Judge in Kahala Case Denies Motion for Reconsideration

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In our October 2019 article, “Pohakuloa Ruling Spurs Motion For Reconsideration in Kahala Case,” we reported that 1st Circuit Judge Jeffrey Crabtree was scheduled to hear arguments at the start of the month on David Kimo Frankel’s motion for reconsideration in his lawsuit over a revocable permit for ceded land fronting the Kahala Hotel & Resort.

Frankel had argued that language in an August 23 Hawai‘i Supreme Court decision regarding the Board of Land and Natural Resources’ management of ceded, public lands within the Pohakuloa Training Area should apply to the Kahala land. “The Supreme Court’s recent decision in the Pohakuloa case demonstrates that the BLNR defendants do in fact have trust duties in managing the beachfront parcel,” Frankel argued.

Judge Crabtree disagreed.

In a minute order denying Frankel’s motion, the judge noted that in the recent Thirty Meter Telescope case, the Hawai‘i Supreme Court specifically chose not to decide whether or not public trust principles should apply to lands other than Conservation District lands.

The high court’s decision regarding the Pohakuloa Training Area states that “all pubic natural resources are held in trust.” Even so, Crabtree stated, “If this broad language was intended to change the recent and specific cautionary language in TMT, surely the Supreme Court would have said so expressly.”

Teresa Dawson

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