Hawaiʻi Supreme Court: Plaintiffs can revive Maui Lani ‘good cause’ legal challenge on grading extension

Hawaiʻi’s Supreme Court ruled that a Maui cultural and environmental group can revive part of its legal challenge over a grading permit extension at Maui Lani Phase 9, while upholding the dismissal of a separate legal theory, in a decision the group says reinforces protections for ancestral Hawaiian burial sites in Central Maui.

The June 23 ruling allows Mālama Kakanilua to proceed with its claim seeking a court declaration on whether the Maui County Department of Public Works had “good cause” to extend the grading permit for the Maui Lani Phase 9 development, which sits within the Puʻuone sand dune complex.

The court held that the declaratory relief claim should move forward because the Public Works director at the time may not have had genuine good cause to grant the extension. The court separately upheld dismissal of a quo warranto claim, finding that the director does have authority to grant permit extensions under certain conditions — meaning that legal theory could not succeed regardless of the underlying facts.

When asked for comment on the case, Maui County spokesperson Laksmi Abraham provided the following statement:

“The administration is supportive of residential housing projects moving forward, while balancing the importance of protecting sensitive rights and practices. We understand that a former mayor’s Public Works Director took conscientious action in 2017 with respect to this project, and extended the time on the permit after the Circuit Court ruled the grading could continue, and he did so with ‘good cause.’ To our knowledge, the developer of this project stopped construction on this site in 2018 and never recommenced.”

Now, the Hawaiʻi Supreme Court ruling means the county’s “good cause” finding will now be subject to judicial review in the 2nd Circuit Court.

“This is a win for iwi kūpuna, for cultural practitioners, and for every community fighting to make government follow the law before allowing more disturbance of ancestral places,” said Clare Apana, plaintiff and founder of Mālama Kakanilua. “The County cannot simply say a developer needs to finish grading and treat that as enough. In a place where burials have been found, where monitoring violations occurred, and where the land itself carries the memory of the Battle of Kakanilua, ‘good cause’ must mean more than business as usual.”

Maui County law permits grading permit extensions only in cases of hardship or good cause. The case traces back to a 2017 lawsuit in which Mālama Kakanilua raised three legal theories challenging permitting at the site. This included a claim involving the State Historic Preservation Division’s review process, which was resolved earlier in the litigation and is not part of this appeal.

In a companion case from that same litigation, a Circuit Court judge issued a preliminary injunction citing the risk of irreparable harm from mining human remains at the site and processing them for cement manufacturing, according to attorney Lance Collins, who represents the cultural practitioners.

The Department of Public Works’ justification for extending the permit cited both the developer’s need for more time to complete grading and the lack of a response from SHPD regarding a separate non-compliance issue, Collins said. The SHPD non-response was not itself the basis for the county’s good-cause finding, he said, but factored into the county’s decision to consider the extension at all.

Puʻuone is a sand dune landscape in Central Maui long associated with burial, habitation and the Battle of Kakanilua, a historic conflict that figures prominently in the area’s cultural identity. Kanaka maoli families and cultural practitioners describe the dunes as ancestral ground containing iwi kūpuna, or ancestral remains, along with the memory of chiefs, warriors and communities that lived there.

Mālama Kakanilua said its legal effort stems from years of community opposition to development activity at Maui Lani, including subdivision, sand mining and grading, which members say has at times preceded — rather than followed — efforts to protect burials and archaeological sites.

“We will continue to stand for Puʻuone, for Kakanilua, and for the kuleana owed to iwi kūpuna,” said Kaniloa Kamaunu, co-plaintiff. “This decision is one more step in a much longer struggle to make sure significant places are protected before they are harmed — not after.”

The case now returns to Circuit Court, where a judge will examine the merits of whether the county had good cause to extend the permit.