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Oral Argument before the Hawaii Supreme Court

No. SCWC-13-0000182, Thursday, December 18, 2014, 8:45 a.m.

KILAKILA `O HALEAKALA, Petitioner/Plaintiff/Appellant-Appellant, vs. UNIVERSITY OF HAWAI`I and THOMAS M. APPLE, in his official capacity as Chancellor of the University of Hawai`i at Manoa; BOARD OF LAND AND NATURAL RESOURCES, WILLIAM AILA, in his official capacity as the Interim Chairperson of the Board of Land and Natural Resources; and DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Defendants/Appellees-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street 
Honolulu, HI 96813

Attorneys for Petitioner:

David Kimo Frankel, Sharla Ann Manley, and Camille K. Kalama

Attorneys for Respondents BLNR, DLNR, and Aila:

William J. Wynhoff, Donna H. Kalama, and Julie H. China, Deputy Attorneys General

Attorneys for Respondents UH and Apple:

Bruce Y. Matsui, Lisa Woods Munger, Lisa A. Bail, and Christine A. Terada

NOTE: Order accepting Application for Writ of Certiorari, filed 09/12/14.

COURT: MER, C.J.; PAN, SSM, RWP, & MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On October 25, 2010, University of Hawai`i (UH) issued a Final Environmental Assessment (FEA) for its Management Plan for the Haleakalā High Altitude Observatory Site. The purpose of the FEA was to determine the nature and extent of any impacts the Management Plan may have on the environment. The FEA concluded that while there may be some adverse impacts from the Management Plan, there would not be significant impacts, and thus an environmental impact statement was not required to be prepared.

Kilakila `O Haleakala (Kilakila) filed a one-count Complaint for Declaratory and Injunctive Relief arguing that UH improperly concluded that the Management Plan would have no significant impacts and thus violated the Hawai`i Environmental Policy Act (HEPA), chapter 343 of the Hawai`i Revised Statutes. Thereafter, Kilakila made eight discovery requests of UH and Department of Land and Natural Resources (DLNR), attempting to obtain and authenticate documents, obtain admissions, and discover the factual basis for UH’s defenses. UH and DLNR filed a motion for protective order with the circuit court, arguing discovery was prohibited in the case and that judicial review was limited to the administrative record. In response, Kilakila argued that a challenge to the adequacy of an EA is inherently a challenge to the adequacy of the administrative record. The circuit court granted the motion for protective order.

Each party filed a motion for summary judgment. In its motion, Kilakila argued that the FEA failed to consider the Management Plan’s components and reasonably foreseeable future actions and also their respective secondary and cumulative impacts. Thus, Kilakila argued the FEA improperly concluded that the Management Plan would have no significant impacts.

UH’s motion for summary judgment argued the Management Plan was designed to have a beneficial impact on the environment, and the FEA concluded that the Management Plan would have no significant impacts. UH argued that under HEPA, a FEA is sufficient if the agency followed proper procedures and if the content of the FEA is sufficient under the rule of reason. UH asserted that it satisfied these criteria. DLNR also filed a motion for summary judgment adopting the arguments made in UH’s Motion.

The circuit court granted DLNR and UH’s motions for summary judgment, finding that the FEA complied with HEPA under the rule of reason standard. Kilakila timely appealed to the Intermediate Appellate Court (ICA), arguing that the circuit court erred in granting UH and DLNR’s motion for protective order and motions for summary judgment.

The ICA held that the circuit court did not err by concluding the FEA complied with HEPA and that an environmental impact statement was not required. The ICA additionally held that the circuit court did not err by limiting its review to the administrative record, or by granting the protective order, because the FEA’s compliance with HEPA did not require factual determinations outside of the administrative record.

On August 1, 2014, Kilakila timely filed an application for writ of certiorari raising the following questions: (1) Did the ICA err by affirming the circuit court’s grant of summary judgment to UH and DLNR and denial as to Kilakila; (2) Did the ICA err by affirming the circuit court’s holding that judicial review was limited to the administrative record; (3) Is it procedural error under HEPA to segment analysis, refuse to disclose information, fail to engage in a hard look, and neglect to assess all impacts of a project; (4) Does HEPA require an environmental impact statement for a project when the agency has admitted that a component will have a significant impact and the FEA has ignored potential impacts of the project; and (5) Did the ICA err by limiting its review to whether the FEA complied with HEPA’s procedures, rather than whether the FEA’s conclusion was itself correct?

In response, UH and DLNR ask that this court to affirm the ICA and circuit court, finding the FEA satisfied HEPA’s requirements and an environmental impact statement is not required.