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Oral Argument Before the Hawaii Supreme Court – SCAP-22-0000557

No. SCAP-22-0000557, Tuesday, December 5, 2023, 2:30 p.m.

WILLIE KAUPIKO; KA‘IMI KAUPIKO; MIKE NAKACHI; FOR THE FISHES; CENTER FOR BIOLOGICAL DIVERSITY; and KAI PALAOA, Plaintiffs-Appellants/Cross-Appellees, vs. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I; and DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I; Defendants-Appellees/Cross-Appellants, and PET INDUSTRY JOINT ADVISORY COUNCIL, Defendant-Intervenor-Appellee/Cross-Appellee.

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

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

The oral argument was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Ōlelo TV 53.

Attorneys for Plaintiffs-Appellants/Cross-Appellees WILLIE KAUPIKO, KA‘IMI KAUPIKO, MIKE NAKACHI, FOR THE FISHES, CENTER FOR BIOLOGICAL DIVERSITY, and KAI PALAOA:

      Isaac H. Moriwake, Kylie W. Wager Cruz, and Mahesh Cleveland of Earthjustice

Attorneys for Defendants-Appellees/Cross-Appellants BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I and DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I:

     Julie H. China, Daniel A. Morris, and Melissa D. Goldman, Deputy Attorneys General  

Attorney for Defendant-Intervenor-Appellee/Cross-Appellee PET INDUSTRY JOINT ADVISORY COUNCIL:

     Geoffrey M. Davis of the Law Office of Geoff Davis

NOTE Order granting Application for Transfer, filed 03/15/23.

NOTE Order assigning Circuit Judge John M. Tonaki and Circuit Judge Shanlyn A.S. Park due to vacancies, filed 06/30/23.

COURT:    Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Tonaki and Circuit Judge Park, assigned by reason of vacancies

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioners/Plaintiffs-Appellants/Cross-Appellees Willie Kaupiko, Ka‘imi Kaupiko, Mike Nakachi, For the Fishes, Center for Biological Diversity, and Kai Palaoa (collectively, “Plaintiffs”) filed a complaint against Respondents/Defendants-Appellees/Cross-Appellant Board of Land and Natural Resources (“BLNR”) and the Department of Land and Natural Resources (collectively, “Defendants”) for declaratory and injunctive relief in the Circuit Court of the First Circuit (“circuit court”). The circuit court permitted Respondent/Defendant-Intervenor-Appellee/Cross-Appellee Pet Industry Joint Advisory Council (“Intervenor-Defendant”) to intervene.

Plaintiffs alleged, inter alia, Defendants’ decision to accept Intervenor-Defendant’s Revised Final Environmental Impact Statement (“RFEIS”) regarding the West Hawai‘i Regional Fishery Management Area (“WHRFMA”) violated the Hawai‘i Environmental Policy Act (“HEPA”). Plaintiffs asked the circuit court to issue a declaratory judgment that the RFEIS failed to comply with HEPA and the Hawai‘i Administrative Rules (“HAR”), and issue appropriate injunctive relief enjoining Defendants from issuing aquarium permits to collectors seeking coverage under the RFEIS.

In a motion to dismiss, Defendants argued that Plaintiffs failed to state a claim because the “acceptance” of the RFEIS occurred by operation of law pursuant to Hawai‘i Revised Statutes (“HRS”) § 343-5(e)(2021), not due to any “decision” by Defendants. Defendants also claimed that the political question doctrine barred further court action because Defendants did not elect to accept or not accept the RFEIS prior to its deemed acceptance by operation of law. The circuit court denied Defendants’ motion.

Plaintiffs subsequently filed a motion for summary judgment. In considering the motion, the circuit court focused on whether the RFEIS satisfactorily addressed Defendants’ findings and reasons for non-acceptance of the first draft of the EIS, but stated that the rule of reason set forth in Price v. Obayashi, 81 Hawai‘i 171, 182, 914 P.2d 1364, 1375 (1996), was the ultimate standard in determining the legal sufficiency of the RFEIS. Finding that under the rule of reason, “the RFEIS provided sufficient information to enable the Board to make an informed and reasoned decision”, the circuit court denied Plaintiffs’ motion.

On appeal, Plaintiffs argue that the circuit court erred by misapplying the standard set forth in Price because it did not apply the standard in conjunction with the plain language of HRS Chapter 343 and HAR Chapter 11-200. Plaintiffs also argue that the circuit court erred in concluding that the RFEIS amounted to a valid HEPA review because the body of the RFEIS did not discuss public comments and comment responses, and only included such information as appendices to the RFEIS. Plaintiffs also assert that the RFEIS failed to fully address Defendants’ reasons for non-acceptance and does not meet HEPA’s content requirements.

Defendants filed a cross-appeal seeking review of the circuit court’s ruling on its motion to dismiss if the court rules to reverse the circuit court’s final judgment underlying Plaintiff’s appeal. Defendants argue that the default acceptance of the RFEIS under HRS § 343-5(e) was an acceptance by operation of law, not a decision by Defendants and, thus, Defendants did not violate HEPA and should not have been charged with defending this decision on the merits.  

The case has been transferred to this court.