Oral Argument Before the Hawaii Supreme Court — No. SCAP-19-0000449
No. SCAP-19-0000449,Thursday, April 1, 2021, 2 p.m.
KEEP THE NORTH SHORE COUNTRY, Appellant-Appellant, vs. BOARD OF LAND AND NATURAL RESOURCES, THE DEPARTMENT OF LAND AND NATURAL RESOURCES, SUZANNE D. CASE, in her official capacity as Chairperson of the Land and Natural Resources, and NA PUA MAKANI POWER PARTNERS, LLC, Appellees-Appellees.
The above-captioned case has been set for argument on the merits at:
The oral argument was held remotely and live streamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.
Attorneys for Appellant Keep the North Shore Country:
Lance D. Collins of Law Office of Lance D Collins, and Bianca Isaki of Law Office of Bianca Isaki
Attorneys for Appellees BLNR and Suzanne Case:
Kimberly T. Guidry, Solicitor General; Ewan C. Rayner, Deputy Solicitor General; William J. Wynhoff, Linda L.W. Chow, and Cindy Y. Young, Deputy Attorneys General
Attorneys for Appellee Na Pua Makani Power Partners:
John P. Manaut and Puananionaona P. Thoene of Carlsmith Ball LLP
NOTE: Order granting Application for Transfer, filed 02/26/20.
NOTE: Order assigning Circuit Court Judge Matthew J. Viola due to a vacancy, filed 08/06/20.
COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Viola, assigned by reason of vacancy)
This appeal arises from Appellee-Appellee Board of Land and Natural Resources’ (BLNR) decision to approve Appellee-Appellee Na Pua Makani Power Partners, LLC’s (NPM) application for a habitat conservation plan and incidental take license (collectively, HCP). The HCP would allow NPM to take up to 51 ‘ōpe‘ape‘a, or Hawaiian hoary bats, over 21 years.
Appellant-Appellant Keep the North Shore Country (KNSC) challenged NPM’s HCP application in a contested case hearing before the BLNR. During the proceedings, KNSC objected to BLNR member Samuel ‘Ohukani‘ōhi‘a Gon III’s (Gon) participation in the CCH. The BLNR did not disqualify Gon and approved the HCP.
KNSC appealed the BLNR’s decision to the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the BLNR’s decision, concluding that (1) KNSC raised mixed questions of fact and law, (2) substantial evidence supported the BLNR’s decision, (3) the BLNR did not err in allowing BLNR member Gon to participate in the BLNR proceedings, and (4) KNSC waived its challenge based on communications from a state legislator. The circuit court also concluded that KNSC’s challenge to the state legislator’s communications lacked merit.
KNSC appealed to the Intermediate Court of Appeals, and the case was transferred to this court. On secondary appeal, KNSC argues that:
(1) The circuit court erred in reviewing the BLNR’s decision for “clear error” rather than de novo;
(2) The circuit court erred in affirming the BLNR’s reliance upon the Endangered Species Recovery Committee’s recommendation;
(3) The circuit court erred in affirming the BLNR’s decision to allow BLNR member Gon to participate in the proceedings; and
(4) The circuit court erred in concluding that KNSC waived its objection based upon the state legislator’s communications.