Private Attorney General Fees Do Not Require Additional Remedial Relief Beyond a Merits Victory: Fee Eligibility After an Appellate Holding That Due Process Required a Contested Case Hearing

I. Introduction

This case arises from Resorttrust Hawaii, LLC’s (“RTH”) long-running use of state “ceded lands” fronting the Kahala Hotel (Lot 41) under a revocable permit. In 2019 the Board of Land and Natural Resources (“BLNR”) issued revocable permit number S-7915 (“RP 7915”) for “recreational and maintenance purposes,” renewed annually. For the 2022 renewal, Tyler Ralston—a longtime user of the beach and adjacent state parcel—opposed permit conditions that, in his view, signaled exclusivity (including the pre-setting of lounge chairs) and requested a contested case hearing.

BLNR denied his contested case petition. The circuit court affirmed, reasoning that even assuming a protected property interest, the public-meeting process provided sufficient due process under Sandy Beach Def. Fund. v. City & Cnty. of Honolulu. The ICA reversed on due process grounds, holding Ralston was entitled to a contested case hearing, but remanded to the circuit court to determine what relief (if any) remained available because the 2022 permit had expired and the challenge appeared moot.

After prevailing at the ICA, Ralston sought attorney’s fees under the private attorney general doctrine. The ICA denied fees, reasoning that because relief on remand was still undetermined, Ralston had not shown he satisfied all prongs—especially the third prong (the number of people benefitted). The Supreme Court of Hawaiʻi accepted certiorari to decide whether a plaintiff must obtain relief to satisfy the PAG doctrine and whether the ICA’s denial was legally erroneous.

II. Summary of the Opinion

The Supreme Court vacated the ICA’s order denying attorney’s fees and remanded to the ICA to (1) determine the reasonableness of Ralston’s requested fees and (2) determine whether RTH is liable for them. The court held:

• PAG doctrine does not require additional remedial relief beyond an appellate merits holding that vindicates public rights; a party may receive fees even if the scope of relief on remand remains unresolved.
• The ICA’s rationale—fees unavailable because “it has not yet been determined what relief Ralston can obtain”—conflicted with Kaleikini v. Yoshioka (Kaleikini II) and the Unite Here! decisions.
• All three PAG factors were satisfied under the circumstances: (1) important public policies (procedural due process and the right to a clean and healthful environment) were vindicated; (2) private enforcement was necessary because BLNR denied and defended denial of process; (3) the decision benefits members of the public seeking meaningful participation in agency decisions on use of state lands under HRS § 171-55.

III. Analysis

A. Precedents Cited and How They Shaped the Holding

1. The PAG framework and its purpose

• Sierra Club v. Department of Transportation (Superferry II) supplied the canonical three-factor test and the broader justification for shifting fees to encourage enforcement of public rights. The court used Superferry II both as doctrinal anchor (the three prongs) and as policy grounding for why fee eligibility must not depend on the happenstance of later remedy proceedings.
• Pub. Access Trails Haw. v. Haleakala Ranch Co. was cited to emphasize that the PAG doctrine is an “essential tool” enabling public-interest litigation by reducing prohibitive costs. This policy lens animated the court’s rejection of the ICA’s “relief-not-yet-determined” barrier, which would chill suits where agencies moot disputes through time-limited permits.
• Honolulu Constr. & Draying Co. v. Dep't of Land & Nat. Res. (Irwin Park II) reinforced the court’s aversion to “overly-formalistic” applications of what counts as vindicating public policy and clarified that litigation tied to a discrete parcel can still advance broader statewide public interests.

2. Fee eligibility even when remedy remains unresolved

• Kaleikini v. Yoshioka (Kaleikini I) and Kaleikini v. Yoshioka (Kaleikini II) directly controlled the central issue. In Kaleikini I, the court remanded because the “proper relief” had not been fully developed; in Kaleikini II, it nonetheless awarded fees and expressly held “the private attorney general doctrine does not require that a plaintiff receive a final judgment in [their] favor before fees may be awarded.” The court treated this as dispositive against the ICA’s reasoning.
• Unite Here! Local 5 v. PACREP LLC (Unite Here! I) and Unite Here! Local 5 v. PACREP LLC (Unite Here! II) provided a recent parallel: fees awarded under PAG while the case was remanded to determine an “appropriate remedy.” The court used the Unite Here! line to reaffirm that meaningful merits victories—especially in environmental/procedural-rights contexts—qualify even when remedial tailoring is pending.

3. The third prong (“number of people standing to benefit”) and distinguishing Asato

• Asato v. Procurement Pol'y Bd. was the case the ICA invoked to deny fees. The Supreme Court distinguished Asato by context: procurement disputes often carry financial incentives for private enforcement, reducing the need for fee-shifting, and the holding in Asato was limited to relatively narrow future circumstances. By contrast, Ralston’s case concerned public-trust-adjacent lands and procedural participation rights, where private citizens often lack financial incentive and face significant burdens.
• In re Water Use Permit Applications (Waiahole II) was used to explain the second prong’s focus on the government’s posture—whether it abandoned or actively opposed the plaintiff’s position—and to frame why BLNR’s denial and subsequent defense of that denial supported private necessity.
• Goo v. Arakawa and In re Water Use Permit Applications (Waiahole II) were cited as examples where PAG was denied, illustrating limiting principles and supporting the court’s conclusion that Ralston’s case sits within (not outside) PAG’s intended domain.
• Sierra Club v. Bd. of Land & Nat. Res. and Sierra Club v. BLNR provided the closest thematic analogue: contested case hearing rights rooted in the constitutional right to a clean and healthful environment. The court drew heavily from Sierra Club v. BLNR to show that vindicating contested case hearing access in annual revocable-permit renewals can satisfy all three prongs, including the “number benefitted” prong.

4. Standard of review for fee decisions

• Cowan v. Exclusive Resorts PBL1, LLC supplied the abuse-of-discretion standard for the fee order generally, while Asato v. Procurement Pol'y Bd. supplied de novo review for whether legal principles governing the PAG factors were disregarded. This bifurcated approach allowed the court to correct the ICA’s legal error while leaving reasonableness and allocation questions for remand.

5. Background cases framing the underlying land-use dispute

• Frankel v. Bd. of Land & Nat. Res. was used to summarize the historical use and permitting pattern for Lot 41, providing context for the recurring, time-limited permit structure that can evade full judicial review.
• Sandy Beach Def. Fund. v. City & Cnty. of Honolulu framed the circuit court’s due-process analysis (balancing test; “due process is not a fixed concept”), which the ICA rejected as insufficient under the circumstances because contested-case safeguards were absent.

B. Legal Reasoning

1. “Relief” for PAG purposes includes procedural vindication

The court treated the ICA’s merits holding—“Ralston was denied procedural due process and was entitled to participate in a contested case hearing”—as substantial relief. The ICA had already applied mootness exceptions (“capable of repetition, yet evading review” and “public interest”), signaling that the decision carried systemic value beyond the expired 2022 permit. Conditioning fees on additional relief would perversely penalize litigants when agencies act via short-duration instruments that frequently expire before final remedial orders can issue.

2. Application of the three prongs to Ralston

• Prong 1 (societal importance): Ralston’s victory advanced due process participation in BLNR permitting and reinforced the constitutional right to a clean and healthful environment (Haw. Const. Art. XI, § 9), especially as implemented through HRS § 171-55’s “best interest of the State” conditions for temporary occupancy permits. The court rejected the suggestion that an unpublished ICA disposition or a “discrete” property makes the policy unimportant (echoing Irwin Park II).
• Prong 2 (necessity of private enforcement / burden): BLNR denied the contested case request and defended that denial through appeal; no other party pursued the procedural challenge. The court viewed the public-meeting opportunity as insufficient to negate private necessity because it lacked contested-case features and because BLNR actively litigated against the claimed entitlement.
• Prong 3 (number benefitted): The court emphasized that the benefit lies not only in access to Lot 41, but in vindicating statewide procedural rights under HRS § 171-55 governing temporary occupancy permits for state lands. It rejected a narrow “headcount” approach (how many testified in a given year) in favor of whether the decision reduces barriers to meaningful participation in environmental/public land decisions—consistent with the court’s environmental-procedure jurisprudence.

3. Remaining questions reserved for remand

Although the court held Ralston is entitled to fees under PAG, it did not set the amount or finally decide RTH’s liability. Instead, it remanded to the ICA to assess reasonableness and determine whether (and to what extent) RTH should be responsible—questions that can involve allocation principles and party-specific responsibility (an issue the parties debated by reference to Superferry II and Kaleikini II).

C. Impact

• Stabilizes fee recovery in “short-term permit” litigation: By rejecting a requirement of additional remedial relief, the decision reduces the risk that agencies (or permit cycles) can effectively defeat PAG fee recovery through expiration and remedial uncertainty.
• Strengthens incentives to litigate procedural participation rights: The ruling reinforces that winning a contested case hearing entitlement—often the gateway to meaningful agency adjudication—can be fee-eligible, thereby encouraging enforcement of procedural safeguards in environmental and public-land contexts.
• Signals a functional (not formalistic) view of “number benefitted”: Benefits may be systemic and statewide when the ruling clarifies public participation obligations under statutes of general applicability (here, HRS § 171-55), even if the immediate controversy concerns a single parcel.
• Potential exposure for private permit beneficiaries: The remand question—whether RTH is liable—keeps pressure on private entities that actively defend agency action to consider potential PAG fee consequences, particularly where they are practical beneficiaries of the challenged governmental decision.

IV. Complex Concepts Simplified

• Private Attorney General (PAG) doctrine: A judge-made exception to the “American Rule” (each side pays its own lawyer) allowing courts to award attorney’s fees to a party who, through litigation, enforces important public rights that benefit others, especially when private enforcement is necessary.
• Contested case hearing: An agency adjudicatory process more like a trial than a public meeting—typically including the ability to present evidence, make objections, and cross-examine witnesses—used when legal rights, duties, or privileges are determined after an opportunity for hearing.
• Mootness and its exceptions: A case is “moot” when the immediate dispute is no longer live (e.g., an annual permit expires). Courts may still decide moot cases if the issue is “capable of repetition, yet evading review” or presents a “public interest” warranting resolution.
• HRS § 171-55 (temporary occupancy permits): A statute authorizing month-to-month permits for temporary occupancy of state lands and requiring BLNR to set conditions and rent serving the “best interest of the State,” which can intersect with environmental-quality obligations and public participation rights.

V. Conclusion

The Supreme Court of Hawaiʻi’s decision in Ralston v. Board of Land and Natural Resources squarely rejects a remedial-finality prerequisite for private attorney general fees. By holding that an appellate merits determination—here, recognition of a due process right to a contested case hearing—constitutes meaningful relief for PAG purposes even when further relief remains undecided on remand, the court fortifies fee-shifting as a practical mechanism for enforcing public participation and environmental procedural rights. The remand leaves implementation details (fee amount and RTH’s liability) to the ICA, but the doctrinal message is clear: when a litigant bears the burden of vindicating public procedural rights in agency decision-making over state lands, fee eligibility cannot be withheld merely because the remedial phase is incomplete or uncertain.