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Electronically Filed
Supreme Court
SCWC-13-0000182
06-OCT-2016
08:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
KILAKILA ʻO HALEAKALᾹ,
Petitioner/Plaintiff/Appellant-Appellant,
vs.
UNIVERSITY OF HAWAIʻI and DAVID LASSNER, in his official capacity
as Chancellor of the University of Hawaiʻi at Manoa; BOARD OF
LAND AND NATURAL RESOURCES, SUZANNE CASE, in her capacity as the
Chairperson of the Board of Land and Natural Resources; and
DEPARTMENT OF LAND AND NATURAL RESOURCES,
Respondents/Defendants/Appellees-Appellees.1
SCWC-13-0000182
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000182; CIVIL NO. 10-1-2510)
OCTOBER 6, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
1
Chancellor of the University of Hawaiʻi at Manoa David Lassner was
automatically substituted as respondent/defendant/appellee-appellee in place
of former Chancellor Robert Bley-Vroman. State of Hawaiʻi Board of Land and
Natural Resources (BLNR) chairperson Suzanne Case was automatically
substituted as a respondent/defendant/appellee-appellee in place of former
BLNR chairperson William J. Aila, Jr., who was sued in his official capacity.
Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2010).
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I. Introduction
Haleakalā, on the island of Maui, has been a site of
great historical and cultural importance to Native Hawaiians for
more than one thousand years. Today, many consider Haleakalā as
the most sacred place on Maui where numerous cultural practices
continue, including religious ceremonies and prayer. The summit
of Haleakalā is also considered as one of the premier locations
for astronomical research in the world and has been used for
such purposes for over fifty years. An 18.166 acre area set
aside for astronomical research (Observatory Site) is located
within a conservation district near the summit of Haleakalā.2
In 2004, a National Science Foundation working group
identified the Observatory Site as the location for constructing
a new telescope, the Advanced Technology Solar Telescope
(Telescope Project). Under the applicable administrative rules,
approval of a management plan for the Observatory Site was a
prerequisite for construction of the Telescope Project. The
University of Hawaiʻi (UH) prepared a Management Plan containing
guidelines and management strategies that apply to all
facilities within the astronomical site area. An environmental
assessment of the Management Plan was conducted to evaluate
2
Under the Governor’s Executive Order No. 1987, the Observatory
Site is under the control and management of the University of Hawaii’s Board
of Regents.
2
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environmental impacts that may result from implementing the
Management Plan. UH concluded that the Management Plan would
not have a significant environmental impact and that, therefore,
an environmental impact statement was not required under the
Hawai#i Environmental Policy Act (HEPA). The Management Plan was
then approved by the Board of Land and Natural Resources (BLNR).
Kilakila ʻO Haleakalā (Kilakila), an organization that
strives to protect the sacredness of the Haleakalā summit,
initiated a court action to challenge UH’s finding that the
Management Plan would have no significant impact on the
environment. Kilakila maintained that the environmental
assessment did not comply with HEPA and that it did not consider
the Telescope Project as a component of the Management Plan, nor
as a secondary and cumulative impact of the Management Plan.
During the pendency of its court challenge, Kilakila
filed discovery requests seeking to obtain documents and
admissions from UH and the Department of Land and Natural
Resources (DLNR) relating to the environmental assessment. UH
and DLNR sought a protective order regarding Kilakila’s
discovery requests, arguing that judicial review under HEPA is
limited to the record before UH at the time it rendered its
determination that the Management Plan would not have a
significant impact upon the environment. The Circuit Court of
3
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the First Circuit (circuit court) granted the protective order
without prejudice to subsequent discovery requests.
On certiorari, Kilakila argues that the circuit court
erred by limiting its judicial review to the administrative
record considered by UH. Kilakila also contends that the
circuit court’s determination that the environmental assessment
for the Management Plan complied with HEPA was flawed as the
environmental assessment failed to consider significant impacts
of the plan and that, consequently, the court further erred in
ruling that an environmental impact statement was not required.
Upon review of the issues presented, we hold that in a
declaratory action brought to challenge an agency’s
determination that an environmental impact statement is not
required, judicial review is not restricted to an administrative
record. However, the circuit court in this case did not err
because the parties were permitted to submit documents beyond
those contained within the agency record, and the court did not
foreclose further discovery requests by Kilakila.
Additionally, we conclude that the environmental
assessment for the Management Plan complied with procedures
under HEPA and did not fail to properly consider the Telescope
Project. Because UH’s conclusion that the Management Plan would
not cause significant environmental impacts is not clearly
erroneous, an environmental impact statement was not required.
4
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Consequently, the circuit court did not err in granting summary
judgment in favor of UH and the DLNR and in denying summary
judgment to Kilakila. Accordingly, the Intermediate Court of
Appeals’ Judgment on Appeal is affirmed for the reasons stated
herein.
II. Background
A. Management Plan
The Hawaiʻi Administrative Rules (HAR) in this case
required approval of a management plan for the Observatory Site
in order to construct the Telescope Project within the
conservation district on Haleakalā.3 See HAR § 13-5-22, -24, -25
(effective 1994-2010).4 The required contents of the management
plan included (1) a description of the proposed land use in
general terms; (2) a description of how the proposed land use is
consistent with the purpose of the conservation district and the
property’s subzone; (3) a location map; (4) a discussion of
3
Under the 1994 version of the HAR, which were in effect at the
relevant time period in this case, a “management plan” was defined as “a
comprehensive plan for carrying out multiple land uses.” HAR § 13-5-2
(effective 1994-2010).
4
HAR § 13-5-22(b) provided that “[i]dentified land uses beginning
with the letter (D) require a board permit, and where indicated, a management
plan.” HAR § 13-5-22(b)(4). HAR § 13-5-24 set forth permitted land uses in
a resource subzone, including “[a]stronomy facilities under an approved
management plan.” HAR § 13-5-24. HAR § 13-5-25 extended the permitted uses
of resource subzones to the general subzone, unless otherwise noted. HAR §
13-5-25(a).
5
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existing conditions on the parcel;5 (5) the proposed land use and
its relationship to other existing and proposed land uses; (6) a
site plan showing the location of all existing and proposed land
uses; (7) the expected timing of the project; (8) monitoring
strategies; (9) an environmental assessment; (10) steps to
ensure that historic preservation concerns were met; and (11) a
reporting schedule. HAR Chapter 13-5, Exhibit 3 (Sept. 6,
1994).6
UH issued its Management Plan for the Observatory Site
in March 2010, replacing the Long Range Development Plan (Long
Range Plan) that had been implemented in 2005 to manage the
Observatory Site. The Management Plan retained many of the
management strategies and guidelines, as well as the overall
objectives, set forth in the Long Range Plan. To fulfill the
objectives of the Management Plan and Long Range Plan, both
contain specific guidelines and strategies that apply to
astronomical facilities within the Observatory Site. For
example, under both the Management Plan and Long Range Plan, the
5
The management plan was required to address, inter alia,
ownership, resources (e.g. biological, archaeological, geological), the
presence of threatened or endangered species, constraints (e.g. flood plain,
tsunami, volcanic, topography), existing land uses, existing conservation
district use permits, access, and soils. HAR Chapter 13-5, Exhibit 3 (Sept.
6, 1994).
6
The amended rules for the required contents of a management plan,
effective August 12, 2011, deleted reference to an environmental assessment.
HAR Chapter 13-5, Exhibit 3 (Aug. 12, 2011).
6
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overall objective for managing the astronomical facilities in
the Observatory Site is to create a structure for sustainable,
focused management of the resources and operations of the
Observatory Site in order to (1) protect historic, cultural, and
natural resources within the site area; (2) protect and enhance
education and research in the site area; and (3) provide the
opportunity for future expansion of the scope of activities at
the Observatory Site, where appropriate.
An environmental assessment of the Management Plan was
then prepared to evaluate potential environmental impacts from
implementing the Management Plan. As discussed below, UH’s
review of the environmental assessment was governed by HEPA and
the applicable administrative rules.
B. Hawaiʻi Environmental Policy Act
The Hawaiʻi Environmental Policy Act of 1974 (HEPA),
Chapter 343 of the Hawaiʻi Revised Statutes (HRS), establishes “a
system of environmental review which will ensure that
environmental concerns are given appropriate consideration in
decision making along with economic and technical
considerations.” HRS § 343-1 (1993). HEPA is intended to
“integrate the review of environmental concerns with existing
planning processes” and to “alert decision makers to significant
environmental effects which may result from the implementation
of certain actions.” Id. As with the National Environmental
7
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Policy Act of 1969 (NEPA),7 HEPA serves primarily as a procedural
framework under which an agency may evaluate and consider the
environmental, social, and economic factors of a proposed action
prior to taking action. See Sierra Club v. Dep’t of Transp.,
115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007). Through the HEPA
review process, “environmental consciousness is enhanced,
cooperation and coordination are encouraged, and public
participation during the review process benefits all parties
involved and society as a whole.” HRS § 343-1.
HEPA’s basic framework entails several review stages
by the proposing or accepting agency, each of which may require
additional assessment procedures. Sierra Club, 115 Hawaiʻi at
306, 167 P.3d at 299. First, a determination must be made as to
whether a project or an action is subject to the environmental
review process under HEPA. Id. An action or project is subject
to HEPA if (1) it is initiated by a government agency or by a
private entity and requires government approvals for the project
or action to proceed and (2) it proposes one or more of nine
enumerated land uses or administrative acts set forth in HRS
Chapter 343. Id. These land uses or administrative acts
include those that propose (1) the use of State or county lands
7
HEPA was patterned after the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. § 4321 et seq. (2015). See Sierra Club v. Dep’t of
Transp., 115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007).
8
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or funds or (2) any use within a conservation district.
HRS § 343-5(a)(1), (2) (Supp. 2009).
If an action is subject to environmental review under
HRS § 343-5(a) and is not declared exempt, the applicant of the
proposed project or action must develop a draft environmental
assessment. Sierra Club, 115 Hawaiʻi at 307, 167 P.3d at 300.
An environmental assessment is “an informational document
prepared by either the agency proposing an action or a private
applicant, which is used to evaluate the possible environmental
effects of a proposed action.” Id. An environmental assessment
must include the following: (1) a detailed description of the
proposed action or project; (2) an evaluation of the direct,
indirect, and cumulative impacts; (3) a discussion of
alternatives to the proposed project or action; and (4) a
description of any measures proposed to minimize potential
impacts. See id.; see also HRS § 343-2 (1993). Upon completion
of a draft environmental assessment, a thirty-day period begins
for review and comment by the public. See Sierra Club, 115
Hawaiʻi at 308, 167 P.3d at 301.
After this review period, the applicant responds to
public comments and finalizes the draft environmental
assessment. See id. At this point, the agency proposing or
approving the action reviews the final environmental assessment
to determine whether the proposed action could have a
9
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significant impact on the environment.8 HRS § 343-2; HAR § 11-
200-2 (1996); see also Sierra Club, 115 Hawaiʻi at 308, 167 P.3d
at 301. A “significant impact” is defined as follows:
the sum of effects on the quality of the environment,
including actions that irrevocably commit a natural
resource, curtail the range of beneficial uses of the
environment, are contrary to the state’s environmental
policies or long-term environmental goals and guidelines as
established by law, or adversely affect the economic or
social welfare, or are otherwise set forth in section 11-
200-12 of this chapter.
HAR § 11-200-2. Generally, ecological, aesthetic, historic,
cultural, economic, social, or health “effects” are considered.
Id. “Effects” may also include those “resulting from actions
which may have both beneficial and detrimental effects, even if
on balance the agency believes that the effect will be
beneficial.” Id. In evaluating the impacts of a proposed
action, consideration must be given to “every phase of a
proposed action, the expected consequences, both primary and
secondary, and the cumulative as well as the short-term and
long-term effects of the action.”9 HAR § 11-200-12(b) (1996).
Additionally, the agency must consider thirteen instances where
an action shall be determined, “in most instances,” to have a
significant impact on the environment. HAR § 11-200-12(b).
8
The terms “impacts” and “effects” are synonymous and are used
interchangeably throughout HEPA. HAR § 11-200-2 (1996).
9
Under the HAR, the terms “primary impact” and “direct impact” are
interchangeable. HAR § 11-200-2. “Secondary impact” and “indirect impact”
are also interchangeable. Id.
10
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Upon completion of the final environmental assessment,
if the reviewing agency determines that the proposed action is
likely to cause a significant impact on the environment, an
environmental impact statement must be prepared. Price v.
Obayashi Haw. Corp., 81 Hawaiʻi 171, 180, 914 P.2d 1364, 1373
(1996). Alternatively, if the reviewing agency determines that
the proposed action will not result in a significant
environmental impact, then the agency must issue and publish a
finding of no significant impact (i.e., a negative declaration)
in the Office of Environmental Quality Control’s bulletin prior
to implementing or approving the action. See HRS § 343-2
(defining a “finding of no significant impact” as “a
determination that the subject action will not have a
significant effect and, therefore, will not require the
preparation of an environmental impact statement”); HAR § 11-
200-2 (stating that a “negative declaration is required prior to
implementing or approving the action”). Publication of a
negative declaration initiates a thirty-day period during which
that determination may be challenged through litigation.10 See
HRS § 343-7(b) (1993).
10
Under HEPA, an aggrieved party may bring a legal challenge at
three distinct phases of environmental review: “(1) when no [environmental
assessment] is prepared, (2) when an agency determines that an environmental
impact statement will or will not be required, and (3) when an [environmental
impact statement] is accepted.” Sierra Club, 115 Hawai#i at 308, 167 P.3d at
301; see HRS § 343-7.
11
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C. Environmental Assessment of the Management Plan
An environmental assessment of the Management Plan was
prepared as required by HEPA.11 On March 1, 2010, UH issued a
draft environmental assessment and solicited public comment. On
October 22, 2010, UH sent a letter to the Office of
Environmental Quality Control, stating that it found the
Management Plan would have no significant environmental impact.
Thereafter, on October 25, 2010, UH issued its final
environmental assessment (EA).
The executive summary of the EA stated that “the
purpose of the environmental assessment was to inform the
relevant state agencies and the public of the likely
environmental consequences of the [Management Plan] on ongoing
and future actions at [the Observatory Site] in support of
astronomical research.” The EA evaluated the environmental
effects that might occur as a result of implementing the
Management Plan’s site management strategies and guidelines.12
The EA considered proposed practices at the site area that
11
The parties debated whether an environmental assessment was
required for the Management Plan or whether it was exempt from HEPA as a
planning document under HRS § 343-5(b). The final environmental assessment
states that it was “trigger[ed]” under HEPA because it involved the use of
State funds and the use of conservation district lands.
12
The Management Plan generally included monitoring and management
strategies for (1) astronomical and space surveillance experiments, (2)
requirements for new facility design, construction, and operation, and (3)
the replacement of Observatory Site facilities in support of long-term
science investigation.
12
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included the following: weeding of the Observatory Site; vector
control for rodents; soil and erosion control to maintain
habitat ecosystems; nighttime lighting restrictions to prevent
misdirecting ʻuaʻu; and frequent removal of trash to prevent
predators from obtaining food sources. Additional strategies
set forth in the Management Plan for managing environmental
resources were evaluated, including practices for reducing dust
and emissions if construction equipment is used and prohibitions
on the importation of fill material, unless sterilized. The EA
also reviewed the Management Plan’s strategies related to
cultural resources, such as placing a sign welcoming Native
Hawaiians to practice traditional cultural practices within the
Observatory Site; mandating cultural training for all personnel
working within the Observatory Site; and engaging a cultural
specialist for any construction requiring a permit from DLNR.
The EA was limited to evaluating the Management Plan
for activities that would be undertaken at the Observatory Site
“in support of ongoing and future astronomical research
activities.”13 The EA expressly indicated that its evaluation of
the Management Plan was not intended to assess impacts from the
construction or operation of any new project at the Observatory
13
The EA provided a comparative summary of the potential impacts
for both the implementation of the Management Plan and the no-action
alternative of not implementing the Management Plan.
13
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Site or to authorize any construction at the Observatory Site.14
Rather, the EA stated that a separate evaluation for potential
impacts to resources within the Observatory Site was required
for any new proposed project within the site area. The EA also
noted that the relevant State agencies and the public would be
informed of the environmental consequences of any new proposed
project within the Observatory Site.
The EA concluded that implementing the Management Plan
would result in no impact to “land use and existing activities,
topography, geology and soils, infrastructure and utilities,
climatology and air quality, and socioeconomics.” However, the
EA noted that the presence of facilities and ongoing operations
at the Observatory Site would impact cultural resources. The EA
stated that some believe any man-made structures or activities
in the site area would have adverse impacts on the sacredness of
the summit area at Haleakalā. Considering this view and others,
the EA concluded that, while some Native Hawaiians would not
consider the Management Plan as beneficial, the impact of
implementing the Management Plan on cultural and historic
14
The EA explained that “future actions, which are not the subject
of this [Management Plan], may include developing” (1) facilities and
experiments dedicated to searching for and characterizing planets around the
sun and other stars; (2) facilities and experiments devoted to the study of
oscillations and stellar activity in other stars; and (3) experiments that
study the sun and its outer atmosphere.
14
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resources would be less than significant.15 The EA found that
while the Management Plan’s practices and procedures were
intended to be helpful and to reduce adverse impacts from the
routine management of the Observatory Site, the cumulative
impact of the Management Plan, along with past and ongoing
actions, would still be adverse to cultural and historic
resources but less than significant. That is, the Management
Plan would “not substantially contribute to the adverse impacts
from past, present, and reasonably foreseeable future activities
on cultural resources” and would “not combine with any other
actions to produce incrementally different impacts on historic
or archeological resources.”
Although the EA stated that the Management Plan would
have no significant impact, the EA also concluded that future
projects at the Observatory Site could result in significant
impacts. For example, the EA found that future projects may
have adverse impacts on the stormwater and drainage system, the
roadways and traffic, noise levels and the visual character of
the site area, even though the Management Plan would result in
some beneficial impacts on these resources. Additionally, the
15
The EA noted that the current ambient noise level within the
Observatory Site is low but observed that “cultural practitioners within the
immediate vicinity of a noise source could be disturbed.” However, the EA
stated that most noise disturbances are “low level discrete events” and thus
the current noise levels are compatible with existing activities.
15
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EA noted that “there was overwhelming evidence, from a cultural
and traditional standpoint, that construction of a large,
visible structure at [the Observatory Site] would result in a
significant impact on some Native Hawaiian traditional cultural
practices and beliefs.” The EA thus observed that the
construction of new facilities affecting cultural resources
would be individually analyzed with separate environmental
documentation completed for each new project.
Based on the EA’s analysis, UH determined that
implementing the Management Plan would “either have beneficial,
less than significant, or no impacts” at the Observatory Site.
In light of its determination that the Management Plan would
have no significant environmental impact, UH did not prepare an
environmental impact statement.
On November 22, 2010, BLNR held a hearing concerning
the Management Plan and a conservation district use application
for the Telescope Project.16 On December 1, 2010, BLNR held a
second hearing, in which both the Management Plan and the
conservation district use application were “taken together” but
16
In addition to an approved management plan, approval of the
Telescope Project within the conservation district required a conservation
district use permit. Kilakila is challenging BLNR’s issuance of the permit
for the Telescope Project in a separate case before this court.
According to the minutes from the hearing, a DLNR employee stated
that “[s]taff is here to see the Board’s approval of the Management Plan. We
will then discuss the proposed [Telescope] Project which will be the first
telescope approved under the Management Plan that the Board is considering.”
16
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“voted [upon] separately.” At this hearing, BLNR approved the
Management Plan with one amendment requiring a report in five
years.
D. Court Proceedings
On November 22, 2010, prior to BLNR’s approval of the
Management Plan, Kilakila filed a complaint in the circuit court
seeking declaratory and injunctive relief against UH,17 BLNR, and
DLNR.18 The complaint sought to “ensure the preparation of an
[environmental impact statement] for the [Management Plan],”
contending that UH improperly concluded that the Management Plan
would have no significant impact and thus UH’s actions violated
HEPA.19 UH and DLNR denied that the EA improperly concluded that
the Management Plan would have no significant impact or that UH
violated HEPA.
17
Kilakila named Virginia Hinshaw, Chancellor of UH, in her
official capacity as Chancellor of UH, as a defendant. During the pendency
of this case, Thomas M. Apple succeeded Virginia Hinshaw, and Robert Bley-
Vroman succeeded Thomas M. Apple as Chancellor of UH.
18
Laura Thielen was additionally named in her official capacity as
Chair of BLNR. She was succeeded by William Aila, who was then succeeded by
Suzanne D. Case, during the pendency of this case.
19
Kilakila prayed for the following relevant relief: (1) a
declaration that UH violated HRS Chapter 343; (2) a declaration that UH must
prepare an environmental impact statement for the Management Plan; (3) a
declaration that UH improperly accepted the EA for the Management Plan; (4) a
declaration that the Management Plan “may have a significant impact”; (5) a
declaration that “any permits granted pursuant to the EA for the [Management
Plan] are null and void”; (6) a declaration that the Management Plan was null
and void; and (7) a declaration that all permits granted pursuant to the
Management Plan, “including the [permit] for the Telescope Project, are null
and void.”
17
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1. Discovery Requests and Protective Order
Kilakila made a series of discovery requests to UH and
DLNR attempting to authenticate documents prepared by UH and to
obtain admissions from UH as to various statements that were
made in the documents. Kilakila also sought “to obtain all
relevant documents” and “attempted to discover the factual basis
of all of [UH’s] defenses.” DLNR, UH, and Kilakila met and
conferred in an effort to resolve the dispute over Kilakila’s
discovery requests. UH and DLNR maintained that the case must
be decided based only on the record before UH when it made its
finding of no significant impact. Kilakila was informed that UH
was preparing an administrative record that would be filed in
circuit court, which could be supplemented upon further
agreement of the parties.
UH then moved for a protective order, pursuant to
Hawai#i Rules of Civil Procedure (HRCP) Rule 26(c),20 as to “all
20
HRCP Rule 26(c) provides, in pertinent part,
Protective Orders. Upon motion by a party or by the person
from whom discovery is sought, accompanied by a
certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort
to resolve the dispute without court action, and for good
cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the
court in the circuit where the deposition is to be taken may
make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense . . . .
HRCP Rule 26.
18
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outstanding discovery directed to [UH] by [Kilakila] and any
subsequently filed requests.” UH argued that its motion for
protective order should be granted because the question of
whether UH complied with HEPA was a question of law that
required no factual determinations. UH contended that HEPA does
not permit discovery beyond an administrative record and that
Kilakila therefore “should not be permitted discovery into
issues not before the agency at the time it made its decision.”
DLNR joined the motion and separately argued that Kilakila’s
discovery requests “seek irrelevant and intrusive information
and will not lead to the discovery of admissible evidence.”
After filing the motion for protective order, UH filed
an Administrative Record pertaining to its review of the EA,
which contained the following documents: the draft environmental
assessment for the Management Plan; the published notice of the
draft environmental assessment by the Office of Environmental
Quality Control; a letter from Virginia Hinshaw, then-Chancellor
of UH, to the Director of the Office of Environmental Quality
Control, containing UH’s finding of no significant impact on the
environment for the Management Plan; the EA for the Management
Plan; and the Notice of the EA published by the Office of
Environmental Quality Control. The draft Management Plan, the
final Management Plan, and a series of post-Long Range Plan
19
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studies regarding the Observatory Site were attached as
appendices to the Administrative Record.21
In response to the motion for protective order,
Kilakila argued that it would be an abuse of discretion for the
circuit court to grant a blanket ban on discovery without
balancing the “need for the information against the injury that
might result if uncontrolled disclosure is permitted.”22
Kilakila contended that the circuit court’s review should not be
limited to the Administrative Record because this case was not
an HRS Chapter 91 contested case appeal.
In its reply, UH asserted that the Administrative
Record contained all of the information that UH had considered
in making its determination under HRS Chapter 343 and the
relevant HAR. UH further contended that discovery was not
necessary because Kilakila already had in its possession the
documents sought as Kilakila had attached those documents to its
response to the motion for protective order. After a hearing,
the circuit court granted UH’s motion for protective order
21
A number of studies were conducted at the Observatory Site,
including an archeological recovery plan, a stormwater management plan, a
2007 supplemental anthropod inventory and a 2009 anthropod study, a
supplemental cultural impact assessment, and a botanical survey.
22
Attached to Kilakila’s response were selected portions of the
environmental impact statement for the Telescope Project.
20
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(Protective Order) “without prejudice to any future discovery
requests” by Kilakila.
2. Motions for Summary Judgment
Each of the parties then filed a motion for summary
judgment (MSJ).23 In its MSJ, Kilakila contended that HEPA’s
implementing rules identify three types of impacts on the
environment--direct, secondary, and cumulative--and that each
must be assessed to ensure that all possible impacts of a
project are considered. Kilakila argued that by failing to
consider the Telescope Project as a direct, secondary, and
cumulative impact of the Management Plan, the EA ignored
significant impacts and improperly segmented the required
analysis under HEPA. Kilakila concluded that the circuit court
should grant its MSJ because the Management Plan would likely
have a significant impact on the environment and, consequently,
required the preparation of an environmental impact statement.
In its MSJ,24 UH argued that it had followed the proper
procedures under HEPA and that the EA provided sufficient
23
The parties attached exhibits to their respective MSJ, responses,
or replies that went beyond the Administrative Record. For example, UH
attached the Long Range Plan to its reply. For its MSJ, Kilakila attached,
inter alia, the Telescope Project’s environmental impact statement and
declarations from two individuals. Kilakila also attached to its memorandum
in opposition to UH’s MSJ, inter alia, a DLNR Staff Submittal on the
Telescope Project and minutes of two BLNR meetings.
24
In its MSJ, DLNR substantively joined UH’s MSJ. DLNR
additionally argued that an environmental assessment was not required because
the Management Plan was a planning document and that DLNR was not a necessary
(continued. . .)
21
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information to permit informed decision-making. UH also
asserted that the Telescope Project was not a direct or
secondary impact of the Management Plan and maintained that the
EA properly considered the cumulative impacts of the Management
Plan’s implementation--that is, the incremental impact of the
Management Plan when added to other past, present, and
reasonably foreseeable actions. UH contended that the
incremental impact of the Management Plan would be less than
significant and, on the whole, beneficial to the environment.
After a hearing on the parties’ MSJs, the circuit
court granted UH’s MSJ and DLNR’s MSJ and denied Kilakila’s MSJ
(MSJ Order).25 In the MSJ Order, the circuit court found that
the Management Plan is a guideline and planning tool that sets
forth certain policies and monitoring strategies applicable to
future actions. The circuit court determined that the
Management Plan does not authorize specific projects, such as
the Telescope Project, and that future projects would require
their own environmental review. The circuit court concluded
that, under the rule of reason standard set forth in Hawaiʻi case
law, the EA for the Management Plan complied with HRS Chapter
(. . .continued)
or proper party to the litigation. These arguments are not presented in
DLNR’s response to the application for writ of certiorari, and thus they are
not addressed.
25
The Honorable Rhonda Nishimura presided.
22
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343 and that preparation of an environmental impact statement
was not required. The circuit court entered final judgment.
Kilakila timely appealed, arguing that the circuit court erred
in granting the Protective Order and erred in granting UH’s and
DLNR’s respective MSJs while denying Kilakila’s MSJ.
3. ICA Opinion
The ICA, in a published opinion, held that the circuit
court did not err by concluding that the EA complied with HRS
Chapter 343 and that an environmental impact statement was not
required. Kilakila ʻO Haleakalā v. Univ. of Haw., 134 Hawaiʻi
86, 94-98, 332 P.3d 688, 696-700 (App. 2014). The ICA also held
that the circuit court did not abuse its discretion in granting
the Protective Order because “[w]hether the Management Plan’s EA
and its Negative Declaration complied with HRS Chapter 343 is a
question of law that does not require factual determinations
beyond the administrative record.” Id. at 98-99, 332 P.3d at
700-01. Accordingly, the ICA affirmed the circuit court’s
Protective Order, MSJ Order, and final judgment. Id. at 99, 332
P.3d at 701.
III. Standards of Review
A. Motion for Summary Judgment
Hawaiʻi appellate courts review an award of summary
judgment de novo under the same standard applied by the circuit
23
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court. Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230,
1232-33 (2011). That standard has been articulated as follows:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Kepoo v. Kane, 106 Hawaiʻi 270, 287, 103 P.3d 939, 956 (2005)
(quoting Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264,
1270 (1983)). “A fact is material if proof of that fact would
have the effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties.” Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719
(2001) (quoting Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61,
647 P.2d 713, 716 (1982)). The moving party bears the burden of
demonstrating that there is no genuine issue as to any material
fact with respect to the essential elements of the claim or
defense and must prove that the moving party is entitled to
judgment as a matter of law. French v. Haw. Pizza Hut, Inc.,
105 Hawaiʻi 462, 470, 99 P.3d 1046, 1054 (2004). This court must
review the evidence and inferences in the light most favorable
to the non-moving party. Thomas, 126 Hawaiʻi at 128, 267 P.3d at
1233.
In cases of public importance, a circuit court should
grant a motion for summary judgment “sparingly, and never on
limited and indefinite factual foundations.” Molokai
24
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Homesteaders Coop. Ass’n v. Cobb, 63 Haw. 453, 458, 629 P.2d
1134, 1139 (1981). However, if there is no genuine issue as to
any material fact and the moving party clearly demonstrates that
they should prevail as a matter of law, then summary judgment is
proper. Id.
B. Review Under HEPA
For agency determinations under HEPA, “the appropriate
standard of review depends on the specific question under
consideration.” Sierra Club v. Dep’t of Transp., 115 Hawaiʻi
299, 315, 167 P.3d 292, 308 (2007). Generally, a court reviews
agency determinations that involve factual questions under a
clearly erroneous standard. Id. at 315, 167 P.3d at 308; see
also Del Monte Fresh Produce (Haw.), Inc. v. Int’l Longshore and
Warehouse Union, 112 Hawaiʻi 489, 499, 146 P.3d 1066, 1076 (2006)
(“[An agency’s] conclusion of law that presents mixed questions
of fact and law is reviewed under the clearly erroneous standard
because the conclusion is dependent upon the facts and
circumstances of the particular case.”). However, “[w]hether or
not an agency has followed proper procedures or considered the
appropriate factors in making its determination is a question of
law, and will be reviewed de novo.” Sierra Club, 115 Hawaiʻi at
315, 167 P.3d at 308.
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IV. Discussion
In its application for writ of certiorari, Kilakila
appeals the ICA’s affirmance of the MSJ Order, arguing that the
ICA opinion is flawed because judicial review is not confined to
an administrative record in cases of this nature. Kilakila
additionally contends that (1) the ICA erred in concluding that
UH complied with HEPA and HAR § 11-200-12 when UH made its
negative declaration for the EA and (2) UH’s conclusion that the
Management Plan would not have a significant environmental
impact is clearly erroneous. Kilakila specifically argues that
because the Telescope Project would have a significant impact
and is a component, secondary, and cumulative impact of the
Management Plan, UH is required to prepare an environmental
impact statement for the Management Plan.
A. Scope of Judicial Review under HEPA
The ICA held that the circuit court did not abuse its
discretion in granting the Protective Order because whether the
EA complied with HRS Chapter 343 was a question of law that did
not require review beyond the Administrative Record. Kilakila,
134 Hawaiʻi at 98-99, 332 P.3d at 700-01. Kilakila argues that
the ICA’s opinion is flawed because an administrative record
does not exist in cases of this nature and there is nothing in
HEPA, the Hawaiʻi Rules of Civil Procedure, or the Rules of
Circuit Court that prohibits presenting evidence related to a
26
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motion for summary judgment. Kilakila contends that confining
review to an administrative record “sets a dangerous precedent”
for future litigation under HEPA and that restricting judicial
review to the administrative record limited the ICA’s analysis
by allowing the court “to ignore the significant impacts”
disclosed in the Telescope Project’s environmental impact
statement.
Kilakila brought this case as a declaratory action
under HRS § 632-1 (1993)26 and HRS § 343-7(b) (1993). Under
HRS § 343-7(b), “[a]ny judicial proceeding, the subject of which
is the determination that a[n] [environmental impact] statement
is not required for a proposed action, shall be initiated within
thirty days after the public has been informed of such
determination pursuant to section 343-3.” HRS § 343-7(b). The
term “administrative record” or its equivalent does not appear
26
HRS § 632-1 provides, in part,
Relief by declaratory judgment may be granted in civil
cases where an actual controversy exists between contending
parties, or where the court is satisfied that antagonistic
claims are present between the parties involved which
indicate imminent and inevitable litigation, or where in
any such case the court is satisfied that a party asserts a
legal relation, status, right, or privilege in which the
party has a concrete interest and that there is a challenge
or denial of the asserted relation, status, right, or
privilege by an adversary party who also has or asserts a
concrete interest therein, and the court is satisfied also
that a declaratory judgment will serve to terminate the
uncertainty or controversy giving rise to the proceeding.
HRS § 632-1.
27
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anywhere in HRS § 632-1 (declaratory judgment action), HRS
Chapter 343 (HEPA), or HAR § 11-200-1 et seq. (HEPA’s
implementing administrative rules). That is, none of these
statutes or rules prescribes limitations as to the extent of
discovery that is permitted in a declaratory judgment action
brought pursuant to HEPA or restricts a court’s consideration of
the issues to an administrative record.27
By contrast, judicial review of an appeal from a
contested case proceeding brought pursuant to HRS § 91-14 (Supp.
2004) “shall be confined to the record.” HRS § 91-14(f).28 The
record for a contested case appeal, prepared by the agency, must
include the following: (1) all pleadings, motions, and
intermediate rulings; (2) evidence received or considered,
including oral testimony, exhibits, and a statement of matters
officially noticed; (3) offers of proof and rulings thereon; (4)
proposed findings and exceptions; (5) report of the officer who
presided at the hearing; and (6) staff memoranda submitted to
members of the agency in connection with their consideration of
27
The only express restriction on an action brought under HEPA is
that in a judicial action brought to challenge the acceptance of an
environmental impact statement, the “contestable issues” are “limited to
issues identified and discussed in the written comment” during the
“designated review period.” HRS § 343-7(c).
28
The two exceptions to this requirement are in cases where a trial
de novo, including a trial by jury, is provided by law and in cases where the
record does not reflect alleged procedural irregularities before the agency;
in these situations, the court is authorized to receive testimony. HRS § 91-
14(f).
28
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the case. HRS § 91-9(e) (Supp. 2003). Thus, a circuit court
reviewing a contested case may not consider matters beyond the
administrative record because it acts as an appellate court, not
as a trial court considering a declaratory judgment action.29
See HRS § 91-14(g) (indicating that a circuit court reviewing a
contested case may affirm, remand, reverse, or modify the
decision and order of the agency); cf. Dep’t of Envtl. Servs. v.
Land Use Comm’n, 127 Hawaiʻi 5, 12, 275 P.3d 809, 816 (2012)
(noting that this court’s standard of review for “a decision
made by the circuit court upon its review of an agency’s
decision is a secondary appeal” in which this court “must
determine whether the circuit court was right or wrong in its
decision [by] applying the standards set forth in HRS § 91-14(g)
. . . to the agency’s decision” (quoting Save Diamond Head
Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawaiʻi 16, 24, 211
P.3d 74, 82 (2009))).
In contrast, a declaratory judgment action is an action
before the circuit court that affords the court “plenary”
authority and does not limit the scope of review vested in the
court. See Punohu v. Sunn, 66 Haw. 485, 487, 666 P.2d 1133,
1135 (1983) (“Since the scope of review vested in the circuit
29
The limited exception to this principle is stated supra in note
27.
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court in an appeal pursuant to § 91-14, HRS, is much more
limited than the court’s plenary authority in an original action
commenced before it, it would be anomalous to permit a
declaratory judgment action to be substituted for an appeal from
an agency determination in a contested case.”); see also
Hawaii’s Thousand Friends v. City and Cty. of Honolulu, 75 Haw.
237, 248, 858 P.2d 726, 732 (1993) (stating that although an
agency’s decision “carries a presumption of validity in a
generic agency appeal” under HRS § 91-14, the circuit court “was
not required to defer” to the agency’s determination on the
potential environmental impact of a project when considering a
petition for declaratory judgment under HRS § 632-1 and could
“make its own independent findings regarding the salient facts”
of the case).
This court has indicated that a reviewing court
considering a declaratory judgment action under HEPA is not
limited to an administrative record. Unite Here! Local 5 v.
City and Cty. of Honolulu, 123 Hawaiʻi 150, 231 P.3d 423 (2010),
which arose from the proposed expansion of a hotel resort for
which an 1985 environmental impact statement (EIS) had been
completed and accepted, considered whether the resort’s
subdivision application twenty years later triggered the need
for a supplemental EIS. Id. at 154, 231 P.3d at 427. In
reviewing whether a supplemental EIS should have been required,
30
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this court considered post-1985 EIS reports and studies
regarding traffic conditions, monk seals, and green sea turtles
that were not part of the agency record but were submitted to
the circuit court by the plaintiffs. Id. at 179, 231 P.3d at
452. Based on these extra-record reports and studies, which
constituted “new” evidence that was not originally disclosed and
not previously considered by the reviewing agency, this court
determined that a supplemental EIS should have been prepared and
reviewed. Id. Unite Here! indicated that its consideration of
these extra-record documents was consistent with the public
purpose underlying HEPA, which was to “ensure that environmental
concerns are given appropriate consideration in decision
making.” Id. at 180, 231 P.3d at 453.
Several federal courts have adopted a similar approach
in allowing judicial review beyond the administrative record for
actions arising under NEPA, the federal counterpart to HEPA.
See Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999)
(setting forth the requirements and purpose of NEPA as
justification for allowing judicial review of extra-record
evidence in NEPA cases); Sierra Club v. Hassell, 636 F.2d 1095,
1097-98 (5th Cir. 1981) (stating that a reviewing court must
review the administrative records as well as other evidence to
determine whether an agency adequately considered NEPA’s values
and the proposed project’s potential environmental effects
31
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before reaching a decision on whether an environmental impact
statement was necessary); Gulf Coast Rod Reel & Gun Club, Inc.
v. U.S. Army Corps of Eng’rs, No. 3:13:-CV-126, 2015 WL 1883522,
at *2 (S.D. Tex. Apr. 20, 2015) (indicating that allowing
judicial review beyond the administrative record is based on the
underlying requirements and purpose of NEPA, which calls for a
comparative inquiry).
The Fifth Circuit Court of Appeals has concluded that
consideration by the reviewing court of evidence beyond the
administrative record may be necessary to ensure that the record
available to the agency enabled a full discussion of the
environmental effects and alternatives.
To limit the judicial inquiry regarding the completeness of
the agency record to that record would, in some
circumstances, make judicial review meaningless and
eviscerate the very purposes of NEPA. The omission of
technical scientific information is often not obvious from
the record itself, and a court may therefore need a
plaintiff’s aid in calling such omissions to its attention.
Thus, we have held that the consideration of extra-record
evidence may be appropriate in the NEPA context to enable a
reviewing court to determine that the information available
to the decisionmaker included a complete discussion of
environmental effects and alternatives.
Peterson, 185 F.3d at 370 (quoting Nat’l Audubon Soc’y v.
Hoffman, 132 F.3d 7, 14-15 (2d Cir. 1997)). Another federal
court similarly noted that “[d]eciding whether an agency has
sufficiently considered environmental impacts requires some
sense of the universe of information that was available for the
agency to consider,” which often necessitates consideration of
32
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other evidence, apart from the agency record, to ensure
effective judicial review. Gulf Coast Rod Reel & Gun Club,
Inc., 2015 WL 1883522, at *2; see also Davis Mountains Trans-
Pecos Heritage Ass’n v. Fed. Aviation Admin., 116 F. App’x 3, 12
(5th Cir. 2004) (noting that a reviewing court is not limited to
the agency record “where examination of extra-record materials
is necessary to determine whether an agency has adequately
considered environmental impacts under NEPA”).
Accordingly, in a declaratory action brought to
challenge an agency’s determination that an environmental impact
statement is not required, a reviewing court may consider other
evidence in addition to the agency record to determine whether
the agency decision-maker adequately considered the potential
environmental effects and alternatives for a particular project
or action.
We note that the record in this case indicates that
the parties were not restricted from attaching extra-record
evidence to their pleadings and, in fact, submitted exhibits
that went beyond the Administrative Record. Additionally, in
issuing the Protective Order, the circuit court did so “without
prejudice to future discovery requests,” and, consequently, the
Protective Order did not bar Kilakila from filing additional
33
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discovery requests.30 Further, the circuit court did not
restrict its review of the parties’ MSJs to the Administrative
Record. The circuit court based its ruling on the parties’ MSJs
and “the files and records herein” which, as noted, included
numerous documents submitted by the parties that were not part
of the Administrative Record. Accordingly, judicial review was
not restricted to the Administrative Record in this case.
B. Sufficiency of the Environmental Assessment
Kilakila maintains that the ICA erred in affirming the
circuit court’s MSJ Order because UH did not comply with the
procedures under HEPA and UH’s negative declaration is clearly
erroneous. Kilakila contends that the EA failed to consider the
Telescope Project as a component of the Management Plan and as a
secondary and cumulative impact of the Management Plan.
Kilakila also argues that the Administrative Record and other
evidence submitted to the circuit court by the parties raised a
genuine issue as to material facts that precluded the grant of
summary judgment in favor of UH and DLNR.
1. Single Action “Component” Analysis
As stated, Kilakila contends that the EA was deficient
because it failed to consider the effects of the Telescope
Project as a component of the Management Plan. Kilakila’s
30
Kilakila did not challenge the issuance of the Protective Order
in its application for writ of certiorari.
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contention appears to be that the Telescope Project is a
component of the Management Plan and therefore the two actions
constitute a single action under HAR § 11-200-7 (1996).31 A
group of discrete actions may require a collective environmental
assessment if the actions satisfy one of the four elements of
the single action test set forth in HAR § 11-200-7. Two or more
actions are to be treated as a single action if the component
actions “are phases or increments of a larger total
undertaking.” HAR § 11-200-7(1). Thus, if the effects of the
Telescope Project and Management Plan must be considered
together as a single action, then they cannot be improperly
segmented into separate environmental reviews, as this would
31
The single action test provides that a group of actions proposed
by an agency or applicant are to be treated as a single action when any of
the following apply:
(1) The component actions are phases or increments of a
larger total undertaking;
(2) An individual project is a necessary precedent for a
larger project;
(3) An individual project represents a commitment to a
larger project; or
(4) The actions in question are essentially identical and
a single statement will adequately address the
impacts of each individual action and those of the
group of actions as a whole.
HAR § 11-200-7. Although Kilakila did not cite to HAR § 11-200-7 in its
arguments before this court, Kilakila argued in its application for writ of
certiorari that the Telescope Project is a component of the Management Plan.
The other three statutory subsections providing for a group of actions to be
treated as a “single action” were not asserted by Kilakila.
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evade the preparation of an environmental impact statement for
the single action. See id.
In Kahana Sunset Owners Association v. County of Maui,
86 Hawai#i 66, 74, 947 P.2d 378, 386 (1997), this court applied
HAR § 11-200-7(1) to determine whether, for purposes of
environmental review under HEPA, a proposed drainage system and
a proposed residential development constituted a single action
and thus required a single environmental assessment. We held
that the proposed development and drainage system constituted a
single action under HAR § 11-200-7(1) because “[t]he proposed
drainage system is part of the larger [residential development]
project.” Id. The court explained that the drainage system
would have no “independent utility” and would not be constructed
without the residential development. Id. Consequently, the
drainage system and housing development were a “single action”
under HAR § 11-200-7, and a single environmental assessment was
required to evaluate the entire proposed development, i.e., the
combined impacts of both the drainage system and housing
development. Id.
In accordance with Kahana Sunset, in determining
whether a project is a “component” of another project and thus a
single action for the purposes of environmental review under
HEPA, consideration must be given as to whether the proposed
36
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action has independent utility from the other project.32 See id.
Here, it is clear from the record that the Management Plan has
independent utility from the Telescope Project. As discussed
above, the strategies and guidelines within the Management Plan
apply to the entire Observatory Site, which includes numerous
existing astronomical facilities. Additionally, many of the
strategies and guidelines within the Management Plan have been
previously implemented by the previous Long Range Plan,
indicating that the strategies have utility separate and
independent from the Telescope Project. Further, the management
and monitoring strategies within the Management Plan apply to
future development within the Observatory Site, including, but
not limited to, the Telescope Project.
Because the Management Plan’s strategies and
guidelines apply to the entire Observatory Site and may be
implemented regardless of whether the Telescope Project is
constructed, the Management Plan has independent utility from
the Telescope Project, and, consequently, the Telescope Project
and Management Plan do not constitute a “single action” under
HAR § 11-200-7(1).
32
To determine whether multiple actions should be treated as a
single action under NEPA, federal courts have applied a similar “independent
utility” test. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th
Cir. 2006). Under the “independent utility” test, “[w]hen one of the
projects might reasonably have been completed without the existence of the
other, the two projects have independent utility and are not ‘connected’ for
NEPA’s purposes.” Id.
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2. Secondary Impact Analysis
Kilakila further argues that the Telescope Project is
a secondary impact because the Management Plan “is a necessary
step in the authorization of the Telescope Project” and because
it facilitates the Telescope Project. Secondary impacts are
those “caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable,”
including “growth inducing effects and other effects related to
induced changes in the pattern of land use, population density
or growth rate, and related effects on air and water and other
natural systems, including ecosystems.” HAR § 11-200-2. In
arguing that the Telescope Project is a secondary impact of the
Management Plan, Kilakila relies, in part, on this court’s
analysis in Sierra Club v. Department of Transportation, 115
Hawai#i 299, 167 P.3d 292 (2007).
In Sierra Club, environmental groups brought a
challenge against the Department of Transportation’s (DOT)
determination that physical improvements to a harbor to
accommodate the Hawaiʻi Superferry were exempt from environmental
review under HEPA. Id. at 306, 167 P.3d at 299. The
environmental groups argued that DOT’s exemption determination
failed to consider the secondary effects from improving the
harbor, namely, the operation of the Superferry. Id. at 336,
167 P.3d at 329. This court found that DOT did not consider the
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secondary effects that may occur from operating the Superferry,
which were incident to and a consequence of the harbor
improvements. Id. at 341-42, 167 P.3d at 334-35. The court
noted that the harbor improvements were “necessary to
accommodate the Superferry project, including the construction
of a removable barge . . . and other improvements to assist in
Superferry operations.” Id. at 305, 167 P.3d at 298.
Accordingly, the court held that DOT failed to comply with HEPA
because the record showed that DOT did “not consider whether its
facilitation of the Hawaii Superferry Project will probably have
minimal or no significant impacts, both primary and secondary,
on the environment.” Id. at 342, 167 P.3d at 335.
In this case, in contrast to Sierra Club, where
improvements to the harbor were “necessary to accommodate the
Superferry project” and “to assist in Superferry operations,”
implementing the Management Plan imposes restrictions and
conditions on existing operations and future development within
the Observatory Site, including the Telescope Project. For
example, implementation of the Management Plan imposes nighttime
lighting restrictions within the Observatory Site and prohibits
any fill material at the site unless sterilized in order to
prevent the importation of non-native species. The
implementation of such strategies and requirements do not
39
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facilitate,33 or make easier, the Telescope Project; rather, they
impose conditions and restrictions on the construction and
operation of any present and future operations at the
Observatory Site.
Additionally, as noted, the Management Plan has
independent utility by providing guidelines and monitoring
strategies that universally apply to all ongoing and future
actions within the Observatory Site as long as the Management
Plan is in effect. Implementing such guidelines and strategies
will neither result in nor cause the construction or operation
of the Telescope Project. The Management Plan is operative
regardless of whether the Telescope Project is built. Thus, the
fact that the Management Plan is a requirement to obtain a
conservation district use permit for astronomical facilities
within a conservation district does not render the Telescope
Project as a secondary impact of the Management Plan.
3. Cumulative Impact Analysis
Kilakila’s last argument turns on whether the EA
properly considered the Telescope Project when evaluating the
Management Plan’s cumulative impact on the environment.
Kilakila maintains that because the environmental impact
33
As defined in Black’s Law Dictionary, “facilitate” means “To make
the occurrence of (something) easier; to render less difficult.” Black's Law
Dictionary (10th ed. 2014)
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statement for the Telescope Project concluded that the Telescope
Project would “result in major, adverse, short- and long-term,
direct impacts” on cultural resources, and because the Telescope
Project is a reasonably foreseeable future action, the
cumulative impact of the Management Plan cannot be less than
significant, and therefore, UH’s conclusion that the Management
Plan will not have a significant environmental impact is clearly
erroneous.
Under HEPA, “cumulative impacts” are the incremental
impacts from the proposed action: that is, the impacts from the
implementation of the Management Plan when added to other past,
present, and reasonably foreseeable future actions.34 HAR § 11-
200-2. “Cumulative impacts can result from individually minor
but collectively significant actions taking place over a period
of time.”35 Id. Accordingly, the EA was required to determine
whether the incremental impact of implementing the Management
34
NEPA provides a nearly identical definition of “cumulative
impacts” as HEPA does. See 40 CFR § 1508.7 (2016).
35
The Ninth Circuit provides the following example of individually
minor, but collectively significant, impacts to the environment:
[T]he addition of a small amount of sediment to a creek may
have only a limited impact on salmon survival, or perhaps
no impact at all. But the addition of a small amount here,
a small amount there, and still more at another point could
add up to something with a much greater impact, until there
comes a point where even a marginal increase will mean that
no salmon survive.
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994
(9th Cir. 2004).
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Plan, such as implementing soil and erosion control, nighttime
lighting restrictions, and cultural training, on past, present,
and reasonably foreseeable actions would have significant
impacts on the environment.
Contrary to Kilakila’s argument, the impact of the
Telescope Project on cultural resources as determined by the
environmental impact statement would not automatically render
any other action within the Observatory Site to be of similar
magnitude. As Kilakila does not contend that any of the
strategies or guidelines within the Management Plan would
themselves have a significant impact on the environment, or that
they would add to the Telescope Project’s impact, we address
whether the EA properly considered the Telescope Project within
the cumulative impact analysis of the Management Plan.
Here, the EA discussed and evaluated the cumulative
impact of the Management Plan--i.e., the incremental impact of
implementing the Management Plan on past, present, and
reasonably foreseeable future actions, including the Telescope
Project.36 After evaluating the Management Plan’s cumulative
36
The Telescope Project was just one of fifteen “Past, Present, and
Reasonably Foreseeable Future Actions Subject to the Observatory Site
Management Plan” that were evaluated and discussed by the EA. The EA also
considered the following past, present, and reasonably foreseeable actions
subject to the Management Plan: Mees Solar Observatory; Atmospheric Airglow;
Zodiacal Light; Cosmic Ray Neutron Monitor Station; Baker-Nunn Site; Faulkes
Telescope Facility; Pan-STARRS, PS-1 South; PS-2 North, 2nd facility; Maui
Space Surveillance Complex; SLR-2000; Haleakalā Visitor Center Comfort
Station; FAA site adjacent to Observatory Site, Homeland Security Tower;
(continued. . .)
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impact, the EA concluded that the Management Plan’s cumulative
impact would be beneficial, less than significant, or result in
no impact to the following resources: land use; cultural,
historic, and archeological resources; biological resources;
topography, geology, and soils; visual resources and view plain;
hydrology; infrastructure and utilities, including storm water
drainage systems and traffic; air quality; public health,
including hazardous materials and noise; socioeconomics; and
natural hazards.
For example, considering the incremental impact of the
Management Plan on land use resources, the EA concluded that
while “construction of the proposed [Telescope Project] would
increase the level of existing telescope activities” within the
Observatory Site, the “combined impacts of implementing the
[Management Plan] with all past, present, and reasonably
foreseeable future actions would be less than significant.” The
EA found that the impact on visual resources from implementing
the Management Plan would be beneficial, and less than
significant, because the Management Plan is intended to minimize
the impacts from other actions that may themselves have adverse
(. . .continued)
Advanced Technology Solar Telescope; Maui Electric Co., Inc.; and Hawaiian
Telcom.
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impacts on visual resources.37 The EA additionally concluded
that the Management Plan would have some beneficial impacts to
“baseline noise levels from implementation of noise reduction
requirements for any construction activity,” and therefore, the
cumulative impacts combined with the Management Plan’s
requirements for noise management would be less than
significant.
Considering cultural and historic resources within the
Observatory Site, the EA stated “that there have been impacts on
traditional cultural resources resulting from past and ongoing
actions” and that “[o]ver the years, development at the
[Observatory Site] has displaced and damaged cultural
resources.” The EA further observed that past, present, and
reasonably foreseeable future actions have had adverse impacts
on cultural and traditional resources within the Observatory
Site, but it found that the Management Plan’s incremental impact
on cultural resources would be less than significant and “would
not substantially contribute to the adverse impacts from past,
present, and reasonably foreseeable future activities on
cultural resources.” The EA additionally found that past and
ongoing actions have resulted in less than significant impacts
37
The EA observed that the proposed Telescope Project “would have
adverse impacts on visual resources beyond those addressed in the [Management
Plan], and [that] those have been analyzed elsewhere.”
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on historic resources and that implementing the Management Plan
“would not combine with any other actions to produce
incrementally different impacts on historic or archeological
resources.”
Thus, the EA expressly considered the incremental
impact of implementing the Management Plan when added to past,
present, and reasonably foreseeable future actions, including
the Telescope Project, and it concluded that the Management
Plan’s cumulative impact on each resource considered would be
less than significant, would be beneficial, or would result in
no change. As Kilakila has not argued that any individual
management activity implemented by the Management Plan may cause
an adverse impact, Kilakila has not shown that the EA’s
conclusion as to the Management Plan’s cumulative impact is
clearly erroneous.
Accordingly, the record does not demonstrate that UH
failed to follow proper procedures under HEPA or HAR § 11-200-12
or that UH failed to adequately consider the Telescope Project’s
impacts before concluding that the Management Plan would have no
significant environmental impact. Consequently, UH’s negative
declaration is not clearly erroneous, and thus UH was not
required to prepare an environmental impact statement for the
Management Plan. Further, the record does not indicate that
there is any genuine issue as to any material fact relating to
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whether UH complied with the requirements under HEPA and its
implementing regulations or as to whether UH adequately
considered all environmental impacts before issuing its negative
declaration. Therefore, the circuit court did not err by
granting summary judgment in favor of UH and DLNR and in denying
summary judgment to Kilakila.
V. Conclusion
Accordingly, the ICA’s Judgment on Appeal is affirmed
for the reasons stated herein.
David Kimo Frankel and /s/ Mark E. Recktenwald
Sharla Ann Manley
for petitioner /s/ Paula A. Nakayama
Kilakila ʻO Haleakalā
/s/ Sabrina S. McKenna
Darolyn H. Lendio,
Bruce Y. Matsui, /s/ Richard W. Pollack
Lisa Woods Munger,
Lisa A. Bail and /s/ Michael D. Wilson
Christine A. Terada
for respondents
University of Hawaiʻi and David
Lassner, in his official
capacity as Chancellor of the
University of Hawaiʻi at Mānoa
William J. Wynhoff and
Julie H. China
for respondents
Department of Land and Natural
Resources, Board of Land and
Natural Resources and Suzanne
Case, in her official capacity
as Chairperson of the Board of
Land and Natural Resources
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