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Home My WebLink About2026-10-23 PL-BOA-2026-000127 - Appellant's MSJ_v1.pdfNATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawaii 96813 Telephone: (808) 521-2302 Fax: (808) 537-4268 TERINA K. FA`AGAU 11511 ASHLEY K. OBREY 9199 Attorneys for Appellant BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I `OHANA O MOKUHULU, KAIMC I CASE NO.: PL-BOA-2026-000127 MAKENA, AND KALAPANA, APPELLANT' S MOTION FOR Appellant, SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF VS. MOTION; CERTIFICATE OF SERVICE JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I, Appellee, and KAIMU COVE, LLC, Landowner. HEARING: Date: November 13, 2026 Time: 9:30 a.m. Place: Waiakea Uka Community Center APPELLANT'S MOTION FOR SUMMARY JUDGMENT Appellant `OHANA O MOKUHULU, KAIMC MAKENA, AND KALAPANA (the "`Ghana"), by and through its attorneys, the Native Hawaiian Legal Corporation, hereby moves the Board of Appeals, County of Hawaii (the "Board"), pursuant to the Board's Scheduling Order filed July 10, 2026, for an order deciding this appeal as a matter of law under section 8- 15(2) of the Board's Rules of Practice and Procedure ("BOA Rules"), reversing the December 4, 2025 decision of Appellee JEFFREY DARROW, Planning Director, County of Hawaii (the "Director"), approving Special Management Area ("SMA") Minor Permit No. PL-SMM-2025- 000079 (the "Decision") for Landowner KAIMU COVE, LLC ("KCL") on Tax Map Key (3) 1- 2-018:001 (the "Property"), and remanding the matter with appropriate instructions. The Decision violates applicable law on two independent grounds. First, the Director failed to conduct the independent assessment of traditional and customary Native Hawaiian rights required by article XII, section 7 of the Hawaii Constitution and Ka Pa `akai O Ka Aina v. Land Use Commission, 94 Hawai`i 31, 7 P.3d 1068 (2000), which independently requires reversal under BOA Rules § 8-15(2). Second, the Director improperly issued an SMA Minor Permit despite evidence that the proposed development may have substantial adverse effects on cultural and historic resources. This Motion is brought pursuant to the Board's Scheduling Order, filed July 10, 2026, and is based on the attached Memorandum in Support; Appellant's Exhibits A-1 through A-52 and the Written Testimony filed October 21, 2026; the Record on Appeal filed January 27, 2026; and all other records and files in this proceeding. DATED: Honolulu, Hawai `i, October 23, 2026. /s/ Terina K. Fa`agau TERINA K. FA`AGAU ASHLEY K. OBREY Attorneys for Appellant `OHANA O MOKUHULU, KAIMU MAKENA, AND KALAPANA 2 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I `OHANA O MOKUHULU, KAIMU CASE NO.: PL-BOA-2026-000127 MAKENA, AND KALAPANA, MEMORANDUM IN SUPPORT OF Appellant, MOTION vs. JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I, Appellee, and KAIMU COVE, LLC, Landowner. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Under article XII, section 7 of the Hawaii Constitution and Ka Pa `akai O Ka Aina v. Land Use Commission, 94 Hawai`i 31, 7 P.3d 1068 (2000) ("Ka Pa `akai"), an agency must look before it acts. It must identify the cultural resources and traditional and customary practices at stake, assess how the project will affect them, and decide what feasible action will protect them before it issues a pen -nit. The December 4, 2025 decision of Appellee JEFFREY DARROW, Planning Director, County of Hawaii (the "Director"), approving Special Management Area ("SMA") Minor Permit No. PL-SMM-2025-000079 (the "Decision") for Landowner KAIMU COVE, LLC ("KCL") on Tax Map Key (3) 1-2-018:001 (the "Property"), was made without doing those required Ka Pa `akai steps. In the Kaimu ahupua`a, the Property sits makai of Kaipu`uelelu—where the `Ohana's kupuna are buried —and it abuts the beach at Pu`ilima—where `Ohana members fish, gather, and enter the sea for `aukai and pikai after caring for those graves. Those practices are documented in the `Ohana's cultural impact assessment and Ka Pa`akai analysis (Exh. A-33 (ROA Doc. 9)1) and in the State Historic Preservation Division ("SHPD") letter stating that this coastline is "linked to traditional cultural practices" (Exh. A-30 at 3 (ROA Doc. 17)). The Decision does not engage with the record. It contains no finding identifying those resources and practices, no assessment of how the project would affect them, and no finding on what would protect them. The Department instead told the `Ohana that it does "not have the experience to review a [cultural impact assessment]" and "rel[ies] on [SHPD] for all cultural reviews." Exh. A-35 at 1. The Director then issued an SMA Minor Permit, finding in a single sentence that the project "will not have a cumulative impact or a significant adverse environmental or ecological effect on the SMA." Exh. A-41 at 3 (ROA Doc. 18). Condition No. 9, however, recites that SHPD had "insufficient information regarding potential impacts to subsurface historic properties." Exh. A-41 at 9. The Decision should be reversed for two independent reasons. First, the failure to conduct the independent Ka Pa `akai inquiry violates article XII, section 7 and is therefore a violation of "applicable law" under BOA Rules § 8-15(2). Second, a record that identifies unresolved potential impacts on protected practices and historic properties including burials cannot support the finding of no substantial adverse effect that an SMA Minor Permit requires 1 Where an exhibit also appears in the Record on Appeal, the ROA document is noted at first citation; later citations are to the exhibit. 2 under HRS § 205A-22 and section 9-10 of the Hawaii County Planning Commission Rules of Practice and Procedure ("PC Rules") The Board should reverse the Decision and remand with appropriate instructions. II. STATEMENT OF UNDISPUTED MATERIAL FACTS A. The Property, Kaipu`uelelu, and the `Ohana's Practices 1. KCL owns the Property, TMK (3) 1-2-018:001, an approximately 3.8-acre shoreline parcel at Kaimu, Puna, located entirely within the SMA. Exh. A-41 at 2, 5-6. 2. The Property lies within the historic coastal village of Kaimu; within the ahupua' a are heiau, houses, and other named places near the Property. Exh. A-15 at 3 (ROA Doc. 3). A 1992 archaeological inventory survey recorded four historic sites on the Property. In 2024, one of them (Site 50-10-63-18525) "was not relocated and was assumed to have been destroyed as the area exhibited evidence of ground -disturbing activities," and another had been "impacted by land -clearing (push) activities." Exh. A-19 at 3. 3. Pu`ilima, the coastal area fronting the Property, is the Kaho`okaulana `ohanako'a, a fishing ground. L. Rosehill WT ¶ 20; Exh. A-1; Exh. A-2. 'Ohana members have fished and gathered limu kohu for food, and gathered `ili'ili and pohaku for family graves there, and enter the water at Pu'ilima for 'aukai and pikai (ritual cleansing) after digging, closing, or caring for graves at Kaipu'uelelu. L. Rosehill WT ¶¶ 17-23; Kealoha WT ¶¶ 13-19, 23-24. On the Property, KCL's archaeologist recorded features "related to on -going camping and fishing activities that still occur within the project area." Exh. A-15 at 5. 4. Directly across Kalapana-Kapoho Road, mauka of the Property, is Kaipu'uelelu a cemetery where 'Ghana members' kupuna (ancestors) are buried, and many more iwi (bones) are interred in unmarked graves. L. Rosehill WT ¶¶ 7, 9-10; Kealoha WT ¶¶ l l—1 2; Konanui WT ¶ 28; N. Rosehill WT ¶¶ 8-9, 16. A 1972 Bishop Museum reconnaissance documented 3 Kaipu`uelelu Cemetery as a burial site recommended for protection. L. Rosehill WT ¶ 31; Exh. 5. `Ohana members travel between Kaipu`uelelu and Pu`ilima on a mauka-makai access trail from the cemetery that crosses Kalapana-Kapoho Road onto the Property, goes through the former milo grove on the Property, and reaches the pebble -and -boulder beach. L. Rosehill WT ¶¶ 27-29; Kealoha WT ¶¶ 15, 17; Exh. A-3. B. KCL's Unpermitted Work and SMA Permit Applications 6. On October 10, 2022, the Department issued KCL a Notice of Violation and Order for clearing and grading a portion of the Property from Kalapana-Kapoho Road "all the way down to the shoreline" without an SMA permit. Exh. A-14 7. On July 5, 2024, KCL applied for an SMA Use Permit (PL-SMA-2024-000063) for a five -lot subdivision of the Property. Exh. A-17. In its October 2024 Recommendation Report on that application, the Department acknowledged the "existing cultural use of the shoreline area for fishing and gathering uses" and stated that the development may be permitted only upon "specific factual findings regarding" Ka Pa `akai. Exh. A-22 at 2, 5-6. 8. At the Windward Planning Commission's October 3, 2024 hearing on KCL's SMA Use Permit application, `Ohana members testified in opposition. Exh. A-8; Exh. A-9. The Commission continued the hearing to require an archaeological inventory survey or cultural impact assessment. Exh. A-9; L. Rosehill WT ¶ 39; Kealoha WT ¶ 32. 9. On September 15, 2025, KCL filed SMA Use Permit Assessment Application PL- SAA-2025-000312 for a two-story single-family residence, a 60-by-35-foot pickleball court, and a rock wall and gate system. Exh. A-28 at 1-2; Exh. A-41 at 2-3. The application stated that "[t]he Applicant has not encountered any evidence of traditional or customary Native Hawaiian C! rights being practiced on the subject property" (Exh. A-24 at 30 (ROA Doc. 7)), and that "[i]t is unlikely that there are any valued cultural, historic and natural resources to be found within the property." Exh. A-24 at 25. 10. On September 24, 2025, `Ohana representative Leslie Enriquez Rosehill informed Planner Alex Roy that the `Ohana had prepared an independent cultural impact assessment for the Property. Exh. A-35 at 3; L. Rosehill WT ¶ 68. The same day, Planner Roy wrote back, copying the Director: "We do not have the experience to review a CIA, that would be sent to SHPD for review and acceptance/recommendations.... [W]e rely on SHPD for all cultural reviews." Exh. A-35 at 1; L. Rosehill WT ¶ 68. 11. On October 9, 2025, `Ghana representatives met with the Director and Planner Roy. When the `Ghana representatives asked questions and shared concerns about their access and cultural practices, the Director and Planner Roy directed the `Ohana to SHPD. L. Rosehill WT ¶¶ 69-70; Kealoha WT ¶ 3 8. 12. On October 13, 2025, the `Ghana transmitted its cultural impact assessment ("CIA") and Ka Pa`akai analysis for Pu`ilima to SHPD, copying the Director and Planner Roy. Exh. A-26 at 1. The CIA identified, among other things, `aukai and pikai, fishing, limu and plant gathering, the Kaipu`uelelu burial complex, a historic coastal trail, and the registered sites on the parcel, and described how the project would affect them. Exh. A-33 at 61-62. 13. On October 14, 2025, the Department issued a Stop Work Order for unpermitted trenching, rock -wall construction, and backhoe work on the Property. Exh. A-38 (ROA Doc. 12). The same day, KCL asked to withdraw its SMA Use Permit application, and on October 15, 2025, the Director accepted the withdrawal "to pursue a request for a single-family dwelling under a submitted Special Management Area Assessment Application." Exh. A-28. 5 14. On October 29, 2025, the Director told Ms. Rosehill the "Department cannot create an easement on private property without being part of a planning permitting process" and that "the public access easement would be established as part of the SMA permitting process, which is still in progress." Exh. A-40 at 1. That same day, the Department issued a second Notice of Violation and Order after staff observed further unpermitted excavation, "which may be for the purpose of your proposed pickle ball court," and Department "staff observed a yellow septic tank and several piles of base course material." Exh. A-39 at 1-2. C. SHPD's "Insufficient Information" and the Decision 15. SHPD's review letter on the assessment application, transmitted to the Department on December 2, 2025, noted that the `Ohana's CIA "indicates that the coastline of Kaimu was a significant area to pre -contact and post -contact communities linked to traditional cultural practices." Exh. A-30 at 1, 3 (noting that interviews in the CIA "also indicate that a concern of the area is the potential for encountering subsurface deposits within the project area given the existing cemetery across the street from the subject parcel") 16. SHPD concluded that it had "insufficient information to determine the potential for the project to adversely impact significant subsurface historic properties, including human skeletal remains/burials," and requested an archaeological monitoring plan ("AMP") "prior to permit issuance." Exh. A-30; Exh. A-41 at 13-14. 17. Two days later, on December 4, 2025, the Director issued SMA Minor Permit No. PL-SMM-2025-000079. Exh. A-41. The Decision's only finding on cumulative or adverse effect reads: "We find that the proposed project is not exempt from the definition of `development'; however, the project will not have a cumulative impact or a significant adverse environmental or ecological effect on the SMA." Id. at 3. The Decision's remaining "findings" are check -marks G beside boilerplate objectives and policies of HRS chapter 205A, including "Historic Resources" and "Recreational Resources." Id. at 6-8. 18. The Decision does not identify traditional or customary Native Hawaiian practices or the resources on which those practices depend. It makes no finding on the extent to which any such practice would be affected and no finding on feasible action to protect them. The Decision's findings and conditions do not mention Ka Pa `akai, article XII, section 7, or traditional and customary practices; practitioners, lineal descendants, or consultation; a cultural impact assessment; Kaipu`uelelu, iwi/kupuna, or the burial customs; or Pu`ilima, `aukai or pikai, limu, trails, or the milo grove. See Exh. A-41. 19. Condition No. 6 requires a I 0-foot pedestrian easement along the Property's northeast boundary "to preserve the coastal access for fishing and gathering purposes the public currently uses." Exh. A-41 at 9. 20. Condition No. 12 states that "the Department has relied on the information and data" provided by the applicant, KCL. Exh. A-41 at 10. No one from the Department consulted with the `Ohana about their access and gathering practices or the easement's location. L. Rosehill WT ¶¶ 76, 84; Kealoha WT ¶ 40. 21. The Decision states that it considered SHPD's November 21, 2025 letter (transmitted December 2, 2025) and encloses it. Exh. A-41 at 2, 4. Condition No. 9 acknowledges "insufficient information regarding potential impacts to subsurface historic properties," but requires an AMP only "for review and approval by [SHPD] prior to the issuance of Building Permits." Id. at 9 (emphasis added). 22. The Director approved the permit before any AMP had been submitted to SHPD, and the permit contains no condition barring ground disturbance before an AMP is accepted. Id. 7 at 8-11; Exh. A-32 at 2 (ROA Doc. 21). SHPD did not receive KCL's first draft AMP until December 17, 2025, thirteen days after the permit issued, and rejected it on January 14, 2026. Exh. A-31 (ROA Doc. 19); Exh. A-32. 23. On January 28, 2026, the Department issued a third Notice of Violation and Order for ground disturbance, including "a concrete slab approximately 60' long," without an approved AMP, in violation of Condition No. 9. Exh. A-45 at 1-3. In that Notice, the Department described Condition No. 9 as "requiring that an Archaeological Monitoring Plan (AMP), which meets the requirements of [SHPD] be provided to the Planning Department prior to any development or ground disturbance." Exh. A-45 at 3 (emphasis added). III. STANDARD FOR DECISION In an appeal of a Director's decision, the Board "may affirm the decision of the director; or it may reverse or modify the decision; or remand the decision with appropriate instructions if, based upon the preponderance of evidence, the board finds that: (1) The director erred in its decision or is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (2) The decision violated the Code or other applicable law; or (3) The decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion." BOA Rules § 8-15. The `Ghana, as appellant, "has the burden of proof based on the standards prescribed under Section 8-15." Id. § 8-11(g). Motions "may be made before, during, or after a hearing," and a motion that involves "a final determination of the proceeding" is "voted and ruled on by the Board." Id. § 3-12(a), (f). The Board's Scheduling Order filed July 10, 2026 authorizes diapositive motions, and this Motion asks the Board to decide, under § 8-15(2), legal defects apparent from the existing administrative record. Although the BOA Rules do not provide a summary judgment procedure, the `Ohana's Motion is appropriate here, where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." See Haw. R. Civ. P. 56(c); First Hawaiian Bank v. Weeks, 70 Haw. 392, 396, 772 P.2d 1186, 1189 (1989). The material facts — what the Record on Appeal contains, what the Director found, and what the Decision omits — appear on the face of the existing record and are not genuinely disputed. Both grounds of this Motion arise under BOA Rules § 8-15(2): first, whether the Director did the analysis and made the findings the Constitution requires, and second, whether the Director applied the correct legal standard for an SMA Minor Permit. Neither turns on deference to the Director's weighing of evidence. Because the material facts are undisputed and each ground presents a question of law, the `Ohana is entitled to an order under BOA Rules § 8-15(2) reversing the Decision and remanding with appropriate instructions. IV. ARGUMENT A. The Director Violated Article XII, Section 7 by Failing to Independently Conduct a Ka Pa`akai Analysis of the Native Hawaiian Traditional and Customary Practices Acknowledted by the County Article XII, section 7 of the Hawaii Constitution provides that "[t]he 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. In Ka Pa `akai, the Hawaii Supreme Court held that an agency acting on a land use application must, at a minimum, make specific findings and conclusions as to: (1) the identity and scope of valued cultural, historical, or natural resources in the area, including the extent to 9 which traditional and customary native Hawaiian rights are exercised there; (2) the extent to which those resources, including those rights, will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken to reasonably protect native Hawaiian rights if they are found to exist. Id. at 47, 7 P.3d at 1084. Ka Pa `akai findings are mandatory. See id. at 50, 7 P.3d at 1087 (explaining article XII, section 7's promise would be "illusory absent findings on the extent of their exercise, their impairment, and the feasibility of their protection"); Flores -Case `Ohana v. University of Hawai `i, 153 Hawaii 76, 85, 526 P.3d 601, 610 (2023) (holding that even where no contested case is held, the agency "must prepare a written statement summarizing the [Ka Pa`akai] analysis ... and make that analysis available to the public") An agency may not delegate its Ka Pa `akai obligation to the applicant or to another entity, because article XII, section 7 "places an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights." Id. at 45, 7 P.3d at 1082 (quoting Stand. Comm. Rep. No. 57, in l Proceedings of the Constitutional Convention of Hawai `i of 1978, at 639 (1980)). In Flores -Case `Ohana, the Court reaffirmed that agencies "may not act without independently considering the effect of their actions on Hawaiian traditions and practices." Id. at 88, 526 P.3d at 613 (majority opinion as to Part IV.D) (quoting Ka Pa `akai, 94 Hawai`i at 46, 7 P.3d at 1083). The Planning Director is a County agency exercising delegated State land use authority over the SMA. It may not make permitting decisions without independently discharging its constitutional Ka Pa `akai obligation. See also Pub. Access Shoreline Haw. v. Haw. Cnty. Planning Comm'n ("PASH"), 79 Hawai`i 425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995) 10 ("[T]he State is obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians to the extent feasible.") The Director did not conduct the inquiry. Department staff told the `Ohana in January 2025 that KCL's earlier application was on hold pending an archaeological inventory survey or cultural impact assessment (L. Rosehill WT ¶ 63), and in September 2025 the `Ohana told Planner Roy that it had prepared an independent cultural impact assessment. Exh. A-35 at 3. The Department wrote to the `Ghana that it does "not have the experience to review a CIA" and "rel[ies] on SHPD for all cultural reviews" (Exh. A-35 at 1), and the Director told them in person that cultural practices were for SHPD to consider. L. Rosehill WT ¶¶ 69-70; Kealoha WT ¶ 38. The `Ohana's cultural impact assessment and Ka Pa `akai analysis, which it sent to the Director (Exh. A-26 at 1), did not satisfy the Director's obligation, but it gave him information with which to conduct the inquiry. The Director was still required to evaluate that information independently and make the required findings himself. The Director deferred the inquiry to two others: SHPD and KCL. SHPD's review under HRS chapter 6E addresses historic properties and may consider cultural information, but it does not displace the Director's independent obligation to assess the effects on valued cultural, historical, or natural resources —including exercised traditional and customary Native Hawaiian rights. SHPD's scope is narrower, such that even the State's trails specialist acknowledged to SHPD that shoreline access, on which the `Ohana's practices depend, "is not part of SHPD's scope." Exh. A-27 at 1. Nor could the Director rely on the applicant to discharge the constitutional obligation. Condition No. 12 states that "the Department has relied on the information and data that the applicant has provided" (Exh. A-41 at 10), including KCL's assertion that it had "not 11 encountered any evidence of traditional or customary Native Hawaiian rights being practiced on the subject property" (Exh. A-24 at 30), even though KCL's archaeologist had recorded features on the parcel "related to on -going camping and fishing activities that still occur within the project area[.]" Exh. A-15 at 5; Exh. A-24 at 55-56. Ka Pa `akai forbids deferring the constitutional inquiry to the applicant as the Director did here. As the Hawaii Supreme Court recently explained: Ka Pa`akai held the State to its public trust duties in protecting traditional Native Hawaiian cultural practices. The court warned of what happens when private parties are left to police themselves. "After all, once a project begins, the pre - project cultural resources and practices become a thing of the past." Maui Tomorrow Found. v. Maui Plan. Comm'n, 158 Hawai `i 425, 433, 593 P.3d 364, 372 (2026). The Director's failure to conduct the required Ka Pa `akai analysis is itself a violation of article XII, section 7 and an independent ground for reversal under BOA Rules § 8-15(2). See Ka Pa `akai, 94 Hawai`i at 46-47, 52-53, 7 P.3d at 1083-84, 1089-90 (remanding because "the LUC delegated a non -delegable duty and thereby acted in excess of its authority") Because the Director never undertook the Ka Pa `akai inquiry, the Decision fails on every element: No identification of resources or practices. The Decision does not identify traditional or customary practices or the resources on which they depend, even though the Department had the cultural impact assessment available to it and the County had previously recognized cultural use of the area. The Department's 2024 Recommendation Report on KCL's earlier application for this parcel acknowledged "existing cultural use of the shoreline area[.]" Exh. A-22 at 2. In 2024, the Commission also continued its hearing to require an archaeological inventory survey or cultural impact assessment before deciding KCL's application. Exh. A-9; L. Rosehill WT ¶ 39; Kealoha WT ¶ 32. 12 KCL's reduced -scope proposal involved the same Property and the same continuing practices. And the 2025 SHPD letter reviewing the reduced -scope project that the Decision relies on recites that the CIA "indicates that the coastline of Kaimu was a significant area to pre - contact and post -contact communities linked to traditional cultural practices." Exh. A-30 at 3. Yet the Decision, at Condition No. 6, mentions only access "for fishing and gathering purposes the public currently uses," which is not a Ka Pa `akai finding. Exh. A-41 at 9. No assessment of effects, including cumulative impact. An agency cannot assess a project's effects on practices and resources it has not identified. Thus, the Decision makes no finding on how a residence, pickleball court, driveway, five-foot rock wall and gate, and septic system on this parcel would affect `aukai and pikai, gathering, fishing, or access to Pu`ilima. The record put the Director on notice of those effects. Before the Decision issued, the CIA described them. Exh. A-33 at 61-62. The traditional mauka-makai trail from Kaipu`uelelu to Pu`ilima crosses the Property and has already been graded and covered by a driveway, and the Decision approves an access road with a rock wall and gate at that same entry point. L. Rosehill WT ¶¶ 27-29; Kealoha WT ¶¶ 15, 17; Exh. A-3; Exh. A-30 at 2; Exh. A-41 at 2-3. Since the Property was gated, `Ohana members cannot reach the area of Pu`ilima where they fish, gather limu kohu, and pikai, or carry out the burial customs that join caring for kupuna at Kaipu`uelelu with entering the sea at Pu`ilima. L. Rosehill WT ¶¶ 19, 83, 86. No assessment of feasible protective measures. Because the Director never identified the practices at stake or the project's effects on them, he had no basis to determine what feasible action would reasonably protect them. The only access measure is Condition No. 6, the public access easement, which the Department never consulted the `Ghana about. 13 B. The Director Erred as a Matter of Law by Issuing an SMA Minor Permit Without Adequately Determining Whether the Project May Have a Substantial Adverse Effect on the SMA The Director's failure to make Ka Pa `akai findings also undermined the determination that the project qualified for an SMA Minor Permit. That inquiry was directly relevant to whether the proposed development may substantially affect protected practices and cultural resources. See PASH, 79 Hawai`i at 436, 903 P.2d at 1257 ("Significant adverse effects" under SMA law include "[floss or destruction of any natural or cultural resource, including ... historic sites") The Coastal Zone Management Act draws a bright line between SMA "minor" and "use" permits. A "special management area minor permit" is "an action by the authority authorizing development that has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects," within the statutory valuation cap. HRS § 205A-22. A minor permit requires an affirmative and adequately supported determination of no substantial adverse effect. A "special management area use permit" is required for development that "may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects." Id. The Hawaii Supreme Court has held a County of Hawaii Planning Director to the statute's "may" standard. In Leslie v. Board ofAppeals of County ofHawai `i, 109 Hawaii 384, 126 P.3d 1071 (2006), the Director had approved a subdivision, which was partly within the SMA, without requiring an SMA permit. Emphasizing that HRS § 205A-22 treats an otherwise excluded use as "development" if it "may have a cumulative impact, or a significant environmental or ecological effect on a special management area," the Court relied on the Director's acknowledgment that the project "may adversely affect coastal resources" and 14 affirmed that an SMA Use Permit was required. Id. at 397-98, 126 P.3d at 1084-85. The same "may" standard governs whether a Use Permit, rather than a Minor Permit, is required for KCL's proposed development on the Property. The PC Rules governing the SMA track HRS § 205A-22. PC Rules § 9-4(q) limits a Minor Permit to development "which has no cumulative impact, or a substantial adverse environmental or ecological effect"; PC Rules § 9-10(e) authorizes the Director to issue a Minor Permit only "[w]here it is found that the proposed use ... will not have a cumulative impact, or a substantial adverse effect"; and PC Rules § 9-10(f) provides that "[t]he Director shall declare that a Special Management Area Use Permit is required if it is found that the proposed use, activity or operation ... may have a substantial adverse effect on the Special Management Area." In making that determination, the Director "shall consider every phase of a proposed action," "the overall and cumulative effects of the action," and factors including whether the action "involves an irrevocable commitment to loss or destruction of any natural or cultural resource, including but not limited to, historic sites," "curtails the range of beneficial uses of the environment," or "affects an environmentally sensitive area, such as ... coastal water." PC Rules § 9-10(h)(1), (2), (9). The record raised potential impacts on Native Hawaiian practices, historic properties, and coastal resources, and the Decision does not explain how the Director evaluated them. First, the potential impairment of constitutionally protected Native Hawaiian practices bears directly on the substantial -adverse -effect determination. The County itself acknowledged those practices (see Part IV.A). The CIA provided to the Director described how the project would affect them. Impairment of practices that article XII, section 7 obligates the County to 15 protect is the kind of effect the PC Rules § 9-10(h) factors describe. Without the Ka Pa `akai inquiry, the Decision does not address that question. Second, SHPD's review shows that the project may have a substantial adverse effect. Two days before the Director acted, SHPD told him it had "insufficient information to determine the potential for the project to adversely impact significant subsurface historic properties, including human skeletal remains/burials," and stated that monitoring should be in place "prior to permit issuance." Exh. A-30 at 3. SHPD explained that, even if the project area was previously disturbed, "any ground altering activity has the potential to impact subsurface features beneath the existing surface flow, including burials," and because the project site is ` 5 lava, "potential exists for any unidentified historic properties, including human skeletal remains/burials to have fallen into the cracks and crevices and to have been deposited in subsurface contexts." Exh. A-30 at 3. On that record, PC Rules § 9-1 0(f) required a Use Permit. Condition No. 9 itself recites SHPD's finding of "insufficient information regarding potential impacts to subsurface historic properties." Exh. A-41 at 9. Yet the Decision does not explain how the Director reconciled that uncertainty with the SMA Minor Permit determination, or why conditioning an approved AMP on the later building permit stage (rather than any development or ground disturbance) adequately resolved SHPD's concerns. Because a Use Permit is required whenever development "may" have such an effect, the insufficient information that Condition No. 9 recites calls for a Use Permit. See HRS § 205A-22; PC Rules § 9-10(f); Leslie, 109 Hawaii at 398, 126 P.3d at 1085. Third, the cumulative impact finding has no analysis behind it. The Director was required to "evaluate the overall and cumulative effects of the action," including whether the action "in itself has no substantial adverse effect but cumulatively has considerable adverse effect upon the 16 environment or involves a commitment for larger actions." PC Rules § 9-10(h), (h)(6). The Decision does not mention the 2022 unpermitted grubbing and grading, the destroyed historic site, the two Notices of Violation issued for the same parcel, or the five -lot subdivision KCL pursued until seven weeks earlier and withdrew only to proceed under an SMA Assessment Application. The Decision approves the rock wall and gate, pickleball court, and septic system that KCL had begun building without a permit and despite several Stop Work Orders and Notices of Violation. The Decision states that "no other work is proposed at this time" but makes no finding on what KCL's previous, unauthorized work had already disturbed. Exh. A-41 at 3. Nor does the Decision consider what the unpermitted clearing did to the shoreline ecosystem. The 2022 violation involved the "removal of trees," Exh. A-21 at 2, and the Department's 2024 report listed milo among the trees on the parcel, id. at 4. KCL cut down the milo grove at Pu`ilima—the last of the kupuna milo on the Property. L. Rosehill WT ¶¶ 33, 36, 82. As `Ohana practitioners explain, milo grow close to the shoreline and support the nearby ko`a where smaller fish breed. Id. ¶¶ 81-82. The trees' removal is an impact on a "natural or cultural resource," on "the range of beneficial uses of the environment," and on "coastal water" that PC Rules § 9-10(h)(1), (2), and (9) required the Director to weigh. The Decision does not mention the milo grove or address how its removal affects the nearshore waters and the fishery that the `Ghana depends on. The Decision's one conclusoiy sentence and column of boilerplate checkmarks that ignore the unpermitted disturbance KCL has already caused on this parcel do not amount to a cumulative impacts analysis or finding. See In re Water Use Permit Applications, 94 Hawai`i 97, 157, 9 P.3d 409, 469 (2000) (holding that an agency "must make its findings reasonably clear" because "[t]he parties and the court should not be left to guess, with respect to any material 17 question of fact, or to any group of minor matters that may have cumulative significance, the precise finding of the agency"); In re Application of Hawaii Elec. Light Co., 60 Haw. 625, 640, 594 P.2d 612, 622 (1979) (holding agency's ultimate finding insufficient where supported "by nothing more than the recitation of certain general principles ... without facts to corroborate this finding or references to the record where such facts may be found") The Board should reverse and remand for processing as an SMA Use Permit. C. The Board Can Decide These Grounds on the Director's Record What the Decision and its conditions, SHPD's November 21, 2025 review letter, and the Department's September 24, 2025 email say is not disputed: a Ka Pa `akai analysis and findings were required, the Director knew it, and the Director did not conduct one. Having never identified the practices at stake or how the project would affect them, he also could not, and did not, assess the project's potential effect or cumulative impact. Thus, both of this Motion's grounds can be resolved on the record, and each ground independently supports reversal under BOA Rules § 8-15(2). The Ka Pa `akai ground requires no fact-finding: the Department's statements show the Director left the cultural review to SHPD, and the Decision contains none of the findings that article XII, section 7 requires. The SMA ground likewise requires no fact- finding because Condition No. 9 concedes the "insufficient information regarding potential impacts" that, under PC Rules § 9-10(f), required a Use Permit. V. RELIEF REQUESTED Appellant the `Ghana respectfully requests that the Board grant this Motion and, pursuant to BOA Rules § 8-15(2): Reverse the Director's December 4, 2025 Decision and vacate SMA Minor Permit No. PL-SMM-2025-000079; 2. Remand the Decision to the Director with instructions that (a) KCL's proposal be processed as an SMA Use Permit application under HRS § 205A-22 and PC Rules § 9-10(f), before the Windward Planning Commission; (b) before any new SMA permit approval, the required independent analysis must be conducted consistent with article XII, section 7 of the Hawaii Constitution and Ka Pa `akai, 94 Hawai`i 31, 7 P.3d 1068 (2000); and (c) the Commission or Presiding Officer enter specific written findings and conclusions on (i) the identity and scope of valued cultural, historical, or natural resources in the area, including the extent to which traditional and customary native Hawaiian rights are exercised there; (ii) the extent to which those resources and rights will be affected or impaired by the proposed action; and (iii) the feasible action, if any, to be taken to reasonably protect native Hawaiian rights; and Grant such other relief as the Board deems just. DATED: Honolulu, Hawai `i, October 23, 2026. /s/ Terina K. Fa`agau TERINA K. FA`AGAU ASHLEY K. OBREY Attorneys for Appellant `OHANA O MOKUHULU, KAIMU MAKENA, AND KALAPANA W BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I `OHANA O MOKUHULU, KAIMU MAKENA, AND KALAPANA, Appellant, vs. JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAI`I, Appellee, and KAIMU COVE, LLC., Landowner. CASE NO.: PL-BOA-2026-000127 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was served on the following parties identified below by electronic mail service pursuant to Board of Appeals Rule 2- 6 on October 23, 2026: JEAN K. CAMPBELL Deputy Corporation Counsel Office of the Corporation Counsel Jeank.camnbell(a hawaiicountv.aov Attorney for Appellee PATRICK K. WONG Carlsmith Ball LLP 75-5722 Kuakini Highway, Suite 208 Kailua-Kona, HI 96740 Pwong(a,carl smith. com Attorney for Landowner Kaimu Cove, LLC RENEE N. C. SCHOEN Corporation Counsel SYLVIA A. WAN Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Sylviaa.wankhawaiicountygov Attorney for the Board of Appeals LISA ANN BENHAM lbsbinckgmail.com Landowner DATED: Honolulu, Hawaii, October 23, 2026. A/ Terina K. Fa `agau TERINA K. FA`AGAU ASHLEY K. OBREY Attorneys for Appellant `OHANA O MOKUHULU, KAIMU MAKENA, AND KALAPANA 01