Background
Wayne and Tara Hu purchased a unit at Marconi Point Condominiums, an agricultural condominium project on 96 acres of AG-2 zoned land in Kahuku, Oahu. Over the following years, they became concerned that RCA Trade Center, Inc. — which had obtained permits to build eight prefabricated steel warehouses on the project — was using those structures for non-agricultural commercial purposes, hosting illegal markets, weddings, and craft fairs, and allowing off-road vehicle access to sensitive coastal habitat containing nesting native birds and sea turtles. In August 2023, the Hus, through counsel, sent a 52-page letter detailing these alleged violations to RCA and to ten government agencies, including the City’s Department of Planning and Permitting, state environmental regulators, and the U.S. Department of Agriculture, which had guaranteed a $7.88 million loan to finance the warehouses.
The USDA forwarded the letter to RCA’s lender, North Avenue Capital, which placed a hold on loan disbursements and ultimately declared RCA in default. Within two months of receiving the letter, RCA filed suit against the Hus asserting claims for declaratory relief (to validate the warehouses), tortious interference with the loan contract, and injunctive relief. The Hus’ counsel sought defense coverage from three insurance carriers before filing a responsive motion; all three denied coverage by January 20, 2024. The Hus then filed a special motion to dismiss under Hawaii’s Public Expression Protection Act (HPEPA), Hawaii’s 2022 adoption of the Uniform Public Expression Protection Act, on March 15, 2024 — more than sixty days after service of the complaint but fifty-five days after the final insurance denial.
The circuit court found good cause for the late filing, held that the letter constituted protected petitioning activity on a matter of public concern, and dismissed all three counts with prejudice, awarding the Hus attorney’s fees. RCA appealed, challenging the timeliness ruling, the substantive dismissal, and the fee award.
The Court’s Holding
The Intermediate Court of Appeals affirmed on all grounds. First, the court held that the circuit court did not abuse its discretion in finding good cause for the untimely HPEPA motion. The parties had jointly agreed to delay initial disclosures pending resolution of the Hus’ insurance coverage disputes, and the Hus’ counsel reasonably interpreted that agreement as tolling the clock on all responsive deadlines. Because the HPEPA motion was filed fifty-five days after the final insurance denial — within sixty days of the event the Hus understood to restart the clock — the circuit court’s good-cause finding was not an abuse of discretion.
Second, the court held that the letter fell squarely within HPEPA’s scope as speech on a matter of public concern. Applying the U.S. Supreme Court’s Snyder v. Phelps definition — that speech concerns a public matter when it relates to “any matter of political, social, or other concern to the community” — the court reasoned that allegations of illegal commercial development on agricultural land, degradation of coastal habitat, and disturbance of endangered species were matters of genuine public concern in Hawaii, especially given the robust environmental protections in the Hawaii Constitution. RCA neither argued nor demonstrated that any statutory exemption to HPEPA applied, and it failed to establish a prima facie case on each of its three counts: the declaratory relief claim could not terminate the controversy because the relevant permitting agency (DPP) was not a party; the tortious interference claim was fatally deficient because the USDA loan guarantee is not itself a “contract” capable of being tortiously interfered with by the Hus; and injunctive relief is a remedy, not an independent cause of action. Third, the court held that RCA waived any challenge to the attorney’s fees award by failing to raise the issue with adequate argument on appeal.
Key Takeaways
- Hawaii’s HPEPA (HRS Chapter 634G) applies whenever a lawsuit is based on speech or petitioning on a matter of public concern; allegations concerning environmental harm and unlawful commercial use of agricultural land qualify under this standard.
- Courts have discretion to find good cause for a late-filed HPEPA motion where the defendant’s delay was attributable to reasonable efforts to secure insurance defense counsel and the parties’ joint understanding that all deadlines were informally tolled pending coverage determinations.
- Under the HPEPA framework (mirroring UPEPA), once a movant establishes the statute applies, the burden shifts to the plaintiff to prove an exemption and to establish a prima facie case on every element of each claim; failure on either step requires dismissal with prejudice.
- Sending a letter to government agencies raising concerns about permitting violations and environmental impacts constitutes protected petitioning activity — the hallmark of what anti-SLAPP statutes are designed to shield.
Why It Matters
This is a published decision that establishes important HPEPA precedent in Hawaii. It is one of the first Hawaii appellate opinions to define “matter of public concern” under HPEPA by expressly adopting the Snyder v. Phelps standard and aligning with sister-state UPEPA decisions from Washington and Utah. The ruling signals that Hawaii courts will read the “public concern” prong broadly — particularly where environmental or land-use issues are involved — and that citizens who transmit complaints to multiple government agencies can invoke anti-SLAPP protection even if the primary audience of their communication was a private party.
For practitioners, the case also provides guidance on procedural flexibility: the sixty-day filing window in HPEPA is not absolute, and courts may toll it where defendants are actively pursuing insurance defense coverage and the parties have jointly agreed to delay proceedings. Conversely, plaintiffs facing potential SLAPP liability should be alert to the HPEPA deadline from the moment of service and should not assume informal procedural accommodations reset the statutory clock.