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Electronically Filed
Supreme Court
SCWC-13-0002125
06-SEP-2017
08:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
RENE UMBERGER, MIKE NAKACHI, KAʻIMI KAUPIKO, WILLIE KAUPIKO,
CONSERVATION COUNCIL FOR HAWAIʻI, THE HUMANE SOCIETY OF THE
UNITED STATES, and CENTER FOR BIOLOGICAL DIVERSITY,
Petitioners/Plaintiffs-Appellants,
vs.
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʻI,
Respondent/Defendant-Appellee.
SCWC-13-0002125
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002125; CIVIL NO. 12-1-2625-10 JHC)
SEPTEMBER 6, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
For a nominal fee per year, the Department of Land and
Natural Resources (DLNR) authorizes the collection of fish or
other aquatic life for aquarium purposes (aquarium collection)
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by issuing permits pursuant to Hawaii Revised Statutes (HRS) §
188-31 (2011) and its administrative rules. Subject to certain
terms and conditions contained in the permit and restrictions
provided by statutes and administrative rules, each commercial
aquarium collection permit authorizes the extraction of an
unlimited number of fish or other aquatic life annually from the
State’s coastal waters. DLNR also issues recreational aquarium
collection permits that authorize an annual catch limit for each
permit of almost 2,000 fish or other aquatic life. The
fundamental issue presented in this case is whether aquarium
collection pursuant to permits issued under HRS § 188-31 and
DLNR’s administrative scheme is subject to the environmental
review procedures provided in the Hawaii Environmental Policy
Act (HEPA). We hold that commercial aquarium collection under
HRS § 188-31 and DLNR’s administrative rules is subject to
HEPA’s requirements. We further hold that the record is not
adequate for this court to determine whether recreational
aquarium collection may be exempt from HEPA. Accordingly, we
remand this case to the circuit court for further proceedings to
resolve the issue of whether recreational aquarium collection
under HRS § 188-31 and DLNR’s administrative rules is also
subject to HEPA.
2
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I. FACTS AND PROCEDURAL HISTORY
Petitioners Rene Umberger, Mike Nakachi, Kaimi
Kaupiko, and Willie Kaupiko identify themselves as concerned
Hawaii citizens, avid divers, and subsistence fishermen.
Petitioner Conservation Council for Hawaii is a nonprofit
organization based in Hawaii with approximately 5,500 members
worldwide whose mission is to protect native Hawaiian species
and to restore native Hawaiian ecosystems for future
generations. Petitioner Humane Society of the United States, a
national nonprofit organization with over 11 million members, is
dedicated to the protection of wildlife and habitat. Petitioner
Center for Biological Diversity is a nonprofit organization
dedicated to preserving, protecting, and restoring biodiversity,
native species, ecosystems, and public lands; the organization
has approximately 450,000 members, many of whom live in Hawaii.
Respondent Department of Land and Natural Resources (DLNR) is
the state agency that holds the statutory authority to issue
permits for aquarium collection.
On October 24, 2012, Petitioners filed a complaint for
declaratory judgment and injunctive relief in the Circuit Court
of the First Circuit (circuit court) specifically challenging
fifty aquarium collection permits that DLNR had issued in the
3
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120 days before the filing of the complaint.1 The complaint
sought (1) a declaration that DLNR is in violation of HEPA,
chapter 343 of the HRS, for failing to complete the HEPA review
process prior to approving the challenged permits; (2) a
declaration that DLNR’s issuance and renewal of these permits
without complying with HEPA is invalid and illegal; (3) an
injunction enjoining collection under the challenged permits
until DLNR fully complies with HEPA; and (4) an injunction
enjoining DLNR from approving, renewing, or issuing any aquarium
collection permits prior to completing a HEPA review of the
issuance of the challenged permits.2 DLNR filed an answer
requesting a dismissal with prejudice of Petitioners’ complaint.
Thereafter, DLNR moved for summary judgment, arguing
that (1) DLNR’s practice of not requiring environmental review
of applications for aquarium collection permits is entitled to
deference and (2) environmental review is not required for
aquarium collection permits because there is no action initiated
by an applicant requiring agency approval (applicant action).3
1
In addition to these named permits, Petitioners challenged any
other aquarium collection permits renewed or granted by DLNR in the 120 days
prior to the filing of their complaint.
2
The complaint also requested that the circuit court retain
continuing jurisdiction to review DLNR’s compliance with all judgments and
orders.
3
The Honorable Jeannette H. Castagnetti presided over the
proceedings in this case.
4
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In support of DLNR’s motion for summary judgment, Alton K.
Miyasaka, an aquatic biologist in DLNR’s Division of Aquatic
Resources, submitted a declaration. Miyasaka averred that
“[a]nyone who applies for a permit pursuant to [HRS] § 188-31
and who goes through the above process receives a permit” and
that DLNR “does not have and does not exercise discretion with
respect to the permits.” Thus, according to Miyasaka, the
process does not involve discretionary consent and there is no
applicant action.
Petitioners opposed DLNR’s motion for summary
judgment, contending that (1) DLNR’s failure to comply with HEPA
prior to issuing aquarium collection permits is not entitled to
deference because the aquarium collection permitting statute is
clear and not subject to agency interpretation and (2) aquarium
collection is a HEPA “action” subject to DLNR’s discretionary
consent.
Petitioners cross-moved for summary judgment,
contending that (1) HEPA mandates environmental review of
aquarium collection permits and (2) the issuance of aquarium
collection permits is subject to DLNR’s discretionary consent.
In support of Petitioners’ summary judgment motion, they
attached (1) the declarations of Gail Grabowsky, Petitioner
Umberger, Petitioner Nakachi, Petitioner Kaimi Kaupiko,
Petitioner Wilfred Kaupiko, Marjorie F.Y. Ziegler, Inga Gibson,
5
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Miyoko Sakashita, and Dane Enos; (2) excerpts of The Report to
the Twenty-Fifth Legislature on the Findings and Recommendations
of Effectiveness of the West Hawaii Regional Fishery Management
Area [hereinafter The Report to the Twenty-Fifth Legislature]4;
(3) excerpts of Hawaii’s State of the Reef, published by DLNR’s
Division of Aquatic Resources5; and (4) DLNR’s approval of Disney
Aulani’s request for a special activity permit to collect
aquarium fish for a period of one year in order to stock a
saltwater swimming pool.
Gail Grabowsky, an associate professor at Chaminade
University and the Director of the University’s Environmental
Studies Program,6 stated that commercial aquarium collectors
4
Petitioners relied on this report in asserting that “[o]ver 200
species are collected for the aquarium trade in Hawaii,” that “the level of
aquarium collection along the west coast of the island of Hawaii have
documented substantial increases, i.e., 25 percent between 2000 and 2010, in
the number of collectors and in the collection of certain species,” and that
aquarium collection permits allow the collection of species that are
“particularly vulnerable to depletion.”
5
Petitioners relied on this publication in explaining that DLNR is
charged as the steward of Hawaii’s natural resources, including ocean
ecosystems, and that DLNR manages the fourth longest coastline in the United
States, including 410,000 acres of coral reefs. Petitioners also used this
publication in contending that DLNR itself has previously recognized the
detrimental effects of removal of reef fish on the coral reef ecosystem and
that further studies in this area are necessary if this activity is to
continue.
6
Grabowsky holds a bachelor’s degree and a doctorate in zoology
from Duke University, has authored or co-authored various published
scientific works, and has received several honors, scholarships, and grants
in her field. As relevant here, her research has focused on ornamental reef
fish collection on Oahu, marine invertebrate zoology, molecular/morphological
evolution, coral reef health, sea bird habitat conservation, sea bird by-
catch reduction, box jellyfish dispersal, and natural history in Hawaii.
6
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self-report to DLNR the type and quantity of marine animals that
they collect and that this practice results in underreporting
because commercial collectors “may either fail to turn in catch
reports or inaccurately quantify their catch.” Grabowsky
explained that “[a]quarium collectors utilize modern and ever-
improving technologies, like scuba equipment, highly camouflaged
wetsuits, nitrox (a mix of nitrogen and oxygen, usually with a
higher-than-normal level of oxygen to extend dive time), GPS
systems, and underwater scooters, to increase their ability to
locate aquarium fish.”7
According to Grabowsky, “although aquarium collection
is prohibited along 35% of the west coast of the island of
Hawaii, less than 1% of the remaining area around the Main
Hawaiian Islands is protected.”8 Grabowsky opined that the
drastic differences in species abundances between well-protected
areas and those that are not “reveal[] that aquarium collection
is removing and having detrimental effects on species that play
important ecological roles in reef ecosystems.” Because the
most heavily fished species are herbivorous algae eaters,
7
Grabowsky declared that aquarium collectors at times also use
underwater blankets to cover the reef so that fish would not be able to take
refuge in the coral.
8
Based on other studies, Grabowsky declared that “there has been a
severe depletion of fish” in the Main Hawaiian Islands when compared to the
diversity and population of fish in the Northwestern Hawaiian Islands.
7
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Grabowsky stated that their removal from the reef ecosystem
decreases the reef’s ability to withstand habitat degradation
and could result in an algal-dominated reef. Grabowsky found
that “the most greatly affected species are those that have been
heavily exploited.” Grabowsky’s survey of relevant studies
indicated “that certain rare, vulnerable species are under
intense collection pressure, and the effects of collection on
many of their populations [are] unknown.”9
Grabowsky explained that aquarium collection typically
focuses on juvenile fish because they are smaller and more
aesthetically pleasing and thus more popular to customers.
According to Grabowsky, this “can result in top-heavy age
distributions of many of the heavily collected species on reefs,
and means that there are fewer juveniles in reef ecosystems that
are able to grow up to reproduce as adults.”
Based on her research and review of relevant
scientific literature, Grabowsky concluded that “aquarium
collection is having a detrimental effect on fish populations
around Oahu and in other areas of the state,” it “disrupts the
ecosystems and makes them less able to respond to other
9
According to Grabowsky, some of these vulnerable species, such as
Tinker’s butterflyfish and psychedelic wrasse, have been listed on DLNR’s
“Species of Greatest Conservation Need,” but they are still being collected
without any limits.
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stressors,” and “it removes animals that occupy important and
unique ecological niches.” Grabowsky opined that prohibiting
collection in certain areas does not adequately address the
problem in that, “while it may slow the disappearance of the
fish species and reef degradation, . . . it will not prevent
it.” Finally, Grabowsky declared that the “data showing that
the current permitting system and designation of protected areas
adequately protects the reef ecosystems is lacking.”
Petitioner Umberger also submitted a declaration
stating that she had been diving professionally since 1983 and
had done at least 10,000 scuba dives around the Main Hawaiian
Islands and in various international locations. Umberger stated
that, based on her observations during her dives through the
years, fish species that are highly prized by the aquarium trade
have abruptly disappeared from a lot of dive sites.10
Based on Umberger’s experience diving and snorkeling
along the west coast of the island of Hawaii, she declared that
there is a marked difference in the condition between those
reefs that are open to collection and those that are not: reefs
10
For example, Umberger explained that the three dragon eels (which
could retail for over a thousand dollars apiece) and several flame angelfish
that she had been seeing in the Red Hill area of south Maui for years had
disappeared. In addition, during the years that she had spent scuba diving,
Umberger stated that she saw corals physically broken apart to expose the
crevices in the reef.
9
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open to collection have fewer colorful and aesthetically
pleasing fish and invertebrates. Umberger also attested that
she had “noticed a dramatic reduction in biodiversity on reefs
and in the density of species of fish that are collected by the
aquarium trade.” Finally, Umberger opined that DLNR’s current
permitting practices “will have irreversible, negative
consequences for Hawaii’s reef ecosystems and [her] interests in
enjoying and protecting these precious areas.”
Petitioner Nakachi also submitted a declaration in
support of Petitioners’ summary judgment motion. Nakachi stated
that he is a resident of Kailua-Kona on the island of Hawaii and
a scuba diving tour operator since 1987 who has gone on tens of
thousands of scuba dives, both recreationally and as part of his
scuba diving tour business, in and around Hawaii waters for the
past forty years. According to Nakachi, his “recreational and
aesthetic interests in seeing healthy reef ecosystems full of
colorful fish are harmed by aquarium collection under the
challenged permits.” Nakachi also averred that his economic
interests are harmed because his business relies on a healthy
marine environment in order to be successful. Nakachi described
his experience in which a dive site that was once populated by
colorful fish species experienced a decline in the fish
population and coral damage when aquarium collectors discovered
10
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the dive site’s location.11 Over the years that he had spent
diving in the waters of Hawaii, Nakachi observed “negative
changes on the coral reefs . . . because of aquarium collection,
particularly along the west coast of the island of Hawaii.”
Based on Nakachi’s diving experience in State waters, he
declared that “[t]here is a very noticeable difference in
aquarium fish species’ populations and coral damage between the
areas that are open to collection and the areas that are
closed.” Nakachi averred that his clients “have expressed
concern . . . about the changes they see on the coral reefs
where they dive,” the fact that there are fewer fish in the
reefs, and damaged corals. According to Nakachi, these concerns
had prompted his clients not to dive in Hawaii anymore.
Nakachi echoes Grabowsky’s description of the
technology he had observed aquarium collectors use over the
years, see supra. Based on the decline that he had witnessed in
aquarium fish population and the health of corals where he
dives, Nakachi stated that he is “afraid that [the] reef
ecosystems will continue to decline until they are not able to
sustain marine life anywhere near the previous levels.”
11
One site on the island of Hawaii had “no fish left” by 2006 when
Nakachi went back to scuba dive there.
11
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Petitioners Ka‘imi Kaupiko and Wilfred “Willie” Kaupiko
also submitted declarations in support of Petitioners’ summary
judgment motion. The Kaupikos are Native Hawaiian subsistence
fishermen living in the village of Miloli‘i, which is located on
the west side of the island of Hawai‘i. They attested that their
cultural, subsistence, and aesthetic interests are harmed by
DLNR’s issuance of aquarium collection permits without first
engaging in HEPA review “because aquarium collectors remove
species of fish that [they] fish for” and because they had
“noticed a substantial decline in the variety and number of fish
on reefs along the west coast of Hawai‘i over the past decade.”
Based on the Kaupikos’ experience, when they had gone out
fishing, they had hardly seen any types of fish that are
collected by the aquarium trade, even in areas near Miloli‘i that
are closed to collection.12
Ka‘imi Kaupiko stated that the dwindling number of fish
affects his ability to feed himself and his family and
negatively impacts the ecosystem of which they are a part.
Ka‘imi also declared that he had noticed coral dying after being
damaged by boat anchors and pollution and that “removal of fish
12
Willie Kaupiko stated that he had seen, in January and November
2012, aquarium collectors taking fish in areas where collection is
prohibited.
12
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for aquarium collection further disrupts an already-stressed
ecosystem.” Ka‘imi attested that “[t]he reefs on the west coast
of the island of Hawai‘i do not look as healthy as they used to”
and that he is “worried about the ability of [the] reef
ecosystems to survive so that future generations can continue
fishing and practicing . . . Native Hawaiian traditions.”13
The Kaupikos concluded that aquarium collection under
the challenged permits affects their ability to catch fish for
food, disrupts the ecosystem, hurts the reef’s ability to
withstand harm from things like pollution and physical damage,
and harms their cultural, subsistence, recreational, and
aesthetic interests, as well as their ability to use, enjoy, and
protect the ocean and coral reefs for future generations’ use
and education.
Marjorie Ziegler, the Executive Director of Petitioner
Conservation Council for Hawaii, and Miyoko Sakashita, a staff
member of Petitioner Center for Biological Diversity (CBD),
submitted declarations stating that the members of their
respective organizations are harmed by DLNR’s aquarium
collection permitting system “because it threatens to impair
13
Because Ka‘imi Kaupiko is involved in educating young people in
Miloli‘i about Hawaiian cultural traditions involving fishing and the ocean,
he also declared that aquarium collection affects his “ability to educate
children in the village about healthy reefs and fish populations.”
13
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their aesthetic, subsistence, and recreational interests in
using, enjoying, and protecting the State’s reefs.”14 They
further averred that “DLNR’s failure to comply with its legal
obligations deprives” their organizations and their “members of
both the information that would be generated through the HEPA
process and the opportunity to participate actively in the
process of environmental review.”
Inga Gibson, the Hawai‘i State Director of Petitioner
Humane Society of the United States (HSUS), declared that DLNR’s
issuance of aquarium collection permits without HEPA review
“adversely affects HSUS’s organizational interests in protecting
animals from unnecessary harm, suffering, and death, as well as
its members’ and supporters’ ability to protect, observe, and
enjoy Hawai‘i’s coral reef animals and ecosystems that are and
will be affected by collection under the challenged permits.”
Gibson averred that aquarium collectors remove types of fish
that serve a larger role in reef ecosystems, a practice that
“has negative effects on other marine species that inhabit coral
reefs.” Gibson also stated that HSUS views “aquarium collection
as a harmful, disposable trade, because up to forty percent of
fish may die before reaching their final destination and many of
14
Sakashita also stated that CBD’s members, including herself,
“regularly use Hawai‘i’s coastal waters for recreation, aesthetic enjoyment,
observation, research, and other educational activities.”
14
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the collected fish are not suitable for living in captivity,
surviving only a fraction of their natural lives.” Gibson
concluded that DLNR’s permitting regime “affects HSUS’s members’
recreational, aesthetic and educational interests in protecting,
studying, and observing these fish and invertebrates and their
coral reef habitats.”
Dane Enos, a resident of Kailua-Kona and a former
commercial aquarium fish collector, submitted a declaration in
support of Petitioners’ summary judgment motion describing the
procedure he followed in collecting aquarium fish before he left
the trade. Enos explained that his “decisions about which
species to take and how many animals to collect were based on
consumer demand.” Once he received an order for a particular
species from a wholesaler, he would “go out to the reefs to try
and fill that order” and that “[t]he price [he] would get paid .
. . would fluctuate depending on whether the wholesalers already
had that particular species of fish in their shops.” Enos’s
practice was to “operate[] on a fourteen to eighteen month
system of rotation at sites where [he] collected[] to give fish
time to reproduce before going back to the same spot.” Enos
declared that his commercial aquarium collection permit allowed
him “to take an unlimited type and quantity of species from
coastal waters” and “to collect anywhere in the State of Hawai‘i
other than in areas . . . where aquarium collection was
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prohibited.” Enos stated that, when he first started collecting
in 1985, there were not as many collectors as there were when he
left the trade in 2002. At the tail end of his participation in
the trade, Enos described how other collectors would take “fish
from the same spot too frequently, affecting the number of
animals and the balance of the ecosystem.” Some collectors,
according to Enos, also broke off finger corals so as to create
a uniform surface for their nets. Enos attested that “after
witnessing collectors over-harvesting fish and invertebrates and
damaging the reefs, in addition to the stress on the reefs from
other factors, like pollution, [he] decided that [he] could not
continue collecting” and left the trade.
DLNR opposed Petitioners’ motion for summary judgment,
reiterating its position that there is no HEPA “action” and no
“approval” involved in aquarium collection and that the
environment is not harmed by the current permitting system. In
support of its opposition, DLNR submitted a declaration from
Alton Miyasaka, averring that DLNR’s Division of Aquatic
Resources “continually monitors and studies populations of fish
and other aquatic life potentially affected by aquarium fish
permits issued pursuant to [HRS] § 188-31” and that the current
population levels of aquarium fish are sustainable. Miyasaka
stated that the collection “areas are quite limited,” that
Hawaii and Oahu are the “main collecting islands,” and that
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Kauai, Molokai, and Lanai “have essentially no contribution to
the statewide totals and may be considered unfished.” On the
island of Hawaii, Miyasaka continued, “35% of the 90-mile Kona
coast is closed to aquarium collecting.” However, Miyasaka
stated that, although the 90-mile Kona coast “represent[s]
approximately 12.6% of the total coastline of the state, [it]
accounted for 68% of the statewide total catch numbers” in 2011.
Miyasaka averred that the top ten areas where aquarium
collection is conducted “account for 90% of all animals
collected” and that “[t]hese top ten areas represent less than
22% of the entire coastline.” As such, Miyasaka represented
that “the vast majority of the State’s coastline is largely
unfished.”
Miyasaka declared that the annual total for animals
caught from 1999 to 2010 ranged from 412,587 to 1,019,720 per
year, but he reasoned that “most of these numbers are from
invertebrates rather than fish” (i.e., the ratio of
invertebrates to fish ranges from 50% to close to 90% per year).
According to Miyasaka, “this is significant because
invertebrates generally reproduce faster than fish and therefore
can replenish themselves faster.” However, Miyasaka neither
addressed nor referenced Petitioners’ contentions that were
based on excerpts of The Report to the Twenty-Fifth Legislature
and Hawaii’s State of the Reef, both of which were published by
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DLNR. See supra notes 4 & 5. These publications stated that
aquarium collection permits allow the collection of species that
are particularly vulnerable to depletion and recognized the
detrimental effects of removal of reef fish on the coral reef
ecosystem.
The Report to the Twenty-Fifth Legislature, on which
Petitioners relied as part of their summary judgment motion,
also addressed the issues surrounding the collection of
invertebrates for aquarium purposes. The Report stated that
researchers studying the Florida marine aquarium fishery had
found that “the once small ornamental fish fishery has grown
dramatically in recent years to become a large scale
invertebrate-dominated industry.” The researchers noted that
the focus of aquarium collection shifted from “purely ornamental
species to ones providing biological services in home aquaria,”
such as “[i]nvertebrate grazers [that] can control algal
growth.” The researchers concluded that “the intensive
collecting of such species was ecologically unsound.”
Miyasaka also described the process used in aquarium
collection:
Typically each animal is hand caught. The collector sets
[the] net, guides the fish into the net, then hand scoops
the fish off the net. Each fish is carefully selected for
its condition (no damage to fins or body), size, and
species. Fish that are damaged or imperfect are returned
to the ocean. Any fish that is not the right size, color,
or species is not taken. Little or no unwanted fish are
taken so there is little or no bycatch (a fish that is
taken unintentionally). This attention to detail is why
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the marine life in the Hawaiian aquarium fishery is
considered one of the highest quality products in the
world.
In their reply to DLNR’s opposition, Petitioners
argued that aquarium collection is an “action” and that aquarium
collection permit applications require DLNR’s “approval,” i.e.,
discretionary consent. In addition, Petitioners challenged
DLNR’s assertion that aquarium collection was being conducted in
a sustainable and environmentally sound manner, stating that
this assertion is not based on anything other than Miyasaka’s
conclusory declaration. Thus, Petitioners concluded that HEPA
applies to aquarium collection under permits issued by DLNR.
After a hearing on the respective parties’ motions for
summary judgment, the circuit court granted DLNR’s motion for
summary judgment and denied Petitioners’ cross motion for
summary judgment, reasoning that there is no applicant “action”
that triggers HEPA in this case. The circuit court stated that
environmental review under HEPA is required only if there is an
“action,” i.e., a “program” or “project.” Because “program” and
“project” are not statutorily defined under HEPA, the circuit
court, relying on a generally accepted dictionary, defined
“program” “as a ‘plan or system under which action may be taken
toward a goal.’” The circuit court defined “project” “as ‘a
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15
specific plan or design; scheme’ or a ‘planned undertaking.’”
Because aquarium collection, according to the circuit court, is
not a “specifically identifiable program[] or project[],” the
court determined “that as a matter of law, ‘aquarium collection’
is not an applicant ‘action’ that triggers HEPA.” The circuit
court entered its final judgment on June 24, 2013.
II. ICA PROCEEDINGS
Petitioners appealed from the order denying their
cross motion for summary judgment, the order granting DLNR’s
motion for summary judgment, and the circuit court’s final
judgment. In its published opinion, the Intermediate Court of
Appeals (ICA) outlined the steps for evaluating whether an
action is subject to environmental review. Preliminarily, there
must be a “program or project to be initiated by an agency or
applicant.” Umberger v. Dep’t of Land & Nat. Res., 138 Hawaii
508, 512, 382 P.3d 320, 324 (App. 2016) (quoting HRS § 343–2
(2010)). In addition, the program or project must (1) be
initiated by an agency or a private party and require government
approval; (2) qualify under one or more of the nine categories
of land uses and administrative acts enumerated in HRS § 343-
15
The circuit court relied on Merriam-Webster’s definition of
“program” and “project.” See Program, Merriam-Webster, http://www.merriam-
webster.com/dictionary/program (last visited July 13, 2017); Project,
Merriam-Webster, http://www.merriam-webster.com/dictionary/program (last
visited July 13, 2017).
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5(a) (2010); and (3) not be exempt under HRS § 343-6(a)(2)
(2010). Id. at 512—13, 382 P.3d at 324—25.
The ICA characterized the “action” in this case as
“the ‘taking of marine or freshwater nongame fish and other
aquatic life for aquarium purposes,’ that is initiated by an
applicant’s request for an aquarium fish permit.” Id. at 513,
382 P.3d at 325 (quoting HRS § 188-31(a) (2011)). The ICA
emphasized that while the “[a]ppellants described the alleged
action as the ‘directed, intentional, large-scale commercial
removal under each [p]ermit, and collectively under the dozens
of such [p]ermits DLNR issued,’” they sought “an interpretation
of HEPA that would apply equally to both recreational and
commercial aquarium fish permits.” Id. at 513–14, 382 P.3d at
325–26.
The statutory analysis of the ICA commenced with an
examination of the meaning of “action.” While HEPA defines
“action” as “any program or project to be initiated by an agency
or applicant,” the ICA acknowledged that HEPA does not define
“program” and “project.” Id. at 514, 382 P.3d at 326 (quoting
HRS § 343-2). The ICA discussed various decisions issued by the
appellate courts of Hawaii that held there was an “action” under
HEPA such that the environmental review process was triggered.
Those cases involved “[t]he Napilihau Villages, Mahukona Lodge,
Koa Ridge project, harbor improvements for the Superferry
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Project, Laumaka subdivision, and a research program concerning
genetically modified algae.” Id. at 516, 382 P.3d at 328. In
these cases, the ICA observed that there were “specifically
identifiable programs or projects.” Id. According to the ICA,
aquarium collection is unlike any of the activities that this
court has previously considered as programs or projects for the
purposes of HEPA. Id. In concluding that aquarium collection
is not a “specifically identifiable program or project,” the ICA
emphasized that aquarium collection “includes a parent netting
one or two fish from a stream for his or her child’s fish tank,
as well as larger scale commercial operations.” Id.
In addition, the ICA reasoned that HEPA review is not
the sole mechanism through which marine life and reef ecosystem
could be protected from unconstrained removal in large numbers.
The ICA highlighted other statutory frameworks and
administrative rules that allow DLNR to manage aquatic life and
resources, including catch limits and restrictions for certain
species applicable to commercial aquarium collection permit
holders and DLNR’s authority to attach conditions to commercial
marine licenses and permits. Id.
Further, the ICA noted that DLNR issues permits and
licenses for activities similar to aquarium collection--e.g.,
bait fish licenses, freshwater game fish licenses, hunting
licenses, camping permits, etc. According to the ICA, there is
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“no rational distinction or logical reason why HEPA
environmental review procedures should be required for aquarium
fish permits, but not for these other types of licenses and
permits.” Id. Thus, the ICA concluded that aquarium collection
under permits issued pursuant to HRS § 188-31 does not qualify
as a HEPA “action.” Id. at 517, 382 P.3d at 329.
The ICA, however, rejected DLNR’s argument “that, even
if aquarium collection fell within the definition of an
‘applicant action,’ it is not subject to HEPA because there is
no discretionary agency approval of aquarium fish permits.” Id.
at 517–18, 382 P.3d at 329–30. The ICA determined that the fact
that the application for an aquarium fish permit is online and
completely automatic does not equate to DLNR lacking discretion
because the plain language of HRS § 188-31, as supported by its
legislative history, explicitly confers discretion on DLNR in
deciding whether to approve an application. Id. at 518, 382
P.3d at 330. The ICA also reasoned that the online application
“is simply the means by which DLNR has determined to exercise
its discretion.” Id. Thus, the ICA affirmed the circuit
court’s judgment that granted DLNR’s motion for summary judgment
and denied Petitioners’ cross motion for summary judgment. Id.
III. ARGUMENTS ON CERTIORARI
In their application for writ of certiorari,
Petitioners advance four contentions: (1) the legislature
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intended the words “program” and “project” to encompass a broad
scope of human activity, including aquarium collection; (2) HEPA
applies to individuals and provides mechanisms to resolve
practical difficulties that may be encountered during the
environmental review process16; (3) the ICA’s construction of
“program or project” undermines DLNR’s public trust and
statutory duties to conserve Hawaii’s marine resources; and (4)
other regulatory tools that DLNR possesses are not substitutes
for HEPA, nor do such tools excuse violations of HEPA.
In its response, DLNR contends that (1) the ICA was
correct in concluding that aquarium collection is not an
“action” within the meaning of HEPA; (2) the environment is not
harmed by the present system and any harm to the environment is
irrelevant to the analysis; (3) Petitioners’ argument regarding
public trust was never pleaded and, in any event, does not
assist this court in construing HRS chapter 343; and (4) the ICA
erred in holding that the issuance of aquarium collection
permits requires DLNR’s discretionary consent.
16
Petitioners argue that the ICA’s concern about one-fish
recreational aquarium collection is unjustified because that activity may be
exempted from HEPA pursuant to HRS § 343-6(a)(2) (2010) as it may fall within
one of DLNR’s exempt categories--minor alteration in the conditions of land,
water, or vegetation. Petitioners also assert that “tiering,” which allows
an agency to incorporate previous environmental assessments and impact
statements or to group similar actions in a single environmental assessment
or impact statement, would address the ICA’s apparent concern about the
burden on small-time aquarium collectors of complying with HEPA’s
requirements.
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IV. STANDARDS OF REVIEW
A trial court’s ruling on a motion for summary
judgment is reviewed de novo under the right/wrong standard.
Salera v. Caldwell, 137 Hawaii 409, 415, 375 P.3d 188, 194
(2016). “The interpretation of a statute is a question of law
reviewable de novo.” Kauai Springs, Inc. v. Planning Comm’n of
Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014)
(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334,
843 P.2d 668, 671 (1993)).
V. DISCUSSION
The central question in this case is whether aquarium
collection pursuant to permits issued under HRS § 188-31 (2011)
and DLNR’s administrative rules is subject to the environmental
review provisions of HEPA. An environmental assessment under
HEPA is required if three conditions are satisfied: (1) the
proposed activity is an “action” under HRS § 343-2 (2010); (2)
the action proposes one or more of the nine categories of land
uses or administrative acts enumerated in HRS § 343-5(a) (2010);
and (3) the action is not declared exempt pursuant to HRS § 343-
6(a)(2) (2010). See Sierra Club v. Dep’t of Transp. of the
State of Haw., 115 Hawaii 299, 306, 167 P.3d 292, 299 (2007).
In cases where the proposed action is initiated by a private
party for approval by a government agency, an additional
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requirement is that the agency exercises discretionary consent
in the approval process. HRS § 343-5(e) (Supp. 2012). The
circuit court granted DLNR’s summary judgment motion and denied
Petitioners’ cross motion for summary judgment on the grounds
that aquarium collection under HRS § 188-31 is not a HEPA
“action.” Thus, if there is a genuine issue of material fact as
to whether aquarium collection is a HEPA “action,” then summary
judgment in favor of DLNR on this basis was erroneous. If, on
the other hand, there is no genuine issue of material fact that
aquarium collection under HRS § 188-31 and the DLNR
administrative scheme is a HEPA “action,” that it falls within
one of the categories of land uses or administrative actions set
forth in HRS § 343-5(a), that it is not exempt from HEPA, and
that the issuance of a permit requires DLNR’s exercise of
discretionary consent, then the circuit court erred in denying
Petitioners’ cross motion for summary judgment.
A. Whether Issuance of a Permit for Aquarium Collection is a
HEPA “Action”
1. The Plain-Language Construction of “Action” under HRS § 343-2
To determine whether aquarium collection is a HEPA
“action,” we begin by interpreting HRS § 343-2, which sets forth
the statutory definition of “action.” HEPA defines “action” as
“any program or project to be initiated by any agency or
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applicant.”17 HRS § 343-2. “Program” and “project” are not
defined terms under HEPA. As such, “this court may resort to
legal or other well accepted dictionaries as one way to
determine the ordinary meaning” of those words. State v.
Guyton, 135 Hawaii 372, 378, 351 P.3d 1138, 1144 (2015) (quoting
State v. Pali, 129 Hawaii 363, 370, 300 P.3d 1022, 1029 (2013)).
“Program” is generally defined as “a plan or system under which
action may be taken toward a goal.”18 “Project” is defined as “a
specific plan or design” or “a planned undertaking.”19
In determining whether aquarium collection is a
program or project, the crucial first step is properly defining
the activity authorized by aquarium collection permits issued by
DLNR. See Sierra Club, 115 Hawaii at 306 n.6, 167 P.3d at 299
n.6 (“An important preliminary step in assessing whether an
‘action’ is subject to environmental review is defining the
action itself.”). HRS § 188-31(a) provides that
17
It follows from this definition that there are two types of HEPA
“actions”: agency actions and applicant actions. Sierra Club, 115 Hawaii at
306, 167 P.3d at 299. The parties’ position in this case is that aquarium
collection under HRS § 188-31 constitutes an applicant action and not an
agency action. An applicant action is initiated “by a private party who
requires government approvals for the project to proceed.” Id.
18
Program, Merriam-Webster, https://www.merriam-
webster.com/dictionary/program (last visited July 14, 2017).
19
Project, Merriam-Webster, https://www.merriam-
webster.com/dictionary/project (last visited July 14, 2017).
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[e]xcept as prohibited by law, the department, upon receipt
of a written application, may issue an aquarium fish
permit, not longer than one year in duration, to use fine
meshed traps, or fine meshed nets other than throw nets,
for the taking of marine or freshwater nongame fish and
other aquatic life for aquarium purposes.[20]
This statutory subsection, together with DLNR’s administrative
rules, allows permit applicants to engage in two general types
of activities: recreational aquarium collection and commercial
aquarium collection.
Recreational aquarium collection permits--those
“issued . . . for non-commercial use,” Hawaii Administrative
Rules (HAR) § 13-77-2 (effective 2015)--allow the extraction of
up to “five fish or aquatic life specimens per person per day,”
HAR § 13-75-14 (effective 2007). Thus, each recreational permit
authorizes the collection of up to 1,825 fish or other aquatic
life within a one-year period. Id. In the case of commercial
aquarium collection permits, which is intended for issuance to
persons who collect “for profit or gain or as a means of
livelihood,” HAR § 13-74-1 (effective 2010), DLNR has not
promulgated any rules that establish limits on the total number
of fish and other aquatic life that commercial collectors may
extract for the entire period in which the permits are
20
Although permits issued under HRS § 188-31 are valid for no
longer than one year, DLNR allows such permits to be renewed instead of
requiring holders of expired permits to reapply. See Licenses & Permits,
State of Haw. Division of Aquatic Resources,
http://dlnr.hawaii.gov/dar/licenses-permits/ (last visited July 24, 2017).
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effective. See HAR § 13-75-14 (providing a total catch limit
only for recreational collection).21
HRS § 188-31 also clearly delineates the aquarium
collection practices that must be complied with to obtain a
permit when aquarium collectors are allowed to use fine meshed
traps or nets to take fish and other aquatic life for aquarium
purposes. Subsection (b) of HRS § 188-31 states that, “[e]xcept
as prohibited by law, the permits shall be issued only to
persons who can satisfy the department that they possess
facilities to and can maintain fish and other aquatic life alive
and in reasonable health.” HRS § 188-31(b).
The extraction of fish or other aquatic life under
aquarium collection permits is also limited to “aquarium
purposes,” HRS § 188-31(c), which, per the statute, “means to
hold salt water fish, freshwater nongame fish, or other aquatic
life alive in a state of captivity as pets, for scientific
21
A few statutes and regulations restrict or limit the manner and
extent to which aquarium collection may be conducted: bag and size limits for
certain aquatic species on Oahu (see HAR § 13-77-6(b), (c), (d) (effective
2015)) and in West Hawaii (see HAR § 13-60.4-4 (effective 2013)), length and
height requirements for allowed mesh nets that apply to Oahu (see HAR § 13-
77-6(a)), monthly reporting requirements for commercial collectors (see HRS
§§ 189-3 (2011), 189-3.5 (2011); HAR § 13-74-20(d) (effective 2010)), and
DLNR’s power pursuant to HAR § 13-75-14(4) (effective 2007) to attach
conditions to commercial permits. Permits issued are also subject to terms
and conditions imposed by DLNR that are generally consistent with or
reference the statutes and rules that relate to aquarium collection.
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study, or for public exhibition or display, or for sale for
these purposes,” HRS § 188-31(d)(1).
Based on the language of HRS § 188-31, the framework
it establishes, and the administrative rules that DLNR
promulgated pursuant to HRS § 188-31, the defined activity
authorized under an aquarium collection permit is as follows:
(1) the extraction annually from State waters of
an unlimited number of fish or other aquatic
life for profit or other gains (in the case
of commercial aquarium collection) or of
1,825 fish or other aquatic life for non-
commercial purposes (in the case of
recreational aquarium collection), subject
to the terms and conditions of the permit
and restrictions set by law;
(2) through the use of fine meshed nets or
traps;
(3) by individuals who can satisfy DLNR that
they possess facilities that can maintain
aquatic life alive and in reasonable health;
and
(4) for the purpose of holding aquatic life
alive in a state of captivity as pets, for
scientific study, or for public exhibition
or display, or for sale for these purposes.
The course and scope of conduct allowed by both
recreational and commercial aquarium collection permits issued
under HRS § 188-31 and DLNR’s administrative scheme encompass
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activity that qualifies as a “program” or “project.” The
activity is a “specific plan” or “a planned undertaking”--and,
therefore, a “project”--because it involves the systematic and
deliberate extraction of aquatic life using procedures,
equipment, facilities, and techniques authorized or required by
HRS § 188-31 and related administrative rules for the specific
purpose of holding captive such aquatic life for aquarium
purposes in order to earn profit (in the case of commercial
permit holders) or for non-commercial use (in the case of
recreational permit holders).
In the same vein, both recreational and commercial
aquarium collection are “programs” within the plain meaning of
that word: the “plan or system under which action may be taken”
is the purposeful and methodical extraction of aquatic life from
State waters through the use of fine meshed nets and traps and
the transfer of such aquatic life to facilities that are capable
of keeping the collected aquatic life alive. The “desired goal”
is to take aquatic life from its habitat and hold it in a state
of captivity for aquarium purposes, as defined by HRS § 188-
31(d)(1), in order to earn profits (in the case of commercial
permit holders) or for non-commercial use (in the case of
recreational permit holders). Additionally, the method by which
extraction is accomplished involves instruments and techniques
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that enhance the efficiency and amount of the collection.22
Accordingly, aquarium collection conducted under permits issued
pursuant to HRS § 188-31 and DLNR’s administrative rules is a
“program or project” and therefore constitutes a HEPA “action.”
2. HEPA’s Purpose and Structure Support the Plain-Language
Construction of the Word “Action”
Our interpretation of “action,” together with our
conclusion that aquarium collection under HRS § 188-31 and
DLNR’s administrative rules constitutes a HEPA “action,” is
confirmed by the purpose of HEPA, as explained in HRS § 343-1
(2010), and by HEPA’s framework. See State v. Bovee, 139 Hawaii
530, 544 n.13, 394 P.3d 760, 774 n.13 (2017) (explaining that
laws in pari materia--those dealing with the same subject
matter--shall be construed with reference to each other); State
v. Alangcas, 134 Hawaii 515, 526, 345 P.3d 181, 192 (2015)
(stating that legislative history is relevant in statutory
construction even when the language appears clear because it
ensures that the literal interpretation is consonant with the
22
The declarations that Petitioners submitted, describing several
aquarium collection practices that holders of permits employ, firmly support
the conclusion that aquarium collection under HRS § 188-31 is both a
“program” and “project”: sophisticated and advanced techniques--such as the
use of scuba technology, underwater jet propulsion systems, nitrox tanks,
fizzing, underwater blankets, etc.--are utilized to extract aquatic life from
State waters for aquarium purposes. These averments illustrate how
elaborate, methodical, and systematic aquarium collection under HRS § 188-31
is practiced in order to achieve the ultimate purpose of holding captive
aquatic life for specific, statutorily enumerated purposes.
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underlying policy that the legislature sought to implement
through the statute, thereby avoiding an absurd or unjust
result).
It has been frequently stated that “HEPA’s purpose is
‘to establish a system of environmental review which will ensure
that environmental concerns are given appropriate consideration
in decision making along with economic and technical
considerations.’” Nuuanu Valley Ass’n v. City & Cty. of
Honolulu, 119 Hawaii 90, 103, 194 P.3d 531, 544 (2008) (quoting
HRS § 343–1). The Hawaii Legislature enacted HEPA after finding
“that an environmental review process will integrate the review
of environmental concerns with existing planning processes of
the State and counties and alert decision makers to significant
environmental effects which may result from the implementation
of certain actions.” HRS § 343-1. The legislature also found
“that the process of reviewing environmental effects is
desirable because 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.” Id. Environmental impact
statements also “allow decision-makers to make informed
decisions” when confronted by certain proposed actions. H.
Stand. Comm. Rep. No. 521, in 2005 House Journal, at 1242.
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The purpose of HEPA and the legislature’s intent in
enacting HEPA indicate that it was not meant to be applied only
to a narrow set of activities. See generally Pearl Ridge
Estates Cmty. Assʻn v. Lear Siegler, Inc., 65 Haw. 133, 140–41,
648 P.2d 702, 707 (1982) (noting that HEPA’s scope is wider
“than the federal or the typical state analogue” (quoting
Molokai Homesteaders Coop. Ass’n v. Cobb, 63 Haw. 453, 465, 629
P.2d 1134, 1143 (1981))). This determination is supported by
the wide range of activities and courses of conduct to which
HEPA has been applied, including construction of buildings,
expansion of or modifications to preexisting buildings,
development of residential communities, and other real estate
developments;23 construction on government lands in order to
build or connect to sewage lines, waterlines, or other
infrastructure;24 development of public transportation;25
23
See Unite Here! Local 5 v. City & Cty. of Honolulu, 123 Hawaii
150, 155, 231 P.3d 423, 428 (2010) (expansion of the Turtle Bay resort,
including the addition of hotel and condominium units and infrastructure);
Nuuanu Valley Ass’n, 119 Hawaii at 94, 194 P.3d at 535 (development of a
subdivision consisting of nine residential lots); Price v. Obayashi Haw.
Corp., 81 Hawaii 171, 173, 914 P.2d 1364, 1366 (1996) (recreational
development project on the North Shore of Oahu); Kahana Sunset Owners Ass’n
v. Cty. of Maui, 86 Hawaii 66, 68, 947 P.2d 378, 380 (1997) (multi-family
residential development on Maui); Waikiki Resort Hotel, Inc. v. City & Cty.
of Honolulu, 63 Haw. 222, 224, 624 P.2d 1353, 1356–57 (1981) (construction of
a hotel building in Waikīkī); Hewitt v. Waikiki Shopping Plaza, 6 Haw. App.
387, 390, 722 P.2d 1055, 1057 (1986) (construction of a shopping and parking
complex in Waikīkī).
24
See Sierra Club v. Office of Planning, State of Haw., 109 Hawaii
411, 413, 126 P.3d 1098, 1100 (2006) (tunneling underneath several state
highways in order to construct a sewage transmission line and a water
(continued . . .)
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construction of power generating facilities and the drilling of
exploratory geothermal wells;26 the growing of imported algae on
facilities in state lands;27 and the Management Plan of the
Observatory Site on the summit of Haleakala
̅ in which a new solar
telescope was under construction.28 The commonality among the
varied activities to which HEPA has been applied is their
potential of producing “environmental concerns” that HEPA
intended to be “given appropriate consideration in decision
making along with economic and technical considerations.” See
Nuuanu Valley Ass’n, 119 Hawaii at 103, 194 P.3d at 544 (quoting
(continued . . .)
transmission line); Citizens for Prot. of N. Kohala Coastline v. Cty. of
Haw., 91 Hawaii 94, 103, 979 P.2d 1120, 1129 (1999) (construction of
underpasses below a state highway for golf carts); McGlone v. Inaba, 64 Haw.
27, 29, 636 P.2d 158, 160–61 (1981) (construction of underground utilities on
state conservation land); Molokai Homesteaders Coop. Ass’n, 63 Haw. at 455,
629 P.2d at 1137 (use of transmission facilities of the Molokai Irrigation
System to transport water to a resort complex on the west end of Molokai);
Life of the Land v. Ariyoshi, 59 Haw. 156, 157–67, 577 P.2d 1116, 1117 (1978)
(construction of the Central Maui Water Transmission System).
25
See Sierra Club, 115 Hawaii at 305, 167 P.3d at 298 (proposed
developments to the Kahului Harbor in order to accommodate the operations of
the Hawaii Superferry project).
26
Kepoo v. Kane, 106 Hawaii 270, 275, 103 P.3d 939, 944 (2005)
(power generating facility); Medeiros v. Haw. Cty. Planning Comm’n, 8 Haw.
App. 183, 186, 797 P.2d 59, 61 (1990) (drilling of four exploratory
geothermal wells); Waianae Coast Neighborhood Bd. v. Hawaiian Elec. Co., 64
Haw. 126, 127, 637 P.2d 776, 777 (1981) (addition of an electric generating
plant on Oahu).
27
Ohana Pale Ke Ao v. Bd. of Agric., State of Haw., 118 Hawaii 247,
254, 188 P.3d 761, 768 (App. 2008).
28
Kilakila O Haleakala v. Univ. of Hawaii, 138 Hawaii 364, 371,
382 P.3d 176, 183 (2016).
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HRS § 343-1). The diversity of the subject matter of previous
HEPA cases affirms that the word “action” has not been (and
should not be) narrowly construed. In this light, our
determination that aquarium collection is a HEPA “action”
furthers HEPA’s purpose as stated under HRS § 188-31: it “will
ensure that environmental concerns are given appropriate
consideration in decision making” so as to foster a holistic and
thoughtful decisional process. HRS § 343–1. Given the nature,
magnitude, and scale of aquarium collection under HRS § 188-31
and DLNR’s administrative rules, any environmental effects that
aquarium collection may have fall squarely within the ambit of
what HEPA’s environmental review framework intends to integrate
into governmental decision making.29
Lastly, our interpretation of “action” and our
conclusion that it includes aquarium collection pursuant to
permits issued under HRS § 188-31 and DLNR’s administrative
rules are also supported by HEPA’s framework. As discussed, the
fact that a proposed activity qualifies as an “action” does not
mean that it would require environmental review, since the
activity must also fall within a statutory category listed in
HRS § 343-5(a) and not be exempt from HEPA. See Sierra Club,
29
Compare the challenged activities in previous HEPA cases, supra
notes 23—28.
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115 Hawaii at 306, 167 P.3d at 299. And for applicant actions,
as in this case, the agency must exercise discretionary consent
as to the proposed activity in order for the activity to be
subject to HEPA. See infra Part V.D. Thus, our interpretation
of “action,” which would include a range of activities that has
the potential of producing environmental effects, is supported
by the HEPA framework because other steps in the HEPA analysis
serve to counterbalance the scope of the meaning of “action.”
That is, the succeeding steps in the HEPA analysis filter
activities that qualify as “actions” in order to determine which
“actions” actually require environmental review.
3. The ICA Erred in its Analysis
The ICA, in the course of conducting a plain-language
interpretation of HEPA “action,” noted that the circuit court
used a well-accepted dictionary to define “program” and
“project.” Umberger v. Dep’t of Land & Nat. Res., 138 Hawaii
508, 514, 382 P.3d 320, 326 (App. 2016). The ICA concluded that
aquarium collection under HRS § 188-31 is not a HEPA “action”
because (1) none of the other cases decided by Hawaii appellate
courts involved activity similar to aquarium collection; (2) a
permit might include a situation in which a parent collects one
or two fish or other aquatic life for use in a home aquarium;
(3) other statutes and administrative rules exist that
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sufficiently regulate aquarium collection; and (4) other
permitting regimes would be subject to HEPA environmental review
if aquarium collection under HRS § 188-31 were considered an
“action.” Id. at 515—17, 382 P.3d at 327—29.
With respect to the ICA’s first line of reasoning, it
concluded that aquarium collection is not a HEPA “action”
because, compared to any of the activities involved in previous
HEPA cases, it is not a “specifically identifiable program or
project.” Id. at 516, 382 P.3d at 328. However, as discussed,
the class of activities and courses of action that HEPA covers
is broad so as to successfully effectuate the intent and purpose
of the statutory scheme. See supra notes 23—28. Additionally,
there has been no HEPA case in which this court determined
whether an activity is a HEPA “action” by evaluating its
similarity to the challenged activities in other HEPA cases.
Doing so would unreasonably delimit HEPA’s application in a
manner inconsistent with its purpose.30
The ICA’s second line of reasoning is that it would be
“unprecedented” to apply HEPA to the hypothetical situation in
30
Further, if the similarity of aquarium collection to a previous
activity to which HEPA was applied is a relevant consideration on whether
aquarium collection is an “action,” then aquarium collection qualifies as an
“action” because it is similar to Disney Aulani’s request for a permit to use
small mesh nets to collect live marine life for stocking a saltwater swimming
pool. Under the ICA’s analysis, just as Disney Aulani’s proposed activity
was deemed to be a HEPA “action,” so would aquarium collection under permits
issued pursuant to HRS § 188-31 and DLNR’s administrative rules.
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which a “parent net[s] one or two fish from a stream for his or
her child’s fish tank.” Umberger, 138 Hawaii at 516, 382 P.3d
at 328. The premise of this line of reasoning is that, even
though recreational aquarium collection permits authorize the
extraction of almost 2,000 fish or other aquatic life per person
annually, for the purpose of determining whether HEPA applies,
the focus should be on the possibility that a person would use
his or her recreational aquarium collection permit to take only
one or two fish.
This analysis is flawed because the properly defined
activity for the purposes of the HEPA analysis must encompass
the outer limits of what the permits allow and not only the most
restrictive hypothetical manner in which the permits may be
used. That is, as discussed, the analysis must proceed from the
properly defined activity allowed under aquarium collection
permits, see supra Part V.A. (defining the activity authorized
under HRS § 188-31 and DLNR’s related administrative rules).
See Sierra Club, 115 Hawaii at 306 n.6, 167 P.3d at 299 n.6.
In addition, a parent netting one or two fish for a
home aquarium may not even be within the ambit of HRS § 188-31
because aquarium collection permits are required only if the
applicant intends “to use fine meshed traps, or fine meshed nets
other than throw nets, for the taking of marine or freshwater
nongame fish and other aquatic life for aquarium purposes.” HRS
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§ 188-31(a). DLNR expounds on this distinction on its own
website, informing the public that a permit to collect fish and
other aquatic life for a home aquarium is not required “if a)
the net has large mesh (more than two inches mesh); b) the net
has small mesh but is less than three feet in length, height, or
width, including the handle; or c) using a slurp gun.” FAQ’s,
State of Haw. Division of Aquatic Resources,
http://dlnr.hawaii.gov/dar/fishing/faqs/ (last visited July 11,
2017). Under these circumstances, the act of netting one or two
fish would not constitute aquarium collection under HRS § 188-31
and, consequently, would not be a HEPA “action.”31 Lastly, the
situation postulated by the ICA--a parent netting one or two
fish or other aquatic life for recreational purposes--is not
present in this case,32 and DLNR’s own evidence in fact showed
that, from 1999 to 2010, millions of aquatic life were harvested
under aquarium collection permits issued pursuant to HRS § 188-
31.
31
In addition, a parent collecting one or two fish for recreational
purposes would not fall within any of the categories of land uses and
administrative acts under HRS § 343-5(a), see infra Part V.B. & note 47, and
even if it were to qualify under any of the categories under HRS § 343-5(a),
a parent engaging in aquarium collection of this nature may also be exempt
from HEPA, see infra Part V.C. & note 51.
32
Petitioners also emphasize in their application for writ of
certiorari that this scenario is not part of the record in this case.
40
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In holding that aquarium collection does not
constitute a HEPA “action,” the ICA also reasoned that there is
a “panoply of other regulatory tools that are in place” “to
protect marine life and the reef ecosystem from the
‘unconstrained removal’ of large numbers of aquarium fish.”
Umberger, 138 Hawaii at 516, 382 P.3d at 329. The regulations
that the ICA identified include bag and size limits for certain
aquatic species on Oahu (see HAR § 13-77-6(b), (c), (d)
(effective 2015)), length and height requirements for allowed
mesh nets that apply to Oahu (see HAR § 13-77-6(a)), monthly
reporting requirements for commercial collectors (see HRS §§
189-3 (2011), 189-3.5 (2011); HAR § 13-74-20(d) (effective
2010)), and DLNR’s power pursuant to HAR § 13-75-14(4)
(effective 2007) to attach other conditions to commercial
permits. Umberger, 138 Hawaii at 516–17, 382 P.3d at 328–29.33
However, as the ICA itself acknowledged, these regulations and
statutory frameworks are not “dispositive” of whether aquarium
collection pursuant to HRS § 188-31 and DLNR’s administrative
rules is a HEPA action. Id. at 517, 382 P.3d at 329. Further,
33
The ICA also referenced statutory provisions governing Marine
Life Conservation Districts, Regional Fisheries Management Areas (including
Fish Replenishment Areas), Shoreline Fisheries Management Areas (including
Marine Protection Areas), and Marine Refuges. Umberger, 138 Hawaii at 516–
17, 382 P.3d at 328–29.
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none of these regulations and statutes defines or modifies
aquarium collection pursuant to HRS § 188-31 and DLNR’s
administrative rules in a manner that would exclude such
collection from the meaning of “action” under HEPA.34
The ICA’s reasoning that other statutes and rules that
overlap with HEPA could somehow place certain activities outside
of the meaning of “action” or preclude the application of HEPA
to such activities is also contradicted by its own precedent.
As the ICA itself recognized in Ohana Pale Ke Ao, where HEPA
overlaps and is consistent with another chapter of the HRS, both
would be given effect. Ohana Pale Ke Ao v. Bd. of Agric., State
of Haw., 118 Hawaii 247, 255, 188 P.3d 761, 769 (App. 2008).
Here, there is no hindrance to giving effect to the statutes and
34
The ICA’s suggestion that the number or comprehensiveness of
agency rules plays a significant role in determining whether an activity
qualifies as a HEPA “action” generates numerous evaluative considerations and
other complications. For example, there is no standard for deciding whether
a statutory or regulatory scheme is sufficiently comprehensive, protective,
and enforced as to render a regulated activity not a HEPA “action.” In
addition, the existence of other statutes and rules concerning a particular
activity does not necessarily mean that their purpose would be identical to
that of HEPA or that they, in fact, are sufficiently protective. In this
case, for example, despite the statutes and rules that the ICA underscored in
its opinion, excerpts of publications that Petitioners submitted in support
of their motion for summary judgment illustrate the detrimental effects of
aquarium collection to fish population and coral reef ecosystems.
Further, the feasibility of the ICA’s analysis is also predicated
on the assumption that any comprehensive statutory or regulatory scheme in
place is strictly enforced. However, there is no evidence in the record that
could support this assumption. Petitioner Willie Kaupiko declared that some
aquarium collectors fish in prohibited areas, that he reported the incidents
to DLNR, that DLNR is non-responsive or slow to respond, and that DLNR did
not investigate the allegations.
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regulations identified by the ICA while also applying the
requirements of HEPA to aquarium collection because the statutes
and regulations have not been demonstrated to be inconsistent
with HEPA. See id.35
Further, as mentioned, HEPA’s purpose is “to establish
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. If the fact that other laws and
rules that facially appear to bear upon the environmental
effects of an activity would exclude the activity from HEPA’s
purview, then this would frustrate HEPA’s purpose of requiring
agencies to appropriately consider environmental concerns in
their decision-making process. In other words, under the ICA’s
analysis, an agency would be able to bypass the protections
provided through HEPA by promulgating administrative rules that
appear to address or bear upon the possible environmental
effects of an activity that the agency regulates without
actually engaging in the informed and deliberate decision-
making process that HEPA requires.
35
No evidence was presented to demonstrate any inconsistency
between HEPA, on the one hand, and the statutes and rules that the ICA
referenced in its opinion, on the other. DLNR does not argue (nor has it
argued in the lower courts) that such an inconsistency exists.
43
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The ICA’s final reason for its holding that aquarium
collection under HRS § 188-31 is not a HEPA “action” is that
Petitioners “offered no rational distinction or logical reason
why HEPA environmental review procedures should be required for
aquarium fish permits, but not for . . . other types of licenses
and permits,” including (among others) bait fish licenses,
commercial marine licenses, special activity permits, permits to
enter or conduct activities in certain areas, hunting licenses,
camping permits, collecting permits, and commercial activity
permits. Umberger, 138 Hawaii at 517, 382 P.3d at 329.
Implicit in the ICA’s reasoning is the concern that, if aquarium
collection under HRS § 188-31 were considered a HEPA “action”
subject to environmental review, other permitting regimes
administered by government agencies would also be subject to
environmental review. See id. However, the fact that aquarium
collection is conducted pursuant to the permitting scheme that
DLNR administers does not drive the conclusion that aquarium
collection is a HEPA “action” or that HEPA applies. The
activities authorized by the permitting schemes that the ICA
utilized in its analysis are not effective points of comparison
given their substantial differences, both in magnitude and
nature, from the activities sanctioned by aquarium collection
permits. For example, many of the activities under the
44
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permitting regimes that the ICA identified do not appear to be
“programs” or “projects.”
Further, as stated, in order for HEPA to apply, the
activity must be an action that falls within a category
enumerated in HRS § 343-5(a), discussed infra Part V.B., and not
be exempt, discussed infra Part V.C. See Sierra Club, 115
Hawaii at 306, 167 P.3d at 299. And for applicant actions, an
additional prerequisite is that the action must be subject to an
agency’s exercise of discretionary consent, discussed infra Part
V.D. Thus, concluding that aquarium collection under HRS § 188-
31 and DLNR’s administrative rules is a HEPA “action” or is
subject to HEPA does not necessarily prescribe a determination
that activities under other permitting regimes are also HEPA
“actions” or are subject to HEPA’s environmental review
requirements. Such activities must independently meet the
analytical framework set forth in Sierra Club and discussed in
this case.
Based on the foregoing, the ICA’s analysis did not
proceed from a full and proper definition of the activity
authorized under aquarium collection permits. Instead, the ICA
appeared to focus on an extreme hypothetical subset of the
activity being proposed. In addition, the ICA improperly relied
on other statutes, administrative rules, and other permitting
45
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regimes in its analysis. For these reasons, the ICA erred in
concluding that aquarium collection is not a HEPA “action.”36
B. Whether Aquarium Collection Falls Within One or More of the
Nine Categories Listed Under HRS § 343–5(a)
For an activity to be subject to HEPA environmental
review, the second requirement is that it must fall within at
least one category of land uses or administrative acts (known as
“triggers”) enumerated in HRS § 343-5(a) (2010).37 See Sierra
Club v. Dep’t of Transp. of the State of Haw., 115 Hawaii 299,
306, 167 P.3d 292, 299 (2007). DLNR conceded for the purposes
of the summary judgment proceedings that “there is a use of
state land” in this case and that, therefore, “[t]here is a
‘trigger’ pursuant to Haw. Rev. Stat. § 343-5(a) (2010).” After
36
Petitioners also contend that the ICA’s construction of “program”
and “project” undermines DLNR’s public trust and statutory duties to conserve
marine resources. In light of our disposition in this case, this issue need
not be reached.
37
The parties’ primary dispute in this case involves whether
activities allowed under permits issued pursuant to HRS § 188-31 and DLNR’s
administrative rules are HEPA “actions.” Having found that aquarium
collection pursuant to permits issued by DLNR is a HEPA “action”--contrary to
the circuit court’s ruling--we proceed to consider other grounds upon which
the circuit court’s grant of summary judgment to DLNR may be affirmed. See
Reyes v. Kuboyama, 76 Hawaii 137, 140–41, 870 P.2d 1281, 1284–85 (1994)
(“This court may affirm a grant of summary judgment on any ground appearing
in the record, even if the circuit court did not rely on it.”). Thus, we
consider whether there is an issue of material fact as to either of the two
other requisites of HEPA review.
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reviewing the applicable legal principles in the discussion that
follows, we conclude that DLNR’s concession is correct.38
Categories of land use under which aquarium collection
may fall include HRS § 343-5(a)(1) (actions that “[p]ropose the
use of state or county lands”)39 and HRS § 343-5(a)(2) (actions
that “[p]ropose any use within any land classified as a
conservation district by the state land use commission under
chapter 205”). Therefore, we determine (1) whether marine
waters40 and the submerged lands in which aquarium collection is
38
We review the merits of DLNR’s concession because a court is not
bound by a party’s “apparent concession of law.” Ass’n of Apartment Owners
of Newtown Meadows ex rel. its Bd. of Dirs. v. Venture 15, Inc., 115 Hawaii
232, 254, 167 P.3d 225, 247 (2007) (citing McCandless v. Campbell, 20 Haw.
404, 405 (1911)). “[W]e are free to interpret . . . and apply the correct
law to its enforcement.” Beclar Corp. v. Young, 7 Haw. App. 183, 190, 750
P.2d 934, 938–39 (1988).
39
In full, HRS § 343-5(a)(1) provides as follows:
(a) Except as otherwise provided, an environmental
assessment shall be required for actions that:
(1) Propose the use of state or county lands or the
use of state or county funds, other than funds to
be used for feasibility or planning studies for
possible future programs or projects that the
agency has not approved, adopted, or funded, or
funds to be used for the acquisition of
unimproved real property; provided that the
agency shall consider environmental factors and
available alternatives in its feasibility or
planning studies; provided further that an
environmental assessment for proposed uses under
section 205-2(d)(11) or 205-4.5(a)(13) shall only
be required pursuant to section 205-5(b) . . . .
40
Aquarium collection under HRS § 188-31 also allows extraction of
fish and other aquatic life from freshwater sources. HRS § 188-31(a). We do
not address freshwater sources because the activities under the permits being
challenged in this case, based on the parties’ filings and the record on
appeal, all transpire in marine waters and submerged lands.
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conducted constitute state lands or are within a conservation
district and (2) whether aquarium collection constitutes “use.”
1. Whether Marine Waters and Submerged Lands in Which Aquarium
Collection is Conducted Constitute State Lands
“Land” is not defined by HEPA, so we commence our
statutory construction by employing “the well-settled canon that
‘[l]aws in pari materia, or upon the same subject matter, shall
be construed with reference to each other. What is clear in one
statute may be called upon in aid to explain what is doubtful in
another.’” State v. Bovee, 139 Hawaii 530, 544, 394 P.3d 760,
774 (2017) (quoting State v. Alangcas, 134 Hawaii 515, 527, 345
P.3d 181, 193 (2015)); accord HRS § 1–16 (1993). Chapter 171 of
the HRS, the chapter that created DLNR and prescribes its
authority,41 defines “land” as “includ[ing] all interests therein
and natural resources including water, minerals, and all such
things connected with land, unless otherwise expressly
provided.” HRS § 171-1 (2011) (emphasis added). HRS § 171-2
then defines “public lands” as
all lands or interest therein in the State classed as
government or crown lands previous to August 15, 1895, or
acquired or reserved by the government upon or subsequent
to that date by purchase, exchange, escheat, or the
exercise of the right of eminent domain, or in any other
manner; including lands accreted after May 20, 2003, and
not otherwise awarded, submerged lands, and lands beneath
tidal waters that are suitable for reclamation, together
41
See generally HRS §§ 171-3 (2011), 171-4 (2011), 171-6 (2011),
171-7 (2011).
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with reclaimed lands that have been given the status of
public lands under this chapter . . . .
HRS § 171-2 (2011) (emphases added).42
Thus, included within the meaning of “land” and
“public lands” are “water” and “submerged lands.” HRS §§ 171-1,
171-2. Based on these definitions, marine waters and submerged
lands in which aquarium collection is conducted are included
within the meaning of “land” under HEPA. HRS §§ 171-1, 171-2.
Further, when the State acts as a trustee and
exercises fiduciary duties over certain areas not typically
considered “state lands,” this court has held that, for HEPA
purposes, those areas qualify as state lands. For example, this
court held that Hawaiian homelands are “state lands” for HEPA
purposes because of the State’s trust obligations with respect
to those lands and its fiduciary duty to the beneficiaries of
those lands. Kepoo v. Watson, 87 Hawaii 91, 97–98, 952 P.2d
379, 385–86 (1998). Similar to the State’s trusteeship to
Hawaiian homelands, this court has repeatedly reaffirmed that
42
On the same note, DLNR’s administrative rules define “[l]and” as
“all real property, fast or submerged, and all interests therein, including
fauna, flora, minerals, and all such natural resources, unless otherwise
expressly provided.” HAR § 13-5-2 (effective 1994). The Land Use
Commission’s rules define “[l]and” as “all real property in the State
including areas under water within the boundaries of the State.” HAR § 15-
15-03 (effective 1997).
DLNR then defines the phrase “[s]ubmerged lands” as “lands from
the shoreline seaward to the extent of the State’s jurisdiction.” HAR § 13-
5-2.
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the State’s public trust obligations pursuant to article XI,
section 1 of the Hawaii Constitution extend “to all water
resources.” In re Water Use Permit Applications (Waiāhole), 94
Hawaii 97, 133, 9 P.3d 409, 445 (2000); Kauai Springs, Inc. v.
Planning Comm’n of the Cty. of Kauai, 133 Hawaii 141, 172, 324
P.3d 951, 982 (2014) (“[T]he public trust doctrine applies to
all water resources without exception or distinction.” (quoting
Waiāhole, 94 Hawaii at 133, 9 P.3d at 445)). The common law of
Hawaii also embodies the precept that “navigable waters” and
“[t]he lands under the navigable waters in and around the
territory of the Hawaiian Government are held in trust for the
public uses of navigation.” King v. Oahu Ry. & Land Co., 11
Haw. 717, 725 (Haw. Terr. 1899). Just as Hawaiian homelands are
“state lands” for the purposes of HRS § 343-5(a)(1) because they
are subject to the State’s statutorily defined trust
obligations, so too are marine waters and submerged lands, both
of which are subject to the State’s constitutional and common-
law public trust duties. See Kepoo, 87 Hawaii at 97–98, 952
P.2d at 385–86; Waiāhole, 94 Hawaii at 133, 9 P.3d at 445. It
therefore follows that the State marine waters and the submerged
lands in which aquarium collection occurs are “state lands”
under HEPA.
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2. Whether Marine Waters are Within a Conservation District
HEPA environmental review is also triggered when an
action “[p]ropose[s] any use within any land classified as a
conservation district by the state land use commission under
chapter 205.” HRS § 343-5(a)(2). According to HRS § 205-2(e)
(Supp. 2012), “[c]onservation districts shall include areas
necessary for . . . conserving indigenous or endemic . . .
fish[] and wildlife, including those which are threatened or
endangered,” or “would maintain or enhance the conservation of
natural or scenic resources.” Thus, the legislature uses the
term “areas” in defining “conservation districts,” and it does
not limit what constitutes “conservation districts” to “lands.”
Id.43
Additionally, pursuant to HRS § 343-5(a)(2), the Land
Use Commission has adopted HAR § 15-15-20, which provides in
relevant part the following:
§15-15-20 Standards for determining “C” conservation
district boundaries. Except as otherwise provided in this
chapter, in determining the boundaries for the “C”
conservation district, the following standards shall apply:
. . . .
(6) It shall include lands having an elevation below the
shoreline as stated by section 205A-I, HRS, [and]
marine waters . . . .
43
Additionally, as discussed in the preceding section, the term
“lands” includes “submerged lands” and “waters.”
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HAR § 15-15-20(6) (effective 1997) (emphases added). In
addition, HAR § 15-15-22(a)(2) (effective 1997) provides that in
interpreting district boundaries, “[l]and having an elevation
below the shoreline [and] marine waters . . . of the State[] . .
. shall be included in the conservation district.” HAR § 15-15-
22(a)(2) (effective 1997). Thus, the legislature and the Land
Use Commission, through its statutory rulemaking authority,
clearly included lands below the shoreline (i.e., submerged
lands) and marine waters of the State within conservation
districts. See HRS § 205-2(e) (Supp. 2012); HAR § 15-15-20(6);
HAR § 15-15-22(a)(2).
The inclusion of State marine waters within
conservation districts designated by the Land Use Commission is
reinforced by HRS § 190-1 (2011), which provides that “[a]ll
marine waters of the State . . . constitute[] a marine life
conservation area to be administered by the department of land
and natural resources subject to this chapter and any other
applicable laws not inconsistent herewith or with any rules
adopted pursuant hereto.”44 Consistent with its legislative
mandate, DLNR has promulgated administrative rules that
44
Since 1990, the legislature has defined “state marine waters” “as
extending from the upper reaches of the wash of the waves on shore seaward to
the limit of the State’s police power and management authority, including the
United States territorial sea, notwithstanding any law to the contrary.” HRS
§ 190-1.5 (2011).
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established subzones within conservation districts.45 A
conservation district, under DLNR rules, encompasses subzones of
“[l]ands and state marine waters seaward of the shoreline to the
extent of the State’s jurisdiction, unless placed in a
[protective] or [limited] subzone.” HAR § 13-5-13(b)(5)
(effective 1994) (emphasis added). Accordingly, lands and State
marine waters seaward of the shoreline under the State’s
jurisdiction, in which the aquarium collection practices
challenged in this case are conducted, are within conservation
districts classified by the Land Use Commission pursuant to its
authority under HRS chapter 205 and thus fall within a category
of land use enumerated in HEPA.
3. Whether Aquarium Collection is a “Use” Under HRS § 343–5
We next consider whether aquarium collection is a
“use” under HRS § 343-5. “Use” is also an undefined term under
HEPA, and this court has previously observed that its ordinary
meaning “could be construed to apply to any ‘use’ of state or
county land, no matter what or how benign that ‘use’ may be.”
45
DLNR’s rulemaking power originates from the legislature, which
has authorized DLNR to “establish and from time to time modify the limits of
one or more conservation districts in each county and may, if it deems
necessary, declare all waters within any county a conservation district.”
HRS § 190-2 (2011). In addition, the legislature has required DLNR in HRS §
183C-3(7) (Supp. 1994) to “[e]stablish and enforce land use regulations on
conservation district lands” and in HRS § 183C-4(b) and (d) (Supp. 1997) to
“adopt rules governing the use of land within the boundaries of the
conservation district” and to establish and define zones within the
conservation district.
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Nuuanu Valley Ass’n v. City & Cty. of Honolulu, 119 Hawaii 90,
103, 194 P.3d 531, 544 (2008). Our court declined to adopt such
a sweeping interpretation, concluding “that the boundaries of
the meaning of the word ‘use,’ as contemplated by HRS § 343–
5(a)(1), is not unlimited in possibilities.” Id. In reaching
this conclusion, the court noted that, in a previous case, we
rejected the plaintiff’s argument “that the ‘potential use of’ a
public highway leading to [a development] project”
“constitute[s] use of state land.” Id. (quoting Citizens for
Prot. of N. Kohala Coastline v. Cty. of Hawaii, 91 Hawaii 94,
103 n.8, 979 P.2d 1120, 1129 n.8 (1999)). Thus, this court
concluded in Nuuanu Valley that merely connecting to an existing
drainage system and county lines without any construction or
tunneling beneath state or county lands was not a “use” within
the meaning of that term in HRS § 343-5(a)(1). Id. at 103—04,
194 P.3d at 544—45.
What can be readily gleaned from Nuuanu Valley is that
whether a proposed activity constitutes a “use of state or
county lands” depends on the nature of the activity and the
extent of the involvement of state or county lands. Id. at 103,
194 P.3d at 544. When the proposed activity utilizes state or
county lands in a decidedly inconsequential or negligible
manner, like the mere connection to state or county lands in
Nuuanu Valley, or when the use is hypothetical, like the
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“potential use” of a public highway in Citizens, then the
activity does not rise to the level of “use” contemplated by
HEPA. When, on the other hand, the proposed activity utilizes
state or county lands in an actual and more substantial way, the
activity qualifies as a “use” under HEPA. Compare Nuuanu
Valley, 119 Hawaii at 103–04, 194 P.3d at 544–45 (connecting to
existing county lines was not a “use”), with Kahana Sunset
Owners Ass’n v. Cty. of Maui, 86 Hawaii 66, 71, 947 P.2d 378,
383 (1997) (installing a new drainage line beneath a public
street that would be connected to an existing culvert beneath a
public highway was a “use”), Citizens, 91 Hawaii at 103, 979
P.2d at 1129 (constructing two underpasses beneath a state
highway was a “use”), and Sierra Club v. Office of Planning,
State of Haw., 109 Hawaii 411, 415–16, 126 P.3d 1098, 1102–03
(2006) (constructing sewage and water transmission lines by
tunneling beneath state highways was a “use”).
Permits for commercial aquarium collection allow for
the unlimited collection of fish and other aquatic life, and
each recreational permit authorizes the extraction of close to
2,000 fish or other aquatic life annually, subject to the terms
and conditions of the permits and to certain restrictions set by
law. See HAR § 13-75-14; see supra note 21. The aquatic life
collected inhabits “state lands” and conservation districts, as
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discussed, and are integral components of the State’s reef
ecosystem. Thus, aquarium collection utilizes “state lands” and
conservation districts in an actual and substantial manner.
Said differently, aquarium collection as allowed under
commercial and recreational permits cannot be said to fall
within the narrow spectrum of activities that this court has
excluded from the meaning of the word “use” in Nuuanu Valley.46
Accordingly, aquarium collection pursuant to permits issued
under HRS § 188-31 qualifies as a “use of state . . . lands” and
as a “use within . . . a conservation district.”47
C. Whether Aquarium Collection is Exempt under HRS § 343-6(a)(2)
Having determined that aquarium collection under HRS §
188-31 and DLNR’s permitting scheme is a HEPA “action” that
qualifies as a “use of state . . . lands,” we proceed to the
46
DLNR argues that, if aquarium collection under HRS § 188-31 is
considered a HEPA “action,” all activities “in a government building or by a
government employee” would be subject to environmental review pursuant to
HEPA because those activities involve “the use of state or county lands or
the use of state or county funds.” This assertion is without merit because,
as discussed, not all activities qualify as a “use,” and activities such as
“turning on the lights” in a government building, a hypothetical that DLNR
asserts, are unquestionably not within the set of activities that qualify as
a “use” under Nuuanu Valley.
47
As stated, a parent netting one or two fish for recreational use
would not fall within any of the categories listed in HRS § 343-5(a). See
supra note 31. The reason is that the nature and magnitude of the
involvement of marine waters and submerged lands in this type of activity are
inconsequential and negligible such that this activity would not qualify as a
“use” of state lands or conservation districts under HRS § 343-5(a). It
follows that, if permits were issued for activities similarly limited in
nature and magnitude as a parent collecting one or two fish for recreational
purposes, the activities under such permits would also not be considered a
“use” of state and conservation lands.
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third part of the analysis: whether aquarium collection is
exempt from HEPA environmental review. HRS § 343-6 requires the
Environmental Council to adopt, amend, or repeal rules that
shall “[e]stablish procedures whereby specific types of actions,
because they will probably have minimal or no significant
effects on the environment, are declared exempt from the
preparation of an environmental assessment.”48 HRS § 343-6(a)(2)
(2010). The Environmental Council accordingly adopted
categories of “actions” in HAR § 11-200-8(a) that “may be
declared exempt by the proposing agency or approving agency from
the preparation of an environmental assessment provided that
48
HEPA defines “[s]ignificant effect” as
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 as established by
law, or adversely affect the economic welfare, social
welfare, or cultural practices of the community and State.
HRS § 343-2 (2010).
HAR § 11-200-2 defines “effects” as follows:
“Effects” or “impacts” as used in this chapter are
synonymous. Effects may include ecological effects (such
as the effects on natural resources and on the components,
structures, and functioning of affected ecosystems),
aesthetic effects, historic effects, cultural effects,
economic effects, social effects, or health effects,
whether primary, secondary, or cumulative. Effects may
also include those effects resulting from actions which may
have both beneficial and detrimental effects, even if on
balance the agency believes that the effect will be
beneficial.
HAR § 11-200-2 (effective 1996).
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agencies declaring an action exempt under this section shall
obtain the advice of other outside agencies or individuals
having jurisdiction or expertise as to the propriety of the
exemption.” HAR § 11-200-8(a) (effective 1996). These
categories include the operations, repairs, replacement or
reconstruction of existing structures; construction and
modification of certain small facilities or structures; minor
alterations in the conditions of land, water, or vegetation;
basic data collection and research activities; construction or
placement of minor structures accessory to existing facilities;
interior alterations; demolition of certain structures; certain
zoning variances; continuing administrative activities; and
acquisition of land and structures for the purpose of affordable
housing. Id.
In addition, the Environmental Council decreed by
administrative rule that “[e]ach agency, through time and
experience, shall develop its own list of specific types of
actions which fall within the exempt classes, as long as these
lists are consistent with both the letter and intent expressed
in these exempt classes and chapter 343, HRS.” HAR § 11-200-
8(d). The authority of the various agencies under HAR § 11-200-
8(d), however, is not boundless. As this court explained in
Kahana Sunset, the intent of the exemption list in HAR § 11-200-
8, adopted pursuant to HRS § 343-6(a)(2), is “to exempt only
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very minor projects from the ambit of HEPA.” Kahana Sunset
Owners Ass’n v. Cty. of Maui, 86 Hawaii 66, 72, 947 P.2d 378,
384 (1997). Thus, this court later held that, when developing
lists of the exemptions pursuant to HAR § 11-200-8(d), an agency
must preliminarily determine that the action to be declared
exempt is a very minor project that “will ‘probably have minimal
or no significant effects on the environment.’” Sierra Club v.
Dep’t of Transp. of the State of Haw., 115 Hawaii 299, 316, 167
P.3d 292, 309 (2007). Our decision in Sierra Club also
concluded “that not only must the exemption list be developed
with regard to the letter and intent of HEPA and its
regulations, but so also must individual exemption
determinations.” Id. This means that individual exemption
determinations must be determined to “probably have minimal or
no significant effects on the environment.” Id. (quoting HAR §
11-200-2).
Guided by these principles, this court in Sierra Club
concluded that an agency must make the following determinations
in deciding whether a proposed activity is exempt from HEPA.
Preliminarily, the agency must determine whether the action is
part of a “group of actions” that must be “treated as a single
action” pursuant to HAR § 11-200-7 (effective 1985).
Thereafter, the agency must conduct a four-step analysis: an
action is exempt from HEPA if (1) it is within an exempt class
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promulgated by the Environmental Council in HAR § 11-200-8(a) or
within an exemption category created by the agency itself
pursuant to its authority under HAR § 11-200-8(d); (2) the
relevant exemption category can be applied because the activity
does not have a significant cumulative impact and it does not
have a significant impact on a particularly sensitive
environment, see HAR § 11-200-8(b); (3) the agency obtained the
advice of other agencies or individuals having jurisdiction or
expertise as to the propriety of the exemption, HAR § 11-200-
8(a); and (4) the action will probably have minimal or no
significant effects on the environment, HRS § 343-6(a)(2); see
also HAR § 11-200-8(d); Sierra Club, 115 Hawaii at 315—16, 167
P.3d at 308—09. If the action fails to satisfy any of the four
requirements discussed, it is not exempt from HEPA. Sierra
Club, 115 Hawaii at 315—16, 167 P.3d at 308—09.
As a matter of law, it cannot be concluded that
commercial aquarium collection, which involves the extraction of
an unlimited number of fish and other aquatic life annually, may
be exempt from HEPA because it does not qualify within any of
the exemption categories in HAR § 11-200-8(a). The most
relevant exemption--“[m]inor alterations in the conditions of
land, water, or vegetation” under HAR § 11-200-8(a)(4)--has no
application because a permit for extraction of an unlimited
number of aquatic life cannot be said to constitute only a
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“[m]inor alteration” in the condition of State waters and
submerged lands.49
With respect to recreational aquarium collection,
which allows each permit holder to extract close to 2,000 fish
or other aquatic life per year,50 the record is not sufficiently
developed so as to allow this court to determine whether this
“action” may be exempted from HEPA under an exemption category
in HAR § 11-200-8(a) or under DLNR’s own exemption list
promulgated pursuant to HAR § 11-200-8(d).51 In sum, commercial
49
With the Environmental Council’s approval, DLNR has promulgated
its own exemption list pursuant to its authority under HAR § 11-200-8(d).
Exemption List for the Department of Land and Natural Resources (2015),
http://oeqc.doh.hawaii.gov/Shared%20Documents/Environmental_Council/Exemption
_Lists_By_Department/State_Agencies/DLNR_Comprehensive_Exemption_List_06-05-
15_Final.pdf. None of the exemption classes that DLNR adopted applies in
this case. The closest relevant exemption under Exemption Class 4--“[m]inor
alterations in [S]tate waters, including restoration of native species and
control of invasive weeds, algae, invertebrates, fishes or other invasive
aquatic organisms”--does not apply because, as discussed, commercial aquarium
collection cannot be said to constitute a “[m]inor alteration[] in [S]tate
waters.”
Because we conclude that activities allowed by commercial
aquarium collection permits do not qualify under any of the exemption
categories in HAR § 11-200-8(a) and in DLNR’s own exemption list, it is not
necessary for this court to apply the other prongs of the exemption framework
to commercial aquarium collection.
50
When the aquarium collector does not collect the maximum amount
of aquatic animals authorized, the catch could be such that rarer, more
vulnerable species are specifically targeted.
51
A parent collecting one or two fish for recreational use, aside
from not falling within any of the categories under HRS § 343-5(a), may also
be exempt from HEPA. See supra note 31. This is because this activity
arguably falls under the exemption for minor alterations in the conditions of
land, water, or vegetation, as discussed in this section. Thus, if permits
issued under HRS § 188-31 allow only activities similar in nature and
magnitude as a parent collecting one or two fish for recreational purposes,
the activity may also be exempt from HEPA within the framework discussed
above.
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aquarium collection is not exempted from HEPA, but the
possibility that recreational aquarium collection as authorized
under HRS § 188-31 and DLNR’s administrative rules may be
exempted should be explored further by the parties and the
circuit court upon remand using the analytical framework
discussed herein.
D. Discretionary Consent
We have determined that aquarium collection is a HEPA
“action” that qualifies as a use of state lands and that, while
commercial aquarium collection is not exempted from HEPA’s
environmental review requirements, the record is not
sufficiently developed for this court to determine whether the
same is true for recreational aquarium collection. However,
because aquarium collection has been cast in this case as an
applicant action, in order for environmental review to be
required under HEPA, there is an additional inquiry of whether
issuing a permit for aquarium collection requires “approval of
an agency.” HRS § 343-5(e) (Supp. 2012).52
52
In relevant part, HRS § 343-5(e) provides as follows:
(e) Whenever an applicant proposes an action
specified by subsection (a) that requires approval of an
agency and that is not a specific type of action declared
exempt under section 343-6, the agency initially receiving
and agreeing to process the request for approval shall
require the applicant to prepare an environmental
assessment of the proposed action at the earliest
(continued . . .)
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“Approval,” as defined by HEPA, “means a discretionary
consent required from an agency prior to actual implementation
of an action.” HRS § 343-2 (2010). “‘Discretionary consent’
means a consent, sanction, or recommendation from an agency for
which judgment and free will may be exercised by the issuing
agency, as distinguished from a ministerial consent.” Id. DLNR
contends that it does not issue an “approval” because it does
not exercise discretion whenever it issues aquarium collection
permits pursuant to HRS § 188-31 (2011) and that, therefore,
HEPA does not apply to aquarium collection.
(continued . . .)
practicable time to determine whether an environmental
impact statement shall be required . . . .
HRS § 343-5(e) (emphasis added).
In their reply, Petitioners argue that the ICA’s holding
regarding DLNR’s discretionary authority is not properly before this court
because DLNR did not cross-file an application for writ of certiorari
challenging that portion of the ICA’s published opinion. However, whether
discretionary authority exists is a “subsidiary question fairly comprised” by
the issue presented in Petitioners’ application for writ of certiorari--
whether aquarium collection pursuant to HRS § 188-31 and DLNR’s
administrative rules requires HEPA review--because, as explained, in order to
ultimately resolve the issue presented, this court must determine whether
DLNR exercises discretionary consent in granting HRS § 188-31 aquarium
permits. Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d)(1) (2016)
(“The statement of a question presented will be deemed to include every
subsidiary question fairly comprised therein.”). In addition, we reach the
question of discretionary authority as part of our duty to consider any
grounds upon which the circuit court’s summary judgment ruling may be
affirmed. See supra note 37.
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HRS § 188-31 expressly provides that DLNR, “upon
receipt of a written application, may issue an aquarium fish
permit, not longer than one year in duration, to use fine meshed
traps, or fine meshed nets other than throw nets, for the taking
of marine or freshwater nongame fish and other aquatic life for
aquarium purposes.”53 HRS § 188-31(a) (emphasis added). “The
term ‘may’ is generally construed to render optional,
53
As stated, HRS § 188-31 provides the following:
(a) Except as prohibited by law, the department,
upon receipt of a written application, may issue an
aquarium fish permit, not longer than one year in duration,
to use fine meshed traps, or fine meshed nets other than
throw nets, for the taking of marine or freshwater nongame
fish and other aquatic life for aquarium purposes.
(b) Except as prohibited by law, the permits shall
be issued only to persons who can satisfy the department
that they possess facilities to and can maintain fish and
other aquatic life alive and in reasonable health.
(c) It shall be illegal to sell or offer for sale
any fish and other aquatic life taken under an aquarium
fish permit unless those fish and other aquatic life are
sold alive for aquarium purposes.
The department may adopt rules pursuant to chapter 91
for the purpose of this section.
(d) For the purposes of this section:
(1) “Aquarium purposes” means to hold salt water
fish, freshwater nongame fish, or other aquatic
life alive in a state of captivity as pets, for
scientific study, or for public exhibition or
display, or for sale for these purposes; and
(2) “Aquarium fish permit” means a permit issued by
the board for the use of fine mesh nets and
traps to take salt water fish, freshwater
nongame fish, or other aquatic life for
aquarium purposes.
HRS § 188-31 (emphases added).
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permissive, or discretionary the provision in which it is
embodied; this is so at least when there is nothing in the
wording, sense, or policy of the provision demanding an unusual
interpretation.” State v. Kahawai, 103 Hawaii 462, 465, 83 P.3d
725, 728 (2004) (quoting State ex rel. City of Niles v. Bernard,
372 N.E.2d 339, 341 (Ohio 1978)). Where “may” and “shall” “are
used in the same statute, especially where they are used in
close juxtaposition, we infer that the legislature realized the
difference in meaning and intended that the verbs used should
carry with them their ordinary meanings.” State v. Cornelio, 84
Hawaii 476, 493, 935 P.2d 1021, 1038 (1997) (quoting Gray v.
Admin. Dir. of the Court, State of Haw., 84 Hawaii 138, 149, 931
P.2d 580, 591 (1997)). In such instances, “the close proximity
of the contrasting verbs ‘may’ and ‘shall’ requires a non-
mandatory, i.e., a discretionary, construction of the term
‘may.’” Id. (quoting Gray, 84 Hawaii at 149, 931 P.2d at 591).
In HRS § 188-31, “may” is used in subsection (a),
where DLNR is given the authority to issue aquarium collection
permits. The verb “shall” is then used in subsection (b), which
provides that “the permits shall be issued only to persons who
can satisfy the department that they possess facilities to and
can maintain fish and other aquatic life alive and in reasonable
health.” HRS § 188-31(b). The verbs “shall” and “may” are both
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used in subsection (c), which states that “[i]t shall be illegal
to sell or offer for sale any fish and other aquatic life taken
under an aquarium fish permit unless those fish and other
aquatic life are sold alive for aquarium purposes” and that
“[t]he department may adopt rules pursuant to chapter 91 for the
purpose of this section.” HRS § 188-31(c). Thus, the verbs
“may” and “shall” are used “in close juxtaposition” in HRS §
188-31, and the legislature should be presumed to have done so
deliberately and with full knowledge of the difference between
the ordinary significations of these verbs. Cornelio, 84 Hawaii
at 493, 935 P.2d at 1038. As such, the use of the verb “may” in
subsection (a) “render optional, permissive, or discretionary”
DLNR’s statutory authority to issue aquarium collection permits
pursuant to HRS § 188-31. Kahawai, 103 Hawaii at 465, 83 P.3d
at 728.
HRS § 188-31(b) provides further indication that DLNR
possesses the authority to exercise discretionary consent in the
aquarium collection permitting process. Subsection (b) of HRS §
188-31 provides that “the permits shall be issued only to
persons who can satisfy the department that they possess
facilities to and can maintain fish and other aquatic life alive
and in reasonable health.” HRS § 188-31(b) (emphasis added).
Accordingly, HRS § 188-31(b) explicitly allows DLNR to exercise
its independent judgment in determining whether a permit
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applicant possesses facilities to and can maintain fish and
other aquatic life alive and in reasonable health. See HRS §
343-2 (defining discretionary consent as “a consent, sanction,
or recommendation from an agency for which judgment and free
will may be exercised by the issuing agency, as distinguished
from a ministerial consent”). If DLNR is not satisfied that a
permit applicant has the ability to comply with the provisions
of HRS § 188-31(b), DLNR has the statutory discretion not to
issue an aquarium collection permit. Not only does DLNR
exercise its independent judgment pursuant to HRS § 188-31(b),
DLNR is also authorized, under HRS § 188-31(c), to adopt
administrative rules to effectuate the aquarium collection
permitting scheme. HRS § 188-31(c). As the ICA also
recognized, the legislative history of HRS § 188–31 makes DLNR’s
discretionary authority clear, as the statute “provides
safeguards so that the abuse of the privilege of using fine mesh
nets can be prevented.” Umberger v. Dep’t of Land & Nat.
Resources, 138 Hawaii 508, 518, 382 P.3d 320, 330 (App. 2016)
(emphasis omitted) (quoting H. Stand. Comm. Rep. No. 586, in
1953 House Journal, at 675). Thus, there is no merit to DLNR’s
argument that it does not possess the authority to exercise
discretionary consent in the aquarium collection permitting
process.
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DLNR further argues that it does not exercise
discretion in issuing aquarium collection permits because “[t]he
application process is on-line and completely automatic.”
However, the fact that DLNR has chosen not to exercise its
discretion under the plain and unambiguous language of HRS §
188-31 does not nullify the statute’s clear directive that DLNR
is given the authority to exercise discretionary consent. An
agency may not defeat the express provisions of a statute simply
by operating in a manner that does not comport with the
legislature’s grant of authority. See Hyland v. Gonzales, 139
Hawaii 386, 382, 390 P.3d 1273, 1279 (2017) (concluding that the
local election board’s interpretation of its regulation must be
consistent with the act being administered and that the board
cannot contradict the statute that it is attempting to
implement). This would also be contrary to the principle,
recognized by a majority of this court, that “[a]n agency is a
creature of the legislature, and the scope of its authority is
specifically delineated by statute.” Mauna Kea Anaina Hou v.
Bd. of Land & Nat. Res., 136 Hawaii 376, 413 n.14, 363 P.3d 224,
261 n.14 (2015) (Pollack, J., concurring).
To conclude, DLNR’s challenge to the ICA’s holding
that DLNR has discretionary consent is without merit. Thus,
aquarium collection pursuant to permits issued under HRS § 188-
31 is an applicant action that requires agency approval.
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E. Summary Judgment
The circuit court granted DLNR’s motion for summary
judgment and, correspondingly, denied Petitioners’ summary
judgment motion upon concluding that aquarium collection under
HRS § 188-31 (2011) is not a HEPA “action.” This court’s
framework in reviewing decisions regarding summary judgment is
as follows:
[S]ummary 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. 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. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing the
motion.
Lambert v. Waha, 137 Hawaii 423, 432 n.9, 375 P.3d 202, 211 n.9
(2016) (quoting Querubin v. Thronas, 107 Hawaii 48, 56, 109 P.3d
689, 697 (2005)). The burden is on the moving party “to show
the absence of any genuine issue as to all material facts,
which, under applicable principles of substantive law, entitles
the moving party to judgment as a matter of law.” French v.
Haw. Pizza Hut, Inc., 105 Hawaii 462, 470, 99 P.3d 1046, 1054
(2004) (quoting GECC Fin. Corp. v. Jaffarian, 79 Hawaii 516,
521, 904 P.2d 530, 535 (App. 1995)). Only after the moving
party satisfies its initial burden would the burden shift to the
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nonmoving party to “demonstrate specific facts, as opposed to
general allegations, that present a genuine issue worthy of
trial.” Id. (emphasis omitted) (quoting GECC Fin. Corp., 79
Hawaii at 521, 904 P.2d at 535).
Because aquarium collection pursuant to commercial and
recreational permits issued by DLNR is a HEPA “action,” the
circuit court erred in granting DLNR’s motion for summary
judgment on the basis that aquarium collection is not a HEPA
“action.” The circuit court also erred to the extent that it
denied Petitioners’ summary judgment motion with respect to
commercial aquarium collection permits because, as discussed,
the authorized conduct under such permits is an applicant
“action” under HEPA, is a use of state lands and a use within a
conservation district, is not exempted from HEPA, and is subject
to DLNR’s discretionary consent. Thus, the conduct allowed
under commercial aquarium collection permits, issued pursuant to
HRS § 188-31 and DLNR’s administrative scheme, is subject to
HEPA environmental review, and there is no genuine issue of
material fact as to this issue. To the extent that the circuit
court did not grant Petitioners’ summary judgment motion with
respect to recreational aquarium collection permits, it did not
err because the record is not sufficiently developed so as to
allow the circuit court to determine whether activities allowed
under recreational permits may be exempted from HEPA
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environmental review. In other words, there was a genuine issue
of material fact as to whether activities authorized by
recreational permits are subject to HEPA review.
In summary, the circuit court erred in granting DLNR
summary judgment and in denying Petitioners’ summary judgment
motion with respect to commercial aquarium collection permits.
The circuit court did not err in denying Petitioners’ motion for
summary judgment with respect to recreational aquarium
collection permits.
We note that HRS § 343-5(g) (Supp. 2012) provides that
agencies, in preparing an environmental assessment, “may
consider and, where applicable and appropriate, incorporate by
reference, in whole or in part, previous determinations of
whether a statement is required and previously accepted
statements.” HRS 343-5(g) (Supp. 2012). A similar authority,
derived from HRS § 343-5, exists in HAR § 11-200-13(a)
(effective 1996), providing “that whenever an agency proposes to
implement an action or receives a request for approval, the
agency may consider and, when applicable and appropriate,
incorporate by reference, in whole or in part, previous
determinations of whether a statement is required, and
previously accepted statements.” These provisions alleviate the
concern that an environmental assessment would necessarily have
to be prepared whenever an applicant applies for an aquarium
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collection permit. Further, “a group of proposed actions may be
treated by a single environmental assessment or statement,” HRS
§ 343-6(a)(1) (2010), when “[t]he 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 (effective 1985).
Such an approach can assuage concerns about aquarium collectors
not having the resources to comply with HEPA.
On remand, the circuit court is directed to grant
Petitioners’ summary judgment motion to the extent that
Petitioners are requesting declaratory relief and a prohibitory
injunction as to commercial aquarium collection pursuant to
permits issued under HRS § 188-31 and DLNR’s administrative
rules. Further proceedings are necessary, however, in order to
determine whether Petitioners are entitled to declaratory relief
and a prohibitory injunction as to recreational aquarium
collection permits.
VI. CONCLUSION
Accordingly, we vacate the ICA’s judgment insofar as
it affirmed the circuit court’s judgment granting DLNR summary
judgment. The ICA’s judgment is further vacated to the extent
that it affirmed the circuit court’s judgment denying
Petitioners’ motion for summary judgment with respect to
commercial aquarium collection permits. Similarly, the circuit
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court’s judgment is vacated insofar as it granted summary
judgment to DLNR and denied Petitioners’ summary judgment motion
with respect to commercial aquarium collection permits. The
remaining portions of the judgments of the ICA and the circuit
court are otherwise affirmed, and this case is remanded to the
circuit court for further proceedings consistent with this
opinion.
Paul H. Achitoff and /s/ Mark E. Recktenwald
Summer Kupau-Odo
for petitioners /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
William J. Wynhoff
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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