Oral Argument Before the Hawaii Supreme Court–SCWC-13-0002125

No. SCWC-13-0002125, Thursday, March 30, 2017, 10 a.m.

RENE UMBERGER, MIKE NAKACHI, KAʻIMI KAUPIKO, WILLIE KAUPIKO, CONSERVATION COUNCIL FOR HAWAII, THE HUMANE SOCIETY OF THE UNITED STATES, and CENTER FOR BIOLOGICAL DIVERSITY, Petitioners/Plaintiffs-Appellants, vs. DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAII, Respondent/Defendant-Appellee.

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 Petitioners:

Paul H. Achitoff and Summer Kupau-Odo

Attorney for Respondent:

William J. Wynhoff, Deputy Attorney General

NOTE: Order accepting Application for Writ of Certiorari, filed 12/20/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioners in this case are concerned Hawaiʻi citizens, avid divers, subsistence fishermen, and nonprofit organizations. In the Circuit Court of the First Circuit (circuit court), Petitioners filed a complaint for declaratory judgment and injunctive relief seeking, in relevant part, (1) a declaration that Respondent Department of Land and Natural Resources (DLNR) is in violation of the Hawaiʻi Environmental Policy Act (HEPA), chapter 343 of the Hawaii Revised Statutes (HRS), “for failing to complete the mandated HEPA review process prior to approving the challenged aquarium collection permits”; (2) a declaration that “DLNR’s issuance and renewal of these challenged aquarium collection permits without complying with HEPA is invalid and illegal”; (3) “a prohibitory injunction enjoining collection under the named aquarium collection permits until [DLNR] fully complies with HEPA”; (4) “a prohibitory injunction enjoining DLNR from approving, renewing, or issuing any aquarium collection permits prior to completing a HEPA review of issuance of the challenged permits”; and (5) the circuit court’s retention of “continuing jurisdiction to review [DLNR]’s compliance with all judgments and orders.”

After filing an answer, DLNR moved for summary judgment, and Petitioners cross-moved for summary judgment. The circuit court granted DLNR’s motion for summary judgment and denied Petitioners’ motion for summary judgment. The ICA affirmed.

On certiorari, Petitioners contend that (1) the legislature intended the words “program” and “project” in HRS § 343–2 (2010) to encompass a broad scope of human activity that includes aquarium fish collection; (2) HEPA applies to individuals and provides mechanisms to resolve practical difficulties that individuals may encounter during the environmental process; (3) the ICA’s construction of “program or project” undermines DLNR’s public trust and statutory duties to conserve Hawaii’s marine resources; and (4) other regulatory tools that DLNR possesses are not substitutes for HEPA, nor do such tools excuse violations of HEPA.
 DLNR contends that (1) the ICA was correct in concluding that aquarium fish collection is not an “action” within the meaning of HEPA; (2) the environment is not harmed by the present system and any harm to the environment is irrelevant to the analysis; (3) Petitioners’ argument regarding public trust was never pleaded and, in any event, does not assist this court in construing HRS chapter 343; and (4) the ICA erred in holding that the issuance of aquarium fishing permits requires DLNR’s discretionary consent.

In their reply, Petitioners argue that (1) the plain meaning of “program or project” must be enforced and that the ICA erred for failing to do so and that (2) the ICA’s holding regarding DLNR’s discretionary authority is not properly before this court because DLNR did not cross-file a petition for a writ of certiorari challenging that portion of the ICA’s published opinion.