Rohr v. County of Hawai'i Planning Department
CourtHawaii Intermediate Court of Appeals
Date FiledOctober 30, 2026
DocketCAAP-24-0000346
StatusPublished
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Full Opinion
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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2026
08:09 AM
Dkt. 102 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CLAUDIA ROHR, Plaintiff-Appellant, v.
COUNTY OF HAWAI#I PLANNING DEPARTMENT; HUI HO#OLEIMALUO; and
KA #UMEKE KA#EO PCS, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)
Self-represented Plaintiff-Appellant Claudia Rohr
(Rohr) appeals from the April 1, 2024 Final Judgment (Judgment),
entered by the Circuit Court of the Third Circuit (Circuit
Court).1 Rohr also challenges the Circuit Court's March 3, 2023
Order Granting Defendant[-Appellee] County of Hawai#i Planning
Department's [(Planning Department's)] Motion to Dismiss
Complaint, Filed on November 18, 2022; March 3, 2023 Order
Granting Defendant[-Appellee] Hui Ho#oleimaluō's [(Hui's)] Motion
to Dismiss and Substantive Joinder in [the Planning Department's]
Motion to Dismiss Complaint, Filed November 21, 2022; March 3,
2023 Order Granting Defendant[-Appellee] Ka #Umeke K[ā]#eo PCS
1
The Honorable Henry T. Nakamoto presided.
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(Charter School's) Substantive Joinder in [the Planning
Department's] Motion to Dismiss Complaint Filed on November 18,
2022 (collectively, the Dismissal Orders; the Planning
Department, the Hui, and the Charter School are collectively
referred to as Appellees); and March 4, 2024 Order Denying
[Rohr's] Motion to Reconsider or Amend [the Dismissal Orders]
(Order Denying Reconsideration).
Rohr raises three points of error on appeal, contending
that the Circuit Court erred when it: (1) treated Appellees'
November 18, 21, and 22, 2022 Hawai#i Rules of Civil Procedure
(HRCP) Rule 12(b) motions (Motions to Dismiss) as tolling
motions; (2) dismissed the Amended Complaint under the doctrine
of primary jurisdiction; and (3) left Rohr unfairly disadvantaged
by the court's remedy.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Rohr's
points of error as follows:
(1) Rohr argues that the Circuit Court erred by
treating the Motions to Dismiss as "tolling" motions with respect
to Appellees' deadline to file an answer to the Amended
Complaint. In short, when the Circuit Court granted Rohr's
request to file an amended complaint, rather than requiring the
Appellees to file new – and likely substantially similar –
motions to dismiss the Amended Complaint, the Circuit Court
essentially kept Appellees' existing Motions to Dismiss pending
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as to Rohr's claims, and allowed them to supplement the Motions
to Dismiss, if necessary, to address the Amended Complaint.
Rohr raised no objection to this procedure. It is
well-settled that issues not raised in the lower court will not
be considered on appeal. See, e.g., Kawamata Farms, Inc. v.
United Agri Prods., 86 Hawai#i 214, 248, 948 P.2d 1055, 1089
(1997). Accordingly, we conclude that Rohr's argument that the
Circuit Court abused its discretion in streamlining the pleadings
response process in this manner is waived.
(2) Rohr argues that the Circuit Court erred in
applying the primary jurisdiction doctrine and dismissing the
Amended Complaint.
Primary jurisdiction "comes into play whenever
enforcement of the claim requires the resolution of issues which,
under the regulatory scheme have been placed within the special
competence of an administrative body." Pac. Lightnet, Inc. v.
Time Warner Telecom, Inc., 131 Hawai#i 257, 268, 318 P.3d 97, 108
(2013) (cleaned up). While "conceptually analogous" to the
exhaustion of administrative remedies doctrine, the primary
jurisdiction doctrine "does not require a determination that the
court lacks jurisdiction over the matter." Id. at 268-69, 318
P.3d at 108-09 (citations omitted; emphasis in original).
"Instead, primary jurisdiction presumes that the claim at issue
is originally cognizable by both the court and the agency." Id.
at 269, 318 P.3d at 109 (emphasis in original) (citing Aged
Hawaiians v. Hawaiian Homes Comm'n, 78 Hawai#i 192, 202, 891 P.2d
279, 289 (1995)).
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Here, Rohr initiated proceedings at the agency level.
She petitioned the County of Hawai#i Board of Appeals (Board of
Appeals) on June 14, 2022, seeking reversal of the issuance of an
SMA Minor Permit to the Hui, arguing, inter alia, that the
challenged Kaumaui Project violated the General Plan, community
plan, and zoning, and therefore violated Hawaii Revised Statutes
(HRS) § 205A-26 (Supp. 2020).
Less than three months later, before the Board of
Appeals had completed its decision-making, on September 6, 2022,
Rohr filed this suit in the Circuit Court, primarily arguing that
the SMA Minor Permit was approved without requiring the
preparation of an Environmental Assessment (EA) and, therefore,
was issued in violation of HRS chapter 343 (HEPA), Hawai#i
Administrative Rules (HAR) chapter 11-200.1, subchapter 9, and
article XI, section 9 of the Hawai#i Constitution. At that
point, the agency and the court proceedings took place alongside
one another. The Board of Appeals heard testimony concerning
Rohr's petition on September 9, and November 4, 2022. The Board
of Appeals Decision was issued on February 2, 2023. In light of
the Board of Appeals Decision, the Circuit Court orally stated at
the February 10, 2023 hearing on the Motions to Dismiss that Rohr
"can go through the proper procedures and appeal" via HRS § 91-
142 and that the court was dismissing this case without
prejudice.
2
Thereafter, Rohr did in fact timely file a notice of appeal from
the notice of Board of Appeals Decision.
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The primary jurisdiction doctrine applies here because,
pursuant to HRS § 343-7(a) (Supp. 2021), the circuit courts have
original jurisdiction over proceedings challenging the lack of an
EA required under HRS § 343-5 (Supp. 2021). See, e.g., Maui Lani
Neighbors, Inc. v. State, 156 Hawai#i 520, 542, 575 P.3d 610, 632
(2025).3 Under HRS § 343-7(a),4 a suit must be initiated within
120 days of the agency's decision to carry out or approve the
action, as Rohr did here, or within 120 days after the proposed
action is started if no formal determination was made. In
addition, an agency's action, including a determination not to
require an EA, is within the special competence of the
3
In Maui Lani Neighbors, the supreme court stated:
HRS chapter 343 establishes a system of environmental
review to ensure that environmental concerns are given
appropriate consideration along with economic and technical
considerations in decision-making processes. This allows
for parties to challenge agency actions directly through the
court system, as HRS § 343-7 explicitly contemplates a
"judicial proceeding." Indeed, our courts frequently hear
HEPA claims. See, e.g., Umberger v. Dep't of Land & Nat.
Res., 140 Hawai#i 500, 403 P.3d 277 (2017); Kepo#o v. Kane,
106 Hawai#i 270, 103 P.3d 939 (2005); [Citizens for Prot.
of] N. Kohala [Coastline v. Cnty. of Hawai#i], 91 Hawai#i 94,
979 P.2d 1120 [(1999)]. Clearly, the circuit court has
jurisdiction to hear challenges brought pursuant to HRS
§ 343-7 given the plain language of the statute and
extensive history of our courts hearing such cases.
156 Hawai#i at 542, 575 P.3d at 632.
4
HRS § 343-7(a) provides:
§ 343-7 Limitation of actions. (a) Any judicial
proceeding, the subject of which is the lack of assessment
required under section 343-5, shall be initiated within one
hundred twenty days of the agency's decision to carry out or
approve the action, or, if a proposed action is undertaken
without a formal determination by the agency that a
statement is or is not required, a judicial proceeding shall
be instituted within one hundred twenty days after the
proposed action is started. The office, any agency
responsible for approval of the action, or the applicant
shall be adjudged an aggrieved party for the purposes of
bringing judicial action under this subsection. Others, by
environmental court action, may be adjudged aggrieved.
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administrative body issuing an SMA permit and may be challenged
through the appeals procedure set forth in HRS § 91-14, as
referenced by the Circuit Court. Thus, a HEPA claim is
originally cognizable by both the court and the agency and the
Circuit Court did not err in concluding that the primary
jurisdiction doctrine was applicable in this case.
(3) Rohr further argues that, even if the Circuit
Court did not err in applying the primary jurisdiction doctrine,
she was unfairly disadvantaged by the court's remedy, i.e.,
dismissal of the case, as opposed to retaining jurisdiction and
staying the proceeding.
This court has previously held:
Where the doctrine of primary jurisdiction applies, the
court has the "discretion either to retain jurisdiction [and
stay the proceedings] or, if the parties would not be
unfairly disadvantaged, to dismiss the case without
prejudice." Reiter v. Cooper, 507 U.S. 258, 268–69, 113
S.Ct. 1213, 1220, 122 L.Ed.2d 604 (U.S.N.C.1993).
Dancil v. Arakawa, 132 Hawai#i 472, 478, 323 P.3d 116, 122 (App.
2012).
Rohr argues, inter alia, that "[a]ny judicial
proceeding, the subject of which is the lack of assessment
required under section 343-5, shall be initiated within one
hundred twenty days of the agency's decision to carry out or
approve the action;" however, that period "expired before the
Board of Appeals acted on Rohr's Petition for an appeal of the
Planning Director's decision to issue the SMA minor permit."
This argument has merit. The SMA Minor Permit was issued to the
Hui on June 6, 2022. Rohr petitioned the Board of Appeals on
June 14, 2022. The Board of Appeals Decision was not issued
until February 2, 2023. Had Rohr waited until the Board of
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Appeals promulgated its decision, the statute of limitations for
her claims would have run pursuant to HRS § 343-7(a).
The Planning Department argues that the running of a
statute of limitations is not per se an unfair disadvantage.
Both the Planning Department and the Hui argue that Rohr could
have raised the HEPA issue in her petition to the Board of
Appeals, but chose not to do so. Regarding the latter argument,
HRS § 343-7(a) expressly provides for a judicial action and the
Appellees provide no authority for the proposition that the
statutory right of action is foreclosed if the issue could have
been raised in an agency proceeding. Regarding the former
argument, under the circumstances of this case, we conclude that
Rohr was in fact disadvantaged by the dismissal of the Circuit
Court action "without prejudice," as prejudice effectively
attached when the case was dismissed because any newly filed suit
would be untimely under HRS § 343-7(a). See generally Fratinardo
v. Emps.' Ret. Sys. of State of Haw., 121 Hawai#i 462, 469, 220
P.3d 1043, 1050 (App. 2009) (noting federal cases finding that
the running of a statute of limitations constitutes a
disadvantage). Presumably, Appellees will at least argue that
HRS chapter 91 review of Rohr's HEPA challenge is waived in the
agency appeal because she did not raise it in her initial
petition to the Board of Appeals. Accordingly, we conclude that
the Circuit Court's dismissal, rather than the staying of Rohr's
HEPA claims, precluded Rohr from having her claims heard on the
merits, notwithstanding having properly and timely filed suit
pursuant to HRS § 343-7, and constituted an abuse of discretion.
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Finally, as we have pointed to the supreme court's
opinion in Maui Lani Neighbors concerning the judicial right of
action under HRS chapter 343-7, we note the supreme court's
further comment on the potential remedy for an insufficient HEPA
review:
Unlike the other claims alleged in the complaint, the
HEPA challenge does not get to the substance of the Planning
Commission's decision, i.e., whether the [project] uses were
consistent with county zoning requirements. Rather, a
successful HEPA challenge "merely places a hold" on the
development of the project until the agency "complies with
the procedural and informational requirements of the
statute." Kepo#o, 106 Hawai#i at 292, 103 P.3d at 961
(citations omitted). As we further explained in Kepo#o,
voiding the permit "does not affirmatively dictate how the
land may be used, . . . but, rather, has the incidental
effect of stalling the proposed project." Id. at 292-93,
103 P.3d at 961-62 (brackets omitted) (internal quotation
marks omitted).
To be clear, our holding that [the appellant's]
HEPA claims may proceed without application of the
doctrine of administrative remedies does not
automatically vitiate the [subject permit]. Indeed,
the record reflects that there are additional findings
necessary to resolving the HEPA issue on remand,
including those regarding the timeliness of
[appellant's] HEPA challenge.
Further, we recognize that should there be a
determination by the circuit court that environmental review
was insufficient, traditional remedies under HRS chapter 343
may not be available due to the length of time this case has
been pending on appeal. Nonetheless, as we recently held in
Unite Here! Local 5 v. PACREP LLC, HEPA claims are not
rendered moot by a completed action. No. SCAP-XX-XXXXXXX,
––– Hawai‘i ––––, –––– – ––––, ––– P.3d ––––, 2025 WL
573299, at *15-16 (Haw. Feb. 21, 2025) [157 Hawai#i 442,
458-59, 580 P.3d 622, 638-39 (2025).] At bottom, "the
environmental review process is intended to be informational
and forward-looking." Id. at ––––, ––– P.3d ––––, 2025 WL
573299 at *16. [Id. at 459, 580 P.3d at 639.] Accordingly,
where invalidating the permit would not serve the interests
of equity, "the issue of remedies for a HEPA violation is
one of equitable discretion." Id. ("Even if a project has
been completed, completion of a proper environmental review
can provide forward-looking information, including, but not
limited to, possible mitigation measures to ameliorate
environmental effects.").
156 Hawai#i at 543, 575 P.3d at 633.
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For the reasons set forth above, the Circuit Court's
April 1, 2024 Judgment is vacated and this case is remanded to
the Circuit Court for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, October 30, 2026.
On the briefs: /s/ Karen T. Nakasone
Chief Judge
Claudia Rohr,
Plaintiff-Appellant, /s/ Katherine G. Leonard
self-represented Associate Judge
Demeteri G. Lametti, /s/ Kimberly T. Guidry
Lerisa L. Heroldt, Associate Judge
Deputies Corporation Counsel,
County of Hawai#i,
for Defendant-Appellee
County of Hawai#i Planning
Department
Ashley K. Obrey
(Native Hawaiian Legal
Corporation),
for Defendant-Appellee
Hui Ho#oleimaluō
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