (2016) (reformulating a certified question to clarify who the parties are). And conjures policy inharmonious with rulemaking.
Plaintiff Flores-Case ‘Ohana and the Chief Justice believe that an agency must satisfy the Ka Pa‘akai O Ka ‘Aina v. Land Use Comm'n, 94 Hawai‘i 31, 7 P.3d 1068 (2000) contested case framework before promulgating a rule. I reject this approach.
Ka Pa‘akai does not fit the rulemaking context. Ka Pa‘akai's strong protections facilitate rigorous fact findings and legal conclusions based on a full evidentiary record, fleshed out by adversarial parties. By its nature, rulemaking cannot achieve this specificity and rigor. Also, frontloading Ka Pa‘akai to the general rulemaking context risks weakening the protections for Native Hawaiians in contested case hearings and criminal prosecutions.
What standards govern? Our legislature has provided a comprehensive statutory structure for agency rulemaking. This court should not depart from the Hawai‘i Administrative Procedure Act.
I.
The legislature has empowered the University of Hawai‘i to promulgate administrative rules governing access to the summit of Mauna Kea. See 2009 Haw. Sess. Laws Act 132, § 1 at 362-65; HRS § 304A-1901 (2020).
Nearly ten years after the legislature delegated this rulemaking authority, the University of Hawai‘i started the rulemaking process. Per the Hawai‘i Administrative Procedure Act, the University published a notice of proposed rulemaking, held public hearings on O‘ahu, Maui, and the Island of Hawai‘i, received comments, circulated a new draft of the proposed rules for comment, conducted a second round of inter-island public hearings, and received more comments.
Then, in November 2019, the University of Hawai‘i Board of Regents adopted the final administrative rules by unanimous vote. And in January 2020, Governor David Ige signed the administrative rules into law. See Hawai‘i Administrative Rules (HAR) § 20-26, et seq. (2020).
Plaintiff Flores-Case ‘Ohana (FCO) sued Defendant University of Hawai‘i (UH), moving for declaratory and injunctive relief in the Circuit Court of the Third Circuit. The June 2020 complaint identifies Flores-Case ‘Ohana as: "an unincorporated association of a Kanaka Maoli (also identified as a Native Hawaiian) family who descends from the aboriginal people who occupied and exercised sovereignty in the area that is now occupied by the State of Hawai‘i prior to 1778, resides on Hawai‘i Island, and engages in traditional and cultural practices throughout Mauna Kea, including on lands managed by the University of Hawai‘i." FCO's complaint asks the circuit court to invalidate the administrative rules, HAR § 20-26.
The case proceeded in the usual ways. Then, in September 2021, the circuit court requested briefing from FCO and UH covering "burden-shifting" in article XII, section 7 challenges to the constitutionality of administrative rules. Later, in March 2022, per Hawai‘i Rules of Appellate Procedure Rule 15(a) (2010), the circuit court filed an order for reserved question.
The court's order for reserved question court informed us that FCO had filed an action against UH "to declare Title 20, Chapter 26 of the Hawai‘i Administrative Rules[ ] unconstitutional, pursuant to Article XII, Section 7 [ ], of the Hawai‘i State Constitution." The court order also advised that FCO's "participation in the rulemaking process was limited to providing written and oral comments as part of the public hearing
[153 Hawai'i 90] process" and that FCO had not requested a contested-case hearing. The court attached the parties' burden-shifting memos to its order.
We accepted the court's reserved question.
II.
The first part of the reserved question asks whether, in a challenge to the constitutionality of administrative rules based on a violation of article XII, section 7 of the Hawai‘i Constitution, the burden of proof shifts 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.
The answer is no.
This court decides article XII, section 7 cases with fact-dependent balancing, not inflexible presumptions. In State v. Pratt, we were confronted with competing articulations of the proper test when a criminal defendant asserts Native Hawaiian rights under article XII, section 7. Two Intermediate Court of Appeals judges placed the burden of proof on the defendant to show the reasonableness of his conduct under the circumstances; the third held that the State had a burden to show that the defendant's conduct resulted in actual harm. We rejected both approaches.
Our reason? "[T]his court's practice of applying totality of the circumstances tests, as opposed to legal presumptions, in the context of [N]ative Hawaiian rights." 127 Hawai‘i 206, 217, 277 P.3d 300, 311 (2012). This balancing dates to our first major article XII, section 7 case. See Kalipi v. Hawaiian Tr. Co., Ltd., 66 Haw. 1, 10, 656 P.2d 745, 751 (1982) ("[W]e believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area."); Ka Pa‘akai, 94 Hawai‘i at 35, 7 P.3d at 1072 (this court seeks "to maintain a careful balance between [N]ative Hawaiian rights and private interests").
Under our balancing framework, to speak of burden shifting is unhelpful. This follows naturally from the language of article XII, section 7 itself. We have observed that the privilege afforded to customary and traditional Native Hawaiian practices is "not absolute." Pratt, 127 Hawai‘i at 213, 277 P.3d at 307. Our constitution qualifies that right with the phrase, "subject to the right of the State to regulate such rights." Haw. Const. art. XII, § 7.
If our framework must be put in terms of burdens, it would be most accurate to say that the State and the person invoking article XII, section 7 both bear a burden, and the same burden at that. The individual must show their usage is reasonable, just as the State must show its regulation of that usage is reasonable. See Pub. Access Shoreline Haw. by Rothstein v. Haw. Cnty. Plan. Comm'n by Fujimoto, 79 Hawai‘i 425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995) (the State is "obligated to protect the reasonable exercise of customarily and traditionally exercised rights of [Native] Hawaiians to the extent feasible."). One cannot be evaluated without looking to the other.
Burden-shifting is odd talk when the bottom line is balancing. But a moment's thought reveals that article XII, section 7 is not the only fundamental right in the Hawai‘i Constitution. Indeed, with its explicit limiting language about government regulation, if the burden shifts here, then it shifts elsewhere. For instance, it would shift when article XI, section 9's right to a life-sustaining climate system comes up. See Matter of Hawai‘i Elec. Light Co., Inc., No. SCOT-22-0000418, 152 Hawai‘i 352, 526 P.3d 329 (Haw. Mar. 13, 2023) (People of Hawai‘i have a right to a life-sustaining climate system).
Flores-Case ‘Ohana cites the First and Fourteenth Amendment to support flipping the burden to the government defendant. Analogies to federal First and Fourteenth Amendment doctrine, though, miss the point. First, although these individual rights are certainly not "absolute" in practice, unlike article XII, section 7, they do not have balancing built into their constitutional language. Second, both the First and Fourteenth Amendment have analytical frameworks that reflect the unique nuances of their doctrinal areas.
[153 Hawai'i 91] FCO advances a line of First Amendment ‘prior restraint’ cases that put the burden on the government to justify its rules. In Berger v. City of Seattle, the court treated a rule requiring advance notice and permitting for certain speech as presumptively invalid. 569 F.3d 1029, 1037 (9th Cir. 2009). This presumption, explained the court, stemmed from the burdens such a rule placed on speech. Id. Registration requirements "dissuade potential speakers by eliminating the possibility of anonymous speech." Id. at 1038. And, "critically, advance notification requirements eliminate ‘spontaneous speech’ " that responds to immediate issues. Id. These are important concerns, but they cannot easily be split from the speech context. Berger's reasoning does not extend to all fundamental rights.
Equal protection doctrine, with its rational basis, rational basis "with bite," intermediate, and strict scrutiny tiers, is also a bad candidate for generalizations about constitutional burden-shifting. (See Raphael Holoszyc-Pimentel, Reconciling Rational-Basis Review: When Does Rational Basis Bite? , 90 N.Y.U. L. Rev. 2070 (2015) for an analysis of equal protection's extra tier). Tacking between these tiers doesn't truly shift a burden, as it would in a motion for summary judgment or in a criminal trial. Instead, it changes the standard for a successful challenge. It would be as accurate to say that under rational basis review, the government has a light burden, as it would be to say that under rational basis review, the challenger has a heavy burden. Even in these spheres of federal constitutional law that do occasionally speak of burdens, the language of burdens is still a poor fit — more useful as a metaphor than an analytical description.
FCO also points to water code cases, like In re Wai‘ola O Moloka‘i, Inc., 103 Hawai‘i 401, 83 P.3d 664 (2004) and In re Contested Case Hearing on Water Use Permit Application Filed by Kukui (Molokai), Inc., 116 Hawai‘i 481, 174 P.3d 320 (2007), as another way to support burden shifting. The comparison doesn't work. First, those water cases involved contested case hearings; adversarial settings facilitated fact-finding. Next, the cases had nothing to do with rulemaking. Relatedly, there is no talk or thought in the cases about burden-shifting to the government in constitutional challenges to a law or rule's validity. Lastly, the plaintiffs raised challenges under article XII, section 7 and article XI, section 1 (public trust doctrine) after private companies requested permits to use State water resources. It was unremarkable that the companies had the burden to justify their proposed use of public trust resources.
So no, when the constitutionality of an administrative rule is challenged under article XII, section 7, the burden of proof does not shift to the government to prove that its rules are constitutional.
But nor do its obligations vanish. See Ka Pa‘akai, 94 Hawai‘i at 45, 7 P.3d at 1082, (Hawai‘i Constitution "places an affirmative duty on the State and its agencies to preserve and protect traditional and customary [N]ative Hawaiian rights"). In an article XII, section 7 challenge, the government must explain why its regulation is reasonable and the customary usage unreasonable, and the challenger must explain why their customary usage is reasonable and the government's regulation unreasonable. It is the court's ultimate duty to balance these competing viewpoints and arrive at a reasoned decision.
III.
Flores-Case ‘Ohana and the Chief Justice promote a new administrative rulemaking format: Ka Pa‘akai's framework for contested case hearings applies to rulemaking and must take place before an agency promulgates a rule. I reject this approach.
Our legislature has provided a comprehensive statutory structure for agency rulemaking. I decline to depart from the Hawai‘i Administrative Procedure Act. And refuse to tuck Ka Pa‘akai into Hawai‘i Revised Statutes Chapter 91's rulemaking regime.
In the rulemaking context, the Ka Pa‘akai framework simply doesn't fit. The whole point of Ka Pa‘akai is to facilitate rigorous fact findings based on a full evidentiary record , fleshed out by adversarial parties. By its nature, a rulemaking can't achieve this specificity and rigor. Applying Ka Pa‘akai to the
[153 Hawai'i 92] general rulemaking context risks diluting its strong protections.
Even more worrying, it threatens the due process rights of parties who, unlike Flores-Case ‘Ohana, actually want a contested case hearing; same for persons who get charged with violating a rule. If the Ka Pa‘akai analysis – even a Ka Pa‘akai-lite version – fast forwards to the general rulemaking stage, individuals with specific claims to adjudicate may find their cases prejudged or weakened.
We rarely apply Ka Pa‘akai beyond contested case hearings – for good reason. Administrative agencies wear many hats. And an agency's hat during a contested-case hearing and a rulemaking are not the same.
A contested case hearing "is similar in many respects to a trial before a judge: the parties have the right to present evidence, testimony is taken under oath, and witnesses are subject to cross-examination. It provides a high level of procedural fairness and protections to ensure that decisions are made based on a factual record that is developed through a rigorous adversarial process." Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 380, 363 P.3d 224, 228 (2015) ( Mauna Kea I ). In this context, agencies fulfill a "quasi-judicial" function. Town v. Land Use Comm'n, 55 Haw. 538, 545, 524 P.2d 84, 89 (1974).
In contrast, "we recognize that rule-making is essentially legislative in nature because it operates in the future." In re Hawaiian Elec. Co., 81 Hawai‘i 459, 467, 918 P.2d 561, 569 (1996). "[T]he distinguishing characteristic of rule-making is the generality of effect of the agency decision." Id. at 466, 918 P.2d at 568. This generality stems from the fact that legislation "affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely touched by it; while adjudication operates concretely upon individuals in their individual capacity." Id. at 466–67, 918 P.2d at 568–69 (quoting 1 Davis, Administrative Law Treatise § 5.02 (1958)).
The difference is straightforward. Adjudications handle the past or current rights of specific people; rulemakings make law for everyone, for the future.
Ka Pa‘akai and the cases after it clearly contemplate agency adjudications, not rulemaking. In Ka Pa‘akai, we held that the Land Use Commission, in reviewing a petition for the reclassification of district boundaries, must make "specific findings and conclusions" on the exercise of Native Hawaiian rights in the area, the effects of the proposed action on them, and any feasible actions to reasonably protect Native Hawaiian rights, if found to exist. Ka Pa‘akai, 94 Hawai‘i at 47, 7 P.3d at 1084. Closely examining the evidence , we found the LUC's findings insufficient to meet its constitutional burden.
In a prototypical follow-on case from Ka Pa‘akai, In re ‘Iao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, we agreed with the challengers that the agency in question – after evidence was presented in an adversarial proceeding - had "a duty to make specific findings of fact and conclusions of law with regard to the effect of its D & O on traditional and customary-[N]ative Hawaiian practices." 128 Hawai‘i 228, 247, 287 P.3d 129, 148 (2012).
The law and process are clear-cut: agencies engaged in rulemaking do not make findings of fact and conclusions of law. They cannot, because they are not adjudicating specific rights. At a rulemaking, agencies gather information and make policy decisions. Comments flow in, but these comments are not comparable to testimony made during a contested case, which is taken under oath, subject to cross examination, and done in the context of an adversarial proceeding. When agencies wear their rulemaking hat, they don't build a specific evidentiary record. They don't find facts. And they don't enter conclusions of law - they make law.
The rare instance where we have purported to apply Ka Pa‘akai to an agency rule, rather than an adjudication, highlights the inherent problem with doing so. In State v. Armitage, we considered whether the Kaho'olawe Island Reserve Commission had fulfilled its constitutional obligations when it promulgated HAR §§ 13–261–10 and – 11, rules governing entrance into the reserve. We said it had. We pointed to a clause in the rule that people seeking "to exercise traditional
[153 Hawai'i 93] and customary rights and practices compatible with the law" could apply to the commission for permission. Armitage, 132 Hawai‘i 36, 58, 319 P.3d 1044, 1066 (2014). We also observed that the "State's interest as balanced against the potential harm to Petitioners' ability to engage in [N]ative Hawaiian traditional and customary practices weighs in favor of the State." Id.
That was it. The agency had made no specific findings or conclusions, yet it apparently was fine under Ka Pa‘akai. This seems deeply incongruous with Ka Pa‘akai and the cases that have applied it. But the incongruity becomes understandable when the changed context – a rule, not an adjudication - is taken into account. Ka Pa‘akai's framework simply does not graph onto the quasi-legislative rulemaking activities of agencies. Trying to make it fit, as in Armitage, ends up distorting that framework into something meaningless.
Applying Ka Pa‘akai to general rulemaking also raises serious due process concerns. Per the Chief Justice's proposed retool to Hawai‘i Revised Statutes Chapter 91, whenever a rule touches upon article XII, section 7, the agency will have to conduct some form of a Ka Pa‘akai proceeding in parallel with its rulemaking. It will ultimately reach a decision — doing so, of course, without the enlightenment of a specific evidentiary record or defined, adversarial parties. What will this mean for Native Hawaiians whose rights are specifically impacted by the rule?
Before, we would have said they have a right to a contested case hearing on issues particular to their situation. Mauna Kea I, 136 Hawai‘i at 390, 363 P.3d at 238. Now though, it's not so clear. Any contested case hearing would be undertaken on the backdrop of the agency's prior Ka Pa‘akai findings. And because that finding was made in a general rulemaking context, it would presumably apply generally.
But due process includes the right to not have your case prejudged. In Mauna Kea I we considered whether the approval of a permit before a contested case hearing violated due process. 136 Hawai‘i at 380, 363 P.3d at 228. There, appellants had "unequivocally requested" a contested case hearing. The Board of Land and Natural Resources scheduled one but voted on the permit before the hearing was held. We found this unacceptable. We emphasized that the procedures of a contested case hearing "are designed to ensure that the record is fully developed and subjected to adversarial testing before a decision is made. Yet that purpose is frustrated if, as was the case here, the decisionmaker rules on the merits before the factual record is even developed." Id. at 391, 363 P.3d at 239.
The majority opinion in Mauna Kea I rested on due process, without mentioning article XII, section 7. But the concurrence highlighted the necessity of holding a contested-case hearing to vindicate article XII, section 7 and Ka Pa‘akai. "[I]f customary and traditional Native Hawaiian practices are to be meaningfully safeguarded," the concurrence stressed, "it is imperative for the agency to receive evidence and then make a determination supported by the evidence in the record." Mauna Kea I, 136 Hawai‘i at 402, 363 P.3d at 250 (Pollack, J., concurring) (cleaned up).
Under FCO and the Chief Justice's approach, this right to a contested case hearing, with all of its protections, seems drained, even under threat. Findings and conclusions concerning article XII section 7's sensitive balancing will be made before a contested case hearing. And decided without Ka Pa‘akai's essential infrastructure – an evidentiary hearing involving adversarial parties.
The agency's findings or fuzzy "adequate considerations" will not go unnoticed. Contested case hearings or prosecutions held afterwards may either violate due process, because the result had been pre-decided, or the existence of a general Ka Pa‘akai rulemaking may nullify or undermine the rights of individuals who seek or have contested case hearings. Neither result is promising for the protection of Native Hawaiian rights.
OPINION OF McKENNA, J., CONCURRING AND DISSENTING FROM OPINION OF RECKTENWALD, C.J., IN WHICH WILSON, J., JOINS, AND OPINION OF EDDINS, J., IN WHICH NAKAYAMA, J., JOINS
I write separately because I agree and disagree with portions of both Chief Justice Recktenwald's and Justice Eddins' opinions.
[153 Hawai'i 94] The reserved questions from the circuit court are:
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?
I join Sections II, III, IV.A, IV.B, and IV.D of Chief Justice Recktenwald's opinion. I also join Sections I and II of Justice Eddins' opinion. My reasons for doing so are also informed by the following.
As explained in footnote 8 of Chief Justice Recktenwald's opinion, the presumption of constitutionality applicable to legislative enactments does not apply to executive agency rules. Thus, I believe it is axiomatic that in order to ensure that its rules comply with article XII, section 7 requirements, an agency must consider (1) the identity and scope of article XII, section 7 Native Hawaiian rights that will be affected by a proposed rule; (2) the extent to which those rights would be affected or impaired by the proposed rule; and (3) the feasibility of fashioning a rule that would reasonably protect those rights if they are found to exist. See Ka Pa‘akai O Ka‘Aina v. Land Use Comm'n, 94 Hawai‘i 31, 45, 47, 7 P.3d 1068, 1082, 1084 (2000), as amended (Jan. 18, 2001).1
However, I believe requiring agencies to prepare a written statement explaining how they conducted a Ka Pa‘akai analysis, as the Chief Justice would require in Section IV.C, violates separation of powers principles. Through the Hawai‘i Administrative Procedures Act, Hawai‘i Revised Statutes ("HRS") Chapter 91, the legislature has laid out rulemaking procedures for agencies to which it has delegated rulemaking authority. See HRS § 91-3 (2012 & Supp. 2018). The legislature has also laid out in Chapter 91 how such rules can be challenged. HRS § 91-6 (2012) allows any interested person to petition an agency to repeal a rule and requires the agency to explain any denial of such a request within thirty days. Whether or not a § 91-6 challenge was previously made, HRS § 91-7(a) (2012) allows declaratory actions regarding rule validity, such as the one in this case. In a facial challenge to a rule, HRS § 91-7(b) provides that a court is to declare the rule invalid if it finds that it violates constitutional provisions.
In contrast with agency rules, these legislative enactments are presumptively constitutional. Pray v. Jud. Selection Comm'n, 75 Haw. 333, 340, 861 P.2d 723, 727 (1993).2 The Chapter 91 statutory scheme does not require agencies to issue written statements summarizing how it considered Native Hawaiian or other constitutional rights when promulgating rules. Therefore, I believe judicial imposition of such a requirement would violate separation of powers principles. Hence, I disagree with Chief Justice Recktenwald's opinion in Section IV.C that an agency must prepare a written statement. I also agree with Justice Eddins' analysis in Section III of his opinion that requiring Ka Pa‘akai findings is workable and allowed in the contested case context (as an exercise of our judicial power) but not in the rulemaking context. I also share the concerns expressed by Justice Eddins in Section III of his opinion regarding the implications of requiring such a written statement. But I disagree with Justice Eddins' opinion that the Ka Pa‘akai framework has no application to rulemaking. As discussed above, I believe the framework must be considered in rulemaking even if a written statement explaining the agency's application of the framework is not required.
Finally, I agree with Chief Justice Recktenwald that it is appropriate to address the standard that must be met by a person bringing a facial challenge to the constitutionality of an agency rule based on
[153 Hawai'i 95] article XII, section 7. I agree that although the burden is on the person challenging constitutionality, the "high burden" governing challenges to legislative enactments does not apply. Rather, as further explained in Chief Justice Recktenwald's opinion, a plaintiff must show the agency failed to adequately consider or reasonably protect article XII, section 7 rights.