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HomeMy WebLinkAbout2026-01-05 PL-BOA-2026-000127 Petition -0:5'- ,‘........ r : .i 6.--f,:eff: !., a *■ f # r#OF M - County Hawai'i BOARD OF APPEALS Aupuru Center • 101 Pauahi Sufic 3 • 11110.Fla ar 1 96720 ( 8)9 1-8 8 • Fax(808)961-8742 GENERAL PETITION FOR APPEAL of DECISIONS BY PLANNING DIRECTOR OR PUBLIC WORKS DIRECTOR (Type or legibly print the requested information. See instructions attached.) TYPE OF PETITION (check one): ■ Appeal Decision of the Planning Director El Appeal Decision of Director of Public Works SUBJECT PROPERTY(land in question): Tax Map Key (TMK): (3) 1-2-018:001 Area of Property: Kaimu, Puna, Hawaii State Land Use Designation: Urban and Conservation County Zoning: RA-.05a Street Address: 12- 7 9 Kalapana-Kapoho Beach Road APPELLANT INFORMATION: Name(s): 'Ghana o Mokuhulu, Kaimu Makena, and Kalapana (Leslie Enriquez Rosehill) Signature(s): Date: 1/5/2026 Mailing Address: 61 K o lani Street, Hilo HI 96 20 Telephone: (808) 825- 1 6 Email: leslie.lihaunani@gmail.com Interest in Subject See attached Memorandum in Support of Petition for Appeal. Property: LANDOWNER INFORMATION: Name(s): Kaimu Cove LLC Signature(s)1: Date: Mailing Address: 12-55 Likoliko Loop, Box 4866 Pahoa HI 96 8-6810 Telephone: 0 965-5404 Email: w attinhawaii© r ail, or APPELLANT REPRESENTATIVE INFORMATION (leave blank if not applicable): I me(s) Title(s): Native Hawaiian Legal Corporation Hato re Date: 1/5/2026 Mailing Address: 1164 Bishop Street, Suite 1205, Honolulu, HI 96813 Telephone: 521-2302 Email: terina.faagau©nhichi.org kirsha.durante@nhlchi.org Not required if the Landowner is not the Appellant. 0H01\planning\public\BOA\Forms and Labels\Application F rms\APPEAL 20 1- 2-PL or PW Dir.docx Revised April 2021 Statement of the nature of Appeal and the Relief Requested. Include Director's decision and decision date: See attached Memorandum in Support of Petition for Appeal. .. ..................................... Statement of how the Director's decision violates the law; or is clearly erroneous; or is arbitrary or capricious,or characterized by an abuse of discretion or clearly unwarranted exercise of discretion: See attached Memorandum in Support of Petition for Appeal. Statement of any other relevant facts: See attached Memorandum in Support of Petition for Appeal. NIMINNWIN If there is insufficient space on this form to provide the information, then please include supplemental documents. l\COH01\planning\public\BOAVorms and Label Appl cat on Forms\APPEAL 2021 07-PL or PW Dirdocx Revised April 2021 NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai`i 96813 Telephone: (808) 521-2302 Fax: (808) 537-4268 TERINA FA'AGAU KIRSHA K.M. DURANTE Attorneys for Appellant `Ohana o Mokuhulu, Kaimu, and Kalapana BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI'I In the Matter of the Appeal THE `OHANA 0 MOKUHULU, KAIMU of KAIMU MAKENA, AND KALAPANA'S MEMORANDUM IN SUPPORT OF `Ohana o Mokuhulu, Kaimu Makena, and PETITION FOR APPEAL; EXHIBITS "1"— Kalapana "10"; CERTIFICATE OF SERVICE. From the Action of the Director of Planning in Approving Special Management Area Minor Permit for Plan#PL-SMM-2025-000079 THE `OHANA 0 MOKUHULU, KAIMU MAKENA,AND KALAPANA'S MEMORANDUM IN SUPPORT OF PETITION FOR APPEAL Appellant THE `OHANA 0 MOKUHULU, KAIMU MAKENA, AND KALAPANA (the "`Ohana"), by and through its attorneys, Terina K. Fa'agau and Kirsha K.M. Durante of the Native Hawaiian Legal Corporation, hereby submits this Petition for Appeal of the Planning Director's approval of Special Management Area Minor Permit ("SMA Minor Permit") for Plan #PL-SMM-2025-000079, a proposed project for the construction of new single-family residence and related improvements (the "Kaimu Cove project"), at 12-7789 Kalapana-Kapoho Beach Road, TMK no. (3) 1-2-018:001 (the "subject property"). The Director's decision to approve an SMA Minor Permit for the Kaimu Cove project ("Director's Decision") violates established law and is based upon clearly erroneous findings of facts and applications of law, is arbitrary and capricious in its application, and is characterized by a clearly unwarranted abuse of discretion. By letter dated December 4, 2025, the Director provided notice of its approval of an SMA Minor Permit for the Kaimu Cove project, in which it specified that the Kaimu Cove project is a"development"pursuant Commission Rules § 9-4(i)(1)(A) & (E), which"will not have a cumulative impact or significant adverse environmental or ecological effect on the SMA." See December 4, 2025 Letter from the Planning Director to Kaimu Cove LLC, attached hereto as Exhibit"1." Pursuant to Section 9 of the Special Management Area ("SMA") Rules for the Hawai`i Planning Commission("SMA Rules") and Rule 8-3 of the Board of Appeals Rules of Practice and Procedures ("BOA Rules"), an appeal from the Director's Decision"shall be filed within thirty (30) days of the date of the Director's written decision, unless otherwise stated in the applicable Code."1 BOA Rules § 1-7 specifies that when computing any period of time under the Commission Rules, "the time begins with the day following the act, event, or default, and includes the last day of the period unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or holiday." Notice of the instant appeal was timely filed with the Department of Planning for the County of Hawai`i on January 5, 2026. STATEMENT OF FACTS 1 SMA Rules § 9-11(0(5)outlines the procedures for appeals from the Commission's decision on"Special Management Area Use Permit[s,]"but Section 9, Special Management Area,does not provide information about procedures for an appeal from the Director's decision on a Special Management Area Minor Permit. 2 Appellant `Ohana o Mokuhulu, Kaimu Makena, and Kalapana This appeal is filed on behalf of the `Ohana o Mokuhulu, Kaimu Makena, and Kalapana (the "`Ohana"), a group of practitioners, stewards, lineal and cultural descendants of the Mokuhulu, Kaimu Makena, and Kalapana ahupua'a who exercise traditional and customary rights and practices and whose members include those who have protected property interests in lands within the proposed Kaimu Cove project. The `Ohana and its members have protected constitutional interests and rights in their traditional and customary native Hawaiian practices, which will be adversely impacted by the proposed project. Description of Subject Property On or around May 28, 2022, Kaimu Cove LLC2 purchased the subject property at 12- 7789 Kalapana-Kapoho Beach Road, identified as TMK no. (3) 1-2-018:001, in Pu'ilima, Kaimu Ahupua`a, Puna District on Hawai`i Island. The property is a trapezoidal area of 3.667 acres situated between Kalapana-Kapoho Beach Road and the shoreline, and is within the Special Management Area. The parcel borders native-dominated coastal shrublands on the Hawai`i State conservation lands of Keokea/Kikala to the east, a single-family residential home on the west edge, 170 feet of the Kalapana-Kapoho Road on the north edge, and about 535 feet of coast. This coastline represents one of the last remaining undeveloped ancestral stretches in Kaimu— functioning as a cultural kipuka following lava inundation elsewhere. Prior to Kaimu Cove LLC's clearing and grading development activities between 2022 and 2025 (described further below), the subject property was undeveloped, vacant land with natural vegetation including `ohi`a lehua, uluhe, milo, noni, koali, and introduced invasive 2 Kaimu Cove LLC was registered in May 2022, with Mark Wyatt and Lisa Benham as managing members. Daryn Arai is Kaimu Cove LLC's land use/planning consultant. 3 species (e.g.,Albizia sp.). The subject property fronts a biologically diverse marine environment, including ancestral fishing grounds and limu(seaweed) grounds, including several rare endemic limu species. The site of a former Native Hawaiian village, the subject property and abutting shoreline are a wahi pana(storied place)where Native Hawaiian families have continued to exercise traditional and customary access and gathering practices for cultural, subsistence, and religious purposes. These practices include but are not limited to: `aukai/pikai (ritual cleansing, rinsing); fishing; gathering plants, seaweeds, and other natural resources; and weaving. A trail through the subject property from Kalapana-Kapoho Beach Road to the shoreline has been used by several generations of Native Hawaiian families so that they may access and exercise their traditional and customary practices on or near the shoreline. Four(4) historic sites have been identified and registered on the property through archaeological surveys: SIHP 50-10-63-18525 and SIHP 50-10-63-18526 (agricultural and habitation mounds); SIHP 50-10-62-18527 (a historic boundary wall), and SIHP 50-10-63-18526 (a modified lava tube). Immediately upland of the subject property is Kaipu'uelelu Cemetery (SIHP 50-10-63-02547), which contains about 8,000 burial mounds, including burials of ancestors of the members of Appellant the `Ghana. Kumaka`ula Heiau and the Star of Sea Church (SIHP 50-10-63-07380) are within one (1) kilometer of the subject property. The Kaimu Cove Project The Director's Decision approves the construction of a new single-family residence and related improvements. The Applicant proposes to construct a two-story dwelling with two bedrooms and two bathrooms. The first level is planned to have a 384-square foot living area and a 320-square foot porch with a two-care garage. The second level is planned to have a 768- 4 square foot living area and a 320-square foot lanai. Additionally, the project includes the construction of a 60 by 35-foot pickleball court, as well as a 10-foot wide public access easement located along the property boundary with the State parcel to the north-east. Access to the proposed residence will be directly from the Kalapana-Kapoho Beach Road via a 15-foot wide compacted gravel driveway. A 5-foot tall rock wall and gate system, totaling approximately 55 feet in length, is proposed at the entry point on Kalapana-Kapoho Beach Road. See SMA Minor Application PL-SAA-2025-000312, attached hereto as Exhibit "2." Procedural History and Jurisdiction Kaimu Cove LLC's Previous Permit Applications and Activities On June 1, 2022, Kaimu Cove LLC (the "Applicant") submitted an SMA Use Permit Application (PL-SAA-2022-000080) to "Grub acreage for building sites" of seven (7)possible structures. On June 8, 2022, the Planning Department requested additional information for its review of PL-SAA-2022-000080—namely, a completed SMA Assessment application and the landowners' signatures on the application. On June 20, 2022, Planners Alex Roy and Tracie-Lee Camero conducted a site inspection. By July 25, 2022, the Department had not received the requested information or other correspondence from the Applicant. From late July to mid-August 2022 (approximately two weeks), the Applicant commenced with grubbing existing vegetation on the subject property in the northern-most area, the location of its proposed driveway access and house pad. The grubbing activities extended into the adjoining State-owned lands. Kaimu Cove LLC also laid approximately 36 cubic yards of black cinder within the eastern most portion of the property, near the proposed house pad, which was within the portion of the 40-foot shoreline setback area. 5 By letter dated July 25, 2022, the Department returned the application(PL-SAA-2022- 000080) to Kaimu Cove LLC due to inaction and informed the Applicant that it is "not permitted to conduct any work or activities until a SMA review has been completed by the Planning Department and the appropriate approvals or permits have been issued." On September 1, 2022, Kaimu Cove LLC filed a subdivision application(PL-SUB-2022- 000094) for the development of a 7-lot subdivision. Its application was returned for more information, including a certified shoreline survey and SMA Use Permit for the proposed development. On September 29, 2022, the Planning Department verbally informed Kaimu Cove LLC to cease and desist any and all grading and grubbing activities on the property until it obtains an SMA permit approval. See SMA Use Permit Application PL-SMA-2024-000063, attached hereto as Exhibit"3," at 15-18 (outlining the "historical property information" for the subject property). On October 4, 2022, the Department's Planning Inspector conducted a site visit and inspection of the property and observed that grubbing/grading had occurred to create an access road with a junction, the northern portion of which led to a clearing for a future dwelling. See October 10, 2022 Notice of Violation and Order, attached hereto as Exhibit"4." By letter dated October 10, 2022, then-Planning Director Zendo Kern on behalf of the Department issued the Applicant a Notice of Violation and Order(PL-PCV-2022-00015), "with an administrative fine in the sum of ten thousand dollars ($10,000) for the development of property (grubbing/grading a road and land clearing) without a Special Management Area Assessment (SMAA) permit." The letter ordered the Applicant to "Immediately cease and desist any further unpermitted development, including cutting of trees/foliage on the subject property"; "Apply for and secure an after-the-fact [SMA] Use Permit Assessment for the unpermitted 6 development(grubbing/grading)"; and "Pay all fines due this office and complete corrective actions by . . . January 6, 2022 [sic]."See Exhibit 4. On October 19, 2022, Kaimu Cove LLC applied for an after-the-fact SMA Use Permit Assessment (PL-SAA-2022-000 126) for the grubbing/grading that had previously happened and subject to the Notice of Violation and Order (PL-PCV-2022-00015). The application was subsequently returned by the Department on October 26, 2022 for additional information. On November 17, 2022, Kaimu Cove LLC filed an appeal (PL-BOA-2022-000058) from the Notice of Violation and Order. By email dated December 14, 2022, Kaimu Cove LLC notified the Department that it "would like to withdraw [the] appeal in exchange for a[ 120- to 180-day] extension of[the] deadline to meet violation correction" and obtain a certified shoreline survey. Kaimu Cove LLC noted it would thereafter submit an after-the-fact SMA application. By email dated December 20, 2022, the Board of Appeals acknowledged Kaimu Cove LLC's request to withdraw its petition and stated that it "considers this matter closed." On December 15, 2022, the Planning Department issued a 6-month extension to comply with the corrective actions in the Department's Notice of Violation and Order, with a new deadline of June 15, 2023. On August 4, 2023, the Department informed Kaimu Cove LLC that due to Kaimu Cove LLC's failure to comply with the corrective actions by the June 15, 2023 deadline, daily fines retroactively applied dating back to October 11, 2022. On August 9, 2023, Kaimu Cove LLC's consultant responded that the Applicant is making ongoing efforts to comply with the corrective actions. From October to December 2023, ASM Affiliates, on behalf of Kaimu Cove LLC, conducted consultation with some of the long-time residents and descendants of the Kaimu 7 Ahupua'a"[t]o address the concerns of the County of Hawai`i Planning Department regarding the proximity of the cemetery to the project area and to determine the presence (or absence) of burial sites within the project area[.]"ASM Affiliates reported, in January 2024, that"[n]one of the consulted parties knew of any burial sites within the project area."See Exhibit 2, at 52-70. According to the Applicant, Kaimu Cove LLC was informed on December 26, 2023 that it had until June 26, 2024 to comply with the corrective actions required in the Department's Notice of Violation and Order. See Exhibit 3. On or around July 11, 2024, Kaimu Cove LLC submitted an SMA Use Permit application (PL-SMA-2024-000063) for the development of a 5-lot subdivision consisting of parcels at least one-half acre in size, including "the construction of a proposed single-family dwelling and related improvements on each of the proposed lots as determined by the individual lot owners[.]" See Exhibit 3. On September 6, 2024, the Department informed Kaimu Cove LLC that its application (PL-SMA-2024-000063) was scheduled for a hearing by the Windward Planning Commission (the "Commission) on October 3, 2024. Issued in September 2024, the Planning Department's Recommendation Report recommended that PL-SMA-2024-000063 "be approved by the Planning Commission." The recommendation noted, however, "the Director reserves the right to modify and/or alter this recommendation based upon additional information presented at the public hearing." On October 3, 2024, application PL-SMA-2024-000063 was heard before the Windward Planning Commission. Members of the `Ghana and others in the community submitted written and oral testimony about the historical and cultural significance of subject property and surrounding areas, and their traditional and customary access and gathering practices exercised 8 on and near the subject property. After acknowledging the community's serious concerns, then- Director Zendo Kern shared that for the first time, despite the existing recommendation, he was inclined to change his stance. The Commission continued the hearing and requested that either an Archaeological Inventory Survey or Cultural Impact Assessment ("CIA")be completed before it decides whether to approve or deny the Applicant's permit. See Minutes of the October 3, 2024 Windward Planning Commission Meeting, attached hereto as Exhibit"5." In November to December of 2024, the `Ohana began drafting a CIA, including a Ka Pa`akai analysis, for the Kaimu Cove project in an effort to document and ensure consideration of their protected rights and practices before the Planning Commission decided on the SMA Use permit application. On June 12, 2025, the Department received from Lisa Benham of Kaimu Cove LLC a letter, in which she describes: Kaimu Cove LLC's original "goal . . . to have a seven lot subdivision on a 3.6 acres lot which the county approved"; its amended plan to construct"a five lot subdivision due to the forty foot shore line setback for the public access pathway to the beach"; and finally, Ms. Benham and Mr. Wyatt's agreement to build a"two lot subdivision." On September 15, 2025, Daryn Arai, Planning Consultant for Applicant Kaimu Cove LLC, submitted an SMA Use Permit Assessment Application to the County of Hawai`i Planning Department for a single-family two-story home and pickleball court (PL-SAA-2025-0003 12). The `Ohana completed a draft CIA and Ka Pa`akai Analysis in September 2025 and offered a copy to the Planning Department. See DRAFT—Cultural Impact Assessment and Ka Pa`akai Analysis for Pu'ilima, Kaimu Ahupua`a, Puna District, Hawai`i Island, attached hereto as Exhibit"6." The `Ghana was told the Department would not review the CIA. On October 9, 2025, representatives of the `Ohana(Leila Kealoha, Leslie Rosehill, Gina McGuire, and Kuulei 9 Kealoha Cooper) met with Director Darrow and Planner Alex Roy. At the time, two applications were pending before the Department, but neither had been approved. The Director and Planner Roy advised the `Ohana to send the CIA to SHPD. The `Ohana then sent the CIA to SHPD Hawai`i Island Lead Archaeologist Sean Naleimaile. On or around October 12, 2025, the Applicant engaged in further unpermitted work activity on the property— its developers dug a trench with a backhoe and installed a double gate with anchors. On October 14, 2025, the Planning Department issued the Applicant a Stop Work Order, informing Kaimu Cove LLC to stop any unpermitted work occurring on the subject property. Also on October 14, Kaimu Cove LLC notified the Department of its intent to withdraw its SMA Use Permit application PL-SMA-2024-000063. On October 15, 2025, the Director(via letter) acknowledged Kaimu Cove LLC's withdrawal of the SMA Use Permit application. The letter noted that the Applicant's SMA Assessment Application PL-SAA-2025-000312 was "under review by the Planning Department" and"no work can occur on the subject parcel without first obtaining the appropriate permits or approvals form the Planning Department and other affected agencies." On October 17, 2025, Kaimu Cove LLC sent a letter to the Windward Planning Commission requesting the withdrawal of PL-SMA-2024-000063 "as it has elected not to pursue the proposed 5-lot subdivision on this property." On October 20, 2025, the Windward Planning Commission acknowledged receipt of Kaimu Cove LLC's October 17 letter withdrawing application PL-SMA-2024-000063. Kaimu Cove LLC's SMA Minor Permit Application (PL-SMM-2025-000079) On October 27, 2025, Consultant Arai on behalf of Kaimu Cove LLC submitted the SMA Minor Permit Application for the Kaimu Cove project PL-SMM-2025-000079. See Exhibit 2. 10 Also on October 27, 2025, Kaimu Cove LLC's developers commenced unpermitted and unauthorized ground disturbing activity with the construction of a pickleball court. Understanding that no permits had yet been approved for this activity, `Ohana member Leslie Enriquez Rosehill filed a police report with the Hawai`i Police Department (no. 25-097123). On October 28, 2025, Ms. Rosehill emailed the Director and Planning Department staff about the Applicant's continued illegal use of a backhoe on the subject property despite the County's issuance of a stop-work order. Ms. Rosehill's letter further explained that Kaimu Cove LLC's application is "incomplete" and expressed concerns about enforcement of the stop-work order, restoration of any damage done by the unpermitted ground disturbing activity, and the `Ohana's requests for access across the trail through the subject property that has been used by several generations of her family. See Email from and Response to Leslie Enriquez Rosehill, attached hereto as Exhibit"7."Also on October 28, 2025, Planning Department staff observed unpermitted work being conducted on the subject property; ground disturbances that appeared to be for the purpose of the Applicant's proposed pickleball court; and a yellow septic tank and several piles of base course material. See October 29, 2025 2nd Notice of Order and Violation, attached hereto as Exhibit"8." On October 29, 2025, the Planning Department issued another Notice of Violation and Order to the Applicant for failure to comply with the October 14, 2025 Stop Work Order. Along with issuing a $10,000 fine for this second violation, the Planning Department ordered the Applicant to immediately cease and desist all work on the subject property until an SMA permit is secured, immediately remove the excavator and septic tank from the property, and pay the total fines due from Applicant($20,000) based on the two Notices of Violation and Orders. See Exhibit 8. Also on October 29, 2025, the Director replied to Ms. Rosehill's email, stating "The 11 Planning Department cannot create an easement on private property without being part of a planning permitting process. In this case, the public access easement would be established as part of the SMA permitting process, which is still in progress."See Exhibit 7. On December 2, 2025, the Department of Land and Natural Resources, State Historic Preservation Division ("SHPD") sent a letter to the County providing its review of Kaimu Cove LLC's SMA assessment and SMA Minor Permit application. SHPD relied in part on"new evidence"presented in the `Ohana's draft CIA. SHPD noted it had previously determined as to the SMA Use Permit that"No historic properties [would be] affected" (see SHPD Review of PL- SMA-2024-000063, attached hereto as Exhibit"9"), and that under PL-SMA-2024-000079, "none of the previously identified historic properties are located within the current permit area." SHPD also stated, however, that it has insufficient information to determine the project's potential adverse impact to significant subsurface historic properties and requested archaeological monitoring during all ground disturbing activities and, "prior to permit issuance[,]" an archaeological monitoring plan in compliance with Hawai`i Administrative Rules § 13-279-4. See SHPD Review of PL-SAA-2025-000312, attached hereto as Exhibit"10." On December 4, 2025, the Director sent a letter to Consultant Arai and Kaimu Cove LLC discussing the SMA assessment of the Kaimu Cove project and approving an SMA Minor Permit for the project. The Permit is subject to fourteen (14) conditions, which include: 6. In order to preserve the coastal access for fishing and gathering purposes the public currently uses, the Applicant shall establish a 10-foot- wide pedestrian public shoreline access easement on the subject parcel along the north-east property boundary adjacent to the State parcel that extends from Kalapana-Kapoho Beach Road to the shoreline fronting the subject parcel. The metes and bounds of the shoreline access trail shall be recorded with the Bureau of Conveyances as a deed instrument against the affected lot. The Applicant shall not, at any time, impede or otherwise restrict lateral public access along the shoreline and within the public pedestrian access easement. The Applicant shall purchase and install a 12 Shoreline Public Access sign meeting with Planning Department approval at the entrance to the public access path at Kalapana-Kapoho Beach Road. The Shoreline Public Access Sign description may be obtained from the Planning Department. 9. Due to insufficient information regarding potential impacts to subsurface historic properties, the Applicant is required to prepare an Archaeological Monitoring Plan (AMP) meeting the requirements of Hawai`i Administrative Rules (HAR) Ch. 13-279-4 for review and approval by the State Historic Preservation Division(SHPD)prior to the issuance of Building Permits for the proposed development. The Applicant shall provide a copy of the approved AMP to the Planning Department once approved by SHPD. The Applicant shall comply with the approved AMP including, but not limited to, having an archaeologist onsite to conduct archaeological monitoring for identification purposes during all ground disturbing activities to adequately identify any archaeological historic properties present and, if identified, to determine potential impacts to them, and to ensure that appropriate mitigation is implemented. 12. That in issuing this permit, the Department has relied on the information and data that the applicant has provided in connection with this permit. If, subsequent to issuance of this permit, such information and data prove to be false, incomplete or inaccurate, this permit may be modified, suspended, or revoked, in whole or in part, and/or the Department may, in addition, institute appropriate legal proceedings. See Exhibit 1 (emphases added). DISCUSSION I. THE DIRECTOR'S DECISION WAS BASED ON CLEARLY ERRONEOUS FINDINGS OF FACT AND APPLICATIONS OF LAW The Director's Decision was based on clearly erroneous findings that are not supported by reliable, probative, and substantial evidence. The Hawai`i Supreme Court follows the clearly erroneous standard in reviewing findings of fact: A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A 13 finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined substantial evidence as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158, (2004). The following determinations, i.e., findings, made by the Department as to the SMA Minor Permit are clearly erroneous (as explained further below): [T]he project will not have a cumulative impact or a significant adverse environmental or ecological effect on the SMA. [The Kaimu Cove project is in] Compliance with Objectives and Policies of Chapter 205A, Hawai `i Revised Statutes (HRS), Regarding the Special Manaement Area. Development will not have any significant adverse environmental or ecological effect, except as any adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. . . . The proposed development is consistent with the Hawai`i County General Plan, community plan, and zoning . . . The proposed development does not conflict with the following objectives of Chapter 205A, HRS (as amended), to: Provide coastal recreational opportunities accessible to the public. Protect, preserve, and where desirable, restore those natural and man-made historic and pre-historic resources in the coastal zone management area that are significant in Hawaiian and American history and culture. Protect, preserve, and where desirable, restore or improve the quality of coastal scenic and open space resources. Protect valuable coastal ecosystems, including reefs, beaches, and coastal dunes, from disruption and minimize adverse impacts on all coastal ecosystems. Provide public or private facilities and improvements important to the State's economy in suitable locations. Reduce hazard to life and property from coastal hazards. Improve the development review process, communication, and public participation in the management of coastal resources and hazards. Stimulate public awareness, education, and participation in coastal management. Protect beaches and coastal dunes for: Public use and recreation; The benefit of coastal ecosystems; Use as natural buffers against coastal hazards; and Coordinate and fund beach management and protection. 14 Promote the protection, use, and development of marine and coastal resources to assure their sustainability. The proposed development is consistent with the following policies of Chapter 205A, HRS, relating to: Recreational Resources[,] Historic Resources[,] Scenic and Open Space Resources[,] Coastal Ecosystems[,] Economic Uses[,] Coastal Hazards[,] Managing Development[,] Public Participation[,] Beach and Coastal Dune Protection[, and] Marine and Coastal Resources. The proposed development conforms to the requirements of Chapter 343, HRS, regarding Environmental Impact Statements. [T]he proposed activities will not have any significant adverse environmental or ecological effect, except as such adverse effects are minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. The proposed development is consistent with the objectives, policies, and SMA guidelines of Chapter 205A, HRS. See Exhibit 1. a. The Planning Director clearly erred in finding that the project will have no significant adverse environmental or ecological effects. The Department of Planning and the Director failed to identify and consider impacts to the environment or ecology, namely impacts to Article XII, § 7 Native Hawaiian traditional and customary rights and historic properties protected under HRS Chapter 6E, and erroneously required and approved the SMA Minor Permit despite the potential significant adverse environmental or ecological effect of the Kaimu Cove project. Under Hawai`i Revised Statutes ("HRS") § 205A-22, an SMA minor permit may be authorized for an action"the valuation of which is not in excess of$500,000 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects."See also SMA Rules §§ 9-4(x), 9-10(e). SMA use permits (aka"major permits") are required for actions exceeding a $500,000 valuation or that"may have a 15 substantial adverse environmental or ecological effect, taking into account potential cumulative effects." HRS § 205A-22 (emphases added); see also SMA Rules § 9-4(y). A"significant adverse effect" is determined by the specific circumstances of the proposed action: "In determining whether a proposal may have a significant adverse effect on the environment, the Director shall consider every phase of a proposed action and expected consequences, either primary or secondary, or the cumulative as well as the short or long-term effect of the proposal." SMA Rules § 9-10(h) (outlining "Criteria of Significant Adverse Effect"). A proposed action"in most instances"results in a significant effect where it: (1) involves an irrevocable commitment to loss or destruction of any natural or cultural resource, including but not limited to, historic sites and view planes outlined in the General Plan or other adopted plans; (2) curtails the range of beneficial uses of the environment; (3) conflicts with the long-term environmental policies or goals of the General Plan or the State Plan; (4) significanctly affects the economic or social welfare and activities of the community, County or State; (5) involves significant secondary impacts, such as population changes and effects on public facilities; (6) in itself has no significant adverse effect but cumulatively has considerable adverse effect upon the environment or involves a commitment for larger actions; (7) significantly affects a rare, threatened, or endangered species of animal or plant, or its habitat; (8) detrinemntally affects air or water quality or ambient noise levels; (9) affects an environmentally sensitive area, such as flood plain, tsunami zone, erosion-prone area, geologically hazardous land, estuary, fresh water or coastal water; or (10) is contrary to the objectives and policies of the Coastal Zone Management Program and the Special Management Area Guidelines of Chapter 205A, HRS. SMA Rules §§ 9-10(h)(1) - (10). Departing from HRS § 205A-22, the Planning Department and the Director did not consider or assess the potential cumulative effect of the Kaimu Cove project before approving the SMA Minor Permit, including impacts to: access to the beach and gathering sites; natural, 16 historic, and/or cultural resources, e.g., ala (trails), endagered or threatened species, iwi kupuna (Native Hawaiian ancestral remains/burials), wahi kupuna, or ko`a (fishing grounds); and traditional and customary fishing and gathering practices. The Planning Department and its Director improperly limited the scope of potential impact or effect by failing to evaluate "every phase" of the proposed Kaimu Cove project"and expected consequences, either primary or secondary, or the cumulative as well as the short or long-term effect[.]"See SMA Rules § 9-10. The Department and Director fail to appreciate "every phase," including previous actions of the Applicant and the sum of expected consequences or long-term effects of the Kaimu Cove project. The Director clearly erred in ignoring that the Applicant repeatedly conducted excavation without permits or authorization by the appropriate State and/or County agencies; destroyed a historic mauka-to-makai coastal trail; damaged at least one documented archaeological site; and removed ancestral forest resources, including milo and noni groves. Moreover, Kaimu Cove LLC's permit application, though focused on the SMA Minor Permit subject of this appeal, includes several references throughout the document to a"subdivision" or "subdivision development" on the subject property. Even if additional permits are required in the future to build additional dwellings or structures on the subject property, the development of a subdivision with multiple dwellings is a foreseeable cumulative impact or long-term effect that must be considered before any SMA permit is approved or denied. Information obtained from the Applicant during the SMA assessment process, on which the Director relied(see Condition no. 12 in Exhibit 1), did not aid in the evaluation of potential cumulative impact and short or long-term effect to important historic sites and/or cultural resources. The Applicant erroneously evaluates traditional and customary Native Hawaiian rights 17 and, thus, the development's substantial adverse environmental/ecological effect and potential cumulative effects on those rights. Although acknowledging the existence of historical sites, including burials, and traditional and customary practices on or in the immediate vicinity of the subject property, Kaimu Cove LLC's application minimized the proposed project's impacts to such resources. For instance, in support of the SMA Assessment, the Applicant discloses that on the subject property there are four (4) historical sites, which were identified in a 1992 archaeological inventory survey and at that time deemed significant under Criterion D of Hawai`i Administrative Rules ("HAR") § 13-284-6—meaning they "[h]ave yielded, or [are] likely to yield, information important for research on prehistory or history[.]"). The Applicant surmises however that "because sufficient data has been collected from each site, they can be evaluated as 'no longer significant[.]"' The Applicant contends that its study of the subject property"supports a HRS Chapter 6E-42 determination of'No historic properties affected' by the proposed subdivision [sic] development of the subject property, which has now been reduced in scope to a single-family dwelling." Due to its limited consultation though, the Applicant failed to obtain information about additional historic sites, including iwi kupuna, on the subject property. Likewise, the Applicant did not obtain or disclose information about the kanu (burial) protocol or malama iwi kupuna (caring for ancestral remains) practices, including gathering natural resources used for kanu, that are conducted or exercised on the subject property. Kaimu Cove LLC states "there are no known customary or Native Hawaiian cultural rights exercised within the subject property." However, in briefly discussing cultural or Native gathering rights in its SMA Minor permit application, the Applicant focuses on whether burial sites exist within the subject property and the footprint of the proposed project. The Applicant 18 concludes that because no burial sites or traditional and customary practices have been identified within the bounds of the subject property by the Applicant, "the Applicant could find no evidence of any possible adverse effects or impairments that will occur to any valued resources should the proposed construction of single-family dwellings [sic] be allowed." In essence, the Applicant dismisses or is ignorant to the significance of the historical, cultural sites on the property and other sites that might be affected which are not within the project footprint or the subject property boundaries. Moreover, the Applicant confuses an archaeological review or study with the Ka Pa`akai analysis of traditional and customary rights and practices. Based on its erroneous analyses of the rights and resources potentially impacted by the Kaimu Cove project, the Applicant concedes that it"is not able to identify any irreversible or irretrievable commitment of cultural, historical, recreational or ecological resources as a result of the proposed subdivision development." Because the Applicant focused its analysis of impacts only on archaeological surveys and registered burial and historical sites, it failed to identify the cultural resources (i.e., Native Hawaiian traditional and customary access and gathering rights and practices) actually at stake. For example, on and in the immediate vicinity of the subject property, there are historic, cultural, and ancestral sites such as iwi kupuna, milo and noni groves, fishing grounds and tidepools, and a traditional mauka-to-makai access trail—upon which cultural practitioners rely upon for their subsistence, cultural, and religious practices and lifestyle. In approving the SMA Minor Permit for the Kaimu Cove project, the Director accepted the Applicant's faulty analyses of resources, rights, and the impacts to them both. Thus, the Director's Decision fails to meaningfully address the project's potential impacts to ongoing 19 coastal erosion and subsidence; sea level rise and shoreline instability; groundwater and marine contamination from septic systems in highly porous lava rock; threatened and endangered species; degradation of nearshore fisheries and limu resources relied upon for subsistence; and traditional and customary access and rights. Concerns regarding the Director's failure to identify and evaluate potential impact or effect to historic sites and natural and cultural resources are compounded by the fact that the Applicant has repeatedly conducted unpermitted and unauthorized construction activities on the subject property. The Director's decision to approve a permanent residential structure in a known hazardous and culturally sensitive coastal zone—particularly after scaling down from seven homes to one—reflects an incremental approval strategy that ignores the cumulative and irreversible impacts of even a single structure in this location. Clearly, the reasonably foreseeable future actions resulting from the SMA Minor Permit approval may have a substantial adverse environmental or ecological effect, which precludes the proposed project from qualifying for an SMA minor permit, and the Director erred when he nonetheless approved the SMA Minor Permit for the Kaimu Cove project. b. The Planning Director clearly erred in finding that the project is consistent with the objectives,policies and SMA Guidelines set forth in HRS Chapter 205A and is consistent with the County General Plan and Zoning. The Director erroneously found that the project is consistent with objectives, policies, and SMA guidelines set forth in the HRS Chapter 205A and consistent with the County General Plan and Zoning. The Director's Approval Is Not Consistent With Chapter 205A Guidelines, Objectives,And Policies Hawai`i's Coastal Zone Management("CZM") Program provides a collaborative approach for the effective management and protection of the coastal zone, in which SMA 20 permits serve as a management tool to regulate permissible land uses within special management areas. The legislative history of the CZMA indicates that the legislature desired to facilitate public participation in the decision-making process."Sandy Beach Defense Fund v. City Council of Honolulu, 70 Haw. 361, 381, 773 P.2d 250, 263 (1989); see also,In Re Water Use Permit Applications, 94 Hawai`i 97, 143, 9 P.3d 409, 455 (2000) (stressing the importance of decision making "with a level of openness"). One of the objectives of HRS Chapter 205A is to "stimulate . . . participation in coastal management." HRS § 205A-2(b)(8)(A). One of the policies is to "promote public involvement in coastal zone management processes." HRS § 205A- 2(c)(8)(A). See also HRS §§ 226-3, 92-1, 344-4(10)(B). The lack of community participation prior to the Director's approval of the SMA Minor Permit departs from these CZM objectives and policies. The Decision is noncompliant with HRS § 205A-26(2), which sets out the findings an authority must have made in order for a development to be approved. HRS § 205A-26 provides guidelines the Department"shall adopt . . . for the review of developments proposed in the special management area." It states, to develop within an SMA, the first permit required is an SMA permit(HRS §§ 205A-28 and-29), which may only be approved after the approving authority has determined the development: (A) "will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options"; (B) "is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature"; and 21 (C) "is consistent with the county general plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required." HRS § 205A-26(2). As discussed supra, the SMA Minor Permit will have a substantial adverse or ecological effect and thus, per HRS § 205A-26(2)(A), should not have been approved. Additionally, the Director's Decision does not comply with CZM requirements concerning minimizing or mitigating substantial adverse impacts. HRS § 205A-26(2)(A)requires no substantial adverse effect except where minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. HRS § 205A-26(3) similarly requires minimizing, where reasonable, certain adverse impacts to the coastal zone. By failing to identify impacts to the `Ohana's traditional and customary rights though, the Department and Director could not have mitigated impacts to the extent practicable or weighed them with other interests. The Director's Decision Is Not Consistent with Relevant Plans Under HRS § 205A-26(2)(C), an SMA permit shall not be approved unless the authority finds that"the development is consistent with the county general plan and zoning." GATRI v. Blane("GATRI"), 88 Hawai`i 108, 114, 962 P.2d 367, 373 (1998) (emphasis in original) (upholding the planning director's denial of an SMA permit because it was not consistent with the Kihei-Makena community plan and, thus, Maui General Plan) (overruled on other grounds). SMA Rules § 9-10(h) explicitly states, "The Director should bear in mind that in most instances, the following factor[] of a proposal . . . may constitute a significant adverse effect on the environment when the proposed use, activity or operation: . . . (3) conflicts with the long-term environmental policies or goals of the General Plan or the State Plan[.]"Under SMA Rules § 9- ll(e)(4) regarding SMA use/major permits, the Commission may permit a proposed 22 development"only upon finding that . . . (3) The development is consistent with the general plan, community plan, zoning code and other applicable ordinances . . ." The Director's Decision, however, conflicts with the objectives of the Hawai`i County General Plan (the "General Plan") (2005), including objectives and policies to: protect significant historical and cultural sites, including natural features of the cultural landscape ( 6- 3); protect"Hawaiian rights as identified under judicial decisions" ( 6-3); minimize adverse impacts to natural and cultural resources ( 8-3); and promote sound management and development of Hawai`i's resources. General Plan §§ 6-3, 8-3. Further, the General Plan underscores the importance of community participation in implementing its goals and policies: "The General Plan sets forth broad goals, objectives, and policies. Implementation requires translating these broad statements to specific actions, systematically evaluating progress, and active community participation." General Plan § 15-1. To implement the General Plan within specific geological areas and gain community input, the General Plan includes community plans, with which the Director's Decision is inconsistent too. The Director's approval of the SMA Minor Permit conflicts with the Puna Community Development Plan (2008) ("Puna CDP"), devloped as a strategic planning document to face planning challenges posed by increasing development of Puna's volcanic landscape and"re- shape the pattern of future growth and development in a manner that is more in harmony with the natural setting and more supportive of a better, sustainable quality of life." Puna CDP § 1-6. The Puna CDP seeks to "malama i ka `aina" and preserve and perpetuate Puna's natural and cultural environment, heritage, and traditions. The Puna region is dominated by volcanic activity, and eruptions continue to shape the region's land and ecology. Puna's repeated, relatively recent lava flows create varied ages of forests underlain by different compositions of 23 lava flows and tubes/caves, ash, and explosion deposits. Additionally, "Puna's coastal areas have relatively dense concentrations of historical, cultural, and burial sites." Puna CDP § 2. In furtherance of this goal, the Puna CDP sets forth various goals and objectives, including pertinent ones as follows: 2.1 Historical, Cultural, and Scenic Resources: 2.1.1 Goals a. Structures and cultural sites that are significant to Puna's history and cultural traditions are preserved. b. The design character and natural setting of older communities that are representative of Puna's historic development are perpetuated. c. Areas of scenic and cultural interest are accessible to the public in a manner that does not detract from their aesthetic, natural and cultural value. 2.1.2 Objectives c. Protect cultural sites from destruction by development activity. 2.4 Shoreline Area: 2.4.1 Goals b. Shoreline biological, historical and cultural resources are adequately protected. 2.4.2 Objectives a. Improve data collection and analysis related to present and historic changes in shoreline conditions and resources. b. Expand the scope of regulations and review procedures for shoreline development to consider dynamic and interrelated potential hazards to development. c. Strengthen the capacity of the County to identify important shoreline resources and evaluate development regulations and proposed developments in the shoreline area. d. Support actions consistent with the State of Hawai`i Ocean Resources Management Plan. 3.1 Land Use Pattern: 3.1.1 Goals a. Puna retains a rural character while it protects its native natural and cultural resources. f. Native vegetation, coastal and historic resources are provided new forms of protection. g. Reduce overall number of buildable lots in Puna. 3.1.2 Objectives 24 h. Explore additional methods to protect native species habitat and historic features from development by use of economic incentives, development restrictions, and district-wide rezoning. Ultimately, HRS § 205A-26(2)(C)'s requirement has not been met, so no SMA permit should have been approved. The Kaimu Cove project's compliance or consistency with zoning alone is not enough. See GATRI, 88 Hawai`i at 114, 962 P.2d at 373. II. THE PLANNING DIRECTOR'S DECISION TO APRO VE AN SMA MINOR PERMIT FOR THE KAIMU COVE PROJECT IS ARBITRARY OR CAPRICIOUS IN ITS APPLICATION OF LAW The Director's Decision was made upon an unlawful procedure as it disregarded critical rules and principles of law concerning community participation in the State's coastal zone management as well as constitutional due process guarantees. Thus, the Decision is arbitrary or capricious. By requiring only an SMA minor permit, the Department effectively deprived the `Ohana and other community members of any opportunity to participate in the SMA assessment review process before the SMA Minor Permit was approved. The arbitrary and capricious nature of the decision is particularly egregious given the `Ohana's consistent efforts to participate in the review process, to the extent feasible, in order to protect their legal rights. Community involvement at the onset allows the planning process to progress in a manner that empowers the State to uphold its legal obligations to mitigate impacts and encourages developers to design plans comprehensively, thereby decreasing the potential for future conflicts or the necessity of redesigns. A contested case hearing is a quasi-judicial agency hearing that"1) is required by law"— i.e., statute, agency rule, or constitutional due process, and"2) determines the rights, duties, or privileges of specific parties."Public Access Shoreline Hawaii v. Hawai`i County Planning 25 Comm'n, 79 Hawai`i 425, 431, 903 P.2d 1246, 1252 (1995). When a contested case hearing is mandated, "due process requires that the parties be given a meaningful opportunity to be heard." Mauna Kea, 136 Hawai`i at 391, 363 P.3d at 239. Whether specific procedures satisfy due process requires a balancing of three factors: "(1) the private interest which will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures actually used, and the probable value, if any, of additional or alternative procedural safeguards; and (3) the governmental interest, including the burden that additional procedural safeguards would entail." Sandy Beach Defense Fund v. City Council of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). Had an SMA use permit been required, a contested case hearing would have been required, as well, to determine the `Ohana's rights, duties, or privileges in relation to the project's potential impact. See SMA Rules §§ 9-11(d); see Chang v. Planning Comm'n, 64 Haw. 431, 436, 643 P.2d 55, 60 (1982) ("The state Coastal Zone Management Act and corresponding planning commission rules specifically make HRS § 91-9 and planning commission contested case procedures applicable to proceedings on SMA use permit applications in Maui County."). The SMA assessment review process and SMA minor permit approval process do not provide community groups or members an opportunity to be heard before an SMA minor permit is approved. Furthermore, in the review and decision process of SMA minor permits, there is no final determination by the Planning Commission; accordingly, there is no way for community to participate or even intervene in the way the rules allow for SMA use permits. Although the `Ohana has, and is exercising, the right to appeal the SMA minor permit decision, an appeal is too late and still amounts to a due process violation—it puts the cart before the horse. See Mauna Kea Anaina Hou v. Bd. of Land&Natural Res., 136 Hawai`i 376, 381, 26 363 P.3d 224, 229. An HRS § 91-9 contested case hearing was mandated, and due process required that the `Ohana be afforded a meaningful opportunity to be heard before issuance of the SMA permit. See Mauna Kea, 136 Hawai`i at 390-391, 363 P.3d at 238-239. The `Ohana's exercise of traditional and customary Native Hawaiian rights in the area affected by the Kaimu Cove project are property interests protected by constitutional due process. See Mauna Kea, 136 Hawai`i at 411, 363 P.3d at 259. So even if SMA Rules do not explicitly or generally allow or provide the process for contested case hearings before issuance of SMA minor permits, the `Ohana was nonetheless entitled to a contested case hearing as a matter of constitutional due process pursuant to the protection of the `Ohana's rights to exercise Native Hawaiian traditions and customs under Article XII, § 7, HRS § 1-1, and HRS § 7-1. Given the `Ohana's substantial interests in exercising traditional and customary cultural rights and practices in the Kaimu Cove project area, the risk of erroneous deprivation absent the protections provided by a contested case hearing, and the lack of undue burden on the government in affording the `Ohana a contested case hearing, a contested case hearing was required by law before issuance of any SMA permit. See Mauna Kea, 136 Hawai`i at 411, 363 P.3d at 259. Without a contested case hearing or any other due process afforded, community participation could not happen—despite the clear objectives, policies, and guidelines of HRS chapter 205A and relevant community plans that underscore the significance of community participation in the management of Puna's coastal zone and Hawai`i's resources generally. 27 HI. THE PLANNING DIRECTOR'S DECISION TO APPROVE AN SMA MINOR PERMIT FOR THE KAIMU COVE PROJECT AMOUNTS TO A CLEARLY UNWARRANTED ABUSE OF DISCRETION The state constitution provides strong protections for Hawai`i's natural resources, including coastal resources and Native Hawaiian traditional and customary practices. Article XI, § 1 of Hawai`i's constitution establishes that"all public natural resources are held in trust by the State for the benefit of the people[.]"And as trustee, the State, including its agencies, has a duty to protect and maintain public trust resources, including coastal resources. Additionally, Article XI § 9 declares that"[e]ach person has the right to a clean and healthful environment." Finally, Article XII, § 7 directs that the State "shall protect"Native Hawaiian traditional and customary practices. State and county agencies' enforcement of Coastal Zone Management objectives, policies, and guidelines under Hawai`i Revised Statutes ("HRS") chapter 205A must be consistent with these constitutional duties and obligations. In addition to complying with HRS chapter 205A requirements and relevant community and environmental plans, all agency actions must conduct a Ka Pa`akai analysis, and the Department's failure to do so amounts to a violation of Article XII, § 7 and clear abuse of discretion. Article XII, § 7 "places an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights and confers upon the State and its agencies the power to protect these rights and to prevent any interference with the exercise of these rights."Ka Pa`akai, 94 Hawai`i at 45, 7 P.3d at 1082 (quoting Stand. Comm. Rep. No. 57, in 1 Proceedings of the Constitutional Convention of 1978, at 639 (1980)) (cleaned up) (emphasis added).Ka Pa`akai operationalizes Article XII, § 7 and other legal protections for Native Hawaiian rights by requiring a three-part analysis that mandates state and county 28 agencies, before any agency action, to conduct detailed investigations and make specific findings as to: 1. The identity and scope of valued cultural historical, or natural resources in the...area, including the extent to which traditional customary native Hawaiian rights are exercised in the . . . 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 agency to reasonably protect such practices if they are found to exist. Ka Pa`akai, 94 Hawai`i at 47, 7 P.3d at 1084. The framework serves as a tool to evaluate whether an agency is fulfilling its Article XII, § 7 obligations by weighing the interests of protecting Native Hawaiian culture and rights and interests in economic development. See id. Ka Pa`akai applies at all stages of planning/permitting, and an assessment of impacts where Native Hawaiian rights are implicated must include a Ka Pa'akai analysis. See Flores-Case `Ohara v. Univ. of Haw., 153 Hawai`i 76, 526 P.3d 601 (2023) (a Hawai`i Supreme Court majority holding that Ka Pa`akai framework applies to all agency decisions). Thus, it is vital that Ka Pa`akai is employed at this early planning stage to ensure the community and decisionmakers are fully informed throughout the planning process of the dwelling and/or subdivision development's potential impacts to Native Hawaiian traditional and customary rights. Early identification of these impacts supports strategic planning and helps prevent future conflicts, such community opposition, regulatory delays, or costly project redesigns, which can arise from the inadequate consideration of Native Hawaiian traditional and customary rights. The SMA Rules underscore the importance of the Ka Pa`akai analysis in protecting Native Hawaiian traditional and customary rights. The Rules provide that the Commission may issue a SMA Use (Major) permit"only upon finding"that: 29 The development will, to the extent feasible, reasonably protect native Hawaiian rights if they are found to exist, including specific factual findings regarding: (A) The identity and scope of valued cultural resources in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (B)The extent to which those resources, including traditional and customary native Hawaiian rights, will be affected or impaired by the proposed action; and (C)The feasible action, if any, to be taken by the Authority to reasonably protect any valued cultural, historical or natural resources, including any existing traditional and customary native Hawaiian rights. SMA Rules § 9-11(e)(4). When submitting SMA assessment applications, an applicant shall submit with their application a"written description of the anticipated impacts of the proposed development on valued cultural, historical, or natural resources on or in the vicinity of the property, to include" the three Ka Pa`akai analysis steps. SMA Rules § 9-10(b)(6) (emphasis added). If the Department determines an SMA use permit is required for an action, then the applicant shall submit a written description of its Ka Pa`akai analysis to the Director. While the Department may include these assessment and SMA Use permit application requirements to assist in its decision making, the Department cannot solely rely on an applicant's analysis to discharge its obligations under Ka Pa`akai and Article XII, § 7 of the constitution. Yet that is what the Director/Department did with the Kaimu Cove project assessment and SMA Minor Permit applications. Here, the Director relied on assertions made by the Applicant that there are no relevant traditional and customary practices in the project footprint or subject property, and thus, there would be no impacts to the `Ohana's rights and practices. The Director did not make independent 30 findings as to the identity and scope of valued resources in the area, including Native Hawaiian traditional and customary practices, before deciding which SMA permit is appropriate and issuing the SMA Minor Permit for the proposed project. Nor did the Director make findings as to the project's impacts to those resources and practices or the actions that can be taken to protect them, as required under steps two and three of the Ka Pa`akai analysis. Rather, the Director took the Applicant at its word. Without a proper Ka Pa`akai analysis, the Planning Department cannot discharge its constitutional duties, and its assessment of impacts—including potential cumulative effects—is incomplete. Review of the Kaimu Cove project by SHPD or a review focused on archaeological or historical sites does not satisfy the standards under Ka Pa`akai because an inventory of historic sites does not adequately identify the Native Hawaiian rights that would be impacted by the project or how impacts can be mitigated. For instance, the pedestrian public shoreline access easement to the shoreline pursuant to the SMA Minor Permit approval fails to consider the effect that moving the existing access trail would have on reasonable access to the shoreline, practitioners' ability to access their traditional and customary places of practice (e.g., fishing grounds), and the rights possesed by Native Hawaiian lineal descendants of Mokuhulu, Kaimu Makena, and Kalapana. Similarly, the Permit condition requiring archaeological monitoring does not satisfy the State's or the Department's affirmative constitutional duty to protect Native Hawaiian rights. Because the Director made no independent findings as to the identity and scope of, impacts to, and feasible actions to protect Native Hawaiian traditional and customary rights, his Decision fails to identify the cumulative impact of the project—including impacts to valued cultural, historical, or natural resources and accessways—and amounts to an abuse of discretion. 31 In sum, the Director's Decision constitutes an abuse of discretion because it disregards HRS chapter 205A requirements, the Department's constitutional obligations, and relevant community plans. Moreover, The Director's Decision ignored what is required under the Hawai`i Constitution and did not consider what is "right and equitable under the circumstances."See Paul's Elec. Serv. v. Befitel, 104 Hawai'i 412, 419, 91 P.3d 494, 501 (2004) ("[W]hen invoked as a guide to judicial action [discretion] means a sound discretion . . . exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.") CONCLUSION For the foregoing reasons, Appellant the `Ohana o Mokuhulu, Kaimu Makena, and Kalapana hereby provides notice of its appeal of the Planning Director's approval of the SMA Minor Permit for PL-SAA-2025-000312 (the Kaimu Cove project) and requests that a contested case hearing be scheduled to determine the rights, duties, or privileges of specific parties, including Appellant the 'Ohana. DATED: Honolulu, Hawai`i, January 5, 2026. /s/Terina K. Fa'agau TERINA K. FA'AGAU KIRSHA K. M. DURANTE Attorneys for `Ohana o Mokuhulu, Kaimu Makena, and Kalapana 32 BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI'I In the Matter of the Appeal CERTIFICATE OF SERVICE. of `Ohana o Mokuhulu, Kaimu Makena, and Kalapana From the Action of the Director of Planning in Approving Special Management Area Minor Permit for Plan#PL-SMM-2025-000079 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the preceding document was submitted to the Department of Planning, and was served on the date indicated below upon the following Departments by email and/or certified mail: Jeffrey W. Darrow, Planning Director County of Hawai`i Planning Department East Hawai`i Office 101 Pauahi Street, Suite 3 Hilo, Hawai`i 96720 Department of Corporation Counsel County of Hawai`i Hilo Lagoon Centre 101 Aupuni Street, Unit 325 Hilo, Hawai`i 96720 Kaimu Cove LLC c/o Mark Wyatt and Lisa Ann Benham 12-55 Likoliko Loop Box 4866 Pahoa, Hawai`i 96778-6810 Daryn Arai Land Use Planning Consultant P.O. Box 4501 Hilo, Hawai`i 96720 DATED: Honolulu, Hawai`i, January 5, 2026. /s/Terina K. Fa'agau TERINA K. FA'AGAU KIRSHA K. M. DURANTE Attorneys for `Ghana o Mokuhulu, Kaimu-Makena, and Kalapana 2