Private Attorney General Fees Against Private Permittees: Active Opposition Can Trigger Full Certiorari “Fees-on-Fees” Liability

1. Introduction

Ralston v. Board of Land and Natural Resources, SCWC-22-0000402 (Haw. Aug. 12, 2026) addresses a recurring question in Hawaiʻi public-interest litigation: when a plaintiff vindicates important public rights against governmental action, under what circumstances may attorney’s fees be shifted to a private party that benefits from—and actively defends—the agency’s decision?

The underlying controversy arose from the Board of Land and Natural Resources (“BLNR”) renewing a revocable permit (RP 7915) allowing Resorttrust Hawaii, LLC (“RTH”), operator of the Kahala Hotel, to use ceded lands fronting the hotel. Petitioner Tyler Ralston sought a contested case hearing (“CCH”), arguing that continued permit conditions (including preset lounge chairs) conveyed exclusivity and implicated public rights in state lands and environmental values. BLNR denied the CCH; the circuit court affirmed; the ICA held a CCH was required; and subsequent fee litigation reached the Hawaiʻi Supreme Court twice.

The key issues in the August 12, 2026 opinion were: (1) whether RTH may be held liable under the private attorney general (“PAG”) doctrine for attorney’s fees incurred on certiorari; and (2) whether the requested certiorari fees—including “fees on fees” and GET—were reasonable.

2. Summary of the Opinion

The court held that because the certiorari proceeding concerned only the ICA’s denial of Ralston’s PAG-fee request against RTH, RTH is liable for all reasonable certiorari fees. The court rejected RTH’s argument that it should not pay because BLNR alone controlled whether to grant a CCH, emphasizing RTH’s active and affirmative opposition at every stage.

Applying the lodestar method, the court found counsel’s hours and $450 hourly rate reasonable, corrected a negligible calculation error, and awarded $9,139.13 (inclusive of 4.5% GET). The court also confirmed that fees incurred in seeking fees (“fees on fees”) are recoverable under the PAG doctrine.

Finally, the court reiterated its remand instruction that the ICA must determine the reasonable amount of PAG fees incurred before the ICA and address allocation consistent with Kaleikini v. Yoshioka, where sovereign immunity would bar recovery from the State for work clearly identifiable as directed against it.

3. Analysis

A. Precedents Cited

  • Ralston v. Bd. of Land & Nat. Res., 158 Hawaiʻi 170, 589 P.3d 974 (2026)
    This was the court’s prior decision in the same litigation. It held that the PAG doctrine does not require a prevailing party to obtain additional relief on remand before recovering PAG fees, and it concluded Ralston satisfied the three prongs. The August 2026 opinion treats that PAG determination as settled and focuses on (i) who pays and (ii) how much for the certiorari segment.
  • Sierra Club v. Haw. Dep't of Transp., 120 Hawai'i 181, 202 P.3d 1226 (2009) ("Superferry II")
    The court relied on “Superferry II” for two linked propositions: (1) the PAG doctrine is an equitable exception to the American Rule; and (2) the doctrine can apply against private parties who advance their own interests in litigation tied to public-rights enforcement, particularly where the private party “worked hand-in-hand” with the agency in planning/implementation and throughout litigation. Here, the court extended the principle by emphasizing active, sustained adversarial participation as a key indicator of equitable liability, even in a “routine” permit-renewal context.
  • Pub. Access Trails Hawaiʻi v. Haleakala Ranch Co., 153 Hawai'i 1, 526 P.3d 526 (2023)
    The court invoked this case for two distinct points: (1) the PAG doctrine’s continuing importance as an “essential tool” to ensure public-rights plaintiffs can rely on reasonable compensation; and (2) “fees on fees” are recoverable because otherwise public interest litigation would be chilled by uncompensated fee-recovery work.
  • Ariz. Ctr. For Law in the Pub. Interest v. Hassell, 837 P.2d 158 (Ariz. Ct. App. 1991) (quoted in Pub. Access Trails Hawaiʻi)
    The opinion uses this quotation to bolster the normative justification for imposing PAG fees on private defendants: shifting fees to private parties in appropriate cases promotes public rights “to the same extent” as awards against governmental defendants. This supports Hawaiʻi’s equitable approach where sovereign immunity may prevent recovery from the State, but private beneficiaries/opponents are not similarly shielded.
  • Unite Here! Local 5 v. PACREP LLC, 156 Hawai'i 338, 574 P.3d 1286 (2025)
    RTH cited this case to argue that PAG fees against private developers were tied to “affirmative deception.” The court did not adopt RTH’s narrowing view; instead, it distinguished the argument by focusing on RTH’s substantial litigation role and sustained opposition as sufficient to justify fee liability on certiorari.
  • Kaleikini v. Yoshioka, 129 Hawaiʻi 454, 283 P.3d 252 (2013)
    This case provides the allocation framework where sovereign immunity bars fee recovery from the State: PAG fees may include work directed at all parties but not work “clearly identifiable” as directed against the State. The court’s remand instruction signals that when private and state defendants are both present, Hawaiʻi courts should consider apportionment rather than outright denial—preserving incentives for public-interest enforcement while respecting sovereign immunity limits.
  • Gurrobat v. HTH Corp., 135 Hawaiʻi 128, 346 P.3d 197 (2015)
    Cited for the American Rule baseline and for confirming the lodestar methodology to calculate reasonable fees (“hours reasonably expended” × “reasonable hourly rate”).
  • DFS Grp. L.P. v. Paiea Props., 110 Hawaiʻi 227, 131 P.3d 500 (2006)
    Cited for the principle that the prevailing party bears the burden of proving that fees were “reasonably and necessarily incurred.”
  • County of Hawaiʻi v. C & J Coupe Family Ltd. Partnership, 120 Hawaiʻi 400, 208 P.3d 713 (2009)
    Cited to confirm GET may be awarded as part of attorney’s fee awards in Hawaiʻi.
  • HRAP Rule 39(d)(2) and HRAP Rule 40(a)
    Used to establish timeliness of the fee request (filed within the specified post-opinion period tied to reconsideration deadlines).

B. Legal Reasoning

1. Why a private party can be liable under the PAG doctrine

The court’s central equitable move is to treat RTH not as a passive beneficiary of BLNR’s decision but as an active adversary who repeatedly opposed the public-interest claimant. The opinion emphasizes that RTH: (i) opposed the CCH request before BLNR; (ii) defended BLNR’s denial in the circuit court; (iii) filed an extensive answering brief at the ICA and opposed PAG fees; and (iv) was the only respondent to oppose certiorari on the PAG-fees issue when BLNR did not respond.

This conduct, in the court’s view, meant RTH was not merely present—it was affirmatively promoting its private interests in continued access to state lands and in avoiding fee liability. Under Superferry II and the broader policy rationale reaffirmed in Pub. Access Trails Hawaiʻi, fee shifting is appropriate where it is necessary to sustain the enforcement of public rights and where the private party’s participation makes it equitable to impose the costs of that enforcement.

2. Why certiorari fees were fully chargeable to RTH

The court treated the certiorari proceedings as uniquely clean for liability purposes: the only issue on certiorari was whether the ICA erred by denying PAG fees against RTH. Because the certiorari stage was directed at correcting that denial—and RTH was the respondent opposing it—the court concluded RTH is liable for all reasonable fees incurred on certiorari.

3. “Fees on fees” and GET are part of “reasonable” PAG compensation

RTH’s argument that Ralston could not recover fees incurred in seeking fees was rejected based on Pub. Access Trails Hawaiʻi, which views compensation for fee-recovery work as necessary to prevent chilling effects in public-rights litigation. The court also included GET pursuant to County of Hawaiʻi v. C & J Coupe Family Ltd. Partnership, reflecting Hawaiʻi’s practical recognition that GET is part of the actual cost of legal services.

4. Reasonableness: lodestar, proof, and minor corrections

Using the lodestar approach from Gurrobat v. HTH Corp. and the burden principle from DFS Grp. L.P. v. Paiea Props., the court found counsel’s $450 rate reasonable and unchallenged, and the hours reasonable for the tasks performed. The court corrected a negligible time-entry totaling difference (0.0001 hours) resulting in a $0.04 adjustment, demonstrating attention to precision without weaponizing immaterial errors to reduce public-interest compensation.

C. Impact

  • Broader exposure for private beneficiaries of agency action. Private permittees and regulated entities that aggressively litigate to uphold agency decisions may face PAG fee liability, even when the underlying procedural violation is attributable to the agency (e.g., denial of a CCH).
  • Strategic incentives in administrative disputes. The decision may encourage private parties to calibrate the intensity of opposition in public-rights cases, especially where their continued use of public resources is at stake, and where their briefing becomes the primary engine of resistance.
  • Strengthening public-interest enforcement where sovereign immunity limits state fee liability. The reaffirmed use of Kaleikini v. Yoshioka allocation principles signals that courts can preserve PAG incentives by permitting fee recovery from non-sovereign parties for work not clearly directed solely at the State.
  • Certiorari-stage fee certainty. By holding RTH liable for all reasonable certiorari fees when certiorari is focused solely on fee entitlement against that private party, the court increases predictability for plaintiffs considering whether to pursue further appellate review of fee denials.
  • Normalization of “fees on fees” in PAG litigation. Confirming compensability of fee-recovery time reduces the risk that public-interest counsel will bear uncompensated administrative burdens, supporting the doctrine’s stated purpose.

4. Complex Concepts Simplified

American Rule
Each side ordinarily pays its own lawyer; fee shifting requires a statute, rule, contract, or recognized doctrine.
Private Attorney General (PAG) doctrine
An equitable exception allowing courts to award attorney’s fees to a party who vindicates important public rights, typically assessed under three prongs: importance of the public policy vindicated, necessity/burden of private enforcement, and the number of beneficiaries.
Contested Case Hearing (CCH)
A formal administrative adjudicatory process (with procedural protections) required in certain circumstances before an agency makes decisions affecting protected interests.
Sovereign immunity
A doctrine that can bar monetary awards (including attorney’s fees) against the State unless the State has waived immunity.
Lodestar method
The standard fee-calculation approach: reasonable hours × reasonable hourly rate.
“Fees on fees”
Attorney time spent preparing and litigating the request for attorney’s fees itself; compensable here to avoid discouraging public-interest cases.
GET (General Excise Tax)
Hawaiʻi’s tax on business activity that applies to legal services; courts may include it in attorney’s fee awards.
Ceded lands / revocable permit
Public lands with specific historical/legal status; a revocable permit is a temporary authorization to occupy/use state land, subject to conditions and renewal decisions.

5. Conclusion

The August 12, 2026 opinion cements a practical and consequential rule in Hawaiʻi’s PAG jurisprudence: when a private party actively and repeatedly opposes public-interest enforcement—especially where appellate review is focused on fee entitlement against that party—courts may hold the private party liable for all reasonable PAG fees on certiorari, including “fees on fees” and GET. By tying liability to equitable considerations of active adversarial participation and private benefit, the court strengthens the PAG doctrine’s function as a reliable mechanism to fund the vindication of public rights, while directing lower courts to use Kaleikini to address allocation issues where sovereign immunity constrains recovery from the State.