NO. 28602 - Thursday, December 17, 2009 - 9 a.m.
CV 06-1-0265: UNITE HERE! LOCAL 5; ERIC W. GILL; TODD A. K. MARTIN, Plaintiffs, vs. CITY AND COUNTY OF HONOLULU, a municipal corporation; KUILIMA RESORT COMPANY, a Hawaii corporation; DOE DEFENDANTS 1-10, Defendants.
KUILIMA RESORT COMPANY, a Hawaii general partnership, Counterclaim Plaintiff, vs. UNITE HERE LOCAL 5 HAWAII, a Hawaii labor organization; ERIC W. GILL, an individual, Counterclaim Defendants, and UNITE HERE!, a New York labor organization; DOE DEFENDANTS 1-10, Additional Counterclaim Defendants.
CV 06-1-0867: KEEP THE NORTH SHORE COUNTRY, KUILIMA RESORT COMPANY, a Hawaii general partnership, Plaintiffs-Appellants, vs. CITY AND COUNTY OF HONOLULU; HENRY ENG, Director of Department of Planning and Permitting, in his official capacity, KUILIMA RESORT COMPANY, a Hawaii general partnership, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants.
Attorney(s) for Petitioners/Plaintiffs-Appellant(s)
William S. Hunt, Laura P. Couch and Blake K. Oshiro (Alston Hunt Floyd & Ing)
Attorney(s) for Respondents/Defendants-Appellee(s)
Honorable Carrie K. S. Okinaga, Corporation Counsel, and Don S. Kitaoka and Lori K. K. Sunakoda, Deputies Corporation Counsel, City & County of Honolulu
Attorney(s) for Respondent/Defendant/Counterclaim-Plaintiff-Appellee
Terence J. O’Toole, Sharon V. Lovejoy, Lane Hornfeck, Wil K. Yamamoto and Shyla P. Y. Cockett (Starn O’Toole Marcus & Fisher)
NOTE: Certificate of recusal, Recktenwald, filed 9/11/09.
NOTE: Order assigning Judge Derrick H. M. Chan in place of Recktenwald, recused, filed 9/15/09.
NOTE: Order granting motion to advance or postpone oral argument from November 19, 2009 to December 17, 2009 at 9:00 a.m., filed10/29/09.
RTYM, CJ; PAN, SRA & JED, JJ., and Circuit Judge Derrick H. M. Chan in place of Recktenwald, recused.
On October 13, 2009, this court accepted the application for writ of certiorari, filed September 8, 2009, by petitioners/plaintiffs-appellants Keep the North Shore Country (KNSC) and Sierra Club, Hawai`i Chapter (Sierra Club) [hereinafter, collectively, plaintiffs] to review the Intermediate Court of Appeals’ (ICA) June 12, 2009 judgment on appeal, entered pursuant to its May 22, 2009 published opinion, Unite Here! v. City & County of Honolulu, 120 Hawai`i 457, 209 P.3d 1271 (App. 2009). Therein, the ICA affirmed the Circuit Court of the First Circuit’s June 4, 2007 amended final judgment in favor of respondents/defendants-appellees Kuilima Resort (Kuilima), as well as the City and County of Honolulu and Henry Eng, the director of the Department of Planning and Permitting (DPP) [hereinafter, County] [hereinafter, collectively, defendants].
Briefly stated, this case arises from the proposed expansion of the Kuilima Resort at Turtle Bay on the North Shore of O`ahu for which an environmental impact statement (EIS) was completed, pursuant to the Hawai`i Environmental Policy Act (HEPA) (codified as Hawai`i Revised Statutes (HRS) chapter 343), and accepted in 1985 by the Department of Land Utilization (DLU) [hereinafter, the 1985 EIS]. The dispute centers around whether Kuilima’s subdivision application, filed in 2005, triggered the need for a supplemental EIS (SEIS), pursuant to the administrative rules underlying HEPA, specifically, Hawai`i Administrative Regulations (HAR) §§ 11-200-26 and 11-200-27 (governing SEISs). The circuit court, in granting summary judgment in favor of the defendants, ruled that a SEIS was not required, and the plaintiffs appealed.
On appeal, a majority of the ICA agreed with the circuit court, holding, inter alia, that, pursuant to the plain language of HAR §§ 11-200-26 and 11-200-27, a SEIS was required only where there was a substantial change in the “action,” see HAR § 11-200-26, and that, inasmuch as the defendants were not substantially changing the proposed expansion itself, no SEIS was required. Then-Associate Judge Nakamura dissented, asserting that, in his view, the relevant rules required the completion of a SEIS “when significant changes to the anticipated environmental impacts of a proposed action become apparent such that ‘an essentially different action’ is being proposed.” Unite Here!, 120 Hawai`i at 468, 209 P.3d at 1282.
On application, the plaintiffs urge this court to adopt Judge Nakamura’s view that HEPA mandates the completion of a SEIS where there has been a change in circumstances or increased environmental impacts and that, therefore, the DPP (the accepting agency for Kuilima’s subdivision application) should have required Kuilima to do so.