No. SCWC-18-0000057, Thursday, September 26, 2024, 2:00 p.m.

KE KAUHULU O MĀNĀ, an unincorporated association, HAWAIʿI ALLIANCE FOR PROGRESSIVE ACTION, a non-profit corporation, SURFRIDER FOUNDATION, a non-profit corporation, KOHOLĀ LEO, a non- profit corporation, and PUNOHU KEKAUALUA III, Petitioners/Plaintiffs-Appellants/Cross- Appellees, vs. BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʿI, Respondent/Defendant-Appellee/Cross-Appellee, and SYNGENTA SEEDS, LLC, a limited liability company, and SYNGENTA HAWAIʿI, LLC, a limited liability company, Respondents/Defendants-Appellees/Cross-Appellants.

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The above-captioned case has been set for oral argument on the merits.      

The oral argument will be held remotely and will be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ‘Olelo at olelo.org/tv-schedule/.

Attorneys for Petitioners/Plaintiffs-Appellants/Cross-Appellee KE KAUHULU O MĀNĀ, HAWAIʿI ALLIANCE FOR PROGRESSIVE ACTION, SURFRIDER FOUNDATION, KOHOLĀ LEO, and PUNOHU KEKAUALUA III:

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

Attorney for Respondent/Defendant-Appellee/Cross-Appellee BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʿI:

     Ewan C. Rayner, Deputy Solicitor General

Attorneys for Respondents/Defendants-Appellees/Cross-Appellants SYNGENTA SEEDS, LLC, A LIMITED LIABILITY COMPANY, and SYNGENTA HAWAIʿI, LLC, A LIMITED LIABILITY COMPANY:

     Paul Alston and Timothy H. Irons of Dentons US LLP

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 06/06/24.

NOTE:     Order assigning Circuit Judge Kirstin M. Hamman, in place of Ginoza, J., recused, filed 07/26/24.

NOTE:     Order accepting Application for Writ of Certiorari, filed 07/30/24.

NOTE:     Order granting motion to postpone Oral Argument to a later date filed 08/12/24.

NOTE:     Amended Notice of Setting for Oral Argument, now rescheduled to 09/26/24 at 2:00 PM, filed 08/13/24. 

COURT:    Recktenwald, C.J., McKenna, Eddins, and Devens, JJ., and Circuit Judge Hamman, in place of Ginoza, J., recused.

Brief Description:

This appeal arises out of the Board of Land and Natural Resource’s (“BLNR”) issuance of a new revocable permit (“RP”) to Syngenta Hawaii, LLC (“Syngenta Hawaii”) for use of state land in Kekaha, Kauaʿi, without requiring an enviromental assessement (“EA”). 

In 1981, Kekaha Sugar Company (“Kekaha Sugar”) submitted a Conservation District Use (“CDU”) application to use state land for “[f]arming operation[s] necessary to raise sugar cane.”  Kekaha Sugar also requested that Pride Company, Inc. (“Pride”) join Kekaha Sugar in the use of a portion of the parcel for seed research operation purposes.  In 1983, BLNR issued RPs to Kekaha Sugar and Pride pursuant to HRS § 171-55.  RP S-5966 was issued to Kekaha Sugar, permitting 17.6 acres for “cane seed cultivation.”  RP S-5983 was issued to Pride, permitting 43.6 acres for “corn seed cultivation.”  No EA was prepared.  

In 1993, BLNR consented to the assignment of RP S-5983 (43.6 acres) from Pride to Northrup King, Co., which eventually changed its name to Syngenta Seeds, Inc. 

In 2001, Kekaha Sugar surrendered RP S-5966 for the other 17.6 acres.  The Agribusiness Development Corporation (“ADC”) thought it controlled the 17.6 acres and issued a license to Syngenta in 2007.  In 2015, Syngenta Seeds, Inc. converted to Syngenta Seeds, LLC, which then formed Syngenta Hawaii as a wholly-owned subsidiary.

In 2017, Syngenta sought a name change for RP S-5983 from Syngenta Seeds to Syngenta Hawaii.  During its review of the name change, Department of Land and Natural Resources (“DLNR”) staff discovered that RP S-5983 only authorized Syngenta to occupy 43.6 acres, although it had been using the full 61.2 acres. 

In February of 2017, DLNR staff recommended that BLNR authorize cancellation of RP S-5983 to Syngenta Seeds and issue a new RP to Syngenta Hawaii covering the entire 61.2 acres.  The staff submittal also recommended that the new RP be exempted from preparation of an environmental assessment (“EA”) on the grounds that “this project will probably have minimal or no significant effect on the environment[.]”  BLNR unanimously approved DLNR’s recommendations.

Community organizations challenged the new RP and the EA exemption.  The environmental court of the Fifth Circuit granted summary judgment in favor of Sygenta.  The Intermediate Court of Appeals (“ICA”) vacated the enviromental court’s decision and remanded for a determination of factual issues regarding whether an exemption applied. 

On certiorari, the community organizations assert that remand was improper because the question of whether an exemption applies is a matter of law for appellate courts to determine.