See Pila’a 400, LLC v. Bd. of Land & Nat. Res., 132 Hawai'i 247 , 264, 320 P.3d 912 , 929 (2014); In re Application of Hawaiian Elec. Co., 81 Hawai'i 459 , 466, 918 P.2d 561 , 568 (1996); Shoreline Transp., Inc. v. Robert’s Tours & Transp., Inc., 70 Haw. 585 , 591, 779 P.2d 868 , 872 (1989). But see Aguiar v. Haw. Hous. Auth., 55 Haw. 478 , 486, 522 P.2d 1255 , 1261 (1974) (addressing various arguments by the parties regarding whether or not an agency regulation was a rule under HAPA). This court has recognized that “rule-making is essentially legislative in nature because it operates in the future; whereas, adjudication is concerned with the determination of past and present rights and liabilities of individuals where ‘issues of fact often are sharply controverted,’ ” In re Hawaiian Elec. Co., 81 Hawai'i at 467 , 918 P.2d at 569 (quoting Shoreline Transp., Inc., 70 Haw. at 591 , 779 P.2d at 872 ).

The notion that an individual must be accorded sufficient procedural safeguards before being deprived of a “property” interest is a cornerstone of Hawaii law. In Aguiar v. Hawaii Housing Authority, 55 Haw. 478 , 522 P.2d 1255 (1974), this court explained that a claim of due process requires a two-step inquiry: “(1) is the particular interest which the claimant seeks to protect by a hearing ‘property’ within the meaning of the due process clauses of the federal and state constitutions, and (2) if the interest is ‘property,’ what specific procedures are required to protect it.” Id. at 495, 522 P.2d at 1266 .

Although none of these cases involved agency actions quite like the ones at issue in this ease, these cases inform our decision here. In Aguiar v. Haw. Hous. Auth., 55 Haw. 478 , 479-81, 522 P.2d 1255 , 1257-58 (1974), the supreme court considered whether the Hawaii Housing Authority’s (HHA’s) written policies setting maximum income limits for continued tenancy in public housing and rent schedules, which were set forth in amendments to HHA’s “Master Management Resolution,” were rales within the meaning of HAPA, subject to HAPA’s rale-making requirements. HHA argued that the income limits and rents were not “‘agency statements) of general or particular applicability and future effect.’ ” Id. at 485, 622 P.2d

Id., 682 P.2d at 77. See also Aguiar v. Hawaii Housing Authority, 55 Haw. 478, 490 493, 522 P.2d 1255, 1263 1265 (1974) (holding that amendments to the Master Management Resolution adopted by the Hawaii Housing Authority (HHA) that fundamentally altered the rate structure for public-housing rents, and thus changed the rent amount paid by nearly every public-housing tenant, constituted "rules" that were required to be adopted pursuant to HAPA). In accordance with Vega and Aguiar, we conclude that DLNR was required to amend its rules pursuant to HRS chapter 91 before it could add two extra days per week for hunting game birds on the island of Hawai'i during the 2004-2005 hunting season.

Therefore, despite the absence of a statutory or regulatory mandate, "[t]he adjudicatory procedures of the Hawaii Administrative Procedure Act apply to hearings which an agency is constitutionally required to provide." Aguiar v. Hawaii Housing Authority, 55 Haw. 478, 478, 522 P.2d 1255, 1256 (1974); see Miller, 3 Haw. App. at 93, 641 P.2d at 992; see also Mortensen v. Employees Retirement System Trustees, 52 Haw. 212, 473 P.2d 866 (1970). As discussed above, because no statute or regulation requires a hearing on the consideration of TPAs, the hearings in which the Commission considered the homestead lessees' petitions to approve their TPAs would be required by law, and therefore constitute a contested case hearing for the purposes of appellate review, only if due process mandated such a hearing.

Therefore, in order to assert a right to procedural due process, Appellants must possess an interest which qualifies as "property" within the meaning of the constitution. Sandy Beach, 70 Haw. at 376-77, 773 P.2d at 260 (quoting Aguiar v. Hawaii Hous. Auth., 55 Haw. 478, 495, 522 P.2d 1255, 1266 (1974)). The circuit court held that Appellant "did not possess a sufficient or identifiable property interest which would implicate the requirements of procedural due process . . . upon an adverse scope of duty determination by the Police Commission," and that Appellant "had only an expectation that he would receive legal representation.

Id. In Aguiar v. Hawaii Housing Authority, 55 Haw. 478 , 522 P.2d 1255 (1974), this court determined that the Hawai'i Housing Authority’s (HHA) internal regulations, which set forth maximum income limits for continued occupancy by tenants in public housing and established a payment schedule, were rules. Id. at 489-90, 522 P.2d at 1262-63 .

Id.In Aguiar v. Hawaii Housing Authority , 55 Haw. 478, 522 P.2d 1255 (1974), this court determined that the Hawai'i Housing Authority's (HHA) internal regulations, which set forth maximum income limits for continued occupancy by tenants in public housing and established a payment schedule, were rules. Id. at 489-90, 522 P.2d at 1262-63.

However, it is generally accepted that the distinguishing characteristic of rule-making is the generality of effect of the agency decision and that literal application of the words "or particular" would obviate completely the adjudicatory functions of administrative agencies. [ Aguiar v. Hawaii Housing Authority, 55 Haw. 478, 485 n. 13, 522 P.2d 1255, 1261 n. 13 (1974)]; 1 Davis, Administrative Law Treatise § 5.02 (1958) (hereinafter "Davis"). This distinction [between rule-making and adjudication] reflects the consideration that in rule-making policy is dominant, rather than accusatory or disciplinary elements, and consequently such factors as the demeanor of witnesses are of little significance.

When we had occasion earlier to consider the meaning of "rule" as defined by HRS § 91-1(4), we voiced agreement with Professor Davis that a literal application of the words "or particular" therein "would rob provisions of (HAPA) relating to `adjudication' of virtually all meaning." Aguiar v. Hawaii Hous.Auth., 55 Haw. 478, 485-86 n. 13, 522 P.2d 1255, 1261 n. 13 (1974) (quoting 1 K. Davis, Administrative Law Treatise § 5.02, at 295 (1958)). "For this reason," we said, "the use of the words `or particular' in [HRS § 91-1(4)] probably does not significantly change the basic understanding of the distinction between rulemaking and adjudication held prior to the adoption of the [Administrative Procedure] Act."