Citizensv.County of Hawaii

Supreme Court of HawaiiJul 13, 1999
91 Haw. 94 (Haw. 1999)
91 Haw. 94979 P.2d 1120

No. 20723.

July 13, 1999.

Appeal from Third Circuit Court, (CIV. No. 93-417).

Steven D. Strauss, on the briefs, Hilo, for plaintiffs-appellants/cross-appellees.

Frederick Giannini, Deputy Corporation Counsel, on the briefs, for defendants-appellees/cross-appellees.

Steven S.C. Lim (Sherrill A. Atwood with him on the briefs), on the briefs, Hilo, for defendant-intervenor-appellee/cross-appellant.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.


Plaintiff-appellant/cross-appellees Citizens for Protection of the North Kohala Coastline (Citizens) and defendant-intervenor-appellee/cross-appellant Chalon International of Hawaii, Inc. (Chalon) appeal the third circuit court's March 17, 1997 order and April 28, 1997 judgment (1) denying Chalon's August 30, 1996 motion to dismiss or in the alternative for summary judgment as to the issue of Citizens' lack of standing, and (2) granting Chalon's April 5, 1995 motion to dismiss or in the alternative for summary judgment as to all counts of Citizens' first amended complaint for declaratory judgment and injunctive relief filed on June 23, 1995 in favor of Chalon and defendants-appellees/cross-appellees County of Hawaii (County) (collectively, "defendants").

On appeal, Citizens argues that the circuit court erred in concluding that: (1) "it did not establish an injury in fact nor raise genuine issues of material fact relating to the existence of an injury in fact [;]" (2) as a matter of law, environmental review was not triggered by Hawaii Revised Statutes (HRS) Chapter 343 (1993); (3) the County acted in accordance with the Hawaii County Code (HCC) § 25-20(c)(4) (1983) in accepting and approving Chalon's final environmental impact report (FEIR); and (4) the Hawaii County Council properly approved Chalon's boundary amendment because the land area was fifteen acres or less.

Chalon contends that the circuit court erred in ruling that Citizens met its legal burden as to the issue of standing and failed to apply the doctrines of res judicata and collateral estoppel to prohibit Citizens from relitigating the standing issue.

We hold that the circuit court did not err in ruling that: (1) Citizens had standing to invoke the court's jurisdiction to seek declaratory and injunctive relief; (2) the County acted in accordance with HCC § 25-20(c) (4) in accepting and approving Chalon's FEIR; and (3) the Hawaii County Council properly approved Chalon's boundary amendment because the land area was fifteen acres or less. However, we hold that environmental review was triggered by HRS chapter 343, insofar as Chalon's Mahukona Lodge project (the Mahukona project) proposes the use of state land under HRS § 343-5(a) (1) (1993). Accordingly, we affirm in part and vacate in part the circuit court's order and remand for proceedings consistent with this opinion.

HRS § 343-5(a) states in pertinent part:
Applicability and requirements.
(a) Except as otherwise provided, an environmental assessment shall be required for actions which:


(1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects which the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies;

(2) Propose any use within any land classified as conservation district by the state land use commission under chapter 205;

(3) Propose any use within the shoreline area as defined in section 205A-41;

(4) Propose any use within any historic site as designated in the National Register or Hawaii Register as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;

(5) Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";

(6) Propose any amendments to existing county general plans where such amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general plan or amendments to any existing county general plan initiated by a county; [or]

(7) Propose any reclassification of any land classified as conservation district by the state land use commission under chapter 205 [.]

I. BACKGROUND

In May 1991, Chalon filed an application with the Hawaii County Planning Commission (HPC) for a Special Management Area (SMA) permit to build a hotel, residential subdivision, 18-hole golf course, tennis facilities, and other related site improvements and infrastructure. The proposed project is located adjacent to the Mahukona Harbor in North Kona on the island of Hawaii.

A public hearing on the SMA permit was scheduled for May 11, 1993. At the hearing, Toni Withington, in her capacity as chair of Citizens' steering committee, formally requested that the HPC grant Citizens a contested case hearing on Chalon's application. The HPC thereafter ordered Citizens to submit additional information supporting its requests to participate in the contested case hearing. After receiving the information and hearing public testimony, the HPC denied Citizens' contested case request and approved Chalon's SMA permit.

Kai Keli`ikea`ehale Kaholokai also sought a contested case hearing on Chalon's SMA permit and joined in the suit with Citizens against the County and Chalon. However, since the filing of the opening brief in case No. 19051, a stipulation was entered dismissing all claims by Kaholokai. Thus, this appeal does not address any claims or causes of action relating to Kaholokai.

Thereafter, Citizens sought review in the circuit court of the HPC's decisions denying its contested case request and the issuance of Chalon's SMA permit. The circuit court, exercising its review powers pursuant to HRS § 91-14(a) (1993), affirmed the HPC's decision to deny Citizens its request to participate in a contested case hearing and further affirmed the HPC's approval of Chalon's SMA permit request. Following the circuit court's entry of judgment on May 17, 1995, Citizens appealed to this court (No. 19051). In No. 19051, we filed a summary disposition order on June 16, 1997, affirming the circuit court's notice and judgment filed on May 17, 1995 in Chalon's favor.

Simultaneously with its appeal of the agency decision, Citizens filed a complaint on July 15, 1993 and an amended complaint on June 23, 1995 for declaratory and injunctive relief against the County, alleging that:

(1) "The County Planning Department Wrongfully Failed to Require Preparation of an Environmental Impact Statement by Developer Chalon" (Count I);

(2) "Enactment of Hawaii Ordinances Nos. 93-109 and 93-113 was in violation of Chapter 343, HRS" (Count II);

(3) "The County Wrongfully Failed to Allow for Proper State Land Use Review as Required by Chapter 205, HRS" (Count III);

(4) "Enactment of County of Hawaii Ordinances Nos. 93-109 and 93-113 was in violation of § 3-15 of the Charter of the County of Hawaii in that neither of these Ordinances nor the land use district boundary amendment which they purported to ratify or approve conformed to the General Plan of the County of Hawaii" (Count IV); and

(5) "Enactment of County of Hawaii Ordinances Nos. 93-109 and 93-113 was ultra vires and in violation of Chapter 205, HRS" (Count V).

Citizens further stated that "[t]he purpose of this suit is to invalidate the process by which the County of Hawaii granted a Special Management Area Permit, application no. 91-3 ("SMA permit") for approximately 387 acres at Mahukona, North Kohala, and declare SMA Permit, application no 91-3, of the County of Hawaii null and void."

Pursuant to a stipulation for intervention, Chalon was allowed to intervene in the action. Thereafter, on April 5, 1995, Chalon filed a motion to dismiss as to all counts of Citizens' complaint for declaratory judgment and injunctive relief. The County later joined the motion on April 7, 1995. Essentially, defendants argued that the "statutes cited by [Citizens] in [its] complaint d [id] not confer jurisdiction on [the] court" or, in the alternative, defendants were entitled to judgment as a matter of law.

A hearing was held on the motion on May 15, 1995, wherein the circuit court granted Chalon's motion to dismiss or in the alternative summary judgment. The circuit court filed its decision and order on July 6, 1995, ruling that: (1) Citizens lacked standing to assert its claim for relief; (2) as a matter of law, the project did not require environmental review triggered by HRS Chapter 343; and (3) the County properly granted the district boundary amendment relating to the project.

On July 17, 1995, Citizens filed a motion for reconsideration of the circuit court's decision and order, requesting the court consider Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), on the issue of standing. Following a hearing on the motion held on September 12, 1995, the circuit court entered its order on December 15, 1995, denying Citizens' motion for reconsideration of the decision and order as to all issues, except the issue of standing. After an evidentiary hearing, the court reserved the issue for further consideration.

On August 30, 1996, Chalon filed a motion to dismiss or in the alternative for summary judgment as to the sole remaining issue of Citizens' standing. A hearing on the motion was scheduled for December 6, 1996. On that date, the circuit court conducted an evidentiary hearing on the issue of whether Citizens had standing as an organization to assert native Hawaiian rights based on its members' alleged exercise of customary and traditional native Hawaiian practices on the property.

Following the hearing, the court filed its findings of fact (FOFs), conclusions of law (COLs), and order on March 17, 1997, which state in relevant part as follows:

CONCLUSIONS OF LAW

* * *

1. Plaintiff [Citizens] is entitled to standing and this court has jurisdiction to decide this case.

2. Environmental review was not triggered and not required by Chapter 343, HRS for the Mahukona Lodge Project. Chalon fully complied with all applicable County environmental review requirements and procedures for the Mahukona Lodge Project.

3. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count I that [,] as a matter of law, County Planning Department correctly determined that Chapter 343, HRS does not require Chalon to submit an Environmental Impact Statement for the Mahukona Lodge Project.

4. There is no genuine issue of material fact and Defendants and Chalon are entitled to judgment as a matter of law that Chapter 343, HRS is not applicable to the applications and approvals at issue for the Mahukona Lodge Project.

5. The County properly enacted the Hawaii County Ordinances Nos. 93-109 and 91-113 in accordance with Chapter 205, HRS ("District Boundary Amendment') as a matter of statutory construction. Where, as is the case here, a land use district boundary amendment is contemplated and the land area is fifteen acres of [sic] less, it is properly addressed by the appropriate county authority and not the State Land Use Commission.

6. There is no genuine issue of material fact and Defendants and Chalon are entitled to judgment as a matter of law that the County acted in accordance with § 25-20(c)(4) of the Hawaii County Code in accepting and approving the FEIR submitted by Chalon, and that the Mahukona Lodge Project complied with the procedural and substantive requirements of Chapter 25 of the Hawaii County Code.

7. The Mahukona Lodge Project is consistent with the General Plan. There is no requirement in the General Plan requiring that the entire Mahukona Lodge Project be within the Urban District, or be zoned Resort Hotel, or that the 35 acre minimum "Resort Acreage" must be exclusively located within the Urban District. Such a requirement would not be "within the framework" of the General Plan. To the contrary, the General Plan expressly calls for the inclusion within Minor Resorts of "active and passive recreation area commensurate with the scale of development."

8. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count II [,] as a matter of law, that the enactment of Hawaii ordinances Nos. 93-109 and 93-113 did not violate Chapter 343, HRS.

9. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count III [,] as a matter of law, that the County did not violate Chapter 205, HRS in the enactment of Ordinances Nos. 93-109 and 93-113.

10. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count II [,] as a matter of law that the County properly conducted the land use review required under Chapter 205, HRS and Section 28-2 of the Hawaii County Code.

11. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count IV [,] as a matter of law, [that] enactment of County of Hawaii Ordinances Nos. 93-109 and 93-113 did not violate § 3-15 of the County Charger of the General Plan of the County of Hawaii.

12. There are no genuine issues of material fact and Defendants and Chalon are entitled to judgment on Count VI [,] as a matter of law, [that] the enactment of County of Hawaii Ordinances Nos. 91-109 and 93-113 was not ultra vires and did not violate Chapter 343, HRS.

Citizens and Chalon timely appealed.

II. STANDARDS OF REVIEW

Because Chalon styled its motion both as a motion to dismiss for lack of jurisdiction and for summary judgment and supported it with affidavits and exhibits, the circuit court properly treated Chalon's motion as a motion for summary judgment. See Hawaii Rules of Civil Procedure (HRCP) Rule 12(b); see also State ex. rel Bronster v. United States Steel Corp., 82 Haw. 32, 38-39, 919 P.2d 294, 300-01 (1996); Au v. Au, 63 Haw. 210, 212-13, 626 P.2d 173, 176 (1981). We therefore apply the standard of review applicable to summary judgment orders.

HRCP Rule 12(b) provides in relevant part:


If, on a motion asserting the defense numbered [12(b)](6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

We review a circuit court's award of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation omitted). As we have often articulated:

[s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Id. (citations and internal quotations omitted); see Hawaii Rules of Civil Procedure (HRCP) Rule 56(c) (1990). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716, (1982) (citations omitted).

Estate of Doe v. Paul Revere Ins. Group, 86 Haw. 262, 269-70, 944 P.2d 1103, 1110-11 (1997) (quoting Morinoue v. Roy, 86 Haw. 76, 80, 947 P.2d 944, 948 (1997)) (brackets omitted). We have also held that when making a summary judgment determination, "we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion." Morinoue, 86 Haw. at 80, 947 P.2d at 948 (quoting Maguire v. Hilton Hotels Corp., 79 Haw. 110, 112, 899 P.2d 393, 395 (1995)) (brackets omitted).

Shin v. McLaughlin, 89 Haw. 1, 2-3, 967 P.2d 1059, 1060-61 (1998).

Moreover, "[a]lthough an agency's decision carries a presumption of validity in a generic agency appeal under the applicable provision of HAPA," see Hawaii's Thousand Friends v. City and County of Honolulu, 75 Haw. 237, 248, 858 P.2d 726, 732 (1993) (citing HRS § 91-14 and Sussel v. Civil Service Commission, 74 Haw. 599, [608], 851 P.2d 311, 316 (1993) (citation omitted)), Citizens' petition for declaratory judgment in the present case was brought as an original action under HRS § 632-1. Therefore, the circuit court was not required to defer to the HPC's determination on the potential environmental impact of the Mahukona project. Thus, the circuit court correctly made "its own independent findings regarding the salient facts of the instant case." See id.

Accordingly, the correct standard under which this court must review the circuit court's finding in this case is the clearly erroneous standard of review. Gadd v. Kelley, 66 Haw. 431, 442, 667 P.2d 251, 259 (1983). "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." Amfac, Inc. v. Waikiki Beachcomber, Inv. Co., 74 Haw. 85, 116, 839 P.2d 10, 27-28, recon. denied, 74 Haw. 650, 843 P.2d 144 (1992) (citations omitted).

Id.

III. DISCUSSION

A. The Circuit Court Did Not Err in Granting Citizens Standing To Invoke the Court's Jurisdiction in an Action for Declaratory Relief.

As a preliminary matter, Citizens' first amended complaint, filed on June 23, 1995, fails to cite the proper statute to invoke the circuit court's jurisdiction for declaratory relief. Citizens instead relies on substantive statutes such as HRS §§ 46-1 (1993), 205-1 (1993), 343-1 (1993) and 92-12(b) (1993), which do not confer subject matter jurisdiction on the circuit court. Regardless of the erroneous recitation by Citizens' attorneys, it is clear that the relief being sought was based on HRS §§ 603-21.5 (1993) (general jurisdiction of the circuit courts) and 632-1 (1993) (declaratory judgments). Thus, the circuit court properly accepted jurisdiction.

Citizens first contends that the circuit court erred in concluding that "it did not establish an injury in fact nor raise a genuine issue of material fact relating to the existence of an injury in fact." Likewise, as noted above, Chalon describes the issue of Citizens' standing in terms of proving an injury in fact sufficient to invoke a contested case hearing. These arguments wholly misapprehend and blur the distinction between standing to participate in a contested case hearing under HRS § 91-14 and standing in an action for declaratory relief under HRS § 632-1 (1993).

HRS § 632-1 states in relevant part:


Relief by declaratory judgment may be granted in civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial of the asserted relation, status, right or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding.

As a general rule, "[s]tanding is the aspect of justiciability focusing on the party seeking a forum rather than on the issues he wants adjudicated." Hawaii's Thousand Friends v. Anderson, 70 Haw. 276, 281, 768 P.2d 1293, 1298 (1989) (quoting Life of the Land v. Land Use Commission, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981)). In order for individuals or groups legitimately to invoke contested case hearing procedures on SMA permit applications before the State Land Use Commission (LUC), they must be "directly and immediately affected by the Commission's decision [.]" HPC Rule 4-2(6) (B). In PASH, we stated that this requires a party to "demonstrate [that its] . . . interests were injured [.]" PASH, 79 Hawaii at 434, 903 P.2d at 1255 (citing Pele Defense Fund v. Puna Geothermal Venture, 77 Haw. 64, 69, 881 P.2d 1210, 1215 (1994)). The demonstration is evaluated via a three-part "injury in fact" test requiring: "(1) an actual or threatened injury, which, (2) is traceable to the challenged action, and (3) is likely to be remedied by favorable judicial action." Id. at 434 n. 15, 991 P.2d at 1255 n. 15 (citation omitted).

In PASH, this court also set forth a jurisdictional analysis for appeal of the denial of standing to participate in a contested case hearing. The appellant must: (1) appeal from a contested case (SMA permit application proceeding before the Commission was a contested case); (2) appeal from either "a final decision and order . . . or a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief [.]" HRS § 91-14(a); (3) demonstrate that the organization was involved, or participated, in the contested case hearing that culminated in the unfavorable decision; and (4) demonstrate that its interests were injured. Id. at 431, 903 P.2d at 1252.

On the other hand, for the purposes of establishing standing in an action for declaratory relief, HRS § 632-1 interposes less stringent requirements for access and participation in the court process. As this court explained in Richard v. Metcalf, 82 Haw. 249, 254 n. 12, 921 P.2d 169, 174 n. 12 (1996),

Although HRS § 632-1 provides for standing to sue "[i]n cases of actual controversy," HRS § 632-6 clarifies that

[the] purpose [of HRS chapter 632] is to afford relief . . . without requiring one of the parties interested so to invade the rights asserted by the other as to entitle the party to maintain an ordinary action therefor. It is to be liberally interpreted and administered, with a view to making the courts more serviceable to the people.
Id. (citing Life of the Land, 63 Haw. at 172, 623 P.2d at 438). In support of its argument, Chalon maintains that Citizens "(1) has no interest whatsoever in the property that is the subject of this action, and (2) does not lawfully reside on said property." Chalon's contentions misapprehend the standing requisites this court extensively addressed in our prior case law. In Life of the Land v. Land Use Commission, 63 Haw. 166, 623 P.2d 431 (1981), this court held that Life of the Land, an environmental organization, and its members, who were neither owners of reclassified land nor owners of land adjoining reclassified land, had standing to invoke judicial scrutiny of LUC procedures, as well as its determinations, by way of declaratory action. Id. at 169, 623 P.2d at 436.

Indicating that the personal or special interests or "rights" advanced by Life of the Land were subject to judicial protection, we held that the criteria prescribed by HRS §§ 91-7 and 632-1 "present [ed] no barriers to adjudication." Id. at 177, 623 P.2d at 441. In so holding, we explained that, although standing principles are governed by "prudential rules" of judicial self-governance, standing requisites "may also be tempered, or even prescribed, by legislative and constitutional declarations of policy." Id. at 172, 623 P.2d at 438 (footnote omitted). Indeed, we emphasized that the touchstone of this court's notion of standing is `the needs of justice.'" Id. at 176, 623 P.2d at 441.

This court subsequently indicated that, "where the interests at stake are in the realm of environmental concerns [,] `we have not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements.'" Mahuiki v. Planning Commission, 65 Haw. 506, 512, 654 P.2d 874, 878 (1982) (quoting Life of the Land, 63 Haw. at 171, 623 P.2d at 438). We reiterated our basic position that "standing requirements should not be barriers to justice" and endorsed the view that "` [o]ne whose legitimate interest is in fact injured by illegal action of an agency or officer should have standing because justice requires that such a party should have a chance to show that the action that hurts his interest is illegal.'" Id. at 512-13, 654 P.2d at 878 (quoting East Diamond Head Association v. Zoning Board of Appeals, 52 Haw. 518, 523 n. 5, 479 P.2d 796, 799 n. 5 (1971) (citations omitted)).

Moreover, in Pele Defense Fund v. Puna Geothermal Venture, 77 Haw. 64, 70, 881 P.2d 1210, 1216 (1994), we indicated that appellees alleging that a geothermal venture's activities would expose them "`to potential harm [,] including diminished property values, deterioration of air quality, odor nuisance, and possible physical injury resulting from the permitted operations [,]'" would clearly confer standing in an action for declaratory and injunctive relief because "we could simply conclude that `the pleadings . . . contain a sufficient showing of individualized harm . . . [so that] it cannot be said that [Appellees] sought `to do no more than vindicate their own value preferences through the judicial process.'" Id. (citing Hawaii's Thousand Friends v. Anderson, 70 Haw. 276, 283, 768 P.2d 1293, 1299 (1989) (citations omitted)). See also Akau v. Olohana Corporation, 65 Haw. 383, 390, 652 P.2d 1130, 1135 (1982) (an injury to a recreational interest is an injury in fact sufficient to constitute standing to assert the rights of the public for purposes of declaratory and injunctive relief); Mahuiki, 65 Haw. at 515, 654 P.2d at 880 (those who show aesthetic and environmental injury are allowed standing to sue under HRS chapter 91 where their interests are "personal" and "special," or where a property interest is also affected) (citing Life of the Land v. Land Use Commission, 61 Haw. 3, 8, 594 P.2d 1079, 1082 (1979)).

In the instant case, Citizens asserts personal and special interests sufficient to invoke judicial resolution under HRS § 632-1. Citizens contends that, inasmuch as its members reside "in close proximity" to the proposed Mahukona project and are "long time and frequent users" of the Mahukona coastline, injury to its members' quality of life is threatened. It asserts that the Mahukona area is the "primary ocean recreation area" and "the only place where people may access the water or safely launch a boat for approximately 29 miles of the Kohala coastline." According to Citizens, Mahukona is a "community recreational resource [,]" used for "picnics, . . . swimming and boating. . . . [F]ishermen [also] use shore areas along the length of the project's ocean frontage." In addition, "Mahukona is . . . the site of a major spiritual center," a "navigational key-way for islands to the south," and a locale for gathering Hawaiian plants and herbs. Citizens urges that the Mahukona project may cause irreversible changes to the North Kohala coastline, affecting vital fishing grounds and causing "degradation of the quality of the nearshore marine environment." It argues, therefore, that because its members use the shoreline area "within dozens of feet" of Chalon's proposed structures, "such use is potentially harmed by the project [.]"

As our prior cases demonstrate, although Citizens' members are neither owners nor adjoining owners of the Mahukona project, they nonetheless alleged an injury in fact sufficient to constitute standing to participate in a declaratory judgment action. Chalon's reliance on Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is thus misplaced, inasmuch as the United States Supreme Court's doctrine on the issue of standing does not bind us. Life of the Land, 63 Haw. at 173, 623 P.2d at 439.

In Lujan, the United States Supreme Court held that an environmental group failed to assert an injury in fact and therefore did not allege an Article III case or controversy, when it claimed purely speculative, nonconcrete injuries resulting from governmentally-funded activities abroad, which potentially threatened certain endangered animal species. Id. at 578.

As in Life of the Land, we perceive no sound reason to foreclose Citizens' challenge through a restrictive application of standing requirements. See 63 Haw. at 171, 623 P.2d at 438. Because a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to this proceeding and will foster "the needs of justice," we hold that the circuit court did not err in concluding that Citizens had standing to participate in the instant action for declaratory and injunctive relief.

B. Res judicata and/or Collateral Estoppel Do Not Bar Citizen's Suit on the Issue of Standing.

Chalon contends that the doctrines of res judicata and collateral estoppel bar Citizens from relitigating the issue of standing. Specifically, Chalon argues that, because the issue of Citizens' standing was "fully and finally adjudicated" in its agency appeal, Citizens' complaint in the instant action is barred. Chalon's argument presumes that the standing issue presented and the relief requested in the instant action are the same as those sought in the agency appeal. Indeed, Chalon points out that Citizens' action for declaratory and injunctive relief seeks, inter alia, "a ruling reversing the granting of [Chalon's] SMA permit by the County [.]"

This court has long treated collateral estoppel as an included doctrine of res judicata and applied the elements of both doctrines interchangably:

Res judicata will bar relitigation where (1) the issue decided in the prior adjudication is identical with the one presented in the action in question, (2) there was a final judgment on the merits, and (3) the party against whom res judicata is asserted was a party or in privity with a party to the prior adjudication.
Dorrance v. Lee, 90 Haw. 143, 149, 976 P.2d 904, 909 (1999) (citing Foytik v. Chandler, 88 Haw. 307, 315, 966 P.2d 619, 627 (1998) (citations omitted)). We recently held, however, that the test for collateral estoppel additionally requires that "the particular issue of fact or law that was decided in the prior adjudication be essential to the earlier valid and final judgment." Id. at 149, 976 P.2d at 910. Thus, the doctrine of collateral estoppel bars relitigation of an issue where: (1) the issue decided in the prior adjudication is identical to the one presented in the action in question; (2) there is a final judgment on the merits; (3) the issue decided in the prior adjudication was essential to the final judgment; and (4) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication [.]

Id.

In the instant case, the issue of standing to appeal an agency decision under HRS § 91-14, decided in the prior agency appeal, is not "identical to the one presented in the action in question." The issue of whether Citizens had standing to pursue an action for declaratory relief under HRS § 632-1 was not before the trial court in the agency appeal; rather, as mentioned, the court was faced only with the issue of whether Citizens had standing to appeal an agency's denial of a contested case hearing and grant of an SMA permit under HRS § 91-14.

Moreover, as described above, although the underlying premise of Citizens' complaint for declaratory and injunctive relief has the similar effect of challenging Chalon's SMA permit approval, its complaint for declaratory and injunctive relief goes further to challenge, inter alia, the validity of the ordinances and statutes underlying the Commission's procedures for granting SMA permits and the applicability of HRS chapter 343 requiring preparation of an EIS by Chalon.

Applying the Dorrance factors to Chalon's claims, it is clear that neither res judicata nor collateral estoppel bar Citizens' claim. The issue of standing to sue for declaratory and injunctive relief was neither decided nor could have been decided in the previous agency appeal. Moreover, the relief requested in the instant action is not a remedy that the circuit court could have afforded Citizens in its prior agency appeal. See Pele Defense Fund, 77 Hawaii at 70 n. 13, 881 P.2d at 1216 n. 13 (in an agency appeal, although a party may seek declaratory and injunctive remedies, "the court only has power to grant relief in accordance with HRS 91-14(g)."). Thus, given that the first prong of the Dorrance test has not been satisfied, we hold that Citizens' standing claim in the present case is not barred by the doctrines of res judicata or collateral estoppel.

C. Environmental Review of the Mahukona Lodge Project Is Required Under HRS Chapter 343 Because the Project Proposes the Use of State Land.

1. Use of State Land Under HRS § 343-5(a)(1)

Citizens argues that the circuit court erred in its determination that, as a matter of law, environmental review was not triggered by HRS chapter 343. Citizens specifically contends that Chalon's proposed construction of two underpasses below the Akoni Pule Highway for golf carts and maintenance vehicles to travel to the portions of Chalon's golf course situated on either side of the highway constitute the use of state lands within the meaning of HRS Chapter 343, thereby requiring environmental review of the project.

Citizens also argues that the potential use of Akoni Pule Highway leading to the Mahukona project constitutes use of state land. This argument is without merit.

Chalon contends, on the other hand, that such use does not constitute the "use" of state lands. In the alternative, it argues that, if the construction of the underpasses under the state highway in fact constitute use of state land, "negotiations with the State of Hawaii for an easement so that such an underpass may eventually be constructed are in the early stages." As such, it maintains that environmental review under HRS chapter 343 is premature. We disagree.

In Kahana Sunset Owners Association v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997), this court held that a proposed development to install a 36-inch drainage line beneath Napilihau Street, connecting to an existing 24-inch culvert beneath Lower Honoapi`ilani Highway indisputably "constitutes `use of state or county lands,' which is within the class of actions that triggers HEPA. An environmental assessment is therefore mandatory, unless the project falls within an exemption." Id. at 71, 947 P.2d at 383. It is thus clear that construction of two underpasses under a state highway constitutes use of state lands for purposes of HRS 343-5(a) (1) (1993).

Chalon maintains, however, that even assuming that the underpasses constitute the use of state land, the issue is one of timing. It argues that, because the underpasses are a mere idea, "the earliest practicable time for such an EA would be at the time that Chalon submits detailed plans and applies for approval of the easement and underpass to the State Department of Transportation or Department of Land and Natural Resources. . . ." An EA prepared before that point, it submits, "would be devoid of meaningful information" and consist of "vague generalities."

In Kahana Sunset, we held, inter alia, that it was error for the Maui Planning Commission to defer a decision on the preparation of an environmental assessment to the Department of Public Works where installation of a drainage pipe under a public street, as part of a larger project, triggered HRS chapter 343. Id. at 75, 947 P.2d at 387. There, the Maui Planning Commission had concluded that the issue was whether the work that would be required to install whatever drainage under whatever public roadway constitute [sic] a development in [and] of itself or is contained within this entire special management area application. . . . [T]he determination as to whether or not an environmental assessment is triggered by putting a culvert under a public roadway within public lands is going to be determined by the Department of Public Works [,] not by this commission.

Id. at 74, 947 P.2d at 386. Disagreeing with the Commission and citing HRS § 343-5(c) (1993), we held that "the action for purposes of HEPA is the proposed Napilihau development," not just the proposed drainage line beneath Napilihau Street. Id. at 75, 947 P.2d at 387. We thus held that "the Commission is the agency receiving the request for approval of the action, and it is therefore the agency responsible for preparation of the environmental assessment." Id. In so holding, we recognized that "[i]solating only that particular component of the development for environmental assessment would be improper segmentation of the project." Id.

HRS § 343-5(c) provides:


Whenever an applicant proposes an action specified by subsection (a) which requires approval of an agency, and which is not a specific type of action declared exempt under section 343-6, the agency receiving the request for approval shall prepare an environmental assessment of such proposed action at the earliest practicable time [.]

In the instant case, the action for purposes of HEPA is the proposed Mahukona Lodge Project development. Indeed, in its numerous permit applications and reports, Chalon consistently proposed the two underpasses as integral parts of its development project. Chalon's golf course use permit application acknowledges that two underpasses will be constructed under the Akoni Pule Highway "to provide access for golf carts and maintenance vehicles to the 3 golf holes mauka of the highway and the golf course maintenance facility." Moreover, its Special Management Area use permit application states that "[a]bove Akoni Pule Highway will be three of the golf holes. Golf cart underpasses would connect the golf holes on either side of the Akoni Pule Highway. The wastewater treatment facilities would also be located above the highway." Chalon's Traffic Analysis Report asserts that "[p]ortions of the golf course will be built mauka of the Akoni Pule Highway and will be reached via two underpasses." Its self-styled FEIR, submitted to the HPC for approval, references "[a]n 18-hole golf course (situated both mauka and makai of Akoni Pule Highway)" and includes several maps indicating the locations of both underpasses. Its change of zone application refers to an "18-hole championship quality golf course situated both mauka and makai of Akoni Pule Highway."

Chalon's Change of Zone Application contains identical language.

Further, Chalon's golf course use permit application characterizes the golf course as "an integral part of the proposed Mahukona Lodge and agricultural lot subdivision being planned on the Mahukona-Kapaanui lands." Its SMA permit petition lists as "specific actions proposed within the SMA" the "[c]onstruction of an 18-hole championship quality golf course, clubhouse, and related maintenance facilities." Its FEIR also forecasts that the golf course will be used "from 80 rounds per day in 1995 to 150 rounds per day in 2010, with lodge guests, single family residents, golf club members and regional visitors being the four principal demand sources." There is no indication in the record that Chalon ever proposed an alternative route of travel between the parts of its golf course situated on either side of the highway.

Accordingly, the HPC is the agency receiving the requests for approval of the Mahukona project and is therefore the agency responsible for preparation of the environmental assessment.

Requiring early environmental assessment of the Mahukona project comports with HRS § 343-5(c)'s express mandate that environmental review be undertaken at the "earliest practicable time." This result also finds support in the spirit and intent of HEPA to "establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations . . . [and] alert decision makers to significant environmental effects which may result from the implementation of certain actions." HRS § 343-1 (1993).

HRS § 343-1 provides:


The legislature finds that the quality of humanity's environment is critical to humanity's well being, that humanity's activities have broad and profound effects upon the interrelations of all components of the environment, and that an environmental review process will integrate the review of environmental concerns with existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of certain actions. The legislature further finds that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole.

It is the purpose of this chapter to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations.

Consonant with these policies, both federal and state courts have recognized that environmental review must occur early enough to function practically as an input into the decision making process. In construing the National Environmental Policy Act (NEPA), for example, the United States Court of Appeals for the Ninth Circuit cautioned that "[a]n assessment must be "prepared early enough so that it can serve practically as an important contribution to the decision making process and will not be used to rationalize or justify decisions already made." Save the Yaak Committee v. J.R. Block, 840 F.2d 714, 718 (9th Cir. 1987) (quoting 40 C.F.R. § 1502.5 (1987)). It further stated that federal agencies are required to "`integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values. . . .'" Id. (emphasis added) (citing Andrus v. Sierra Club, 442 U.S. 347, 351 (1979) (citations omitted), and California v. Block, 690 F.2d 753, 761 (9th Cir. 1982)). According to the J.R. Block Court, "[t]he rationale behind this rule is that inflexibility may occur if delay in preparing an EIS is allowed: `After major investment of both time and money, it is likely that more environmental harm will be tolerated.'" Id. (quoting Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 471-72 (9th Cir. 1984) (citation omitted)). See also Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983) ("the EIS is a decision-making tool intended to `insure that . . . environmental amenities and values may be given appropriate consideration in decisionmaking. . . .' Therefore, the appropriate time for preparing an EIS is prior to a decision, when the decisionmaker retains a maximum range of options.") (ellipsis points and emphasis in original) (citation omitted); Rodgers, Environmental Law § 9.7, at 921 (2d. ed. 1994) (NEPA's purpose is to require consideration of environmental factors "before project momentum becomes irresistible, before options are closed, and before agency commitments are set in concrete.").

Accordingly, decisions reflecting environmental considerations can most easily be made when other basic decisions are also being made, that is, during the early stages of project conceptualization and planning. Here, because the development and general dimensions of the project have been known to Chalon from the start, there should be no difficulty in providing "meaningful information" for HRS chapter 343 environmental review. Moreover, at this early stage, environmental review under HRS § 343-5 would be an integral part of the decision-making process. Indeed, to require the DOT or DLNR, rather than the County of Hawaii, to conduct an EA at some point in the future "might call for a burdensome reconsideration of decisions already made and would risk becoming a ` post hoc rationalization to support action already taken.'" Citizens for Responsible Government v. City of Albany, 56 Cal.App.4th 1199, 1221, 66 Cal.Rptr.2d 102, 114 (1997) (brackets in original).

In order to achieve the salutary objectives of HEPA, and because Chalon's proposed underpasses have been, from the start, an integral part of the project, we hold that Chalon's proposed construction of two underpasses under the Akoni Pule Highway, constitutes "use of State lands" within the meaning of HRS § 343-5(a) (1).

2. Other "Triggers"

Citizens additionally argues that HRS chapter 343 is triggered because Chalon proposes use of the shoreline under HRS § 343-5(a) (2) (1993) and/or conservation land under HRS § 343-5(a) (3) (1993). It argues that the mere "impact" on nearby shoreline and conservation areas implicates HRS chapter 343. These arguments are without merit.

HRS §§ 343-5(a) (2) and (3) provide:

(a) Except as otherwise provided, an environmental assessment shall be required for actions which:

. . .

(2) Propose any use within any land classified as conservation district by the state land use commission under chapter 205;

(3) Propose any use within the shoreline area as defined in section 205A-41 [.]

(Emphasis added.)

The record reveals that Chalon does not propose use within the shoreline area or conservation district. As such, the trial court did not err in concluding that HRS chapter 343 was not triggered by these actions.

D. The County Acted in Accordance with Hawaii County Code § 25-20(c) (4) In Accepting and Approving Chalon's Final Environmental Impact Report.

Citizens next contends that the County failed to act in accordance with HCC § 25-20(c) (4) (1983) in accepting and approving Chalon's FEIR, which "has no basis in either State or County law, was not subject to proper agency or public review, did not contain adequate review of alternatives or mitigating measures, and contained numerous inaccuracies of data on historic sites, flora, fauna, and marine life at Mahukona." Specifically, Citizens argues that (1) HCC chapter 25 triggers environmental review under HRS chapter 343; and (2) the HPC erroneously determined that Chalon's FEIR was the equivalent to a County EIS required by HCC chapter 25. Both arguments are without merit.

At the time the present cause of action arose, the now-repealed HCC § 25-20(c) (4) provided the following:

HCC Chapter 25 was repealed and replaced by Ordinance 96-160, effective December 7, 1996. The present HCC Chapter 25 specifically provides that a "`county environmental report' does not include a State environmental impact statement prepared in compliance with Chapter 343, Hawaii Revised Statutes." HCC §§ 25-1-5(b)(31); see also 25-2-42(5) (providing a similar definition).

(c) Application for a change of zoning district shall be on a form prescribed by the director and shall be accompanied by:

. . .

(4) Any other plans or information requested by the director or planning commission; provided that all proposed amendments involving the construction of hotel or condominium developments, shall require the submission of an environmental impact statement.

(Citation omitted.) Insofar as the language of HCC § 25-20(c) (4) fails to make reference to HRS Chapter 343, it does not evince an intent on the part of the Hawaii County Council to invoke the procedural requirements of HRS ch. 343. Thus, contrary to Citizens' contentions, we are left with the conclusion that HCC § 25-20(c)(4) provides for a wholly separate and distinct County EIS preparation requirement from the environmental review process required under HRS Chapter 343.

As to Citizens' next contention, the now-repealed HCC § 25-4(b) (21) (1983) provided that

`environmental impact statement' means a statement which describes the physical, social, economic, and natural resource consequences of a proposed action, including but not limited to a discussion of alternatives to the proposed action, adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between local short term uses of man's environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources which would be involved in the proposed action, and economic and social analysis of the proposed action.

(Citation omitted.) In the present case, the Hawaii County Planning Director, Virginia Goldstein, determined that under the HPC, Chalon fully complied with HCC chapter 25:

The applicant [Chalon] has submitted the information necessary to complete our review of the applications and have accordingly scheduled public hearings. After careful review of the "Mahukona Final Environmental Impact Report" accepted or processing on June 6, 1991, I have also found that it is equivalent to the `Environmental Impact Statement' described in [HCC] § 25-4(b)(20) in that it addresses all the considerations described therein. Further, despite the discrepancy in the title, your submission complies with the requirements of Section 25-20(c) (4).

This court "use [s] the `rule of reason' to determine whether an EIS is legally sufficient in adequately disclosing facts to enable a decision-making body to render an informed decision." Price v. Obayashi Hawaii Corp., 81 Haw. 171, 182, 914 P.2d 1364, 1375 (1996) (quoting Life of the Land v. Ariyoshi, 59 Haw. 156, 164, 577 P.2d 1116, 1121 (1978)). In accordance with this principle, we will not substitute our judgment for that of the HPC and overturn its determination that Chalon's FEIR sufficiently complies with county code standards. See id. at 183 n. 12, 914 P.2d at 1378 n. 12 (observing that "courts are reluctant to `second guess' the decision-making body regarding the sufficiency of an EIS.").

We thus hold that the circuit court did not err in ruling that the County acted in accordance with HCC § 25-20(c)(4) in accepting and approving Chalon's FEIR.

E. The Hawaii County Council Properly Approved Chalon's Boundary Amendment.

Lastly, Citizens contends that the circuit court erred in concluding, as a matter of law, that the Hawaii County Council properly processed Chalon's boundary amendment because the land area to be redistricted was fifteen acres or less.

HRS § 205-3.1(a) (1993) expressly states that "[d]istrict boundary amendments involving land areas greater than fifteen acres shall be processed by the land use commission pursuant to section 205-4." (Citation omitted.) Subsection (c) provides that [d]istrict boundary amendments involving land areas of fifteen acres or less, except in conservation districts, shall be determined by the appropriate county land use decision-making authority for said district and shall not require consideration by the land use commission pursuant to section 205-4.

(Citation omitted.)

In the instant case, Chalon submitted its petition for change of zone requesting that "14.5q acres" of its Mahukona property be rezoned from agricultural to urban. Because our sole duty is to give effect to a statute's plain and obvious meaning, see Shin v. McLaughlin, 89 Haw. 1, 4, 967 P.2d 1059, 1062 (1998) (citing Ross v. Stouffer Hotel Co., 76 Haw. 454, 461, 879 P.2d 1037, 1044-45 (1994) (citation omitted)), we are not at liberty to circumvent HRS chapter 205's express mandate. Therefore, inasmuch as HRS § 205-3.1 requires county review of Chalon's 14.5sq acre change of zone request, the circuit court did not err in concluding that the Hawaii County Council properly approved Chalon's Boundary Amendment.

IV. CONCLUSION

For the foregoing reasons, we hold that the circuit court did not err in ruling that: (1) Citizens had standing to invoke the court's jurisdiction to seek declaratory and injunctive relief; (2) the County acted in accordance with HCC § 25-20(c) (4) in accepting and approving Chalon's FEIR; and (3) the Hawaii County Council properly approved Chalon's boundary amendment because the land area was fifteen acres or less. However, we hold that environmental review was triggered by HRS chapter 343, insofar as Chalon's Mahukona Lodge project proposes the use of state land under HRS 343-5(a) (1).

Accordingly, we affirm in part and vacate in part the circuit court's order and remand for proceedings consistent with this opinion.


CONCURRING OPINION OF ACOBA, J.

I concur in the result.

I note that the prerequisite for a warrant check under Hawaii Revised Statutes § 803-6 (1993) is a "lawful" arrest. No officer here testified that Defendant-Appellant Brandon Silva (Defendant) was ordered to exit the vehicle for the purpose of an arrest. Officer Ronald Lopes (Officer Lopes), the arresting officer, testified that it was "up to [the complainant]" as to whether Defendant would be arrested, and that he ordered Defendant to exit the vehicle because there "was a lotta stuff in [Defendant's] car" and he felt "insecure." Officer Lopes testified Defendant was placed under arrest after and as a result of the warrant check.

I do not read the majority opinion as generally allowing detention for purposes of a warrant check once the purpose for which a seizure is made has been satisfied. Conceivably, here, the police had sufficient information to detain Defendant for investigation of simple trespass and theft, although he was neither subsequently arrested nor charged for either offense.

In any event, I do not believe recovery of the contraband was the fruit of Officer Lopes' exit order. Defendant testified that after he exited the car he volunteered the information that he had traffic warrants. Accordingly, in my view, Defendant was the person who provided the basis for, and thus invited his further detention for a warrant check. The contraband was recovered following the arrest on the warrants, and validly so, as incident to arrest under the police version of the events, or pursuant to the inevitable discovery rule under Defendant's recounting of the episode.


I. A.

On March 12, 1996, Plaintiff-Appellant Mualla Atahan (Atahan) filed a complaint against Defendant-Appellee Hidehiro Muramoto (Muramoto), alleging, inter alia:

Although Plaintiff-Appellant Mualla Atahan (Atahan) is one of several plaintiffs-appellants, for the sake of convenience, I refer only to Atahan.

On or before September 19, 1994, [Muramoto] knew or in the exercise of reasonable care should have known, that the waves, sea and ocean state and/or other aquatic conditions at and in the vicinity of the [p]roperty, were dangerous or potentially dangerous to swimmers or bathers, particularly to those inexperienced tourists and visitors living outside the State of [Hawaii], including [Atahan].

[Muramoto] herein carelessly and negligently allowed the p]roperty to be trespassed upon by members of the general public, and carelessly and negligently allowed the [p]roperty to be used as a de facto parking lot for Big Beach [(hereinafter Mkena Beach Park)on the island of Maui], thereby carelessly and negligently representing the [p]roperty to be part of [Mkena] Beach Park, with knowledge or having reason to know that members of the public would so assume [Muramoto]'s property was a parking lot for and a part of the [Mkena] Beach Park. . . .

[Muramoto]'s acts and/or failure to act as herein described, carelessly and negligently encouraged, invited and induced tourists, visitors and members of the public upon the [p]roperty, with [Muramoto] then knowing or having reason to know that persons utilizing the [p]roperty would use same as access to [Mkena Beach Park], and [Muramoto] knowing or being reasonably charged with knowledge that users of said [Mkena] Beach Park were exposed to serious bodily injury and damage at said [Mkena] Beach Park. . . .

(Emphases added.) Atahan alleged "as a direct and proximate result" of Muramoto's "fail [ure] to fence, barricade and block the [p]roperty or take other reasonable steps and precautions to prevent members of the public from trespassing thereon and exposing themselves to injury . . . [Atahan] sustained injuries. . . ."

On March 15, 1996, Atahan filed a "Request to Exempt Case From the Court [-]Annexed Arbitration Program." In this request, Atahan admitted that " [w]hile swimming in the waters fronting [Mkena] . . . Beach Park, . . . [Atahan] was knocked down by a wave and sustained serious permanent injuries." (Emphasis added.)

On July 2, 1997, Atahan filed his pretrial statement. In that pleading, Atahan stated that he arrived at an open dirt lot located in the area called [Mkena Beach Park]. [Atahan] observed numerous cars parked in that lot and decided to park there to walk to the beach.

The lot where [Atahan] parked [his] vehicle was the Muramoto [p]roperty. . . . [Atahan] got out of [his] car and walked across the Muramoto [p]roperty to the sand. Once on the beach, [he] proceeded north on the sand in the [Khei] direction. . . .

(Emphasis added.) Atahan once again admitted that "he was struck by a wave while swimming in the waters fronting [Mkena Beach] Park. . . ."

B.

On August 20, 1997, Muramoto filed a motion for summary judgment. Affidavits from Muramoto and John C. Patterson (Patterson), a real estate broker familiar with Muramoto's property, were submitted with the summary judgment motion. In his affidavit, Muramoto stated that "[w]hen he purchased the parcel, it was a vacant lot [,]" he "made no changes to it [,]" he "took no action to discourage or encourage people from crossing the parcel [,]" and he "neither asked for nor received any money from people who may have crossed the parcel." Muramoto also averred that he "took no action to try to cause people to swim in the ocean in front of or near the parcel."

In his affidavit, Patterson asserted he "ha [d] not represented [Muramoto] in connection with any real estate transactions [,]" and "as a real estate broker and as an area resident," he was "familiar" with Muramoto's property. Patterson reported that "[a]t the time [Muramoto] purchased the parcel, it was a vacant lot [,]" he "periodically observed cars parked on the parcel, and persons crossing the parcel to access the beach [,]" and he "saw nothing to indicate that [Muramoto] was trying to prevent people from accessing the beach by crossing over his parcel, nor that he was charging a fee for such access." Patterson related that attached to his affidavit was a true and correct copy of a Tax Map in which [Muramoto's] parcel is labeled, "Lot 3." [Muramoto]'s attorney . . . [had] pointed out the area in the ocean where [Atahan] alleged that he was injured [and that] [t]he area is not in front of [Muramoto's] parcel, but is rather in front of the parcel labeled, "Park — State Property."

On August 28, 1997, Atahan filed his opposition memorandum to Muramoto's motion, reiterating the allegations in his complaint. Atahan did not file any supporting affidavits.

Muramoto filed his "Responsive Pretrial Statement" on August 28, 1997. In his pretrial statement Muramoto indicated that Atahan "ha [d] a separate lawsuit pending against the State of [Hawaii] and County of Maui arising from the same occurrence." With respect to his property, Muramoto reiterated aversions in his and in Patterson's affidavit.

On September 9, 1997, the second circuit court (the court) held a hearing on the motion for summary judgment. At the conclusion of the hearing, the court stated:

I'm going to grant the motion for summary judgment based on . . . [c]hapter 520 of the [Hawaii] Revised Statutes [(HRS)] finding that even if there were a common [-]law duty, that [c]hapter 520 excludes the movant from responsibility and liability. However, I'm not finding that there is any liability under even common law.

On September 23, 1997, the court filed a written order granting Muramoto's motion for summary judgment.

Both affidavits from Muramoto and Patterson were properly sworn to and certified, and thus were entitled to be considered with respect to the motion for summary judgment. See Hawaii Rules of Civil Procedure (HRCP) Rule 56(e). While not sworn to and certified, Atahan's statements that he trespassed onto Muramoto's property and that he was injured in the waters fronting the adjacent parcel and not Muramoto's property may be taken as admissions for the purposes of the summary judgment motion. Facts which are undisputed in the memoranda submitted by both parties constitute "admissions on file" which may be considered with respect to a motion for summary judgment. Gonsalves v. First Ins. Co. of Hawaii, 55 Haw. 155, 161, 516 P.2d 720, 724 (1973) (holding that "`admissions in the brief of the party opposing the motion (for summary judgment) may be used in determining that there is no genuine issue as to any material fact, since they are functionally equivalent to "admissions on file," which are expressly mentioned in [HRCP] Rule 56(c)'" (quoting 10 Wright Miller, Federal Practice and Procedure: Civil § 2723, at 490 (1973)). See HRCP Rule 56(c).

II.

The majority agrees with the court and holds that "HRS chapter 520 [(1993)] abolished any duty that Muramoto would otherwise have owed to [Atahan] with respect to [his] use of [Muramoto's property] as a place to park [his] car, access [to] the public beach fronting [Muramoto's property, the lot adjacent to Muramoto's property, and the State property], and access [to] the ocean fronting the beach fronting [Mkena Beach Park]." Majority opinion at 15. Because it is undisputed that Atahan was not injured on Muramoto's lot, but "while swimming in ocean waters fronting [Mkena Beach] Park [,]" I must conclude that HRS chapter 520 does not immunize Muramoto from potential liability to Atahan, and thus I respectfully dissent.

A. 1.

HRS chapter 520 is entitled "Landowner Liability," and HRS § 520-1 states that "[t]he purpose of [HRS chapter 520] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability towards persons entering thereon for such purposes." The language of HRS chapter 520 makes clear that the land and water areas affected are those "owned" by the owner. The definitions of terms used in HRS chapter 520 are set forth in HRS § 520-2 which provides, in pertinent part:

(1) "Land" means land, roads, water, water courses, private ways and buildings, structures, and machinery or equipment when attached to realty, other than lands owned by the government.

(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant, or person in control of the premises.

(3) "Recreational purpose" includes but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.

(Emphases added.)

HRS § 520-3 states, in relevant part, that "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes [.]" (Emphases added.)

Further, HRS § 520-4 states:

Liability of owner limited. Except as specifically recognized by or as provided in section 520-6, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose.

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission or commission of such persons.

(Emphases added.)

As stated above, HRS § 520-3 expressly relieves an owner of land from a duty of care toward and a duty to warn persons entering "the premises" for "recreational purposes." Similarly, HRS § 520-4 relieves "an owner of land" from ensuring the safety "of the premises," or from owing any duty of care or responsibility toward any person who "use [s] such property."

While "land," as defined in HRS § 520-2 includes "water," there is no indication in the statute that the legislature intended that term to include the ocean itself. Even if the term "water" were broadly construed to include the ocean, the phrase "other than lands owned by the government" would qualify the term and exclude the ocean and the land under it.

It is undisputed "that ` [t]he State of [Hawaii] has care and control of all water and ocean below the high water mark (or vegetation line) [.]'" Littleton v. State, 66 Haw. 55, 65, 656 P.2d 1336, 1344 (1982). See also, Birmingham v. Fodor Travel Publications, Inc., 73 Haw. 359, 376 n. 11, 833 P.2d 70, 79 n. 11 (1992). Thus, the ocean itself and the land beneath it and seaward of the vegetation line are owned by the government, and by the terms of HRS chapter 520, are expressly exempted from its purview.

2.

HRS chapter 520 also requires that an owner be "the possessor of a fee interest, a tenant, lessee, occupant, or a person in control of the premises" pursuant to HRS § 520-2. Obviously, Muramoto cannot be considered an "owner" of the ocean within the meaning of that defined term.

While the words "recreational purpose" include activities that may take place in the ocean, activities such as "fishing," "swimming," "boating," and "water skiing" may also take place on or in bodies of water other than the ocean. In any event, such recreational purposes are covered only insofar as they take place on premises "other than the land owned by the government." If "water" is construed to include the ocean, the ocean is water "owned by the government" and thus excluded from the provisions of HRS chapter 520.

Finally, under HRS chapter 520, a landowner's relief from liability extends to the use of the landowner's "property" for recreational activities " on such premises." HRS § 520-3 (emphasis added). Atahan admits his injuries did not take place on Muramoto's lot. Therefore, HRS chapter 520 is simply inapplicable to Muramoto's potential liability.

B.

Support for the foregoing interpretation is found in the apparent model for HRS chapter 520. The Committee of State Officials on Suggested State Legislation of the Council of State Governments developed a model act concerning landowner liability entitled "Public Recreation on Private Lands: Limitations on Liability" (the Model Act). 24 Suggested State Legislation 150 (1965). HRS chapter 520 was apparently derived from, and is substantially similar to the Model Act.

The introduction to the Model Act indicates that it immunizes landowners from liability for occurrences on their property: "The suggested act which follows is designated to encourage availability of private lands by limiting liability of owners [,]" because "in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them." Id. (emphases added).

Under the Model Act, the definitions of land are the same as set forth under HRS chapter 520 except for the express exclusion of "lands owned by the government" found in HRS § 520-2: "`Land' means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty." Model Act, § 2(a). It appears that no other state except Hawaii has specifically exempted "lands owned by the government" from its statutory definition of land. Indeed, much of the case law in other jurisdictions focuses on whether, under their versions of the act, the government is entitled to limited liability for injuries occurring on its property. However, by legislative provision, HRS chapter 520 expressly exempts public "land" from coverage, and thus removes the ocean from the scope of the chapter.

The Supreme Court of Louisiana recognized that the legislature "adopted, essentially without change" the Model Act. Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097, 1101 (La. 1990). It noted, "The purpose of the Recreational Use Statutes, their legislative history and the state of the law at the time of the original enactment indicate that the legislature intended to confer immunity only on owners of private lands. The texts of the statutes are silent on the subjects of sovereign, state, or governmental immunity." Id. at 1102. Moreover, "[s]ince public lands are always acquired, and usually held, for the use of the public, it is unlikely that the legislative object in such legislation was to encourage the state to permit the people to use public property." Id at 1103 (citations omitted). See Conway v. Town, of Wilton 680 A.2d 242, 249-53 (Conn. 1996) (holding that because the legislature's sole motive in enacting the "Recreational Land Use Act" which "parrot [ed]" the Model Act was "to encourage private citizens to donate their land" and that "[t]here [was] no indication that the legislature was seeking to permit a municipality to have immunity for responsibilities arising out of property that it already owned," it "decline [d] to read the statute to extend the immunity beyond private landowners"); See also Stamper v. Kanawha Co. Board of Ed., 445 S.E.2d 238 (W.Va. 1994) ("agree [ing] with the [Louisiana court] that the Model Act was designed to benefit private landowners" in construing its recreational use statute which was also an adoption, without change, of the Model Act). Contra Watson v. City of Omaha, 312 N.W.2d 256 (Neb. 1981) (concluding that since "no limitation [was placed] upon . . . the definition of `owner' in the Recreation Liability Act, . . . the intent of the [l]egislature . . . was to grant the same rights and privileges to governmental and private landowners alike").

C.

I see nothing in HRS § 520-4(2), cited by the majority, to warrant a different interpretation. That section refers to "owner," "land," and "such property," all of which as defined or apparent from the text, do not confer immunity for injuries in the ocean.

Nor do I find the title of a bill which was the subject of a 1969 committee report persuasive in light of the express provisions of the act. Much as I recognize the desire to extend immunity to non-government entities expressed in Viess v. Sea Enters. Corp., 634 F. Supp. 226 (D. Haw. 1986), I cannot agree that the language of HRS chapter 520 extends so far.

III.

When it granted the motion for summary judgment, the court stated that it was "not finding that there is any liability under even common law." On appeal, the majority does "not reach the question of whether the precedent cited [in its opinion] imposed any relevant duty upon Muramoto with respect to [Atahan]." Majority opinion at 12. Since I believe that HRS chapter 520 is inapplicable and would vacate the court's order granting summary judgment on that basis, I do reach the question of whether the case law in this jurisdiction imposes a duty on Muramoto in favor of Atahan. I conclude it does not, and therefore would remand the case with instructions to the court to enter summary judgment on behalf of Muramoto on the basis that he owed no common-law duty to Atahan.

The majority ends its discussion of the case law with Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 829 P.2d 512 (1992), explaining that there, "the Hawaii Supreme Court recognized status distinctions [.]" Majority opinion at 11.
Because Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 829 P.2d 512 (1992) involved the defendants' tort liability in a third-party assault case, I do not believe it is applicable to our discussion.
In Doe, the issue was whether the defendants negligently failed to protect the plaintiff, an employee of a tenant in their building, from being assaulted in an elevator. Id. at 160, 829 P.2d at 514. In deciding the question of duty, the supreme court explained that "[a]lthough the Pickard rule of reasonable care regardless of status distinctions continue to define a landowner's duty of care in this jurisdiction," common-law "status distinctions remain important in the decision to create exceptions to the general rule that it is unreasonable to impose a duty to anticipate and control the actions of third persons." Id. at 163, 829 P.2d at 515.
To determine whether a person has established a "special relationship" under section 314A of the Restatement (Second) of Torts (1965) with another and thus owed him a duty of protection from the "actions of third persons [,]" the supreme court decided in Doe that where the definition of an invitee is relevant solely to determine the scope of Restatement § 314A(3), . . . we decline to adopt the broader, public invitee definition, finding that there is no basis upon which to base a duty to protect where a landholder holds open his land gratuitously, and does not receive or hope to receive monetary, commercial, or other tangible benefit from the invitation.
73 Haw. at 163, 829 P.2d at 515 (citations omitted).

A.

Hawaii abolished the common-law distinctions traditionally made in evaluating landowner liability in Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969). There, the Supreme Court of Hawaii concluded that the City was an "occupier" of the land on which the plaintiff was injured, and rejected the trial court's finding that the plaintiff was "a licensee as a matter of law and therefore not entitled to defendant's duty of ordinary care." Id. The supreme court reasoned that "the common [-]law distinctions between classes of persons have no logical relationship to the exercise of reasonable care for the safety of others [,]" because "` [r]easonable people do not ordinarily vary their conduct depending upon . . . the status of the injured party as a trespasser, licensee, or invitee in order to determine whether the landowner has a duty of care [.]'" Id. at 136, 452 P.2d at 446 (quoting Rowland v. Christian, 70 Cal.Rptr. 97, 104, 443 P.2d 561, 568 (1968)).

Shortly thereafter, the supreme court confirmed its Pickard holding in Gibo v. City and County of Honolulu, 51 Haw. 299, 459 P.2d 198 (1969). The supreme court stated that Pickard "refused to recognize the common [-]law distinctions between licensees and invitees and the different degree of care owed them by an occupier of land [,]" id. at 301, 459 P.2d at 200, and reiterated that "[a]n occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual." Id.

Accordingly, both Pickard and Gibo abolished the common-law categories of persons injured on a land owner or occupier's premises for purposes of defining the duty owed to such persons.

B.

The supreme court confronted the issue of non-landowner or non-occupier liability for a premises injury in Geremia v. State, 58 Haw. 502, 503, 573 P.2d 107, 109 (1977), where the plaintiffs sought damages from the State of Hawaii for the death of their son. The State's involvement with the land consisted of the following:

[W]ith the permission of the landowner, [it] improved a parking area at the intersection of the access road and the trail, erected a direction sign at the intersection of the access road and the main highway, erected a sign warning visitors to lock their cars at the parking lot, improved and maintained the trail itself, and included the Slide on several maps and State [-]sponsored visitor information brochures.
Id. at 504, 573 P.2d at 109-10.

Acknowledging that it "no longer allow [ed] the common [-]law distinction between invitees and licensees to be determinative of the scope of the occupier's liability," id. at 506, 573 P.2d at 110-11 (citations omitted), the supreme court stated that "the existence of this special rule of liability . . . has no bearing upon the liability of a non-occupier." Id. But, the supreme court pointed out that the State may have owed "a duty of care which has arisen quite independently of the occupier's duty." Id. at 506, 573 P.2d at 111 (emphasis added). We may assume, without expressing an opinion, that the acts of the State in improving the parking area and the trail [to the Slide], erecting signs and including the Slide on official information maps and brochures were sufficient to have enabled the court to find a course of conduct which constituted an invitation to use the Slide. Similarly, we may assume that the State's actions conveyed a representation that would create a false sense of safety in the minds of those who were thereby induced to use the Slide.

Id. at 509, 573 P.2d at 112 (emphases added). According to the supreme court, "one who gratuitously acts to expose another person to danger must observe ordinary care in so doing, notwithstanding that he would have been wholly free from obligation if he had refrained from acting." Id. Thus, under Geremia, liability for a premises injury may be imposed on one who is not an owner or occupier of the premises but whose course of conduct constitutes an invitation or inducement to use the premises.

C.

Five years later, the supreme court decided Kaczmarczyk v. City and County of Honolulu, 65 Haw. 612, 656 P.2d 89 (1982). There, the plaintiffs had filed suit against the State and the City and County of Honolulu after their son drowned in the ocean waters off `Ehukai Beach Park. Id. at 613, 656 P.2d at 91.

On appeal, the lower court's dismissal of the State on statute of limitations grounds was affirmed.

The supreme court reiterated the principle that "an occupier of land is under a duty to exercise all reasonable care for the safety of all persons known to be, or reasonably anticipated to be, upon its premises." Id. (citing Pickard, 51 Haw. 134, 452 P.2d 445). It then expanded an occupier's duty, concluding that this responsibility extended "[w]here the premises front upon the ocean . . . to those swimming in the waters along the property's beach frontage." Id., 656 P.2d at 92 (citing Tarshis v. Lahaina Inv. Corp., 480 F.2d 1019 (9th Cir. 1973)). Therefore, the supreme court found a duty was owed by the City to the users of its park who were injured in the ocean along the park's beach frontage:

Undoubtedly, the City would have had a duty to warn users of [`Ehukai] Beach Park of extremely dangerous conditions in the ocean along its beach frontage which were not known or obvious to persons of ordinary intelligence, and which were known or in the exercise of reasonable care ought to have been known to the City.
Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92 (emphases added) (citations omitted).

The Hawaii Supreme Court issued Littleton two days after Kaczmarczyk. In Littleton, the plaintiff was injured after a telephone pole in the ocean struck her while she was picking seaweed along the shoreline. 66 Haw. at 56, 656 P.2d at 1339. The plaintiff sued both the State and the City and County of Honolulu. The supreme court held that because the State had care and control of the ocean, it owed a duty of care to the plaintiff. Id. at 65, 656 P.2d at 1344. As to the City, the supreme court found it had a statutory duty to clear "debris" from the shore and thus "may be held liable." Id. at 67, 656 P.2d at 1344.

In the alternative, the plaintiff had alleged "responsibility on the part of the City by reason of its having induced, or by its conduct invited its park patrons to make use of the adjoining beach areas in furtherance of their enjoyment of the City's own park premises." Id. at 68, 656 P.2d at 1345. The supreme court found Geremia applicable:

In Geremia, . . . this court observed that a party will be liable in tort where he [or she] voluntarily undertakes a course of affirmative conduct intended to induce another to engage in an action, and creates a false appearance of safety upon which the other relies to his [or her] detriment. And it has also been held that an owner's duty to his [or her] invitees extends to such places in or about the premises as his [or her] invitees may reasonably be expected to go in the course of the visit.

Littleton, 66 Haw. at 68, 656 P.2d at 1345 (emphases added) (citations omitted). The supreme court then indicated that an owner or occupier's duty of care may extend beyond the beach frontage of the subject property to " adjoining beach areas." (Emphasis added.)

In a footnote, the supreme court stated that an invitation to use adjoining beach areas may be "implied":

An invitation may be implied from a continued and general custom in using the premises by the patrons of the business. The nature of the use and the extent of the premises covered by the implied invitation to use may be determined by the continued and general custom of the patrons of the place.
Id. at 69 n. 4, 656 P.2d at 1345 n. 4 (citing McKinney v. Adams, 66 So. 988 (Fla. 1914). Thus, in Kaczmarczyk the supreme court extended the potential liability of an owner or occupier of beachfront land to include the expected use of ocean waters fronting the subject property. In Littleton, liability was extended to use of adjoining beach areas where the owner or occupier could be said to have invited such use under the Geremia rationale.

McKinney v. Adams, 66 So. 988, 992 (1914) was erroneously cited as having been decided in 1944. See Littleton v. State, 66 Haw. 55, 69 n. 4, 656 P.2d 1336, 1345 n. 4 (1982).

The definition of implied invitation in Littleton was from McKinney, where the plaintiff administratrix of the decedent's estate brought a claim against the defendant who "was operating and maintaining a certain public bathhouse and bathing pavilion where suits were furnished for hire or rent." 66 So. at 988. The bathhouse and bathing pavilion "were situated at or near the waters of the Atlantic Ocean [.]" Id. The decedent "rent [ed] from the . . . defendant a bathing suit [,]" id. at 989, and then "drowned in the waters of the Atlantic Ocean near the bathhouse and bathing pavilion. . . ." Id. at 990.
In reversing dismissal of the case, the Florida Supreme Court indicated that one who invites the use of public waters for profit must exercise due care to prevent injury to his patrons even though the waters are public:


Where one assumes to offer the use of public waters for purposes of profit by establishing bathhouses or dressing rooms on the shore and furnishing bathing suits for hire to persons who are expressly or impliedly invited to use the bathing suits by bathing or swimming in the public waters, and a patron uses the waters in the usual and ordinary way consistent with the express or implied invitation, and without his fault is injured because of the unsafe condition of the premises on which patrons are invited to bathe or swim, or because of the negligence of the proprietor in performing his duties to patrons, the one so offering the use of the waters for profit may be liable in damages for such injury.

The liability proceeds from the duty imposed by law upon one who thus assumes to offer the use of public waters for profit
to exercise due care to prevent injury to patrons who without fault use the waters in the customary way. . . . Though the waters are public and no governmental authority be expressly given to so offer them for use, one who assumes to so offer the use of the waters also assumes the legal duties and liabilities that are commensurate with such offer of the use. The nature of the use fixes the duties and correlative liabilities. An invitation may be implied from a continued and general custom in using the premises by the patrons of the business. The nature of the use and the extent of the premises covered by an implied invitation to use may be determined by the continued and general custom of the patrons of the place.
Id. at 992 (emphases added).

In Kamakawiwoole v. State, 6 Haw. App. 235, 239-40, 718 P.2d 1105, 1108-09 (1986), citing Kaczmarczyk and Littleton, this court said that the operation of a public park fronting the public beach and ocean may impliedly constitute an invitation to "swim in the public ocean" and "walk upon the public beach where the accident [s] occurred."

D.

In Birmingham, 73 Haw. 359, 833 P.2d 70, the supreme court further clarified the duty owed to plaintiffs for injuries occurring on the beach and in the ocean. In that case, the plaintiff was injured while body surfing in ocean waters off Kekaha Beach on the island of Kaua`i. 73 Haw. at 363, 833 P.2d at 73. The beach land fronting the ocean was owned by the State. Id. The State transferred this parcel to the County of Kaua`i to use as an addition to Kekaha Beach Park. Id. At the time of the accident, these lands were controlled and managed by the County. Id. The plaintiff brought suit against the State and the County. Id. at 362, 833 P.2d at 72.

The supreme court determined that the State was not in control of the parcels, but as the owner of the ocean and all the beach area up to the high water mark, the supreme court held that under the " Littleton rule," the State owed only a duty as to "unnatural condition [s]" of which it had "actual or constructive notice." Id. at 378, 833 P.2d at 80.

As to the County, whose liability was based on "being the owner and occupier of Kekaha Beach Park," id. at 380, 833 P.2d at 87, it owed "`a duty to warn users [of the park] . . . of extremely dangerous conditions in the ocean along its beach frontage which were not known or obvious to persons of ordinary intelligence,'" and "` in the exercise of reasonable care ought to have been known to the [occupier].'" Id. (emphasis added) (quoting Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92). Birmingham thus emphasized that as to the ocean, the State's duty was owed only as to "unnatural conditions" and an owner or occupier's duty was owed as to "extremely dangerous conditions."

IV.

Since Atahan was not injured on Muramoto's lot, Muramoto did not owe a landowner's or occupier's duty of care for persons injured "upon the premises," Gibo, 51 Haw. at 301, 459 P.2d at 200, as might otherwise be imposed under the rule employed in Pickard, 51 Haw. at 135, 452 P.2d at 466, and Gibo, 51 Haw. at 301, 459 P.2d at 200. Similarly, since Atahan was not injured in the ocean fronting Muramoto's lot, the extension of that duty "to those swimming in the waters along the property's beach frontage," as recognized in Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92, would not apply in this case. However, duty might be owed to Atahan for injuries suffered in adjoining beach areas. Littleton, 66 Haw. at 68, 656 P.2d at 1345.

Here, the injury occurred in the ocean fronting Mkena Beach Park. This would make Muramoto a "non-occupier" of the injury site. In such a case, Muramoto's "occupier status [need] not [be] a prerequisite to the existence of the [potential] duty for which the plaintiffs [have] contended [,]" Geremia, 58 Haw. at 508, 573 P.2d at 112. Liability would attach, as stated in Geremia and reiterated in Littleton, if Muramoto "voluntarily undertook a course of affirmative conduct intended to induce the plaintiff to engage in an action, and also created a false appearance of safety upon which the plaintiff relied to his or her detriment." Id.

Atahan did not establish facts by affidavit or otherwise demonstrating Muramoto affirmatively induced or encouraged the public to use his lot as a parking lot for or as access to the beach and ocean abutting the adjacent public park. In contrast to the actions of the State in Geremia, which might be construed as affirmative conduct, Muramoto did nothing to improve facilities for or to publicize use of the ocean fronting the public park. Additionally, Atahan failed to set forth facts showing Muramoto engaged in any conduct which created a false appearance of safety in the ocean where the injury took place. Rather, Atahan's complaint premised liability on Muramoto's failure to prevent cars from parking on his lot and persons like

Atahan from using it to access the ocean, that is, to prevent persons from trespassing on his property.

V.

Atahan concedes in his complaint that he was neither an invitee or licensee. Instead, he admits that he "trespassed" onto Muramoto's land. As the majority points out, "` [t]respassers are persons who are neither suffered nor invited to enter [another's premises].'" Majority opinion at 7 (quoting Mutual Tel. Co. v. Hawaiian Contracting Co., 31 Haw. 296 (1930).

Under traditional common law, "[t]he observance of due care by an owner or occupant of premises toward a trespasser requires no affirmative conduct to render the premises safe for the trespasser's use, but . . . the possessor must refrain from injuring the trespasser unnecessarily by willful, wanton, or reckless conduct, or by conduct which is so grossly negligent as to be the equivalent of wanton or reckless conduct." 62 Am. Jur. 2d Premises Liability § 186, at 554-55 (1990) (footnotes omitted).
Thus, "[a]n owner or occupant of premises has been held to owe no duty to trespassers, to protect them from perils or hazards on adjoining or neighboring premises over which the defendant has no control. . . ." Id. § 185, at 553 (footnote omitted).

Nothing in the case law reviewed implies that in the absence of Geremia facts an owner or occupier of land owes a duty to prevent trespassing in order to protect against the risk that the trespasser would be injured in the ocean fronting an adjoining parcel. There appears to be no justification for imposing such a duty. "Duty . . . is a legal conclusion which depends upon `the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" Rodrigues v. State, 52 Haw. 156, 170, 472 P.2d 509, 518 (1970) (quoting Prosser, Torts § 53 at 332 (3d ed. 1964)); Tabieros v. Clark Equip. Co., 85 Haw. 336, 353, 944 P.2d 1279, 1296 (1997). In this record, I find nothing compelling of a policy nature in the argument put forth by Atahan; that is, that a duty should be imposed on Muramoto to prevent Atahan from doing what Atahan was already legally prohibited from doing.

VI.

Not only must Atahan demonstrate that he was "impliedly invited" onto Muramoto's property for purposes of obtaining access to the ocean, but under the test set forth in Birmingham, Atahan must also show that "the ocean conditions were extremely dangerous conditions which were not readily apparent to persons of ordinary intelligence." 73 Haw. at 382-83, 833 P.2d at 82 (internal quotation marks and citation omitted).

Obviously, Muramoto's lot is not a public park or a "de facto park," which by its nature may invite or induce users of a park to also use either the beach and ocean fronting or adjoining it. See Littleton, 66 Haw. at 68, 656 P.2d at 1345; Kamakawiwoole, 6 Haw. App. at 239, 718 P.2d at 1108. In this regard, Atahan was plainly not a "public invitee" as were the injured parties in Kaczmarczyk and Littleton, or characterized as such, as in Kamakawiwoole. Muramoto's lot was not the location for a hotel or beach resort, whose guests or customers may be impliedly invited to use adjoining beach and ocean areas.

Assuming arguendo that there was an implied invitation, there are no facts in the record demonstrating that the ocean conditions which resulted in Atahan's injuries were "extremely dangerous conditions." Id. In his complaint, Atahan alleged only that "the waves, sea and ocean state and/or other aquatic conditions at and in the vicinity of [Muramoto's] [p]roperty, were dangerous or potentially dangerous to swimmers or bathers. . . ." In his pretrial statement, Atahan went further and alleged that "[a]s the owner of ocean front property [Muramoto] knew or in the exercise of due care should have known, that the waves, sea, ocean state and/or other aquatic conditions in front of the neighboring [Mkena Beach Park] were extremely dangerous." Atahan's memorandum in opposition to Muramoto's motion for summary judgment states that Muramoto "fail [ed] to warn [Atahan] and other users of the extremely dangerous (and not apparent) ocean conditions in the waters fronting and/or adjacent to [Muramoto's] [p]roperty and [Mkena Beach Park]. . . ." Despite Atahan's allegations that the ocean conditions were "extremely dangerous" and "not apparent," Atahan provided no factual support for these assertions. He submitted no affidavits or facts tending to demonstrate that the ocean conditions were in fact "extremely dangerous" and "not apparent" to persons of ordinary intelligence. In sum, Atahan failed to satisfy the second requirement of the Birmingham test.

VII.

For the foregoing reasons, I dissent from the majority's holding that HRS chapter 520 applies to the facts of this case, and I would vacate the court's order granting summary judgment on that ground. However, I would hold that Muramoto owed Atahan no duty under the common law and would affirm summary judgment on that basis.