Justia Hawaii Supreme Court Opinion SummariesArticles Posted in Environmental Law
Carmichael v. Board of Land & Natural Resources
The Supreme Court held that the authority of the Board of Land and Natural Resources (BLNR) to issue revocable permits is subject to the environmental review requirements of the Hawai'i Environmental Policy Act (HEPA), Haw. Rev. Stat. ch. 343.At issue was the water rights for 33,000 acres of land in the Ko'olau Forest Reserve and Hanawi Natural Area Reserve. In 2000, the BLNR approved the issuance of four revocable water permits to Alexander & Baldwin, Inc. (A&B) and East Maui Irrigation Co., Ltd. (EMI). The BLNR subsequently continued the permits. Petitioners brought this action alleging that the renewal of the revocable permits required the preparation of an environmental assessment pursuant to the HEPA. The circuit court granted summary judgment for Petitioners, concluding that the continuation decision was not a HEPA action but that the revocable permits were invalid because they exceeded the BLNR's authority under Haw. Rev. Stat. 171-55. The Supreme Court remanded the case, holding (1) the revocable permits were not authorized under section 171-55; and (2) the circuit court erred in holding that there was no "action" within the meaning of Haw. Rev. Stat. 343-5(a) and that HEPA's environmental review process was thus inapplicable. View "Carmichael v. Board of Land & Natural Resources" on Justia Law
Keep the North Shore Country v. Board of Land & Natural Resources
The Supreme Court affirmed the judgment of the circuit court denying Keep the North Shore Country's (KNSC) appeal from the decision of the Board of Land and Natural Resources approving Applicant's habitat conservation plan and authorizing Applicant to take fewer than two and a half Hawaiian hoary bats per year, holding that there was no error.To operate a proposed wind farm, Applicant was required to obtain an incidental take license as part of a habitat conservation plan approved by the Board. KNSC opposed the application citing the wind farm's potential impact on the ope'ape'a, the Hawaiian hoary bat. The Board approved the plan and authorized Applicant to take up to fifty-one ope'ape'a over the course twenty-one years. The Supreme Court affirmed, holding (1) the circuit court properly applied the clear error standard in reviewing KNSC's challenges based on mixed questions of law and fact; (2) substantial evidence supported the Board's conclusions; and (3) there was no other error in the Board's proceedings. View "Keep the North Shore Country v. Board of Land & Natural Resources" on Justia Law
Posted in: Environmental Law
In re Investigation of KAHEA
In this litigation concerning the future of Mauna Kea, the Supreme Court reversed the order of the circuit court granting in part and denying in part KAHEA: The Hawaiian Environmental Alliance's motion to quash a subpoena with respect to subpoena request numbers five and eight and affirmed the judgment in all other respects, holding that the two subpoena requests were unreasonable.In 2019, the State Attorney General issued a subpoena duces tecum to First Hawaiian Bank commanding the bank to produce eighteen categories of records from KAHEA's accounts. KAHEA moved to quash the subpoena, claiming it was retaliatory harassment brought on by KAHEA's opposition to the construction of an astronomical observatory on Mauna Kea. The circuit court disallowed fifty percent of the subpoena requests. KAHEA appealed, arguing that the entire subpoena should have been quashed. The Supreme Court held (1) the Attorney General's investigatory powers validated the subpoena; (2) KAHEA's First Amendment freedom of speech and retaliation claims failed; and (3) two subpoena requests were unreasonable. View "In re Investigation of KAHEA" on Justia Law
Posted in: Environmental Law
Lana’ians for Sensible Growth v. Land Use Commission
The Supreme Court held that the Land Use Commission of the State of Hawai'i erred in a 2017 by interpreting a condition of an administrative order issued almost thirty years earlier prohibiting a resort (Resort) from irrigating its golf course with "potable" water to mean that brackish water is per se "non-potable" but that the Commission did not err in determining that the Resort did not violate the condition under its plain meaning.In 1991, the Commission issued an order approving the Resort's petition seeking to effect district reclassification of a large tract of rural and agricultural land sort that the Resort could build an eighteen-hole golf course. The Commission approved the Resort's petition subject to the condition stating that the Resort was not allowed to use potable water to irrigate the golf course. In 2017, the Commission determined that the Resort's use of brackish water from two wells for golf course irrigation was allowable under the condition. The Supreme Court affirmed, holding (1) the Commission erred in interpreting the condition to mean that brackish water is per se non-potable; but (2) the Commission did not clearly err in concluding that the water from the two wells was non-potable under county water quality standards. View "Lana'ians for Sensible Growth v. Land Use Commission" on Justia Law
In re Contested Case Hearing on the Water Use Permit Application Originally Filed by Kukui, Inc.
In this water use case, the Supreme Court affirmed the decision of the State of Hawaii Commission on Water Resource Management (Commission) concluding that Appellants waived the right to proceed on the contested case, holding that the Commission’s finding that Appellants waived the right to continue the case was not clearly erroneous or wrong.More than a decade ago, the Supreme Court vacated the issuance of two water use permits and remanded the matter to the Commission. On remand, the parties claiming to be the applicant’s successors in interest submitted a letter to the Commission stating that they did not have the financial resources to continue to pursue the case. Years later, Appellants filed a new water use application. The Commission treated the application as a continuation of the remanded case and then concluded that the letter constituted a waiver of Appellants’ right to continue the original proceedings. The Supreme Court affirmed, holding that the Commission did not err in finding that Appellants expressly waived their right to proceed with the contested case by their letter. View "In re Contested Case Hearing on the Water Use Permit Application Originally Filed by Kukui, Inc." on Justia Law
Flores v. Board of Land & Natural Resources
The Supreme Court held that the Board of Land and Natural Resources (BLNR) was not required to hold a contested case hearing prior to consenting to a sublease that the University of Hawai’i intended to enter into with TMT International Observatory LLC for the construction of a thirty meter telescope on the Mauna Kea Science Reserve.E. Kalani Flores requested that BLNR hold a contested case hearing prior to consenting to the sublease. BLNR denied the request and consented to the sublease. The environmental court ruled that BLNR infringed upon Flores’s constitutional rights by rejecting his request for a contested case hearing. The Supreme Court disagreed, holding that a contested case hearing was not required by statute, administrative rule, or due process under the circumstances of this case. View "Flores v. Board of Land & Natural Resources" on Justia Law
Kilakila ‘O Haleakala v. Bd. of Land & Nat. Res.
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
Kilakila ‘O Haleakala v. Univ. of Hawaii
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
Pila’a 400, LLC v. Bd. of Land & Natural Res.
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
Diamond v. Dobbin
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