By NANCY COOK LAUER
Stephens Media
The Intermediate Court of Appeals has kicked Hawaii Island rancher Freddy Nobriga’s cattle theft lawsuit against the Department of Hawaiian Home Lands back to 3rd Circuit Court, saying DHHL violated Nobriga’s right of due process when it rounded up and sold at least 115 head of Nobriga’s cattle without adequate notice.
In a 20-page opinion issued Wednesday, a three-judge panel agreed with the lower court’s 2007 dismissal of four counts in the lawsuit, but sent two counts back to 3rd Circuit Court in Hilo.
“Although defendants ultimately offered to compensate Nobriga, their offer came only after the cattle had already been sold. Moreover, their change of heart did not negate the deliberate deprivation that occurred,” said Associate Justice Katherine Leonard, writing the opinion that was also signed by Associate Justices Daniel Foley and Alexa D.M. Fujise.
At issue is a long-running dispute between Nobriga and DHHL that started when some of Nobriga’s cattle leases on thousands of acres of DHHL land were set to expire. Nobriga, 87, has been a rancher in the Piihonua and Humuula areas for more than 70 years.
DHHL wanted to use some of the 52,000 acres of land to create homesteads for Native Hawaiians.
After rounding up his cattle to move them to other property, Nobriga said he lost more than 800 head of cattle in an area heavily infested with gorse, an extremely thorny bush that grows four to six feet high. He claims DHHL refused to allow him to use a less infested path between one grazing area and another. Nobriga has also sued DHHL and Parker Ranch for not controlling the spread of the gorse.
Nobriga’s attorney Walter Schoettle said Thursday he hasn’t had time to study the opinion and discuss it with his client.
“I don’t know where we’re going to go from here,” Schoettle said.
Deputy Attorney General Diane Taira, who represents DHHL in the case, couldn’t be reached for comment Thursday.
The appellate panel ruled in Nobriga’s favor on his charge of conversion — that DHHL took the cattle without the owner’s consent and took an “unwarranted assumption of ownership.” It also agreed that DHHL’s roundup and sale of the cattle was an unconstitutional violation of Nobriga’s rights to due process.
“(It) appears that defendants here mistakenly believed they had legal authority to confiscate and sell the trespassing cattle. … defendants did not merely remove the cattle for a time. Instead, they permanently deprived Nobriga of a significant property interest,” the opinion says. “Given the weight of private interests at stake, the risk of erroneous deprivation, and the governmental interests … Nobriga was entitled to adequate prior notice and an opportunity to be heard.”
The appellate panel ruled in DHHL’s favor in the dismissal of Nobriga’s charges of intentional infliction of emotional distress, civil conspiracy, breach of contract and punitive damages. In doing so, it noted the many times DHHL worked with Nobriga, for example, allowing him use of a parcel abutting Saddle Road so he could get water to his cattle during a severe drought and extending several deadlines as Nobriga struggled to get his cattle out of badly gorse-infested areas.
“(The) undisputed facts support the conclusion that the roundups were not motivated by malice,” the opinion says. “Defendants mistakenly believed they had the authority to round up and sell trespassing cattle.”
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
