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Oral Argument Before the Hawaii Supreme Court — SCAP-20-0000487

Amended 3/30/22

No. SCAP-20-0000487, Tuesday, April 5, 2022, 5 p.m.

KIAʻI WAI O WAIʻALEʻALE, an unincorporated community association, Plaintiff-Appellant, vs. DEPARTMENT OF WATER, COUNTY OF KAUAʻI, applicant and accepting agency of the subject Environmental Assessment, Defendant-Appellee.

The above-captioned case was set for oral argument on the merits at:

University of Hawaiʻi at Manoa
William S. Richardson School of Law
Classrooms 2 and 3
2515 Dole Street
Honolulu, HI 96822

The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at

Attorneys for appellant Kiaʻi Wai O WaiʻAleʻAle:

Lance D. Collins of the Law Office of Lance D. Collins; and Bianca Isaki of the Law Office of Bianca Isaki

Attorneys for appellee Dept. of Water, County of Kauaʻi:

Rosemary T. Fazio, Naomi U. Kuwaye, and Nicholas G. Altuzarra of Ashford & Wriston

Attorneys for Amici Curiae Hui Hoʻopulapula Nā Wai o Puna and Sierra Club:

Leināʻala L. Ley and Isaac H. Moriwake

NOTE: Order granting Application for Transfer, filed 07/06/21.

NOTE: Order granting Joint Motion for Leave for Amici Curiae to Participate in Oral Argument and Share Time with Appellant, filed 03/30/22.

COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.

[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

Kiaʻi Wai O Waiʻaleʻale (“Kiaʻi”), an unincorporated community association, appeals from a final judgment in favor of the Department of Water, County of Kauaʻi (“the County”) entered by the Environmental Court of the Circuit Court of the Fifth Circuit (“Environmental Court”).

In its First Amended Complaint (“Complaint”), Kiaʻi challenged the County’s final environmental assessment (“FEA”) for a proposed water transmission line in the Līhuʻe area. Kiaʻi maintained the FEA inadequately analyzed impacts on water sources and that the County therefore violated the Hawaiʻi Environmental Policy Act (“HEPA”), HEPA’s administrative rules, Hawaiʻi Revised Statutes (“HRS”) § 195D-4, and article XI, section 1 and article XII, section 7 of the Hawaiʻi Constitution. Additionally, Kiaʻi alleged that the County did not comply with procedures for public comment, analyze reasonable alternatives, and make certain information available to the public. Kiaʻi also alleged the County violated HRS § 171-58 by failing to obtain a lease or permit from the Board of Land and Natural Resources for the use of water from State lands.

The County moved for summary judgment as to each of the counts in Kiaʻi’s Complaint, arguing, among other things, that its FEA properly analyzed impacts on water sources and found no impact, it followed procedures set forth in HEPA’s administrative rules, and under HRS § 54-12 and HRS § 54-15, it was not required to obtain a water lease or permit.

The Environmental Court granted the County’s motions for summary judgment and entered final judgment in favor of the County on June 30, 2020. Kiaʻi appealed and its application for transfer to the Supreme Court was granted. Kiaʻi contends that the Environmental Court erred by finding that there were no genuine issues of material fact and by granting the County’s motions for summary judgment as to whether: 1) the FEA properly addressed impacts on water sources; 2) the County improperly failed to disclose the contents of input received from other agencies; 3) the FEA improperly segmented the proposed water line from other actions; 4) the County violated HEPA, HRS § 195D-4, and article XI, section 1 of the Hawaiʻi Constitution; 5) Kiaʻi is entitled to injunctive relief; 6) the County violated article XII, section 7 of the Hawaiʻi Constitution; 7) the County violated HRS § 171-58 by failing to obtain a lease or permit; and 8) the County followed the procedures for public comment.