2024-10-28 DPW Response to Appellants Subpoenas

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all formal and informal procedures available, and including a description of all forms and instructions used by the agency." HRS §§ 91-1, 91-2(a)(1). The BOA satisfied this requirement by enacting its Rules of Practice and Procedures. BOA Rule 3-9 allows for the subpoena of witnesses and documents if certain criteria are met. The BOA can issue a subpoena for a"particular document or record, or part thereof' if it is "material and relevant to the issues involved." BOA Rule 3-9(b). The BOA can issue a subpoena for a witness if it determines that the proposed testimony is "material and relevant to the issues involved." BOA Rule 3-9(a). Appellant appears to cite Mauna Kea Anaina Hou v. Bd. of Land &Nat. Res., 136 Haw. 376, 391, 363 P.3d 224, 239 (2015)in support of its position that that BOA should apply HRCP Rule 26's discovery principles to contested cases before the BOA. Contested cases are not civil trials governed by the HRCP. There is no discovery in a contested case. In a contested case, the appellant has "the burden of proof, including the burden of producing evidence as well as the burden of persuasion." HRS § 91-10(5). Appellants can ask for a subpoena for a specific record but there is no provision that allows for broad or narrow discovery requests. A contested case is a"proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS § 91-1. "Once a contested case hearing is mandated, due process requires that the parties be given a meaningful opportunity to be heard." Mauna Kea Anaina Hou, 136 Haw. at 391, 363 P.3d at 239 (citation omitted). In Mauna Kea Anaina Hou, the Hawai`i Supreme Court held that the "[Board of Land and Natural Resources'] decision to vote on the permit prior to the contested case hearing denied Appellants a meaningful opportunity to be heard in both reality and appearance." Id. 136 Haw. at 391, 363 P.3d at 239. 5