Carmichael v. Board of Land and Natural Resources.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
03-MAR-2022
08:48 AM
Dkt. 219 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---
________________________________________________________________

HEALOHA CARMICHAEL, LEZLEY JACINTHO,
and NĀ MOKU AUPUNI O KOʻOLAU HUI,
Petitioners/Plaintiffs-Appellees/Cross-Appellees/
Cross-Appellants,

vs.

BOARD OF LAND AND NATURAL RESOURCES, SUZANNE CASE,
in her official capacity as Chairperson of the Board of Land and
Natural Resources, the DEPARTMENT OF LAND AND NATURAL RESOURCES,
Respondents/Defendants-Appellees/Cross-Appellees/
Cross-Appellants,

and

ALEXANDER & BALDWIN, INC., EAST MAUI IRRIGATION CO., LTD.,
and HAWAIIAN COMMERCIAL AND SUGAR CO.,
Respondents/Defendants-Appellants/Cross-Appellees,

and

COUNTY OF MAUI, DEPARTMENT OF WATER SUPPLY,
Respondent/Defendant-Appellee/Cross-Appellant/Cross-Appellee.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1CC151000650)

MARCH 3, 2022
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RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1

OPINION OF THE COURT BY WILSON, J.

Since 1986, the water rights for 33,000 acres of

ceded lands in the Koʻolau Forest Reserve and Hanawi Natural Area

Reserve have been governed by four revocable permits issued by

Respondent/Defendant-Appellant/Cross-Appellee/Cross-Appellant

the Board of Land and Natural Resources (“BLNR”) to for-profit

corporate entities, Respondents/Defendants-Appellants/Cross-

Appellees Alexander & Baldwin, Inc. (“A&B”) and East Maui

Irrigation Co., Ltd. (“EMI”). In this case, we consider whether

BLNR’s authorization of these four permits during the past

decade to divert more than 100 million gallons of water per day

from east Maui streams required an environmental assessment

(“EA”) pursuant to the Hawaiʻi Environmental Policy Act (“HEPA”),

Hawaiʻi Revised Statutes (“HRS”) chapter 343.

Given the significant environmental impact of the

permitted action, the BLNR’s authority to issue revocable

permits is subject to the environmental review requirements of

HEPA. The Intermediate Court of Appeals’ (“ICA”) July 31, 2019

judgment on appeal pursuant to its June 18, 2019 memorandum

opinion is therefore vacated, and this case is remanded to the

1 Associate Justice Richard W. Pollack, who was a member of the
court when the oral argument was held, retired from the bench on June 30,
2020.

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Circuit Court of the First Circuit (“circuit court”) for

proceedings consistent with this opinion.

I. BACKGROUND

A. 2000 Issuance of Revocable Water Permits

In 1985, the BLNR approved the public-auction sale of

a thirty-year water license that would have consolidated four

license areas—the Honomanū license area, the Huelo license area,

the Keʻanae license area, and the Nāhiku license area

(collectively, the “license areas”)—spanning approximately

33,000 acres of ceded lands in the Koʻolau Forest Reserve and

Hanawi Natural Area Reserve under a single license.2 However,

issuance of the thirty-year license was suspended at the request

of the Department of the Attorney General pending the settlement

of a separate water case. Water rights for the license areas

came to be governed thereafter by annual revocable water permits

issued for each fiscal year.

2 The four license areas are “affected and partly governed by” the
East Maui Water Agreement made in 1939 between the then—Territory of Hawaiʻi
and EMI. That Agreement provided for “the joint use by the Territory and EMI
of the aqueduct system” and “enabled the State to dispose of the water
licenses at a public auction instead of restricting the sale only to EMI.”
The aqueduct system runs through lands belonging to the government and to
EMI.

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On May 26, 2000, the BLNR approved the issuance of

four annual revocable water permits to A&B and EMI,3 effective

July 1, 2000 and expiring on June 30, 2001. Each of the

permits—S-7263 (Honomanū), S-7264 (Huelo), S-7265 (Keʻanae), and

S-7266 (Nāhiku) (collectively, the “revocable permits”)—gave the

permittee4 the “[r]ight, privilege, and authority for the

development, diversion, and use of water” from the relevant

license area, “pursuant to the terms and conditions” in the

relevant expired general leases. These permits authorized EMI

to divert more than 100 million gallons of water per day from

east Maui streams for sugar-cane irrigation by Hawaiian

Commercial and Sugar Co. (“HC&S”), another subsidiary of A&B, in

central Maui. The permits also authorized the delivery of

approximately 8.6 million gallons of water per day from east

Maui streams to Maui County water treatment facilities that

provided the majority of water to a population of approximately

35,000 people in upcountry Maui. Each of the revocable permits

3 A&B is a for-profit corporation that was engaged at all relevant
times primarily in real estate development in Hawaiʻi and sugar cultivation in
central Maui, and EMI is a subsidiary of A&B.

4 For the 2000-01 fiscal year permits, A&B was the permittee for
the Honomanū, Huelo, and Keʻanae license areas and EMI was the permittee for
the Nāhiku license area.

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stated that they were issued pursuant to HRS § 171-58 (1993).5

The BLNR added, as a condition to the issuance of the revocable

permits, that the Department of the Attorney General issue an

opinion regarding compliance with HEPA as it related to these

leases.6

B. 2001 Long-Term Lease Application and Continuance of
Revocable Permits

On May 14, 2001, A&B and EMI filed an application

requesting that the BLNR (1) consolidate the four license areas

5 HRS 171-58(c) (2011) provides:

Disposition of water rights may be made by lease at public
auction as provided in this chapter or by permit for
temporary use on a month-to-month basis under those
conditions which will best serve the interests of the State
and subject to a maximum term of one year and other
restrictions under the law; provided that any disposition
by lease shall be subject to disapproval by the legislature
by two-thirds vote of either the senate or the house of
representatives or by majority vote of both in any regular
or special session next following the date of disposition;
provided further that after a certain land or water use has
been authorized by the board subsequent to public hearings
and conservation district use application and environmental
impact statement approvals, water used in nonpolluting
ways, for nonconsumptive purposes because it is returned to
the same stream or other body of water from which it was
drawn, essentially not affecting the volume and quality of
water or biota in the stream or other body of water, may
also be leased by the board with the prior approval of the
governor and the prior authorization of the legislature by
concurrent resolution.

The text of the statute has remained unchanged since the
BLNR first issued the revocable permits in 2000.
6 Petitioners allege this fact in their first amended complaint,
and the State and A&B Defendants admit so in their answers. A May 25, 2001
report from the Department of Land and Natural Resources (“DLNR”) stated
that, as of the BLNR’s May 26, 2000 meeting, “[t]he Attorney General ha[d]
been reviewing the issues and w[ould] report on that review to the [BLNR].”
There is no evidence in the record that such an opinion was ever issued by
the Department of the Attorney General.

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under one thirty-year lease and sell the lease at public auction

and (2) authorize “temporary continuation” of the four revocable

permits pending issuance of the long-term lease (“proposed long-

term lease”). On May 23, 2001, Petitioner/Plaintiff-

Appellee/Cross-Appellee/Cross-Appellant Nā Moku Aupuni O Koʻolau

Hui (“Nā Moku”), a Native Hawaiian non-profit organization,

along with three Native Hawaiian individuals, petitioned the

BLNR, pursuant to HRS chapter 91, for a contested case hearing

on the proposed long-term lease for the license areas. The

contested case proceedings—which concerned the same activity as,

but do not form the basis for, this appeal—continued for nearly

six years. Those proceedings included an appeal to and remand

from the circuit court, as well as the publication of several

orders containing findings of fact and conclusions of law by the

BLNR.

1. 2001 “Holdover” of Revocable Permits

At a May 25, 2001 meeting, the BLNR considered an

agenda item titled “Discussion on Long-term Dispositions of

Water Licenses and Issuance of Interim Revocable Permits to

[A&B] and [EMI] for the [License Areas.]” The administrator of

the Land Division of the DLNR recommended that the BLNR

authorize the issuance of interim revocable permits to EMI and

A&B, and “explained that the long-term disposition process [was]

subject to discussion, that there [was] going to be a [HEPA]

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requirement, and that the applicant [would] be required to

prepare the necessary environmental documents.” An A&B

representative requested that the BLNR also approve the proposed

long-term lease it had requested in its May 14 letter to the

BLNR. However, a Deputy Attorney General “clarified that the

only matter before the [BLNR] for action [was] the issuance of

the 4 interim revocable permits” and that the proposed long-term

lease was “listed on the agenda for discussion only and [could

not] be acted on by the Board at [that] time.” A Nā Moku

representative testified that they would be petitioning for a

contested case hearing. The BLNR voted to defer action and

instead “grant a holdover permit on a month-to-month basis [to

EMI and A&B], pending the results of the contested case hearing”

(“2001 holdover decision”).

2. 2002 “Holdover” of Revocable Permits and Subsequent
“Continuation” or “Renewal”

Nearly a year later, at the BLNR’s February 22, 2002

meeting, the BLNR indicated that it would review the rental

rates for the revocable permits. At the BLNR’s May 24, 2002

meeting, upon consideration of an agenda item titled

“Re-issuance of Interim Revocable Permits to [A&B] and [EMI] for

the [License Areas]” BLNR staff recommended that the BLNR

“authorize the re-issuance of permits for the subject waters in

the interim and pending the outcome of the contested case.” The

BLNR Chair stated that the BLNR’s intention was “to keep the

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status quo and that [the revocable permits] w[ere] brought back

to the Board because of questions raised about authority to

holdover permits beyond a year.” The BLNR again voted to “defer

and grant a holdover of the existing revocable permit on a

month-to-month basis pending the results of the contest [sic]

case hearing” (“2002 holdover decision”).7

After the BLNR’s 2002 holdover decision, the revocable

permits were annually “continued” by a process in which the BLNR

reviewed and voted to approve for continuation a “master

listing” of hundreds of revocable permits submitted by the DLNR.8

This process continued the revocable permits included on the

master listing on a month-to-month basis for a one-year period.

The DLNR’s submissions to the BLNR from 2002 to 2004 cite HRS §

171-55 (1993) as its authority for this annual review process.9

7 Documentation from the BLNR indicates that because the revocable
permits were continued on a “holdover” basis, they did not appear on the
December 2002 master listing.
8 The revocable permits were not subject to this annual review and
continuation process in 2003 or 2004 and first appeared on the master listing
submitted to the BLNR on November 18, 2005. In a declaration, the
administrator of the Land Division of the DLNR stated that he put the
revocable permits on the 2005 master listing “to be consistent with how all
of the other revocable permits were being addressed by DLNR.”

9 HRS § 171-55 (2011) provides:

Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein
on a month-to-month basis by direct negotiation without
public auction, under conditions and rent which will serve
the best interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board. A permit on a month-to-month basis may

(continued . . . )

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The revocable permits issued to A&B and EMI appeared on the

master listings dated November 18, 2005; October 27, 2006;

November 16, 2007; October 24, 2008; October 23, 2009; November

12, 2010; January 13, 2012; December 14, 2012; January 10, 2014;

and December 12, 2014.10

C. Circuit Court Proceedings11

In response to the BLNR’s December 12, 2014 decision

approving the continuation of the revocable permits (“2014

continuation decision”), on April 10, 2015, Petitioners/

Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants Healoha

Carmichael, Lezley Jacintho, and Nā Moku (collectively,

“Petitioners”) filed a complaint for declaratory and injunctive

relief against the BLNR, its interim chair, Carty Chang,12 and

the DLNR (collectively, “the State Defendants”); A&B, EMI, and

(. . . continued)

continue for a period not to exceed one year from the date
of its issuance; provided that the board may allow the
permit to continue on a month-to-month basis for additional
one year periods.

The text of the statute has remained unchanged since the DLNR
first invoked it in 2002.

10 At its December 12, 2014 meeting, consistent with the DLNR’s
recommendation, the BLNR again approved the continuation of the revocable
permits included in the master listing. The DLNR notified A&B and EMI in
letters dated December 29, 2014 that the revocable permits were continued “on
a month-to-month basis for an additional year up to December 31, 2015.”
11 The Honorable Rhonda A. Nishimura presided.

12 Current BLNR Chair Suzanne Case was later substituted as a
defendant for Carty Chang. See Hawaiʻi Rules of Civil Procedure Rule 25(d)(1)
(2001).

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HC&S (collectively, “the A&B Defendants”); and the Maui County

Department of Water Supply (“the County”) in the circuit court.13

Petitioners alleged in their amended complaint that, under HRS

§ 343-5 (Supp. 2012),14 the “renewal of [the A&B Defendants’]

13 Petitioners’ amended complaint stated that the County was “only
named as an interested party,” but in its answer, the County denied that it
was only an interested party and argued that “[Petitioners]’ prayed [sic] for
relief could have serious and widespread consequences on Defendant County and
its citizens, and therefore, Defendant County has a heavy interest in the
outcome of these proceedings.”
14 HRS § 343-5 provides, in relevant part:

(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);

. . . .

(c) For environmental assessment for which a finding of no
significant impact is anticipated:

(1) A draft environmental assessment shall be made
available for public review and comment for a period
of thirty days;
(2) The office shall inform the public of the
availability of the draft environmental assessment
for public review and comment pursuant to section
343-3;

(3) The agency shall respond in writing to comments
received during the review and prepare a final
environmental assessment to determine whether an
environmental impact statement shall be required;

(continued . . . )

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revocable permit[s]” constituted applicant action proposing the

use of State land and, as such, required the preparation of an

EA pursuant to HEPA. Thus, Petitioners contended that HEPA was

violated (1) when the BLNR failed to order an EA before its 2014

continuation decision, and (2) when A&B and EMI continued to

divert water without preparing an EA.15 Petitioners asked the

circuit court to declare that HEPA had been violated, void the

revocable permits, order the completion of an EA, and enjoin

further diversion of water from the license areas, provided that

(. . . continued)

(4) A statement shall be required if the agency
finds that the proposed action may have a significant
effect on the environment; and

(5) The agency shall file notice of the
determination of the office. When a conflict of
interest may exist because the proposing agency and
the agency making the determination are the same, the
office may review the agency’s determination, consult
the agency, and advise the agency of potential
conflicts, to comply with this section. The office
shall publish the final determination for the
public’s information pursuant to section 343-3.

The draft and final statements, if required, shall be
prepared by the agency and submitted to the office. The
draft statement shall be made available for public review
and comment through the office for a period of forty-five
days. The office shall inform the public of the
availability of the draft statement for public review and
comment pursuant to section 343-3. The agency shall
respond in writing to comments received during the review
and prepare a final statement.

The office, when requested by the agency, may make a
recommendation as to the acceptability of the final
statement.

15 Petitioners asserted—and the A&B and State Defendants admitted in
their respective answers to Petitioners’ amended complaint—that no EA has
ever been completed in connection with the revocable permits.

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up to 8.4 million gallons per day could still be diverted to the

County for the public health, safety, and welfare of existing

customers served by East Maui surface-water diversions.

1. Petitioners’ Motion for Partial Summary Judgment and
the A&B Defendants’ Cross-Motion for Partial Summary
Judgment

On October 21, 2015, Petitioners filed a motion for

partial summary judgment (“MPSJ”) asking the circuit court to:

A. Declare that Defendants [A&B] and [EMI] violated HRS
chapter 343.

B. Declare that the [State Defendants] violated HRS chap-
ter 343.

C. Declare that [the revocable permits] are null and void.

D. Declare that Defendants [A&B] and [EMI] have no legal
or statutory authority to continue using the land areas or
diverting water covered by [the revocable permits].

E. Declare that [the State Defendants] have no legal or
statutory basis to authorize Defendants A&B and EMI’s con-
tinued use of land areas or diversion of water covered by
[the revocable permits].

The A&B Defendants filed a cross-MPSJ, which was joined by the

State Defendants and the County. Opposing Petitioners’ MPSJ,

the A&B and State Defendants argued that the decision

authorizing the use of State lands occurred on May 26, 2000,

when the revocable permits were first issued, and that the

annual review process and continuation of the revocable permits

did not constitute “use of State land” or “applicant action” for

which an EA was required under HEPA. The A&B Defendants

contended, moreover, that Petitioners’ complaint and MPSJ,

actually constituted an untimely challenge to the 2002 holdover

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decision. Petitioners disputed that they were “relitigating the

2002 holdover[ decision]’s validity” and responded that the 2002

holdover decision “ha[d] no legal significance” and that the

BLNR’s 2014 continuation decision was “[t]he only relevant

decision” at issue.

2. Circuit Court’s Order

The circuit court granted Petitioners’ MPSJ. In a

minute-order decision, the circuit court found that the BLNR’s

2014 continuation decision was not HEPA “action” requiring an

EA, but held that the revocable permits were, nonetheless,

invalid because they exceeded the BLNR’s authority under HRS

chapter 171 to issue temporary permits:

At the outset, the December 2014 revocable permits are not
“actions” subject to Chapter 343 environmental assessment
requirements. The December 2014 revocable permits were not
programs or projects INITIATED by DLNR, BLNR, or the De-
fendants. Instead, the December 2014 revocable permits
were of a continuing (preserving the status quo), temporary
nature placing the occupancy of the lands in a holdover
status. Nevertheless, both HRS §§ 171-40[16] and 171-55

16 HRS § 171-40 (2011) provides:

Upon expiration of the lease term, if the leased land is
not otherwise disposed of, the board of land and natural
resources may allow the lessee to continue to hold the land
for a period not exceeding one year upon such rent, terms,
and conditions as the board may prescribe; provided that
if, immediately prior to the expiration of the lease, the
land was cultivated with crops having ratoons for at least
one cycle, as defined hereinafter, the board may permit the
lessee to continue to hold the leased land until the crops
from the last remaining cycle have been harvested. The
term “cycle” as used in this section means the period
required to plant and cultivate the original crop,
including the harvesting of the first ratoon, being a
period exceeding two years.

(continued . . . )

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speak to the “temporary” nature of the permits, notwith-
standing affording the board discretion to continue the
permit on a month-to-month basis for additional one year
periods. Temporary is not statutorily defined under Chap-
ter 171. Black’s Law Dictionary, 10th Edition, speaks to
“temporary” as “lasting for a time only; existing or con-
tinuing for a limited (usu. short) time; transitory.”

The revocable permits expired on June 30, 2001. The Decem-
ber 2014 revocable permits which were either continued or
renewed on a holdover status (uninterrupted for the last 13
years through December 2014) are not “temporary” as envi-
sioned under Chapter 171. Otherwise, hold-over tenants
could arguably be allowed to temporarily occupy “public
lands”, almost in perpetuity for continuous, multiple one-
year periods, which would not be in a manner consistent
with the public interest or legislative intent. (e.g., fi-
nite terms are set forth throughout Chapter 171, see HRS
§ 171-36, § 171-54, § 171-58.)

(Emphasis added.) The circuit court granted Petitioners’ MPSJ,

invalidated the revocable permits, and denied the A&B

Defendants’ cross-MPSJ. In its order, the circuit court

emphasized that the BLNR had exceeded its authority under HRS

chapter 171 to authorize temporary disposition of water rights

in holding over the revocable permits for over a decade:

[P]ursuant to HRS § 171-58(c), the BLNR authorized A&B’s
use on a holdover basis. This holdover status has contin-
ued uninterrupted for the last 13 years. HRS §§ 171-10[17]
and 171-55 authorize the “temporary” occupation of public
lands. A&B’s continuous uninterrupted use of these public
lands on a holdover basis for the last 13 years is not the
“temporary” use that HRS Chapter 171 envisions. See also

(. . . continued)

Upon expiration of the one-year extension, if the board has
not yet decided upon the re-lease of the land or
reservation for other purposes, the board may issue a
temporary permit to the lessee, subject to section 171-55
and the rent and such other terms and conditions as the
board may prescribe.

17 It appears that the circuit court mistakenly wrote “HRS § 171-10”
when it meant to write “HRS § 171-40,” as it did in its minute order. HRS §
171-10 (2011) does not authorize temporary occupations of public lands; it
sets out the classifications of public lands used by the BLNR.

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Black’s Law Dictionary, 10th edition. Otherwise, holdover
tenants could arguably be allowed to occupy public lands
almost in perpetuity for continuous, multiple one-year pe-
riods. Such a prospect is inconsistent with the public in-
terest and legislative intent.

(Emphasis added.)

D. ICA Proceedings

The A&B Defendants, the State Defendants, the County,

and Petitioners all appealed the circuit court’s order.

Petitioners argued that the circuit court erred by holding that

the BLNR’s 2014 continuation decision did not constitute

“action” subject to a mandatory EA under HEPA. HRS § 343-

5(a)(1). However, Petitioners asserted that the circuit court

did not err in granting their MPSJ, that a correct decision

should not be disturbed on the grounds of incorrect reasoning,

and that they filed their cross-appeal “in an abundance of

caution.” The A&B Defendants argued that the circuit court

erred by: (1) granting Petitioners’ MPSJ despite its finding

that the BLNR’s 2014 continuation decision was not “action”

subject to HEPA’s EA requirement; and (2) granting Petitioners’

MPSJ when genuine issues of material fact existed as to whether

the BLNR’s 2014 continuation decision constituted “action”

within the meaning of HRS § 343-5(a)(1).18

18 The A&B Defendants also argued that the circuit court erred by:
invalidating the revocable permits based on the BLNR’s authority (or lack
thereof) under HRS chapter 171, when the only basis for relief asserted by
Petitioners was under HEPA, and invalidating the revocable permits when the
BLNR had the authority to issue such permits under the public trust doctrine.
The County and State Defendants advanced similar arguments on cross-appeal.

(continued . . . )

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On June 18, 2019, the ICA filed a memorandum opinion

vacating the circuit court’s order and remanding the case for

further proceedings. The ICA found that although HRS § 171-58

did not give the BLNR authority to extend the revocable permits

past one year of their issuance (i.e., past July 1, 2001), HRS

§ 171-55 authorized the BLNR to place the revocable permits in

holdover status so long as the revocable permits were

“temporary” and “serve[d] the best interests of the State.” The

ICA reasoned that the BLNR had authority under HRS § 171-55,

“[n]otwithstanding any other law to the contrary” —that is,

notwithstanding HRS § 171-58’s limitation of temporary permits

to a “maximum term of one year.” The ICA found there were

genuine issues of material fact as to whether the BLNR’s 2014

continuance decision (1) was “temporary” or “de facto

indefinite,” and (2) “serve[d] the best interests of the State”

under HRS § 171-55, and held that the circuit court erred by

granting Petitioners’ MPSJ.

(. . . continued)

The ICA found “no merit” to the Defendants’ arguments that they
were not on notice as to the issue of an HRS chapter 171 violation, and
construed the HRS chapter 171 issue as if it had been raised in the
pleadings, holding that it was “tried by implied consent.” The ICA noted
that the A&B and State Defendants had argued in their opposition memoranda to
Petitioners’ MPSJ that the ongoing validity of the revocable permits came not
from the BLNR’s 2014 continuation decision, but “instead derived from a
continuance of the [2002] holdover status,” which was authorized under HRS
chapter 171.

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Finally, the ICA found that HRS § 171-55’s

“notwithstanding” clause “nullified” HEPA’s EA requirement for

temporary permits issued under HRS § 171-55, and held that the

circuit court did not err in finding HEPA inapplicable, even

though it used different reasoning. The ICA concluded that the

purpose of HRS § 171-55 is to allow the BLNR to issue temporary

permits to an applicant pursuing a long-term lease and that the

BLNR’s 2014 continuation decision was not subject to HEPA’s EA

and Environmental Impact Statement (“EIS”) requirements.

E. Supreme Court Proceedings

On certiorari, Petitioners contend that the primary

question is “what lawful authority, if any, BLNR acted under

when it placed the challenged revocable permits in holdover

status and thereafter continued to maintain them in holdover

status for over a decade,” and urge us to conclude that the BLNR

acted with no lawful authority.19 Petitioners present five

questions:

1. Does HRS chapter 343 apply to BLNR’s decision to con-
tinuously renew revocable permits authorizing the daily use
of public lands to divert millions of gallons of water on a
holdover basis for over a decade and counting?

2. Does HRS § 171-55 allow for the renewal of
revocable permits for the use of state land and water in-
definitely despite the maximum term of one year prescribed
by HRS § 171-58 for the disposition of water rights specif-
ically?

19 The Sierra Club, Maui Tomorrow, and Mahi Pono LLC filed amicus
curiae briefs in support of Petitioners.

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3. Did the Circuit Court err by refusing to grant summary
judgment to Petitioners on the grounds set forth in counts
1 and 2 of their First Amended Complaint?

4. Did the ICA err by concluding HRS § 171-55’s “notwith-
standing any other law to the contrary” language nullifies
(a) the maximum term of one year prescribed by HRS § 171-58
for “temporary” revocable permits and (b) HRS chapter 343
EA and environmental impact statement (EIS) requirements
for “temporary” revocable permits where such interpreta-
tions conflict with well-settled case law, are unsupported
by the legislative history, and run contrary to the plain
meaning of the statutes?

5. Did the ICA err by refusing to rule that BLNR’s deci-
sion to renew the Revocable Permits on a holdover basis vi-
olated HRS chapter 171-55 as a matter of law due to BLNR’s
failure to make findings that the permits are “temporary”
and serve the “best interests of the State”?

Petitioners argue that the ICA erred by ignoring rules of

statutory construction, which led to an incorrect interpretation

of HRS § 171-55 and the erroneous conclusion that HRS § 171-55’s

“notwithstanding” clause implicitly exempts temporary revocable

permits from compliance with (1) HEPA’s EA requirement and (2)

HRS § 171-58’s one-year limit on revocable permits. Petitioners

also argue that the ICA erred by upholding the revocable permits

when the BLNR had not made explicit findings pursuant to HRS

§ 171-55 that “the permit holder’s occupancy [was] temporary”

and that the permit was issued “under conditions and rent which

will serve the best interests of the State.”

The State Defendants assert that both HRS § 171-55 and

the public trust doctrine supported the BLNR’s 2014 continuance

decision. The State Defendants argue that HRS § 171-55 (1) is

the applicable statute in this case, and (2) does not conflict

with HRS § 171-58, which is not applicable to the disposition of

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water rights during the pendency of a contested case. The State

Defendants claim that HRS § 171-55’s “notwithstanding” clause

applies not only to the public auction requirement, but to any

contrary law, including HEPA’s EA requirement. Finally, the

State Defendants contend that Petitioners’ argument that the

revocable permits are invalid is moot because the permits,

continued in 2014 for the year 2015, have long since expired

“and it would be pointless to re-examine the basis for

continuance.”

The A&B Defendants add that Petitioners no longer have

an adverse interest in the case, rendering their claims moot.

The A&B Defendants claim “things have materially changed” since

Petitioners initiated this case, namely, that: sugar

cultivation has ceased, decreasing the water diverted subject to

the revocable permits to a fraction of what it was before; the

Commission on Water Resource Management (“CWRM”) has set interim

instream flow standards, ensuring that Petitioners have

sufficient water to support their customary and traditional

practices; a draft EIS (“DEIS”) relating to the long-term lease

has been published; and the BLNR has capped the diversions

allowed under the revocable permits to 45 million gallons of

water a day for 2020. The A&B Defendants also contend that, as

a consequence of the CWRM’s actions and the publication of the

DEIS, Petitioners no longer have an “effective remedy.” They

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argue further that this case does not fall under the exception

to the mootness doctrine for cases that are capable of

repetition yet evading review because the BLNR has approved the

continuation of the revocable permits for 2020 and a long-term

lease is anticipated to be issued shortly thereafter, meaning

that the revocable permits “will not be needed much longer.”

The County adds that Petitioners’ interpretation of

HRS § 171-55 would lead to absurd results: a “regulatory morass

[that] would apply to hundreds of [revocable] permits” that

would require the BLNR to perform independent environmental

reviews for each revocable permit in every case where there is a

pending long-term lease. The County contends that this

regulatory burden would prevent the BLNR from authorizing the

use of State land and, more importantly, water “that is

necessary to the health, safety and welfare of 35,000 residents

in upcountry Maui.”

II. STANDARDS OF REVIEW

A. Summary Judgment
On appeal, the grant or denial of summary judgment is re-
viewed de novo. Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and ad-
missions 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 mat-
ter of law.

Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 P.3d 701, 706 (2019)

(internal quotation marks, citations, and brackets removed)

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(quoting Nu‘uanu Valley Ass’n v. City & Cnty. of Honolulu, 119

Hawai‘i 90, 96, 194 P.3d 531, 537 (2008)).

B. Statutory Interpretation

“Statutory interpretation is a question of law

reviewable de novo.” State v. Wheeler, 121 Hawaiʻi 383, 390, 219

P.3d 1170, 1177 (2009) (internal quotation marks omitted)

(quoting Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals, 114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007)). This

court’s construction of statutes is guided by the following:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

Id. When there is ambiguity in a statute, “the meaning of the

ambiguous words may be sought by examining the context, with

which the ambiguous words, phrases, and sentences may be

compared, in order to ascertain their true meaning.” Id. A

court may also resort to extrinsic aids in determining

legislative intent, such as legislative history or the reason

and spirit of the law. Id.

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C. Constitutional Law

“Questions of constitutional law are reviewed de novo,

under the right/wrong standard.” In re Gas Co., 147 Hawai‘i 186,

198, 465 P.3d 633, 645 (2020).

III. DISCUSSION

A. The Public Interest Exception to the Mootness Doctrine
Applies to Petitioners’ Appeal

Defendants contend that Petitioners’ appeal is moot

because: the revocable permits continued by the BLNR in December

2014 have “long expired”; changed circumstances have eliminated

Petitioners’ adverse interest; and A&B published a DEIS in

September 2019, which precludes this court from ordering an

effective remedy. Defendants also contend that the exception

from the mootness doctrine for cases that are capable of

repetition yet evading review does not apply. Though Defendants

are correct that the continuance granted by the BLNR in 2014 has

expired and A&B has published a DEIS, Petitioners’ appeal

qualifies under the “capable of repetition, yet evading review”

and public interest exceptions to the mootness doctrine.

Under the mootness doctrine, this court will generally

refrain from deciding a case that has “lost its character as a

present, live controversy,” and in which “the reviewing court

can no longer grant effective relief.” In re Marn Family, 141

Hawaiʻi 1, 7, 403 P.3d 621, 627 (2016) (quoting Cnty. of Haw. v.

Ala Loop Homeowners, 123 Hawaiʻi 391, 405, 235 P.3d 1103, 1117

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(2010), abrogated on other grounds by Tax Found. of Haw. v.

State, 144 Hawaiʻi 175, 439 P.3d 127 (2019)). “However, this

court has explicitly recognized two exceptions to the mootness

doctrine: (1) the ‘capable of repetition, yet evading review’

exception . . . and (2) the public interest exception.”

Hamilton ex rel. Lethem v. Lethem, 119 Hawaiʻi 1, 5, 193 P.3d

839, 843 (2008).20

The “capable of repetition, yet evading review”

exception provides that “a court will not dismiss a case on the

grounds of mootness where a challenged governmental action would

evade full review because the passage of time would prevent any

single plaintiff from remaining subject to the restriction

complained of for the period necessary to complete the lawsuit.”

Id. (quoting In re Thomas, 73 Haw. 223, 226-27, 832 P.2d 253,

255 (1992)). Although this case is moot because the 2014

continuation decision—which extended the revocable permits

through 2015—has long since expired, the “capable of repetition”

exception applies. Because the BLNR’s continuation decisions

for revocable permits apply for only one calendar year at a

time, those decisions “evade full review” and no plaintiff would

be able to complete a lawsuit seeking to void the continuation

20 Although these two exceptions have sometimes been treated as
though they were the same, we have more recently clarified that they are
“separate and distinct.” Kahoʻohanohano v. State, 114 Hawaiʻi 302, 333 n.23,
162 P.2d 696, 727 n.23 (2007).

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of a permit before the continuation itself expired. Id. Thus,

this case satisfies the requirements for the “capable of

repetition” exception to the mootness doctrine.

The second exception, the public interest exception,

is broader than the “capable of repetition” exception; it

overcomes Defendants’ contention that because the 2014

continuation decision has expired and a DEIS has been published,

Petitioners no longer have an adverse interest or an effective

remedy. In determining whether the public interest exception

applies, this court considers “(1) the public or private nature

of the question presented, (2) the desirability of an

authoritative determination for future guidance of public

officers, and (3) the likelihood of future recurrence of the

question.” Kaleikini v. Thielen, 124 Hawaiʻi 1, 12–13, 237 P.3d

1067, 1078–79 (2010) (quoting Hamilton, 119 Hawaiʻi at 6–7, 193

P.3d at 844–45). In this case, all three factors weigh in favor

of applying the public interest exception.

The first factor considers whether the questions

presented by the case are “personal to” the parties and “of a

private nature,” or if they implicate broader “political and

legislative issues that affect a significant number of Hawaiʻi

residents.” Hamilton, 119 Hawaiʻi at 7, 193 P.3d at 845. Here,

although “the underlying proceedings are, at bottom, a private

battle” between different users of water, Doe v. Doe, 116 Hawaiʻi

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323, 327, 193 P.3d, 1067, 1071 (2007), the disposition of the

water rights at issue directly affects a broad swath of the Maui

community and these proceedings have required the involvement

and input of numerous State agencies. Thus, the first factor

weighs in favor of applying the public interest exception.

As to the second factor, this court’s analysis in the

present case will provide necessary guidance to public officers

in the future. The record indicates that the BLNR continues

hundreds of revocable permits yearly. Given this practice,

clarification of the BLNR’s authority to issue revocable permits

under HRS § 171-58 and to continue such permits under HRS § 171-

55 would be of significant value to the BLNR and DLNR officials

who oversee the administration of the revocable-permit system.

Clarifying whether the BLNR is or is not required to conduct (or

order applicants like the A&B Defendants to conduct)21 EAs and/or

EIS’s under HEPA when continuing revocable permits would also be

of value to these officials. Thus, the second factor weighs in

favor of applying the public interest exception.

21 The A&B Defendants contend that this court cannot order effective
relief because A&B has already prepared and published a DEIS. As Petitioners
note, the DEIS was published in 2019 and is not part of the record on appeal.
Moreover, the scope of this case is not limited to the A&B Defendants’
unilateral decision to prepare an EIS; a core issue focuses on whether the
BLNR was (1) authorized to continue the revocable permits under HRS chapter
171 and (2) required to conduct or order the permit applicants to conduct EAs
and/or EIS’s under HEPA. Thus, the fact that a DEIS has been published does
not render Petitioners’ appeal moot.

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Finally, as to the third factor, which considers

whether the issue will recur in the future, there is a strong

likelihood that the question of whether it is permissible for an

agency to continue revocable permits will recur. As noted

above, the BLNR continues hundreds of revocable permits every

year. Disputes over the use of land and State resources are

frequent in Hawaiʻi, and given the ubiquity of these revocable

permits, disputes over revocable permits are likely to arise in

the future. See Ala Loop Homeowners, 123 Hawaiʻi at 405-06, 235

P.3d at 1117-18 (noting the “volume of land development activity

in the State” in the context of individual enforcement actions

concerning the Land Use Commission). In other words,

“[r]esolution of the issue may affect similarly situated parties

who in the future seek to assert their right[s] . . . in

proceedings before agencies and other governmental bodies.” In

re Maui Elec. Co., 141 Hawaiʻi 249, 257, 408 P.3d 1, 9 (2017).

Thus, the third factor weighs in favor of applying the public

interest exception.

Given that all three factors weigh in favor of

applying the public interest exception, Petitioners’ appeal is

not barred by the mootness doctrine.

B. Statutory and Constitutional Authority for the 2014
Continuation Decision

The ICA found that although the BLNR’s 2014

continuation decision was not authorized by HRS § 171-58, which

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limits the disposition of water rights by temporary permit to a

maximum term of one year,22 it was potentially authorized by HRS

§ 171-55, which allows the BLNR to continue revocable permits on

a month-to-month basis for successive one-year periods.23 HRS

§ 171-58 expressly limits the temporary disposition of water

rights to a maximum term of one year; thus, the ICA was correct

in finding that the BLNR’s 2014 continuation decision was not

authorized under HRS § 171-58. Next, the ICA held that although

HRS § 171-55 potentially authorized the BLNR in 2014 to place

the revocable permits in holdover status for a year, there were

genuine issues of material fact as to whether the BLNR’s

continuance decision (1) was “temporary” or “de facto

indefinite,” and (2) “serve[d] the best interests of the State,”

such that it was inappropriate to dispose of this case at the

summary judgment stage.

The ICA erred by ruling on the basis of perceived

issues of material fact. HRS § 171-55 did not authorize the

BLNR’s 2014 continuation decision because the BLNR did not make

22 HRS 171-58(c) states, in relevant part, that “[d]isposition of
water rights may be made by lease at public auction as provided in this
chapter or by permit for temporary use on a month-to-month basis under those
conditions which will best serve the interests of the State and subject to a
maximum term of one year and other restrictions under the law.” (Emphasis
added.)

23 HRS § 171-55 states, in relevant part, that “[a] permit on a
month-to-month basis may continue for a period not to exceed one year from
the date of its issuance; provided that the board may allow the permit to
continue on a month-to-month basis for additional one year periods.”
(Emphasis added.)

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factual findings or enter conclusions of law positing that it

was serving the State’s best interests. As a trustee of the

public trust, the BLNR failed to demonstrate that it properly

exercised the discretion vested in it by the constitution and

the statute.

1. HRS § 171-58 limits temporary disposition of water
rights to a maximum of a year and did not authorize
the BLNR to continue the revocable permits in 2014.

As an initial matter, HRS § 171-58 titled,—“Minerals

and water rights”—is applicable to the instant case. As the ICA

noted, the revocable permits themselves stated that they were

originally issued “pursuant to [HRS] section 171-58.” Since the

BLNR would have no authority to make continuation decisions

without valid revocable permits in the first place, the ICA did

not err by considering whether the BLNR’s actions subsequent to

the issuance of the revocable permits were authorized under HRS

§ 171-58.

As the ICA concluded, HRS § 171-58 conferred authority

on the BLNR to issue one-year revocable permits, but did not

authorize the BLNR to extend the revocable permits past one year

of their issuance, that is, past July 1, 2001. As noted above,

HRS § 171-58 limits temporary permits for water rights to a term

of one year:

Disposition of water rights may be made by lease at public
auction as provided in this chapter or by permit for
temporary use on a month-to-month basis under those
conditions which will best serve the interests of the State

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and subject to a maximum term of one year and other
restrictions under the law[.]

HRS § 171-58(c) (emphasis added). The “fundamental starting

point for statutory interpretation is the language of the

statute itself” and “where the statutory language is plain and

unambiguous, our sole duty is to give effect to its plain and

obvious meaning.” Wheeler, 121 Hawaiʻi at 390, 219 P.3d at 1177

(quoting Citizens Against Reckless Dev., 114 Hawaiʻi at 193, 159

P.3d at 152). The language of HRS § 171-58 plainly and

unambiguously limits temporary revocable permits to “a maximum

term of one year” with no exceptions or conditions within § 171-

58 that would allow the BLNR to extend a permit beyond that

maximum term.

Moreover, HRS § 171-58 should be read in contrast

with HRS § 171-55. See Wells Fargo Bank, N.A. v. Omiya, 142

Hawai‘i 439, 450, 420 P.3d 370, 381 (2018) (citing the canon of

construction that laws in pari materia, or on the same subject

matter, may be considered together). Significantly, HRS § 171-

55 provides that a permit issued under that section “may

continue for a period not to exceed one year from the date of

its issuance; provided that the board may allow the permit to

continue on a month-to-month basis for additional one year

periods.” (Emphasis added.) By contrast, HRS § 171-58 omits

this and any similar language, bolstering the conclusion that

permits issued under its authority may not be renewed for

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additional one-year periods. Read together, it is clear that

the former statute authorizes permits to be renewed for multiple

one-year periods while the latter does not.

Thus, the ICA did not err in finding that the BLNR was

not authorized under HRS § 171-58 to continue the revocable

permits in 2014.

2. HRS § 171-55 did not authorize the BLNR’s 2014
continuation decision because the BLNR did not
demonstrate that the revocable permits served the best
interests of the State.

Defendants contend that the BLNR’s 2014 continuation

decision was authorized under HRS § 171-55.

HRS § 171-55 states:

Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein
on a month-to-month basis by direct negotiation without
public auction, under conditions and rent which will serve
the best interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board. A permit on a month-to-month basis may con-
tinue for a period not to exceed one year from the date of
its issuance; provided that the board may allow the permit
to continue on a month-to-month basis for additional one
year periods.

(Emphasis added.)

The ICA agreed that the BLNR had authority under HRS

§ 171-55 to continue the revocable permits in 2014, so long as

the continuation of the revocable permits was “temporary” and

“serve[d] the best interests of the State.” HRS § 171-55.

However, the ICA concluded that there were genuine issues of

material fact as to whether the BLNR’s 2014 continuation

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decision (1) was “temporary” or “de facto indefinite,” and

(2) “serve[d] the best interests of the State” under HRS § 171-

55.

While the ICA correctly held that HRS § 171-55

potentially authorized the BLNR to continue the revocable

permits,24 the ICA erred by ruling on the basis of perceived

issues of fact. First, the permits were “temporary” within the

meaning of the statute. Second, the BLNR failed to demonstrate

that the 2014 continuation of the revocable permits “serve[d]

the best interests of the State.” HRS § 171-55. Because the

BLNR did not make factual findings or enter conclusions of law

positing that the permits served the State’s best interests, the

BLNR failed to demonstrate that it properly exercised the

discretion vested in it by the constitution and the statute.

a. The revocable permits were temporary within the
meaning of HRS § 171-55.

Unlike the ICA, which found there to be genuine

factual questions related to whether the permits were temporary,

the circuit court held that the revocable permits,

“uninterrupted for the last 13 years” and continued by the

BLNR’s 2014 decision, were not “‘temporary’ as envisioned under

24 This holds true notwithstanding that there is a more specific
statute, HRS § 171-58, that deals with water rights. HRS § 171-55 authorizes
dispositions of “state lands or an interest therein.” In turn, HRS § 171-1
(2011) defines “land” to include “all interests therein . . . including
water.” Thus, HRS § 171-55’s reference to “lands” also authorizes the BLNR
to dispose of water rights.

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Chapter 171.” (Citing Temporary, Black’s Law Dictionary (10th

ed. 2014) (defining “temporary” as “lasting for a time only;

existing or continuing for a limited [] time; transitory”).)

The circuit court reasoned that if the revocable permits were

“temporary,” then “holdover tenants could arguably be allowed to

occupy public lands almost in perpetuity for continuous,

multiple one-year periods,” which would be “inconsistent with

the public interest and legislative intent.”

The term “temporary” must be read in the context of

the entirety of HRS § 171-55, which expressly allows a permit to

be continued “for a period not to exceed one year from the date

of its issuance; provided that the board may allow the permit to

continue on a month-to-month basis for additional one year

periods.” HRS § 171-55. “Temporary,” as used in HRS § 171-55,

is used to distinguish revocable permits from long-term leases;

it refers to the month-to-month nature of revocable permits and

that such permits may last without additional approval for only

one year. The term “temporary” does not, however, prohibit

annual renewal of permits. In fact, HRS § 171-55 explicitly

authorizes the BLNR to continue revocable permits for

“additional one year periods.” Thus, the BLNR’s 2014

continuation decision was not precluded by HRS § 171-55’s use of

the term “temporary.”

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b. The BLNR did not sufficiently demonstrate that
the 2014 continuation decision served the best
interests of the State.

The BLNR’s authority to make the 2014 continuation

decision was, however, limited by HRS § 171-55’s mandate that

the issuance or continuance of a revocable permit “serve the

best interests of the State.” The BLNR did not make factual

findings or enter conclusions of law positing that it was

serving the State’s best interests when it made its 2014

continuation decision that wholesale continued the revocable

permits along with more than 300 other permits. Thus, the 2014

continuation decision was not authorized by HRS § 171-55 because

the BLNR did not sufficiently demonstrate that it considered the

“best interests of the State” as required by the statute and the

BLNR’s obligation as a public trustee.

As an initial matter, what constitutes “the best

interests of the State” is not explained by the statute.

However, particularly when appraising the legislative history of

HRS chapter 171 as a whole, it is clear that the BLNR’s power to

issue and continue revocable permits under HRS § 171-55 was

intended to be narrowly exercised.

Many of the provisions currently codified in HRS

chapter 171 that govern the management and disposition of public

lands were enacted in a 1962 omnibus public-lands bill, Act 32.

Act 32 was an urgency measure passed to provide “a set of laws

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for the management and disposition of our public lands in

accordance with present day needs.” 1962 Haw. Sess. Laws Act

32, § 1 at 95. Act 32 contained numerous provisions emphasizing

that the public-auction process would be the predominant means

by which state lands would be leased. For example, Revised Laws

of Hawaiʻi (“RLH”) § 103A-14, titled, “Auction,” provided that

“[e]xcept as otherwise specifically provided, all dispositions

of public lands shall be made at public auction after public

notice as provided in section 16 of this chapter.”25 1962 Haw.

Sess. Laws Act 32, § 2 at 101 (emphasis added). Similarly, RLH

§ 103A-32, titled, “Policy,” stipulated that “[u]nless otherwise

specifically authorized in this chapter or by subsequent

legislative acts, all dispositions shall be by lease only,

disposed of by public auction in accordance with the procedure

set forth in sections 14 and 15 of this chapter.”26 1962 Haw.

Sess. Laws Act 32, § 2 at 109 (emphasis added). These

provisions evinced a strong legislative preference for public

auction.27 A 1962 standing committee report further explained

25 RLH § 103A-14 is now codified as HRS § 171-14 (2011) and has
remained substantively unchanged since its enactment.
26 RLH § 103A-32 is now codified as HRS § 171-32 (2011) and has
remained substantively unchanged since its enactment.

27 In circumstances where disposition by public auction is not
possible or appropriate (for example, the issuance of land licenses), the
replacement disposition process must serve the public interest. See HRS
§ 171-54 (“The board of land and natural resources may issue land licenses
affecting public lands for a period not exceeding twenty years. No land

(continued . . . )

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that non-public-auction sales were to be permitted only in cases

of “overriding public interest” and that lease negotiations were

appropriate only “in certain limited situations”:

Your Committee believes that this bill, as amended,
incorporates a sound policy for the administration,
management, and disposition of the public lands of the
State. Every consideration has been given throughout the
bill, particularly in the disposition sections, to
adequately preserve the assets of the State by authorizing
only leases disposable only by public auction, except where
an overriding public interest necessitates the disposition
by sales in fee simple or by leases without public auction.
These overriding considerations are seen in the need for
houselots, for small personally occupied farm, dairy and
pasture lots, and in cases of natural disasters. Due
regard was also given that in certain limited situations,
negotiations for leases should be permitted.

H. Stand. Comm. Rep. No. 240, in 1962 House Journal, at 356

(emphasis added). The standing committee report also reflects

the legislature’s original intent that the disposition of State

land by non-public-auction lease would be limited to a narrow

set of circumstances, such as “houselots, . . . small personally

occupied farm, dairy and pasture lots, and . . . natural

disasters.” Id.

The legislative history of HRS § 171-55 also reveals

the legislature’s efforts to constrain the use of revocable

permits by requiring annual review. HRS § 171-55 has remained

(. . . continued)

license shall be disposed of except at public auction as provided in this
chapter; provided that the board may . . . dispose of a land license by
negotiation, without recourse to public auction, if it determines that the
public interest will best be served thereby. The disposition of a land
license by negotiation shall be upon such terms and conditions as the board
determines shall best serve the public interest.” (emphasis added)).

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relatively unchanged, substantively, since it was first enacted

in 1962 as RLH § 103A-52, a provision of Act 32.28 In 1967, the

legislature amended the second sentence of RLH § 103A-52 to

clarify that while annual continuations of a revocable permit

were permitted, the BLNR would have to approve each continuation

annually:29

Section 103A-52 is amended to require that at the end of
each year during a continuance of a permit, the board must
give its approval before a permit may be continued. It is
intended that a permit on a month to month basis shall be
for a duration of one year unless extended by the board.
At the end of each year, if the permit on a month to month
basis is extended for another year, the board approval must
be had. Certain language clarity was necessary inasmuch as
existing law does not expressly state that a periodic annu-

28 As originally enacted, RLH § 103A-52 stated:

The board may issue permits for the temporary occupancy of
State lands or interest therein on a month-to-month basis
under such conditions which will serve the best interests
of the State, subject, however, to such restrictions as may
from time to time be expressly provided by law. Where such
permit on a month-to-month basis extends for a period
beyond one year from the date of issuance, any renewal of
the permit beyond such one year period shall be only upon
approval of the board.

1962 Haw. Sess. Laws Act 32, § 2 at 116.

29 The second sentence of RLH § 103A-52 originally read:

Where such permit on a month-to-month basis extends for a
period beyond one year from the date of issuance, any
renewal of the permit beyond such one year period shall be
only upon approval of the board.

1962 Haw. Sess. Laws Act 32, § 2 at 116. The above sentence was deleted and
replaced with the following:

Such permit on a month to month basis may continue for a
period not to exceed one year from the date of its issu-
ance; provided, that the board may allow such permit to
continue on a month to month basis for additional one year
periods.

1967 Haw. Sess. Laws Act 234, § 11 at 355 (emphasis added).

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al review is required but may be construed to mean that on-
ly one initial review is necessary after the first one year
period.

H. Stand. Comm. Rep. No. 522, in 1967 House Journal, at 670

(emphasis added). In 1990, the legislature amended HRS § 171-55

to include its current language by adding, in relevant part, the

“[n]otwithstanding any other law to the contrary” clause and

language stating that the BLNR could issue temporary permits “by

direct negotiation and without public auction.” 1990 Haw. Sess.

Laws Act 90, § 1 at 165-66. The legislative history indicates

that this amendment was intended to make “absolutely clear” that

the BLNR had the ability to approve permits without public

auction. S. Stand. Comm. Rep. No. 2988, in 1990 Senate Journal,

at 1218.

Thus, the legislative history of HRS chapter 171 and

HRS § 171-55 demonstrates the legislature’s intent that

temporary permits without public auction should be issued only

in cases of “overriding public interest” and subject to annual

review by the BLNR. While attempts were made by the legislature

to clarify that the BLNR had the authority in certain situations

to issue temporary permits without public auction, nothing in

the legislative history indicates that temporary permitting

could or should be used as a long-term substitute for the

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public-auction process.30 In the present case, the BLNR

continued the revocable permits for more than ten years31—using a

sweeping process that applied to hundreds of other permits—

without scrutiny and without an adequate explanation as to why a

continuance served the best interests of the State.

Because the BLNR did not make any findings of fact or

conclusions of law demonstrating that the revocable permits

“serve[d] the best interests of the State,” the BLNR did not

comply with HRS § 171-55 or its public trust obligations. “The

Hawai‘i Constitution adopts the public trust doctrine as a

fundamental principle of constitutional law.” Kauai Springs,

Inc. v. Plan. Comm’n of Kauai, 133 Hawai‘i 141, 171, 324 P.3d

951, 981 (2014) (cleaned up). The public trust encompasses all

the water resources in the state, and it requires that state

agencies “must take the initiative in considering, protecting,

and advancing public rights in the resource at every stage of

the planning and decision-making process.” Id. at 172-73, 324

P.3d at 982-83. In particular, where an agency performs as a

30 There is evidence that at least one legislator, the chair of the
House Committee on Lands, expressly disapproved of using temporary permitting
as a matter-of-course alternative for leases sold at public auction: before
Act 32 was passed, during floor debate of the bill, he posited that one of
the goals of Act 32 “was to get the State out of the business of having so
many revokable [sic] permits for ten and twelve years.” 1962 House Journal,
at 210 (exchange between Representatives Milligan and McClung).

31 This does not include the 2001 and 2002 holdover decisions, but
counts from the first continuation decision, made in 2005, when the revocable
permits were included on the annual master listings of permits.

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trustee, it is “duty bound to demonstrate that it has properly

exercised the discretion vested in it by the constitution and

the statute.” Id. at 173-74, 324 P.3d at 983-84 (emphasis

added) (quoting In re Water Use Permit Applications, 94 Hawai‘i

97, 158, 9 P.3d 409, 470 (2000)).

In this case, the 2014 continuation decision was not

authorized by HRS § 171-55 because the BLNR did not make any

findings of fact or conclusions of law.32 The BLNR failed to

demonstrate that it properly exercised the discretion vested in

it by the constitution and the statute.33

In sum, the BLNR’s failure to make findings here was

particularly troubling in light of the magnitude of the water

diversions authorized and the BLNR’s role as a public trustee of

the State’s water resources. While we do not fully set out the

scope of the BLNR’s duty to make the requisite findings, we note

that the duty may vary in conjunction with the resources

implicated. At minimum, the BLNR must make findings “sufficient

32 The A&B Defendants’ role under the revocable permits in
delivering water “for residential domestic use, businesses, government
institutions, schools, churches, farms, non-profits, fire prevention, and
Hawaiian Homelands homesteads in Upcountry Maui” is worth noting.

33 We find no merit in the A&B and State Defendants’ argument that
the BLNR’s 2014 continuation decision was issued in accordance with the
public trust doctrine. As this court has held—and as the BLNR recognized in
a 2007 order issued in the contested case proceedings—“private commercial
use” is not “a protected ‘trust purpose.’” In re Water Use Permit
Applications, 94 Hawaiʻi at 138, 9 P.3d at 450. Thus, the fact that some of
the water would be used for public purposes does not necessarily justify the
continued use of the remaining water for commercial purposes.

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to enable an appellate court to track the steps that the agency

took in reaching its decision.” Kauai Springs, 133 Hawai‘i at

173, 324 P.3d at 983 (citing Kilauea Neighborhood Ass’n v. Land

Use Comm’n, 7 Haw. App. 227, 230, 751 P.2d 1031, 1034 (1988)).

C. Applicability of HEPA to the Revocable Permits

1. HRS § 171-55’s “notwithstanding” clause does not
nullify HEPA’s EA requirement.

In the present case, the State and the A&B Defendants

argue that “there is a fundamental conflict between [HRS] § 171-

55 and the EA and EIS requirements of [HEPA].” Defendants

assert that the mandate in HRS § 343-5(a) that “an [EA] shall be

required” for certain actions conflicts with HRS § 171-55’s

provision authorizing the BLNR to issue revocable permits.

Thus, because HRS § 171-55 also provides that it applies

“[n]otwithstanding any other law to the contrary,” Defendants

argue that the provisions of HRS § 171-55 supersede and control

over HEPA. The ICA agreed with Defendants that HRS § 171-55’s

“notwithstanding” clause “nullified” HEPA’s EA and EIS

requirements for revocable permits. We disagree: HRS § 171-

55’s “notwithstanding” clause does not “nullify” HEPA’s EA

requirement.

The first sentence of HRS § 171-55 states that

“[n]otwithstanding any other law to the contrary,” in certain

circumstances, the BLNR may issue temporary revocable permits

without public auction:

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Notwithstanding any other law to the contrary, the board of
land and natural resources may issue permits for the
temporary occupancy of state lands or an interest therein
on a month-to-month basis by direct negotiation without
public auction, under conditions and rent which will serve
the best interests of the State, subject, however, to those
restrictions as may from time to time be expressly imposed
by the board.

(Emphasis added.) When interpreting “notwithstanding any other

law to the contrary” clauses, “[t]he term ‘contrary’ denotes a

‘conflict.’” State v. Schnabel, 127 Hawaiʻi 432, 448, 279 P.3d

1237, 1253 (2012) (citing Merriam-Webster’s Collegiate

Dictionary 765 (10th ed. 1989)) (interpreting a

“[n]otwithstanding any other law to the contrary” clause). “Two

statutes conflict where it is not possible to give effect to

both.” Id. (internal quotation marks and brackets omitted)

(quoting State v. Richie, 88 Hawaiʻi 19, 35, 960 P.2d 1227, 1243

(1998)). Thus, HRS § 171-55’s “notwithstanding” clause has the

potential to nullify HEPA’s EA requirement only if it is

impossible to give force to both statutes. HRS § 171-55 does

not contain an environmental-review process, and similarly, HRS

§ 343-5 does not address the BLNR’s authority to issue revocable

permits without public auction. Because it is possible to

integrate HRS § 343-5(a)’s EA requirement into the revocable-

permitting process authorized by HRS § 171-55, HEPA contains no

“law to the contrary” of HRS § 171-55.

Additionally, the legislative history of HRS § 171-55

supports our conclusion that the “notwithstanding” clause does

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not create an exemption from HEPA compliance. In 1990, the

legislature amended HRS § 171-55 to include the

“notwithstanding” clause. 1990 Haw. Sess. Laws Act 90, § 1 at

165-66. The standing committee report explains the reason for

the 1990 amendment:

[T]he Office of the Attorney General has suggested that it
is appropriate to make it absolutely clear that such tempo-
rary permits may be issued without public auction. Your
Committee finds that the Board of Land and Natural Re-
sources should be allowed to issue such permits and be-
lieves that this bill should serve as the vehicle for it.

Your Committee has therefore amended the bill by deleting
it’s [sic] substance and inserting language allowing the
[BLNR] to issue permits for the temporary occupancy of
State lands on a month-to-month basis by direct negotiation
without public auction.

S. Stand. Comm. Rep. No. 2988, in 1990 Senate Journal, at 1218

(emphasis added).

Thus, the purpose of the “notwithstanding” language

was to clarify that the BLNR has authority to issue temporary

permits without public action. The legislative history does not

indicate that the “notwithstanding” clause was intended to

create an exemption from HEPA or any other regulatory scheme.

The “notwithstanding” clause was directed solely at the issue of

whether public auction was required.

2. HEPA’s EA requirement applies to the revocable permits
so long as the A&B Defendants’ “action” does not
qualify for an exemption pursuant to HRS § 343-
6(a)(2).

HEPA requires an EA “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
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categories of land uses or administrative acts enumerated in HRS

§ 343-5(a) []; and (3) the action is not declared exempt

pursuant to HRS § 343-6(a)(2) (2010).” Umberger v. Dep’t of

Land & Nat. Res., 140 Hawaiʻi 500, 512, 403 P.3d 277, 289 (2017).

The circuit court held that HEPA was inapplicable to

the present case because it found that “the December 2014

revocable permits [we]re not ‘actions’ subject to [HEPA’s] [EA]

requirements” because the permits “were not programs or projects

INITIATED by DLNR, BLNR, or the [A&B] Defendants.”34 Petitioners

argue that, pursuant to HEPA, the BLNR should order the A&B

Defendants to complete an EA because the A&B Defendants’

activity under the revocable permits constituted “action” that

involves the “use of state or county lands.”35 HRS §§ 343-2

(2010), 343-5(a)(1). Petitioners are correct. Contrary to the

conclusion of the circuit court, the A&B Defendants’ land use

34 Although it has no bearing on this appeal, in 2003 the BLNR
issued an order in the contested case proceedings for the long-term lease
finding that the proposed long-term lease was “exempt from the requirements
of an EA pursuant to [Hawaiʻi Administrative Rules (“HAR”)] § 11-200-8(a)(1)”
so long as “existing structures, facilities, equipment or topographical
features” were kept in operation with no expansion or change of use. The
circuit court reversed this finding on appeal. The BLNR issued a second
order in the contested case proceedings in 2005 denying “a summary ruling
that an EA must be prepared prior to any interim disposition of water such as
the [2002 holdover decision] and/or a stay or continuance of the contested
case proceedings with respect to the [2002 holdover decision] and the interim
disposition of water.” (Emphasis omitted.)

35 Before the circuit court, in opposition to Petitioners’ MPSJ,
Defendants argued that the BLNR’s 2014 continuation decision did not
constitute “action” under HEPA because it was not a “program” or “project”
that was “initiated” by the BLNR or the A&B Defendants.

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under the revocable permits constituted “action[] that . . .

[p]ropose[d] the use of state or county lands” within the

meaning of HRS § 343-5(a)(1).

a. The A&B Defendants’ development, diversion, and
use of water constitutes “action” within the
meaning of HRS § 343-5(a).

HEPA defines “action” as “any program or project to be

initiated by any agency or applicant.”36 HRS § 343-2. Because

“program” and “project” are left undefined by HEPA, we “resort

to legal or other well accepted dictionaries as one way to

determine the ordinary meaning” of those terms. Umberger, 140

Hawaiʻi at 513, 403 P.3d at 290 (quoting State v. Guyton, 135

Hawaiʻi 372, 378, 351 P.3d 1138, 1144 (2015)). “‘Program’ is

generally defined as ‘a plan or system under which action may be

taken toward a goal.’ ‘Project’ is defined as ‘a specific plan

or design’ or ‘a planned undertaking.’” Id. (footnotes

omitted) (citing Merriam-Webster.com).

In the present case, the activity Petitioners contend

is a HEPA “action” is the A&B Defendants’ “development,

diversion, and use of [the] water” located across approximately

33,000 acres of State land in Maui. In its minute-order

36 “Agency” is defined as “any department, office, board, or
commission of the state or county government which is a part of the executive
branch of that government” and “applicant” is defined as “any person who,
pursuant to statute, ordinance, or rule, officially requests approval for a
proposed action.” HRS § 343-2.

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decision denying Petitioners’ MPSJ, the circuit court rejected

Petitioners’ argument and found no HEPA “action”:

At the outset, the December 2014 revocable permits are not
“actions” subject to Chapter 343 environmental assessment
requirements. The December 2014 revocable permits were not
programs or projects INITIATED by DLNR, BLNR, or the
Defendants. Instead, the December 2014 revocable permits
were of a continuing (preserving the status quo), temporary
nature placing the occupancy of the lands in a holdover
status.

(Emphasis added.)

While the circuit court is correct that neither the

BLNR’s 2014 continuation decision nor the revocable permits

themselves are HEPA “actions,” the circuit court erred by

concluding there is no HEPA “action” in the present case. As

demonstrated by our opinion in Umberger, it is the applicant’s

permitted activity—i.e., the activity for which the A&B

Defendants initially sought permit approval—that constitutes

“action” within the meaning of HEPA.37 140 Hawaiʻi at 514–15, 403

P.3d at 291–92 (finding that recreational—and commercial—

aquarium collection conducted under permits issued by the DLNR

qualifies as a HEPA “action”). That the revocable permits here

were not requested by the applicant does not preclude the

permitted activity itself from qualifying as HEPA “action.”

37 The A&B Defendants are “applicants” as defined by HRS § 343-2
because they sought official approval from the BLNR pursuant to a statute—
i.e., revocable permits pursuant to HRS § 171-5—to engage in the
“development, diversion, and use of water” back in 2000.

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The A&B Defendants’ permitted activity constitutes

HEPA “action” because it qualifies as either a “project” or a

program.” The activity is a “specific plan” or “planned

undertaking” —and is, therefore, a “project”—because the permits

facilitated a deliberate and coordinated effort by the A&B

Defendants to use their water system to deliver water and manage

water use for the permitted areas. See id. at 514, 403 P.3d at

291 (finding that recreational and commercial aquarium

collection was a “project” because “it involve[d] the systematic

and deliberate extraction of aquatic life” using established

procedures “for the specific purpose of holding captive such

aquatic life for aquarium purposes”). The activity is also a

“plan or system under which action may be taken”—and is,

therefore, a “program”—because although each revocable permit

corresponded to a separate geographical area, the four areas

“were all a part of the same collection and delivery system

extending from Nahiku to Honopou” and the permits worked in

conjunction to meet the A&B Defendants’ (and their customers’)

water needs. See id. (finding that recreational and commercial

aquarium collection was a “program” because it involved “the

purposeful and methodical extraction of aquatic life” designed

to further the “desired goal” of “tak[ing] aquatic life from its

habitat and hold[ing] it in a state of captivity for aquarium

purposes”). The A&B Defendants’ permitted activity, whether

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construed as a “project” or a “program,” constitutes “action”

within the meaning of HEPA. HRS §§ 343-2, 343-5(a).

Additionally, the A&B Defendants’ permitted activity

constitutes “action” within the meaning of HEPA despite the

“continuing” nature of the activity, which the defendants

characterize as merely maintaining the status quo. In Umberger,

this court held that aquarium collection authorized by one-year

permits from the DLNR constituted “action” under HEPA even

though the aquarium collection had been occurring for years.

140 Hawaiʻi at 513-16, 403 P.3d at 290-93. The continuing water

use in this case similarly constitutes “action” under HEPA.

Furthermore, because the A&B Defendants’ water use was

conditioned on one-year permits, the continued use under a

renewed permit did not merely maintain the status quo. See Pit

River Tribe v. U.S. Forest Serv., 469 F.3d 768, 784 (9th Cir.

2006) (holding that lease extensions did not “merely preserve[]

the status quo” because “[w]ithout the affirmative re-extension

of the 1988 leases, [the lease applicant] would have retained no

rights at all to the leased property”).38

38 We note that HEPA contains provisions allowing agencies to
consider and incorporate previous environmental review. See HAR § 11-200.1-
11; HAR § 11-200.1-12. “These provisions alleviate the concern that an
environmental assessment would necessarily have to be prepared whenever an
applicant applies for [a new one-year permit].” Umberger, 140 Hawaiʻi at 528,
403 P.3d at 305.

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Next, where the “action” is proposed by an applicant

and requires approval by an agency, in order for HEPA to apply

the agency must “exercise[] discretionary consent in the

approval process.”39 Umberger, 140 Hawaiʻi at 512, 403 P.3d at

289 (citing HRS § 343-5(e)). Under HEPA, “[a]pproval” is

defined as requiring “discretionary consent . . . from an agency

prior to actual implementation of an action” and

“[d]iscretionary consent” is defined as “consent, sanction, or

recommendation from an agency for which judgment and free will

may be exercised by the issuing agency.” HRS § 343-2. The A&B

Defendants’ “action” required approval from the BLNR in the form

of a revocable permit issued or continued pursuant to HRS § 171-

55. And the BLNR clearly exercised “discretionary consent”

during the approval process. Under HRS § 171-55, the BLNR “may

issue” revocable permits and “may continue” such permits “on a

month-to-month basis for additional one year periods.” “The

term ‘may’ is generally construed to render optional,

39 In their opening brief, Petitioners contend that the “action”
here qualifies as either an “agency action” (i.e., action proposed by the
BLNR) or an “applicant action” (i.e., action proposed by the A&B Defendants).
The present “action” is more accurately construed as an “applicant action.”
The A&B Defendants “proposed” HEPA “action” by seeking the BLNR’s permission
to develop, divert, and use the water across the license areas, that is: by
expressly requesting that the BLNR “[a]uthorize temporary continuation of the
year-to-year revocable permit[s] . . . pending issuance of the [proposed
long-term] lease” in 2001. The BLNR’s 2014 continuation decision constituted
such authorization, and the BLNR conveyed the authorization to the A&B
Defendants. Without the BLNR’s 2014 continuation decision, the revocable
permits would have expired on January 1, 2015, and the A&B Defendants would
not have been authorized in their ongoing water use. And until the long-term
lease is issued, the A&B Defendants will continue to derive the authority to
engage in their water use from the revocable permits.

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permissive, or discretionary the provision in which it is

embodied[.]” Umberger, 140 Hawaiʻi at 526, 403 P.3d at 303

(quoting State v. Kahawai, 103 Hawaiʻi 462, 465, 83 P.3d 725, 728

(2004)). The BLNR is not required to issue or continue a

revocable permit; this authority is wholly discretionary under

the statute. Thus, in continuing the revocable permits pursuant

to HRS § 171-55 in 2014, the BLNR exercised “discretionary

consent” in approving the A&B Defendants’ “action.” HRS § 343-2.

b. The A&B Defendants’ “action” involves the use of
state lands under HRS § 343-5(a)(1).

Next, the HEPA “action” must involve at least one of

the nine categories of land uses or administrative acts

enumerated in HRS § 343-5(a). Umberger, 140 Hawaiʻi at 512, 403

P.3d at 289. Under HRS § 343-5(a)(1), an EA is required for

actions that

[p]ropose 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).

HRS § 343-5(a)(1) (emphasis added).

The A&B Defendants’ permitted activity constitutes

HEPA “action” that involves “the use of state land” under HRS

§ 343-5(a)(1). The revocable permits granted the A&B Defendants

the right to “[o]ccupy and use” the Honomanū, Huelo, Keʻanae, and

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Nāhiku premises—all “parcel[s] of government land” —for the

“development, diversion, and use of water.” The A&B Defendants’

“action” undoubtedly “use[s]” state land within the meaning of

HRS § 343-5(a)(1).

c. On remand, the circuit court should determine
whether the A&B Defendants’ “action” is exempt
from HEPA’s EA requirement.

Having determined that the A&B Defendants’ permitted

activity is HEPA “action” that constitutes a “use of state . . .

lands,” we lastly consider whether such activity is exempt from

HEPA’s environmental-review process under HRS § 343-6(a)(2).

Umberger, 140 Hawaiʻi at 512, 403 P.3d at 289. HRS § 343-6(a)(2)

authorizes the environmental council40 to adopt rules that

“[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 [EA.]” Pursuant to HRS § 343-6(a)(2), the

environmental council issued Hawaiʻi Administrative Rules (“HAR”)

§ 11-200-8, which provides that the relevant agency may exempt

certain “classes of actions” from environmental review under

HEPA so long as the agency “obtain[ed] the advice of other

outside agencies or individuals having jurisdiction or expertise

40 HRS § 343-6(a) refers to “the council,” which means “the
environmental council.” HRS § 343-2. The environmental council was created
by HRS § 341-3(c) (2010).

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as to the propriety of the exemption.” HAR § 11-200-8(a)

(repealed 2019).41 For example, under HAR § 11-200-8, “action”

involving the “[o]peration[], repair[], or maintenance of

existing structures, facilities, equipment, or topographical

features, involving negligible or no expansion or change of use

beyond that previously existing” may be exempt from HEPA’s EA

requirement. HAR § 11-200-8(a)(1). However, HAR § 11-200-8

also provides that “[a]ll exemptions under the classes in this

section are inapplicable when the cumulative impact of planned

successive actions in the same place, over time, is significant,

or when an action that is normally insignificant in its impact

41 HAR § 11-200 was repealed and replaced by HAR § 11-200.1 on
August 9, 2019. HAR § 11-200.1-32, titled “Retroactivity,” provides that
“[c]hapter 11-200 shall continue to apply to environmental review of agency
and applicant actions which began prior to the adoption of chapter 11-200.1.”
Therefore, as the present case concerns HEPA “action” that occurred pre-2019,
the provisions of HAR § 11-200 apply.

HAR § 11-200-8(a) provides in relevant part:

(a) Chapter 343, HRS, states that a list of classes of
actions shall be drawn up which, because they will probably
have minimal or no significant effect on the environment,
may be declared exempt by the proposing agency or approving
agency from the preparation of an environmental assessment
provided that 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. Actions declared exempt
from the preparation of an environmental assessment under
this section are not exempt from complying with any other
applicable statute or rule. The following list represents
exempt classes of action:

(1) Operations, repairs, or maintenance of existing
structures, facilities, equipment, or topographical
features, involving negligible or no expansion or change of
use beyond that previously existing[.]

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on the environment may be significant in a particularly

sensitive environment.” HAR § 11-200-8(b).

Because analysis under HAR § 11-200-8 turns heavily on

the nature and impact of the A&B Defendants’ specific “action,”

we find that this inquiry properly lies within the circuit

court’s purview. On remand, the circuit court should determine

(1) whether the A&B Defendants’ “action” falls into one of the

exempt classes enumerated by HAR § 11-200-8(a) and, if so, (2)

whether HAR § 11-200-8(b) renders the exemption inapplicable.

If the circuit court finds that either HAR § 11-200-8(a) does

not apply or an exemption is inapplicable under HAR § 11-200-

8(b), the circuit court should determine how best to apply

HEPA’s EA requirement to the revocable permits, taking into

consideration relevant actions already taken by Defendants

toward issuance of the long-term lease, including A&B’s

publication of a DEIS.

Although the court is aware that the permits in this

case were continued along with hundreds of other permits, we do

not opine on the validity of other permits not before the court.

Given the duration, magnitude, and nature of the uses authorized

by the revocable permits here, they may be distinguishable from

other, smaller-scale uses similarly authorized by the BLNR.

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IV. CONCLUSION

For the foregoing reasons, the ICA’s July 31, 2019

judgment on appeal pursuant to its June 18, 2019 memorandum

opinion is vacated and the circuit court’s October 21, 2015

order granting Petitioners’ MPSJ is affirmed in part as to its

holding that the revocable permits were not authorized under HRS

§ 171-55. The circuit court’s October 21, 2015 order is vacated

in part as to its holding that there is no “action” within the

meaning of HRS § 343-5(a) and that HEPA’s environmental review

process is, thus, inapplicable. The case is remanded to the

circuit court for further proceedings consistent with this

opinion. On remand, the circuit court should continue to

exercise its equitable power as it pertains to the municipal-

and residential-water needs of the upcountry Maui community.

David Kauila Kopper /s/ Mark E. Recktenwald
for petitioners Healoha
Carmichael, Lezley Jacintho, /s/ Paula A. Nakayama
and Nā Moku Aupuni O Koʻolau Hui
/s/ Sabrina S. McKenna
Linda L.W. Chow (William J.
Wynhoff on the briefs) for /s/ Michael D. Wilson
respondents BLNR, Suzanne Case
in her official capacity as
Chairman of BLNR, and DLNR

David Schulmeister (Trisha
H.S.T. Akagi on the briefs) for
respondents Alexander & Baldwin, Inc.
and East Maui Irrigation Co., Ltd.

Caleb P. Rowe (Kristin K. Tarnstrom
on the briefs) for respondent
County of Maui, Department of
Water Supply

53