Articles Posted in Environmental Law

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The Board of Land and Natural Resources (BLNR) granted a permit for the University of Hawaii to construct the Advanced Technology Solar Telescope at an area set aside for astronomical observations located within a conservation district near the summit of Haleakala on the island of Maui. Kilakila 'O Haleakala (Kilakila) challenged BLNR’s approval of the permit. Both the circuit court and the Intermediate Court of Appeals affirmed BLNR’s decision. The Supreme Court affirmed, holding (1) the permit approval process was not procedurally flawed by prejudgment or by impermissible ex parte communication; and (2) BLNR validly determined that the telescope met the applicable permit criteria and was consistent with the purposes of the conservation district. View "Kilakila 'O Haleakala v. Bd. of Land & Nat. Res." on Justia Law

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At issue in this case was a proposed project for constructing a new telescope at an area set aside for astronomical research located within a conservation district near the summit of Haleakala on the island of Maui. The University of Hawaii (UH) prepared a Management Plan containing guidelines applying to facilities within the astronomical site area. UH found that the Management Plan would not have a significant environmental impact and, therefore, that an environmental impact statement was not required. Kilakila ‘O Haleakala (Kilakila) brought a court action to challenge UH’s finding. During discovery, Kilakila sought to obtain documents and admissions from UH and the Department of Land and Natural Resources (DLNR) relating to the environmental assessment. UH and DLNR sought a protective order regarding Kilakila’s discovery request, contending that judicial review was restricted to the administrative record. The circuit court granted the protective order. The Supreme Court affirmed, holding (1) while judicial review of the agency’s determination was not restricted to the administrative record, the circuit court did not err because the parties were permitted to submit documents beyond those contained within the agency record, and the court did not foreclose further discovery requests; and (2) UH’s conclusion that the Management Plan would not cause significant environmental impacts was not clearly erroneous. View "Kilakila 'O Haleakala v. Univ. of Hawaii" on Justia Law

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After a contested case hearing, the Board of Land and Natural Resources (BLNR) entered an order imposing a financial assessment for damages to state conservation land against Pila’a 400, LLC. Specifically, the BLNR held Pila’a 400 responsible for remedial, restoration, and monitoring costs for despoilment of the state land, including near-pristine coral reef, resulting from unauthorized land use. The circuit court and intermediate court of appeals affirmed. The Supreme Court affirmed, holding (1) the BLNR was not required to engage in rule-making before imposing the financial assessment for damages to state land against Pila’a 400; (2) the BLNR had jurisdiction to institute the enforcement action; and (3) Pila’a 400 was afforded a full opportunity to be heard at the contested case hearing following reasonable notice. View "Pila'a 400, LLC v. Bd. of Land & Natural Res." on Justia Law

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The owner of certain property and surveying company filed a shoreline certification application with the Department of Land and Natural Resources for the property. Petitioners filed a notice of appeal of the proposed shoreline certification. In an amended decision, the Board of Land and Natural Resources (BLNR) concluded that Petitioners failed to establish that the proposed certified shoreline was not proper. The Supreme Court vacated the BLNR’s amended decision, holding (1) in making a shoreline determination pursuant to Haw. Rev. Stat. 205A-42, the BLNR must consider the historical evidence of the upper reaches of the wash of the waves; and (2) in this case, the BLNR’s amended decision establishing a certified shoreline for the subject property effectively failed to consider the historical evidence of the upper reaches of the wash of the waves and contained errors of law and erroneous findings of fact. Remanded. View "Diamond v. Dobbin" on Justia Law

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The County of Kauai Planning Commission approved a subdivision application for a Trust's development of land in Koloa, Kauai. During the Commission's consideration of the application, the parties assumed that a historic road (Road) that the Trust needed to breach to provide access into the subdivision belonged to the County of Kauai. Plaintiff filed a civil complaint alleging several claims against Defendants, including breaches of the public trust. Plaintiff subsequently amended his complaint because he discovered that the road belonged to the State and not the County and asserted two additional claims against the Trust for allegedly breaching the Road. The circuit court dismissed the claims, concluding (1) because the State had not given its approval to breach the Road, the issues raised in Plaintiff's complaint were not ripe; and (2) even if Plaintiff had claims that were ripe and severable, the court had the discretion to dismiss the claims in the interest of judicial economy. The Supreme Court vacated the circuit court's final judgment, holding (1) all of Plaintiff's claims were ripe for adjudication; and (2) the circuit court erred in dismissing claims on the basis of judicial economy. Remanded. View "Blake v. County of Kauai Planning Comm'n" on Justia Law

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The University of Hawaii (UH) sought to construct an advanced solar telescope and observatory near the summit of Haleakala on Maui. Kilakila 'O Haleakala (KOH) opposed UH's conservation district use application to build on the project site to the Department of Land and Natural Resources (Department). KOH formally petitioned the Department for a contested case hearing on the application. Without either granting or denying KOH's petition, the Board of Land and Natural Resources (Board) voted at a regularly scheduled public board meeting to grant the permit. KOH filed an agency appeal. The circuit court dismissed the appeal for lack of jurisdiction because there had been no contested case hearing and concluded that KOH's appeal was mooted by the fact that the Board had subsequently granted KOH's request for a contested case hearing subject to a preliminary hearing on KOH's standing. The intermediate court of appeals (ICA) affirmed. The Supreme Court vacated the lower courts' judgments, holding that KOH's appeal was not moot and that a contested case hearing should have been held, as required by law and properly requested by KOH, on UH's application prior to the Board's vote on the application. View "Kilakila 'O Haleakala v. Bd. of Land & Natural Res." on Justia Law

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Aloha Tower Development Corporation filed a petition to expunge a deed restriction on a park requiring that it be preserved as a public park. Scenic Hawaii, Inc. subsequently intervened in the litigation. After a non-jury trial, the land court denied the petition. Scenic Hawaii filed a motion for attorneys' fees and costs under the private attorney general doctrine. The land court granted the request. The intermediate court of appeals (ICA) reversed the award of attorneys' fees. The Supreme Court vacated the judgment of the ICA and affirmed the final judgment of the land court, holding that the land court was correct in awarding attorneys' fees and costs to Scenic Hawaii under the private attorney general doctrine inasmuch as the three prongs of the private attorney general doctrine were satisfied in this case. View "In re Application of Honolulu Constr. & Draying Co., Ltd." on Justia Law

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In June 2004, Petitioners-Appellants Hui O Na Wai 'Eha and Maui Tomorrow Foundation, Inc. (Hui/MTF), through Earthjustice, petitioned Appellee Commission on Water Resource Management to amend the Interim Instream Flow Standards (IIFS) for Na Wai 'Eha, which had been in place since 1988. Around the same time, several parties, including Appellee Maui County Department of Water Supply (MDWS), and Appellees Hawaiian Commercial & Sugar Company (HC&S) and Wailuku Water Company (WWC), filed Water Use Permit Applications (WUPA) for the same area. The Commission held a combined case hearing to resolve the IIFS and WUPA; in addition to the petitioner and applicants, the Office of Hawaiian Affairs (OHA) applied to participate in the hearing. The appeal before the Supreme Court sought review of the Commission's resulting Findings of Fact, Conclusions of Law (FOF/COL), and Decision and Order (D&O), in which the Commission amended the IIFS for two of the four streams, and substantially retained the existing IIFS for the two remaining streams as measured above diversions. The FOF/COL and D&O also resolved several WUPA. Hui/MTF and OHA appealed on related grounds: their primary complaint was that the Commission erred in balancing instream and noninstream uses, and therefore the IIFS does not properly protect traditional and customary native Hawaiian rights, appurtenant water rights, or the public trust. Both parties also contested the Commission’s treatment of diversions, including an alternative source on HC&S’s plantation that could have been used to irrigate HC&S’s cane fields. The parties contested the Commission’s determination that HC&S would not be required to pump the alternate source to its full capacity, a decision that resulted in a higher estimated allowable diversion for HC&S, and lower IIFS for the streams. Upon review, the Supreme Court reversed and remanded the case for further proceedings. First, in considering the effect of the IIFS on native Hawaiian practices in Na Wai 'Eha, the Commission failed to enter findings of fact and conclusions of law regarding the effect of the amended IIFS on traditional and customary native Hawaiian practices regarding the feasibility of protecting any affected practices. Second, the Commission’s analysis of instream uses was incomplete. Third, the Commission erred in its consideration of alternative water sources and in its calculation of diverting parties’ acreage and reasonable system losses. View "In re 'Iao Ground Water Management Area High-Level Source Water Use Permit Applications" on Justia Law

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This case arose from the 2008 application of the Honolulu Department of Environmental Services (DES) for a special use permit (SUP) to expand an existing sanitary landfill. The Land Use Commission (LUC) approved the SUP subject to, inter alia, a condition prohibiting the landfill from accepting municipal solid waste after July 31, 2012. The validity of this condition was the sole issue raised by DES on appeal. The Supreme Court vacated the circuit court's judgment affirming the LUC's approval of the SUP, holding (1) the condition was inconsistent with the evidence shown in the record and was not supported by substantial evidence; and (2) because the LUC's approval of the SUP was expressly given subject to the LUC's imposition of the condition, the court's judgment must be vacated. Remanded. View "Dep't of Envtl. Servs. v. Land Use Comm'n" on Justia Law

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Landowners brought this lawsuit against their neighbor, seeking compensation for property damage caused by the neighbor, and seeking a determination of access and water rights. The application before the Supreme Court, however, raised questions concerning procedural aspects of the hearings before the trial court and of the appeal to the intermediate court of appeals (ICA). The first question concerned pleading standards of appellate briefs, and the remaining questions addressed the trial court's determination of which parties must participate in a lawsuit, and the procedure an appellate court should follow when reviewing that determination. The Court reversed the decision of the ICA and reinstated the trial court's order, holding (1) the ICA did not err in reviewing the defendants' points of error on appeal; but (2) the ICA erred in vacating the trial court's final judgment. View "Marvin v. Pflueger" on Justia Law