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.
(Declaratory Judgment)

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.

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Brief description

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.