2006-12-18_Planning_Department_Reply_Brief_re_Calvert

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0 0 127 1. The ICA went on to state that the basic purpose of the DLNR's rules regarding contested case proceedings was to provide the Board of Land and Natural Resources ("BLNR") "an opportunity to establish an adequate formal record for judicial review of its decision and order" and that since the petitioner did not request a contested case hearing,the record of the proceedings before the BLNR was sparse and inadequate for judicial review. Simpson, 8 Haw. App. at 24-25, 791 P.2d at 1273. In other words,the basis of the ICA's decision in Simpson and the Hawaii Supreme Court's decision in Hui Kako`o Aina Ho`opulapula was that without a contested case hearing,there was no final decision and no formal record to qualify for judicial review under HRS § 91-14(a). Unlike the appellants in the cases of Hui Kako`o Aina Ho`opulapula and Simpson, the Director has met the four judicial requirements for an agency appeal. First, there was a contested case hearing,which was required by law that resulted in the unfavorable decision by the Board of Appeals (hereinafter"Board") against the Director. Second,the Board's decision represents a final decision of the contested case hearing. Third,the Director followed the applicable rules of the Board by participating in the contested case hearing through his attorney. Fourth, the Director is a"person" aggrieved by the Board's final decision as defined in HRS § 91-1(2). Moreover,Hui Kako`o Aina Ho`opulapula and Simpson are distinguishable from the present case because in the present case,this Court has a final decision from a contested case hearing and an entire record of the contested case proceeding for judicial review. To determine that the Director is precluded from judicial review for failure to object to the FOFCOL would require a great leap from the reasoning provided by the Hawaii Supreme Court's decision in Hui Kako`o Aina Ho`opulapula and the ICA's decision in Simpson. 4