Kilakila 'O Haleakala v. University of Hawaii.

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Electronically Filed
Supreme Court
SCWC-13-0000182
06-OCT-2016
08:58 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

KILAKILA ʻO HALEAKALᾹ,
Petitioner/Plaintiff/Appellant-Appellant,

vs.

UNIVERSITY OF HAWAIʻI and DAVID LASSNER, in his official capacity
as Chancellor of the University of Hawaiʻi at Manoa; BOARD OF
LAND AND NATURAL RESOURCES, SUZANNE CASE, in her capacity as the
Chairperson of the Board of Land and Natural Resources; and
DEPARTMENT OF LAND AND NATURAL RESOURCES,
Respondents/Defendants/Appellees-Appellees.1

SCWC-13-0000182

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000182; CIVIL NO. 10-1-2510)

OCTOBER 6, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

1
Chancellor of the University of Hawaiʻi at Manoa David Lassner was
automatically substituted as respondent/defendant/appellee-appellee in place
of former Chancellor Robert Bley-Vroman. State of Hawaiʻi Board of Land and
Natural Resources (BLNR) chairperson Suzanne Case was automatically
substituted as a respondent/defendant/appellee-appellee in place of former
BLNR chairperson William J. Aila, Jr., who was sued in his official capacity.
Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2010).
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I. Introduction

Haleakalā, on the island of Maui, has been a site of

great historical and cultural importance to Native Hawaiians for

more than one thousand years. Today, many consider Haleakalā as

the most sacred place on Maui where numerous cultural practices

continue, including religious ceremonies and prayer. The summit

of Haleakalā is also considered as one of the premier locations

for astronomical research in the world and has been used for

such purposes for over fifty years. An 18.166 acre area set

aside for astronomical research (Observatory Site) is located

within a conservation district near the summit of Haleakalā.2

In 2004, a National Science Foundation working group

identified the Observatory Site as the location for constructing

a new telescope, the Advanced Technology Solar Telescope

(Telescope Project). Under the applicable administrative rules,

approval of a management plan for the Observatory Site was a

prerequisite for construction of the Telescope Project. The

University of Hawaiʻi (UH) prepared a Management Plan containing

guidelines and management strategies that apply to all

facilities within the astronomical site area. An environmental

assessment of the Management Plan was conducted to evaluate

2
Under the Governor’s Executive Order No. 1987, the Observatory
Site is under the control and management of the University of Hawaii’s Board
of Regents.

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environmental impacts that may result from implementing the

Management Plan. UH concluded that the Management Plan would

not have a significant environmental impact and that, therefore,

an environmental impact statement was not required under the

Hawai#i Environmental Policy Act (HEPA). The Management Plan was

then approved by the Board of Land and Natural Resources (BLNR).

Kilakila ʻO Haleakalā (Kilakila), an organization that

strives to protect the sacredness of the Haleakalā summit,

initiated a court action to challenge UH’s finding that the

Management Plan would have no significant impact on the

environment. Kilakila maintained that the environmental

assessment did not comply with HEPA and that it did not consider

the Telescope Project as a component of the Management Plan, nor

as a secondary and cumulative impact of the Management Plan.

During the pendency of its court challenge, Kilakila

filed discovery requests seeking to obtain documents and

admissions from UH and the Department of Land and Natural

Resources (DLNR) relating to the environmental assessment. UH

and DLNR sought a protective order regarding Kilakila’s

discovery requests, arguing that judicial review under HEPA is

limited to the record before UH at the time it rendered its

determination that the Management Plan would not have a

significant impact upon the environment. The Circuit Court of

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the First Circuit (circuit court) granted the protective order

without prejudice to subsequent discovery requests.

On certiorari, Kilakila argues that the circuit court

erred by limiting its judicial review to the administrative

record considered by UH. Kilakila also contends that the

circuit court’s determination that the environmental assessment

for the Management Plan complied with HEPA was flawed as the

environmental assessment failed to consider significant impacts

of the plan and that, consequently, the court further erred in

ruling that an environmental impact statement was not required.

Upon review of the issues presented, we hold that in a

declaratory action brought to challenge an agency’s

determination that an environmental impact statement is not

required, judicial review is not restricted to an administrative

record. However, the circuit court in this case did not err

because the parties were permitted to submit documents beyond

those contained within the agency record, and the court did not

foreclose further discovery requests by Kilakila.

Additionally, we conclude that the environmental

assessment for the Management Plan complied with procedures

under HEPA and did not fail to properly consider the Telescope

Project. Because UH’s conclusion that the Management Plan would

not cause significant environmental impacts is not clearly

erroneous, an environmental impact statement was not required.

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Consequently, the circuit court did not err in granting summary

judgment in favor of UH and the DLNR and in denying summary

judgment to Kilakila. Accordingly, the Intermediate Court of

Appeals’ Judgment on Appeal is affirmed for the reasons stated

herein.

II. Background

A. Management Plan

The Hawaiʻi Administrative Rules (HAR) in this case

required approval of a management plan for the Observatory Site

in order to construct the Telescope Project within the

conservation district on Haleakalā.3 See HAR § 13-5-22, -24, -25

(effective 1994-2010).4 The required contents of the management

plan included (1) a description of the proposed land use in

general terms; (2) a description of how the proposed land use is

consistent with the purpose of the conservation district and the

property’s subzone; (3) a location map; (4) a discussion of

3
Under the 1994 version of the HAR, which were in effect at the
relevant time period in this case, a “management plan” was defined as “a
comprehensive plan for carrying out multiple land uses.” HAR § 13-5-2
(effective 1994-2010).
4
HAR § 13-5-22(b) provided that “[i]dentified land uses beginning
with the letter (D) require a board permit, and where indicated, a management
plan.” HAR § 13-5-22(b)(4). HAR § 13-5-24 set forth permitted land uses in
a resource subzone, including “[a]stronomy facilities under an approved
management plan.” HAR § 13-5-24. HAR § 13-5-25 extended the permitted uses
of resource subzones to the general subzone, unless otherwise noted. HAR §
13-5-25(a).

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existing conditions on the parcel;5 (5) the proposed land use and

its relationship to other existing and proposed land uses; (6) a

site plan showing the location of all existing and proposed land

uses; (7) the expected timing of the project; (8) monitoring

strategies; (9) an environmental assessment; (10) steps to

ensure that historic preservation concerns were met; and (11) a

reporting schedule. HAR Chapter 13-5, Exhibit 3 (Sept. 6,

1994).6

UH issued its Management Plan for the Observatory Site

in March 2010, replacing the Long Range Development Plan (Long

Range Plan) that had been implemented in 2005 to manage the

Observatory Site. The Management Plan retained many of the

management strategies and guidelines, as well as the overall

objectives, set forth in the Long Range Plan. To fulfill the

objectives of the Management Plan and Long Range Plan, both

contain specific guidelines and strategies that apply to

astronomical facilities within the Observatory Site. For

example, under both the Management Plan and Long Range Plan, the

5
The management plan was required to address, inter alia,
ownership, resources (e.g. biological, archaeological, geological), the
presence of threatened or endangered species, constraints (e.g. flood plain,
tsunami, volcanic, topography), existing land uses, existing conservation
district use permits, access, and soils. HAR Chapter 13-5, Exhibit 3 (Sept.
6, 1994).
6
The amended rules for the required contents of a management plan,
effective August 12, 2011, deleted reference to an environmental assessment.
HAR Chapter 13-5, Exhibit 3 (Aug. 12, 2011).

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overall objective for managing the astronomical facilities in

the Observatory Site is to create a structure for sustainable,

focused management of the resources and operations of the

Observatory Site in order to (1) protect historic, cultural, and

natural resources within the site area; (2) protect and enhance

education and research in the site area; and (3) provide the

opportunity for future expansion of the scope of activities at

the Observatory Site, where appropriate.

An environmental assessment of the Management Plan was

then prepared to evaluate potential environmental impacts from

implementing the Management Plan. As discussed below, UH’s

review of the environmental assessment was governed by HEPA and

the applicable administrative rules.

B. Hawaiʻi Environmental Policy Act

The Hawaiʻi Environmental Policy Act of 1974 (HEPA),

Chapter 343 of the Hawaiʻi Revised Statutes (HRS), establishes “a

system of environmental review which will ensure that

environmental concerns are given appropriate consideration in

decision making along with economic and technical

considerations.” HRS § 343-1 (1993). HEPA is intended to

“integrate the review of environmental concerns with existing

planning processes” and to “alert decision makers to significant

environmental effects which may result from the implementation

of certain actions.” Id. As with the National Environmental

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Policy Act of 1969 (NEPA),7 HEPA serves primarily as a procedural

framework under which an agency may evaluate and consider the

environmental, social, and economic factors of a proposed action

prior to taking action. See Sierra Club v. Dep’t of Transp.,

115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007). Through the HEPA

review process, “environmental consciousness is enhanced,

cooperation and coordination are encouraged, and public

participation during the review process benefits all parties

involved and society as a whole.” HRS § 343-1.

HEPA’s basic framework entails several review stages

by the proposing or accepting agency, each of which may require

additional assessment procedures. Sierra Club, 115 Hawaiʻi at

306, 167 P.3d at 299. First, a determination must be made as to

whether a project or an action is subject to the environmental

review process under HEPA. Id. An action or project is subject

to HEPA if (1) it is initiated by a government agency or by a

private entity and requires government approvals for the project

or action to proceed and (2) it proposes one or more of nine

enumerated land uses or administrative acts set forth in HRS

Chapter 343. Id. These land uses or administrative acts

include those that propose (1) the use of State or county lands

7
HEPA was patterned after the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. § 4321 et seq. (2015). See Sierra Club v. Dep’t of
Transp., 115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007).

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or funds or (2) any use within a conservation district.

HRS § 343-5(a)(1), (2) (Supp. 2009).

If an action is subject to environmental review under

HRS § 343-5(a) and is not declared exempt, the applicant of the

proposed project or action must develop a draft environmental

assessment. Sierra Club, 115 Hawaiʻi at 307, 167 P.3d at 300.

An environmental assessment is “an informational document

prepared by either the agency proposing an action or a private

applicant, which is used to evaluate the possible environmental

effects of a proposed action.” Id. An environmental assessment

must include the following: (1) a detailed description of the

proposed action or project; (2) an evaluation of the direct,

indirect, and cumulative impacts; (3) a discussion of

alternatives to the proposed project or action; and (4) a

description of any measures proposed to minimize potential

impacts. See id.; see also HRS § 343-2 (1993). Upon completion

of a draft environmental assessment, a thirty-day period begins

for review and comment by the public. See Sierra Club, 115

Hawaiʻi at 308, 167 P.3d at 301.

After this review period, the applicant responds to

public comments and finalizes the draft environmental

assessment. See id. At this point, the agency proposing or

approving the action reviews the final environmental assessment

to determine whether the proposed action could have a

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significant impact on the environment.8 HRS § 343-2; HAR § 11-

200-2 (1996); see also Sierra Club, 115 Hawaiʻi at 308, 167 P.3d

at 301. A “significant impact” is defined as follows:

the sum of effects on the quality of the environment,
including actions that irrevocably commit a natural
resource, curtail the range of beneficial uses of the
environment, are contrary to the state’s environmental
policies or long-term environmental goals and guidelines as
established by law, or adversely affect the economic or
social welfare, or are otherwise set forth in section 11-
200-12 of this chapter.

HAR § 11-200-2. Generally, ecological, aesthetic, historic,

cultural, economic, social, or health “effects” are considered.

Id. “Effects” may also include those “resulting from actions

which may have both beneficial and detrimental effects, even if

on balance the agency believes that the effect will be

beneficial.” Id. In evaluating the impacts of a proposed

action, consideration must be given to “every phase of a

proposed action, the expected consequences, both primary and

secondary, and the cumulative as well as the short-term and

long-term effects of the action.”9 HAR § 11-200-12(b) (1996).

Additionally, the agency must consider thirteen instances where

an action shall be determined, “in most instances,” to have a

significant impact on the environment. HAR § 11-200-12(b).

8
The terms “impacts” and “effects” are synonymous and are used
interchangeably throughout HEPA. HAR § 11-200-2 (1996).
9
Under the HAR, the terms “primary impact” and “direct impact” are
interchangeable. HAR § 11-200-2. “Secondary impact” and “indirect impact”
are also interchangeable. Id.

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Upon completion of the final environmental assessment,

if the reviewing agency determines that the proposed action is

likely to cause a significant impact on the environment, an

environmental impact statement must be prepared. Price v.

Obayashi Haw. Corp., 81 Hawaiʻi 171, 180, 914 P.2d 1364, 1373

(1996). Alternatively, if the reviewing agency determines that

the proposed action will not result in a significant

environmental impact, then the agency must issue and publish a

finding of no significant impact (i.e., a negative declaration)

in the Office of Environmental Quality Control’s bulletin prior

to implementing or approving the action. See HRS § 343-2

(defining a “finding of no significant impact” as “a

determination that the subject action will not have a

significant effect and, therefore, will not require the

preparation of an environmental impact statement”); HAR § 11-

200-2 (stating that a “negative declaration is required prior to

implementing or approving the action”). Publication of a

negative declaration initiates a thirty-day period during which

that determination may be challenged through litigation.10 See

HRS § 343-7(b) (1993).

10
Under HEPA, an aggrieved party may bring a legal challenge at
three distinct phases of environmental review: “(1) when no [environmental
assessment] is prepared, (2) when an agency determines that an environmental
impact statement will or will not be required, and (3) when an [environmental
impact statement] is accepted.” Sierra Club, 115 Hawai#i at 308, 167 P.3d at
301; see HRS § 343-7.

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C. Environmental Assessment of the Management Plan

An environmental assessment of the Management Plan was

prepared as required by HEPA.11 On March 1, 2010, UH issued a

draft environmental assessment and solicited public comment. On

October 22, 2010, UH sent a letter to the Office of

Environmental Quality Control, stating that it found the

Management Plan would have no significant environmental impact.

Thereafter, on October 25, 2010, UH issued its final

environmental assessment (EA).

The executive summary of the EA stated that “the

purpose of the environmental assessment was to inform the

relevant state agencies and the public of the likely

environmental consequences of the [Management Plan] on ongoing

and future actions at [the Observatory Site] in support of

astronomical research.” The EA evaluated the environmental

effects that might occur as a result of implementing the

Management Plan’s site management strategies and guidelines.12

The EA considered proposed practices at the site area that

11
The parties debated whether an environmental assessment was
required for the Management Plan or whether it was exempt from HEPA as a
planning document under HRS § 343-5(b). The final environmental assessment
states that it was “trigger[ed]” under HEPA because it involved the use of
State funds and the use of conservation district lands.
12
The Management Plan generally included monitoring and management
strategies for (1) astronomical and space surveillance experiments, (2)
requirements for new facility design, construction, and operation, and (3)
the replacement of Observatory Site facilities in support of long-term
science investigation.

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included the following: weeding of the Observatory Site; vector

control for rodents; soil and erosion control to maintain

habitat ecosystems; nighttime lighting restrictions to prevent

misdirecting ʻuaʻu; and frequent removal of trash to prevent

predators from obtaining food sources. Additional strategies

set forth in the Management Plan for managing environmental

resources were evaluated, including practices for reducing dust

and emissions if construction equipment is used and prohibitions

on the importation of fill material, unless sterilized. The EA

also reviewed the Management Plan’s strategies related to

cultural resources, such as placing a sign welcoming Native

Hawaiians to practice traditional cultural practices within the

Observatory Site; mandating cultural training for all personnel

working within the Observatory Site; and engaging a cultural

specialist for any construction requiring a permit from DLNR.

The EA was limited to evaluating the Management Plan

for activities that would be undertaken at the Observatory Site

“in support of ongoing and future astronomical research

activities.”13 The EA expressly indicated that its evaluation of

the Management Plan was not intended to assess impacts from the

construction or operation of any new project at the Observatory

13
The EA provided a comparative summary of the potential impacts
for both the implementation of the Management Plan and the no-action
alternative of not implementing the Management Plan.

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Site or to authorize any construction at the Observatory Site.14

Rather, the EA stated that a separate evaluation for potential

impacts to resources within the Observatory Site was required

for any new proposed project within the site area. The EA also

noted that the relevant State agencies and the public would be

informed of the environmental consequences of any new proposed

project within the Observatory Site.

The EA concluded that implementing the Management Plan

would result in no impact to “land use and existing activities,

topography, geology and soils, infrastructure and utilities,

climatology and air quality, and socioeconomics.” However, the

EA noted that the presence of facilities and ongoing operations

at the Observatory Site would impact cultural resources. The EA

stated that some believe any man-made structures or activities

in the site area would have adverse impacts on the sacredness of

the summit area at Haleakalā. Considering this view and others,

the EA concluded that, while some Native Hawaiians would not

consider the Management Plan as beneficial, the impact of

implementing the Management Plan on cultural and historic

14
The EA explained that “future actions, which are not the subject
of this [Management Plan], may include developing” (1) facilities and
experiments dedicated to searching for and characterizing planets around the
sun and other stars; (2) facilities and experiments devoted to the study of
oscillations and stellar activity in other stars; and (3) experiments that
study the sun and its outer atmosphere.

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resources would be less than significant.15 The EA found that

while the Management Plan’s practices and procedures were

intended to be helpful and to reduce adverse impacts from the

routine management of the Observatory Site, the cumulative

impact of the Management Plan, along with past and ongoing

actions, would still be adverse to cultural and historic

resources but less than significant. That is, the Management

Plan would “not substantially contribute to the adverse impacts

from past, present, and reasonably foreseeable future activities

on cultural resources” and would “not combine with any other

actions to produce incrementally different impacts on historic

or archeological resources.”

Although the EA stated that the Management Plan would

have no significant impact, the EA also concluded that future

projects at the Observatory Site could result in significant

impacts. For example, the EA found that future projects may

have adverse impacts on the stormwater and drainage system, the

roadways and traffic, noise levels and the visual character of

the site area, even though the Management Plan would result in

some beneficial impacts on these resources. Additionally, the

15
The EA noted that the current ambient noise level within the
Observatory Site is low but observed that “cultural practitioners within the
immediate vicinity of a noise source could be disturbed.” However, the EA
stated that most noise disturbances are “low level discrete events” and thus
the current noise levels are compatible with existing activities.

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EA noted that “there was overwhelming evidence, from a cultural

and traditional standpoint, that construction of a large,

visible structure at [the Observatory Site] would result in a

significant impact on some Native Hawaiian traditional cultural

practices and beliefs.” The EA thus observed that the

construction of new facilities affecting cultural resources

would be individually analyzed with separate environmental

documentation completed for each new project.

Based on the EA’s analysis, UH determined that

implementing the Management Plan would “either have beneficial,

less than significant, or no impacts” at the Observatory Site.

In light of its determination that the Management Plan would

have no significant environmental impact, UH did not prepare an

environmental impact statement.

On November 22, 2010, BLNR held a hearing concerning

the Management Plan and a conservation district use application

for the Telescope Project.16 On December 1, 2010, BLNR held a

second hearing, in which both the Management Plan and the

conservation district use application were “taken together” but

16
In addition to an approved management plan, approval of the
Telescope Project within the conservation district required a conservation
district use permit. Kilakila is challenging BLNR’s issuance of the permit
for the Telescope Project in a separate case before this court.

According to the minutes from the hearing, a DLNR employee stated
that “[s]taff is here to see the Board’s approval of the Management Plan. We
will then discuss the proposed [Telescope] Project which will be the first
telescope approved under the Management Plan that the Board is considering.”

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“voted [upon] separately.” At this hearing, BLNR approved the

Management Plan with one amendment requiring a report in five

years.

D. Court Proceedings

On November 22, 2010, prior to BLNR’s approval of the

Management Plan, Kilakila filed a complaint in the circuit court

seeking declaratory and injunctive relief against UH,17 BLNR, and

DLNR.18 The complaint sought to “ensure the preparation of an

[environmental impact statement] for the [Management Plan],”

contending that UH improperly concluded that the Management Plan

would have no significant impact and thus UH’s actions violated

HEPA.19 UH and DLNR denied that the EA improperly concluded that

the Management Plan would have no significant impact or that UH

violated HEPA.

17
Kilakila named Virginia Hinshaw, Chancellor of UH, in her
official capacity as Chancellor of UH, as a defendant. During the pendency
of this case, Thomas M. Apple succeeded Virginia Hinshaw, and Robert Bley-
Vroman succeeded Thomas M. Apple as Chancellor of UH.
18
Laura Thielen was additionally named in her official capacity as
Chair of BLNR. She was succeeded by William Aila, who was then succeeded by
Suzanne D. Case, during the pendency of this case.
19
Kilakila prayed for the following relevant relief: (1) a
declaration that UH violated HRS Chapter 343; (2) a declaration that UH must
prepare an environmental impact statement for the Management Plan; (3) a
declaration that UH improperly accepted the EA for the Management Plan; (4) a
declaration that the Management Plan “may have a significant impact”; (5) a
declaration that “any permits granted pursuant to the EA for the [Management
Plan] are null and void”; (6) a declaration that the Management Plan was null
and void; and (7) a declaration that all permits granted pursuant to the
Management Plan, “including the [permit] for the Telescope Project, are null
and void.”

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1. Discovery Requests and Protective Order

Kilakila made a series of discovery requests to UH and

DLNR attempting to authenticate documents prepared by UH and to

obtain admissions from UH as to various statements that were

made in the documents. Kilakila also sought “to obtain all

relevant documents” and “attempted to discover the factual basis

of all of [UH’s] defenses.” DLNR, UH, and Kilakila met and

conferred in an effort to resolve the dispute over Kilakila’s

discovery requests. UH and DLNR maintained that the case must

be decided based only on the record before UH when it made its

finding of no significant impact. Kilakila was informed that UH

was preparing an administrative record that would be filed in

circuit court, which could be supplemented upon further

agreement of the parties.

UH then moved for a protective order, pursuant to

Hawai#i Rules of Civil Procedure (HRCP) Rule 26(c),20 as to “all

20
HRCP Rule 26(c) provides, in pertinent part,

Protective Orders. Upon motion by a party or by the person
from whom discovery is sought, accompanied by a
certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort
to resolve the dispute without court action, and for good
cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the
court in the circuit where the deposition is to be taken may
make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense . . . .

HRCP Rule 26.

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outstanding discovery directed to [UH] by [Kilakila] and any

subsequently filed requests.” UH argued that its motion for

protective order should be granted because the question of

whether UH complied with HEPA was a question of law that

required no factual determinations. UH contended that HEPA does

not permit discovery beyond an administrative record and that

Kilakila therefore “should not be permitted discovery into

issues not before the agency at the time it made its decision.”

DLNR joined the motion and separately argued that Kilakila’s

discovery requests “seek irrelevant and intrusive information

and will not lead to the discovery of admissible evidence.”

After filing the motion for protective order, UH filed

an Administrative Record pertaining to its review of the EA,

which contained the following documents: the draft environmental

assessment for the Management Plan; the published notice of the

draft environmental assessment by the Office of Environmental

Quality Control; a letter from Virginia Hinshaw, then-Chancellor

of UH, to the Director of the Office of Environmental Quality

Control, containing UH’s finding of no significant impact on the

environment for the Management Plan; the EA for the Management

Plan; and the Notice of the EA published by the Office of

Environmental Quality Control. The draft Management Plan, the

final Management Plan, and a series of post-Long Range Plan

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studies regarding the Observatory Site were attached as

appendices to the Administrative Record.21

In response to the motion for protective order,

Kilakila argued that it would be an abuse of discretion for the

circuit court to grant a blanket ban on discovery without

balancing the “need for the information against the injury that

might result if uncontrolled disclosure is permitted.”22

Kilakila contended that the circuit court’s review should not be

limited to the Administrative Record because this case was not

an HRS Chapter 91 contested case appeal.

In its reply, UH asserted that the Administrative

Record contained all of the information that UH had considered

in making its determination under HRS Chapter 343 and the

relevant HAR. UH further contended that discovery was not

necessary because Kilakila already had in its possession the

documents sought as Kilakila had attached those documents to its

response to the motion for protective order. After a hearing,

the circuit court granted UH’s motion for protective order

21
A number of studies were conducted at the Observatory Site,
including an archeological recovery plan, a stormwater management plan, a
2007 supplemental anthropod inventory and a 2009 anthropod study, a
supplemental cultural impact assessment, and a botanical survey.
22
Attached to Kilakila’s response were selected portions of the
environmental impact statement for the Telescope Project.

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(Protective Order) “without prejudice to any future discovery

requests” by Kilakila.

2. Motions for Summary Judgment

Each of the parties then filed a motion for summary

judgment (MSJ).23 In its MSJ, Kilakila contended that HEPA’s

implementing rules identify three types of impacts on the

environment--direct, secondary, and cumulative--and that each

must be assessed to ensure that all possible impacts of a

project are considered. Kilakila argued that by failing to

consider the Telescope Project as a direct, secondary, and

cumulative impact of the Management Plan, the EA ignored

significant impacts and improperly segmented the required

analysis under HEPA. Kilakila concluded that the circuit court

should grant its MSJ because the Management Plan would likely

have a significant impact on the environment and, consequently,

required the preparation of an environmental impact statement.

In its MSJ,24 UH argued that it had followed the proper

procedures under HEPA and that the EA provided sufficient

23
The parties attached exhibits to their respective MSJ, responses,
or replies that went beyond the Administrative Record. For example, UH
attached the Long Range Plan to its reply. For its MSJ, Kilakila attached,
inter alia, the Telescope Project’s environmental impact statement and
declarations from two individuals. Kilakila also attached to its memorandum
in opposition to UH’s MSJ, inter alia, a DLNR Staff Submittal on the
Telescope Project and minutes of two BLNR meetings.
24
In its MSJ, DLNR substantively joined UH’s MSJ. DLNR
additionally argued that an environmental assessment was not required because
the Management Plan was a planning document and that DLNR was not a necessary
(continued. . .)

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information to permit informed decision-making. UH also

asserted that the Telescope Project was not a direct or

secondary impact of the Management Plan and maintained that the

EA properly considered the cumulative impacts of the Management

Plan’s implementation--that is, the incremental impact of the

Management Plan when added to other past, present, and

reasonably foreseeable actions. UH contended that the

incremental impact of the Management Plan would be less than

significant and, on the whole, beneficial to the environment.

After a hearing on the parties’ MSJs, the circuit

court granted UH’s MSJ and DLNR’s MSJ and denied Kilakila’s MSJ

(MSJ Order).25 In the MSJ Order, the circuit court found that

the Management Plan is a guideline and planning tool that sets

forth certain policies and monitoring strategies applicable to

future actions. The circuit court determined that the

Management Plan does not authorize specific projects, such as

the Telescope Project, and that future projects would require

their own environmental review. The circuit court concluded

that, under the rule of reason standard set forth in Hawaiʻi case

law, the EA for the Management Plan complied with HRS Chapter

(. . .continued)
or proper party to the litigation. These arguments are not presented in
DLNR’s response to the application for writ of certiorari, and thus they are
not addressed.
25
The Honorable Rhonda Nishimura presided.

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343 and that preparation of an environmental impact statement

was not required. The circuit court entered final judgment.

Kilakila timely appealed, arguing that the circuit court erred

in granting the Protective Order and erred in granting UH’s and

DLNR’s respective MSJs while denying Kilakila’s MSJ.

3. ICA Opinion

The ICA, in a published opinion, held that the circuit

court did not err by concluding that the EA complied with HRS

Chapter 343 and that an environmental impact statement was not

required. Kilakila ʻO Haleakalā v. Univ. of Haw., 134 Hawaiʻi

86, 94-98, 332 P.3d 688, 696-700 (App. 2014). The ICA also held

that the circuit court did not abuse its discretion in granting

the Protective Order because “[w]hether the Management Plan’s EA

and its Negative Declaration complied with HRS Chapter 343 is a

question of law that does not require factual determinations

beyond the administrative record.” Id. at 98-99, 332 P.3d at

700-01. Accordingly, the ICA affirmed the circuit court’s

Protective Order, MSJ Order, and final judgment. Id. at 99, 332

P.3d at 701.

III. Standards of Review

A. Motion for Summary Judgment

Hawaiʻi appellate courts review an award of summary

judgment de novo under the same standard applied by the circuit

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court. Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230,

1232-33 (2011). That standard has been articulated as follows:

Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.

Kepoo v. Kane, 106 Hawaiʻi 270, 287, 103 P.3d 939, 956 (2005)

(quoting Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264,

1270 (1983)). “A fact is material if proof of that fact would

have the effect of establishing or refuting one of the essential

elements of a cause of action or defense asserted by the

parties.” Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719

(2001) (quoting Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61,

647 P.2d 713, 716 (1982)). The moving party bears the burden of

demonstrating that there is no genuine issue as to any material

fact with respect to the essential elements of the claim or

defense and must prove that the moving party is entitled to

judgment as a matter of law. French v. Haw. Pizza Hut, Inc.,

105 Hawaiʻi 462, 470, 99 P.3d 1046, 1054 (2004). This court must

review the evidence and inferences in the light most favorable

to the non-moving party. Thomas, 126 Hawaiʻi at 128, 267 P.3d at

1233.

In cases of public importance, a circuit court should

grant a motion for summary judgment “sparingly, and never on

limited and indefinite factual foundations.” Molokai

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Homesteaders Coop. Ass’n v. Cobb, 63 Haw. 453, 458, 629 P.2d

1134, 1139 (1981). However, if there is no genuine issue as to

any material fact and the moving party clearly demonstrates that

they should prevail as a matter of law, then summary judgment is

proper. Id.

B. Review Under HEPA

For agency determinations under HEPA, “the appropriate

standard of review depends on the specific question under

consideration.” Sierra Club v. Dep’t of Transp., 115 Hawaiʻi

299, 315, 167 P.3d 292, 308 (2007). Generally, a court reviews

agency determinations that involve factual questions under a

clearly erroneous standard. Id. at 315, 167 P.3d at 308; see

also Del Monte Fresh Produce (Haw.), Inc. v. Int’l Longshore and

Warehouse Union, 112 Hawaiʻi 489, 499, 146 P.3d 1066, 1076 (2006)

(“[An agency’s] conclusion of law that presents mixed questions

of fact and law is reviewed under the clearly erroneous standard

because the conclusion is dependent upon the facts and

circumstances of the particular case.”). However, “[w]hether or

not an agency has followed proper procedures or considered the

appropriate factors in making its determination is a question of

law, and will be reviewed de novo.” Sierra Club, 115 Hawaiʻi at

315, 167 P.3d at 308.

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IV. Discussion

In its application for writ of certiorari, Kilakila

appeals the ICA’s affirmance of the MSJ Order, arguing that the

ICA opinion is flawed because judicial review is not confined to

an administrative record in cases of this nature. Kilakila

additionally contends that (1) the ICA erred in concluding that

UH complied with HEPA and HAR § 11-200-12 when UH made its

negative declaration for the EA and (2) UH’s conclusion that the

Management Plan would not have a significant environmental

impact is clearly erroneous. Kilakila specifically argues that

because the Telescope Project would have a significant impact

and is a component, secondary, and cumulative impact of the

Management Plan, UH is required to prepare an environmental

impact statement for the Management Plan.

A. Scope of Judicial Review under HEPA

The ICA held that the circuit court did not abuse its

discretion in granting the Protective Order because whether the

EA complied with HRS Chapter 343 was a question of law that did

not require review beyond the Administrative Record. Kilakila,

134 Hawaiʻi at 98-99, 332 P.3d at 700-01. Kilakila argues that

the ICA’s opinion is flawed because an administrative record

does not exist in cases of this nature and there is nothing in

HEPA, the Hawaiʻi Rules of Civil Procedure, or the Rules of

Circuit Court that prohibits presenting evidence related to a

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motion for summary judgment. Kilakila contends that confining

review to an administrative record “sets a dangerous precedent”

for future litigation under HEPA and that restricting judicial

review to the administrative record limited the ICA’s analysis

by allowing the court “to ignore the significant impacts”

disclosed in the Telescope Project’s environmental impact

statement.

Kilakila brought this case as a declaratory action

under HRS § 632-1 (1993)26 and HRS § 343-7(b) (1993). Under

HRS § 343-7(b), “[a]ny judicial proceeding, the subject of which

is the determination that a[n] [environmental impact] statement

is not required for a proposed action, shall be initiated within

thirty days after the public has been informed of such

determination pursuant to section 343-3.” HRS § 343-7(b). The

term “administrative record” or its equivalent does not appear

26
HRS § 632-1 provides, in part,

Relief by declaratory judgment may be granted in civil
cases where an actual controversy exists between contending
parties, or where the court is satisfied that antagonistic
claims are present between the parties involved which
indicate imminent and inevitable litigation, or where in
any such case the court is satisfied that a party asserts a
legal relation, status, right, or privilege in which the
party has a concrete interest and that there is a challenge
or denial of the asserted relation, status, right, or
privilege by an adversary party who also has or asserts a
concrete interest therein, and the court is satisfied also
that a declaratory judgment will serve to terminate the
uncertainty or controversy giving rise to the proceeding.

HRS § 632-1.

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anywhere in HRS § 632-1 (declaratory judgment action), HRS

Chapter 343 (HEPA), or HAR § 11-200-1 et seq. (HEPA’s

implementing administrative rules). That is, none of these

statutes or rules prescribes limitations as to the extent of

discovery that is permitted in a declaratory judgment action

brought pursuant to HEPA or restricts a court’s consideration of

the issues to an administrative record.27

By contrast, judicial review of an appeal from a

contested case proceeding brought pursuant to HRS § 91-14 (Supp.

2004) “shall be confined to the record.” HRS § 91-14(f).28 The

record for a contested case appeal, prepared by the agency, must

include the following: (1) all pleadings, motions, and

intermediate rulings; (2) evidence received or considered,

including oral testimony, exhibits, and a statement of matters

officially noticed; (3) offers of proof and rulings thereon; (4)

proposed findings and exceptions; (5) report of the officer who

presided at the hearing; and (6) staff memoranda submitted to

members of the agency in connection with their consideration of

27
The only express restriction on an action brought under HEPA is
that in a judicial action brought to challenge the acceptance of an
environmental impact statement, the “contestable issues” are “limited to
issues identified and discussed in the written comment” during the
“designated review period.” HRS § 343-7(c).
28
The two exceptions to this requirement are in cases where a trial
de novo, including a trial by jury, is provided by law and in cases where the
record does not reflect alleged procedural irregularities before the agency;
in these situations, the court is authorized to receive testimony. HRS § 91-
14(f).

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the case. HRS § 91-9(e) (Supp. 2003). Thus, a circuit court

reviewing a contested case may not consider matters beyond the

administrative record because it acts as an appellate court, not

as a trial court considering a declaratory judgment action.29

See HRS § 91-14(g) (indicating that a circuit court reviewing a

contested case may affirm, remand, reverse, or modify the

decision and order of the agency); cf. Dep’t of Envtl. Servs. v.

Land Use Comm’n, 127 Hawaiʻi 5, 12, 275 P.3d 809, 816 (2012)

(noting that this court’s standard of review for “a decision

made by the circuit court upon its review of an agency’s

decision is a secondary appeal” in which this court “must

determine whether the circuit court was right or wrong in its

decision [by] applying the standards set forth in HRS § 91-14(g)

. . . to the agency’s decision” (quoting Save Diamond Head

Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawaiʻi 16, 24, 211

P.3d 74, 82 (2009))).

In contrast, a declaratory judgment action is an action

before the circuit court that affords the court “plenary”

authority and does not limit the scope of review vested in the

court. See Punohu v. Sunn, 66 Haw. 485, 487, 666 P.2d 1133,

1135 (1983) (“Since the scope of review vested in the circuit

29
The limited exception to this principle is stated supra in note
27.

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court in an appeal pursuant to § 91-14, HRS, is much more

limited than the court’s plenary authority in an original action

commenced before it, it would be anomalous to permit a

declaratory judgment action to be substituted for an appeal from

an agency determination in a contested case.”); see also

Hawaii’s Thousand Friends v. City and Cty. of Honolulu, 75 Haw.

237, 248, 858 P.2d 726, 732 (1993) (stating that although an

agency’s decision “carries a presumption of validity in a

generic agency appeal” under HRS § 91-14, the circuit court “was

not required to defer” to the agency’s determination on the

potential environmental impact of a project when considering a

petition for declaratory judgment under HRS § 632-1 and could

“make its own independent findings regarding the salient facts”

of the case).

This court has indicated that a reviewing court

considering a declaratory judgment action under HEPA is not

limited to an administrative record. Unite Here! Local 5 v.

City and Cty. of Honolulu, 123 Hawaiʻi 150, 231 P.3d 423 (2010),

which arose from the proposed expansion of a hotel resort for

which an 1985 environmental impact statement (EIS) had been

completed and accepted, considered whether the resort’s

subdivision application twenty years later triggered the need

for a supplemental EIS. Id. at 154, 231 P.3d at 427. In

reviewing whether a supplemental EIS should have been required,

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this court considered post-1985 EIS reports and studies

regarding traffic conditions, monk seals, and green sea turtles

that were not part of the agency record but were submitted to

the circuit court by the plaintiffs. Id. at 179, 231 P.3d at

452. Based on these extra-record reports and studies, which

constituted “new” evidence that was not originally disclosed and

not previously considered by the reviewing agency, this court

determined that a supplemental EIS should have been prepared and

reviewed. Id. Unite Here! indicated that its consideration of

these extra-record documents was consistent with the public

purpose underlying HEPA, which was to “ensure that environmental

concerns are given appropriate consideration in decision

making.” Id. at 180, 231 P.3d at 453.

Several federal courts have adopted a similar approach

in allowing judicial review beyond the administrative record for

actions arising under NEPA, the federal counterpart to HEPA.

See Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999)

(setting forth the requirements and purpose of NEPA as

justification for allowing judicial review of extra-record

evidence in NEPA cases); Sierra Club v. Hassell, 636 F.2d 1095,

1097-98 (5th Cir. 1981) (stating that a reviewing court must

review the administrative records as well as other evidence to

determine whether an agency adequately considered NEPA’s values

and the proposed project’s potential environmental effects

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before reaching a decision on whether an environmental impact

statement was necessary); Gulf Coast Rod Reel & Gun Club, Inc.

v. U.S. Army Corps of Eng’rs, No. 3:13:-CV-126, 2015 WL 1883522,

at *2 (S.D. Tex. Apr. 20, 2015) (indicating that allowing

judicial review beyond the administrative record is based on the

underlying requirements and purpose of NEPA, which calls for a

comparative inquiry).

The Fifth Circuit Court of Appeals has concluded that

consideration by the reviewing court of evidence beyond the

administrative record may be necessary to ensure that the record

available to the agency enabled a full discussion of the

environmental effects and alternatives.

To limit the judicial inquiry regarding the completeness of
the agency record to that record would, in some
circumstances, make judicial review meaningless and
eviscerate the very purposes of NEPA. The omission of
technical scientific information is often not obvious from
the record itself, and a court may therefore need a
plaintiff’s aid in calling such omissions to its attention.
Thus, we have held that the consideration of extra-record
evidence may be appropriate in the NEPA context to enable a
reviewing court to determine that the information available
to the decisionmaker included a complete discussion of
environmental effects and alternatives.

Peterson, 185 F.3d at 370 (quoting Nat’l Audubon Soc’y v.

Hoffman, 132 F.3d 7, 14-15 (2d Cir. 1997)). Another federal

court similarly noted that “[d]eciding whether an agency has

sufficiently considered environmental impacts requires some

sense of the universe of information that was available for the

agency to consider,” which often necessitates consideration of

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other evidence, apart from the agency record, to ensure

effective judicial review. Gulf Coast Rod Reel & Gun Club,

Inc., 2015 WL 1883522, at *2; see also Davis Mountains Trans-

Pecos Heritage Ass’n v. Fed. Aviation Admin., 116 F. App’x 3, 12

(5th Cir. 2004) (noting that a reviewing court is not limited to

the agency record “where examination of extra-record materials

is necessary to determine whether an agency has adequately

considered environmental impacts under NEPA”).

Accordingly, in a declaratory action brought to

challenge an agency’s determination that an environmental impact

statement is not required, a reviewing court may consider other

evidence in addition to the agency record to determine whether

the agency decision-maker adequately considered the potential

environmental effects and alternatives for a particular project

or action.

We note that the record in this case indicates that

the parties were not restricted from attaching extra-record

evidence to their pleadings and, in fact, submitted exhibits

that went beyond the Administrative Record. Additionally, in

issuing the Protective Order, the circuit court did so “without

prejudice to future discovery requests,” and, consequently, the

Protective Order did not bar Kilakila from filing additional

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discovery requests.30 Further, the circuit court did not

restrict its review of the parties’ MSJs to the Administrative

Record. The circuit court based its ruling on the parties’ MSJs

and “the files and records herein” which, as noted, included

numerous documents submitted by the parties that were not part

of the Administrative Record. Accordingly, judicial review was

not restricted to the Administrative Record in this case.

B. Sufficiency of the Environmental Assessment

Kilakila maintains that the ICA erred in affirming the

circuit court’s MSJ Order because UH did not comply with the

procedures under HEPA and UH’s negative declaration is clearly

erroneous. Kilakila contends that the EA failed to consider the

Telescope Project as a component of the Management Plan and as a

secondary and cumulative impact of the Management Plan.

Kilakila also argues that the Administrative Record and other

evidence submitted to the circuit court by the parties raised a

genuine issue as to material facts that precluded the grant of

summary judgment in favor of UH and DLNR.

1. Single Action “Component” Analysis

As stated, Kilakila contends that the EA was deficient

because it failed to consider the effects of the Telescope

Project as a component of the Management Plan. Kilakila’s

30
Kilakila did not challenge the issuance of the Protective Order
in its application for writ of certiorari.

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contention appears to be that the Telescope Project is a

component of the Management Plan and therefore the two actions

constitute a single action under HAR § 11-200-7 (1996).31 A

group of discrete actions may require a collective environmental

assessment if the actions satisfy one of the four elements of

the single action test set forth in HAR § 11-200-7. Two or more

actions are to be treated as a single action if the component

actions “are phases or increments of a larger total

undertaking.” HAR § 11-200-7(1). Thus, if the effects of the

Telescope Project and Management Plan must be considered

together as a single action, then they cannot be improperly

segmented into separate environmental reviews, as this would

31
The single action test provides that a group of actions proposed
by an agency or applicant are to be treated as a single action when any of
the following apply:

(1) The component actions are phases or increments of a
larger total undertaking;

(2) An individual project is a necessary precedent for a
larger project;

(3) An individual project represents a commitment to a
larger project; or

(4) The actions in question are essentially identical and
a single statement will adequately address the
impacts of each individual action and those of the
group of actions as a whole.

HAR § 11-200-7. Although Kilakila did not cite to HAR § 11-200-7 in its
arguments before this court, Kilakila argued in its application for writ of
certiorari that the Telescope Project is a component of the Management Plan.
The other three statutory subsections providing for a group of actions to be
treated as a “single action” were not asserted by Kilakila.

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evade the preparation of an environmental impact statement for

the single action. See id.

In Kahana Sunset Owners Association v. County of Maui,

86 Hawai#i 66, 74, 947 P.2d 378, 386 (1997), this court applied

HAR § 11-200-7(1) to determine whether, for purposes of

environmental review under HEPA, a proposed drainage system and

a proposed residential development constituted a single action

and thus required a single environmental assessment. We held

that the proposed development and drainage system constituted a

single action under HAR § 11-200-7(1) because “[t]he proposed

drainage system is part of the larger [residential development]

project.” Id. The court explained that the drainage system

would have no “independent utility” and would not be constructed

without the residential development. Id. Consequently, the

drainage system and housing development were a “single action”

under HAR § 11-200-7, and a single environmental assessment was

required to evaluate the entire proposed development, i.e., the

combined impacts of both the drainage system and housing

development. Id.

In accordance with Kahana Sunset, in determining

whether a project is a “component” of another project and thus a

single action for the purposes of environmental review under

HEPA, consideration must be given as to whether the proposed

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action has independent utility from the other project.32 See id.

Here, it is clear from the record that the Management Plan has

independent utility from the Telescope Project. As discussed

above, the strategies and guidelines within the Management Plan

apply to the entire Observatory Site, which includes numerous

existing astronomical facilities. Additionally, many of the

strategies and guidelines within the Management Plan have been

previously implemented by the previous Long Range Plan,

indicating that the strategies have utility separate and

independent from the Telescope Project. Further, the management

and monitoring strategies within the Management Plan apply to

future development within the Observatory Site, including, but

not limited to, the Telescope Project.

Because the Management Plan’s strategies and

guidelines apply to the entire Observatory Site and may be

implemented regardless of whether the Telescope Project is

constructed, the Management Plan has independent utility from

the Telescope Project, and, consequently, the Telescope Project

and Management Plan do not constitute a “single action” under

HAR § 11-200-7(1).
32
To determine whether multiple actions should be treated as a
single action under NEPA, federal courts have applied a similar “independent
utility” test. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th
Cir. 2006). Under the “independent utility” test, “[w]hen one of the
projects might reasonably have been completed without the existence of the
other, the two projects have independent utility and are not ‘connected’ for
NEPA’s purposes.” Id.

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2. Secondary Impact Analysis

Kilakila further argues that the Telescope Project is

a secondary impact because the Management Plan “is a necessary

step in the authorization of the Telescope Project” and because

it facilitates the Telescope Project. Secondary impacts are

those “caused by the action and are later in time or farther

removed in distance, but are still reasonably foreseeable,”

including “growth inducing effects and other effects related to

induced changes in the pattern of land use, population density

or growth rate, and related effects on air and water and other

natural systems, including ecosystems.” HAR § 11-200-2. In

arguing that the Telescope Project is a secondary impact of the

Management Plan, Kilakila relies, in part, on this court’s

analysis in Sierra Club v. Department of Transportation, 115

Hawai#i 299, 167 P.3d 292 (2007).

In Sierra Club, environmental groups brought a

challenge against the Department of Transportation’s (DOT)

determination that physical improvements to a harbor to

accommodate the Hawaiʻi Superferry were exempt from environmental

review under HEPA. Id. at 306, 167 P.3d at 299. The

environmental groups argued that DOT’s exemption determination

failed to consider the secondary effects from improving the

harbor, namely, the operation of the Superferry. Id. at 336,

167 P.3d at 329. This court found that DOT did not consider the

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secondary effects that may occur from operating the Superferry,

which were incident to and a consequence of the harbor

improvements. Id. at 341-42, 167 P.3d at 334-35. The court

noted that the harbor improvements were “necessary to

accommodate the Superferry project, including the construction

of a removable barge . . . and other improvements to assist in

Superferry operations.” Id. at 305, 167 P.3d at 298.

Accordingly, the court held that DOT failed to comply with HEPA

because the record showed that DOT did “not consider whether its

facilitation of the Hawaii Superferry Project will probably have

minimal or no significant impacts, both primary and secondary,

on the environment.” Id. at 342, 167 P.3d at 335.

In this case, in contrast to Sierra Club, where

improvements to the harbor were “necessary to accommodate the

Superferry project” and “to assist in Superferry operations,”

implementing the Management Plan imposes restrictions and

conditions on existing operations and future development within

the Observatory Site, including the Telescope Project. For

example, implementation of the Management Plan imposes nighttime

lighting restrictions within the Observatory Site and prohibits

any fill material at the site unless sterilized in order to

prevent the importation of non-native species. The

implementation of such strategies and requirements do not

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facilitate,33 or make easier, the Telescope Project; rather, they

impose conditions and restrictions on the construction and

operation of any present and future operations at the

Observatory Site.

Additionally, as noted, the Management Plan has

independent utility by providing guidelines and monitoring

strategies that universally apply to all ongoing and future

actions within the Observatory Site as long as the Management

Plan is in effect. Implementing such guidelines and strategies

will neither result in nor cause the construction or operation

of the Telescope Project. The Management Plan is operative

regardless of whether the Telescope Project is built. Thus, the

fact that the Management Plan is a requirement to obtain a

conservation district use permit for astronomical facilities

within a conservation district does not render the Telescope

Project as a secondary impact of the Management Plan.

3. Cumulative Impact Analysis

Kilakila’s last argument turns on whether the EA

properly considered the Telescope Project when evaluating the

Management Plan’s cumulative impact on the environment.

Kilakila maintains that because the environmental impact

33
As defined in Black’s Law Dictionary, “facilitate” means “To make
the occurrence of (something) easier; to render less difficult.” Black's Law
Dictionary (10th ed. 2014)

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statement for the Telescope Project concluded that the Telescope

Project would “result in major, adverse, short- and long-term,

direct impacts” on cultural resources, and because the Telescope

Project is a reasonably foreseeable future action, the

cumulative impact of the Management Plan cannot be less than

significant, and therefore, UH’s conclusion that the Management

Plan will not have a significant environmental impact is clearly

erroneous.

Under HEPA, “cumulative impacts” are the incremental

impacts from the proposed action: that is, the impacts from the

implementation of the Management Plan when added to other past,

present, and reasonably foreseeable future actions.34 HAR § 11-

200-2. “Cumulative impacts can result from individually minor

but collectively significant actions taking place over a period

of time.”35 Id. Accordingly, the EA was required to determine

whether the incremental impact of implementing the Management

34
NEPA provides a nearly identical definition of “cumulative
impacts” as HEPA does. See 40 CFR § 1508.7 (2016).
35
The Ninth Circuit provides the following example of individually
minor, but collectively significant, impacts to the environment:

[T]he addition of a small amount of sediment to a creek may
have only a limited impact on salmon survival, or perhaps
no impact at all. But the addition of a small amount here,
a small amount there, and still more at another point could
add up to something with a much greater impact, until there
comes a point where even a marginal increase will mean that
no salmon survive.

Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994
(9th Cir. 2004).

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Plan, such as implementing soil and erosion control, nighttime

lighting restrictions, and cultural training, on past, present,

and reasonably foreseeable actions would have significant

impacts on the environment.

Contrary to Kilakila’s argument, the impact of the

Telescope Project on cultural resources as determined by the

environmental impact statement would not automatically render

any other action within the Observatory Site to be of similar

magnitude. As Kilakila does not contend that any of the

strategies or guidelines within the Management Plan would

themselves have a significant impact on the environment, or that

they would add to the Telescope Project’s impact, we address

whether the EA properly considered the Telescope Project within

the cumulative impact analysis of the Management Plan.

Here, the EA discussed and evaluated the cumulative

impact of the Management Plan--i.e., the incremental impact of

implementing the Management Plan on past, present, and

reasonably foreseeable future actions, including the Telescope

Project.36 After evaluating the Management Plan’s cumulative

36
The Telescope Project was just one of fifteen “Past, Present, and
Reasonably Foreseeable Future Actions Subject to the Observatory Site
Management Plan” that were evaluated and discussed by the EA. The EA also
considered the following past, present, and reasonably foreseeable actions
subject to the Management Plan: Mees Solar Observatory; Atmospheric Airglow;
Zodiacal Light; Cosmic Ray Neutron Monitor Station; Baker-Nunn Site; Faulkes
Telescope Facility; Pan-STARRS, PS-1 South; PS-2 North, 2nd facility; Maui
Space Surveillance Complex; SLR-2000; Haleakalā Visitor Center Comfort
Station; FAA site adjacent to Observatory Site, Homeland Security Tower;
(continued. . .)

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impact, the EA concluded that the Management Plan’s cumulative

impact would be beneficial, less than significant, or result in

no impact to the following resources: land use; cultural,

historic, and archeological resources; biological resources;

topography, geology, and soils; visual resources and view plain;

hydrology; infrastructure and utilities, including storm water

drainage systems and traffic; air quality; public health,

including hazardous materials and noise; socioeconomics; and

natural hazards.

For example, considering the incremental impact of the

Management Plan on land use resources, the EA concluded that

while “construction of the proposed [Telescope Project] would

increase the level of existing telescope activities” within the

Observatory Site, the “combined impacts of implementing the

[Management Plan] with all past, present, and reasonably

foreseeable future actions would be less than significant.” The

EA found that the impact on visual resources from implementing

the Management Plan would be beneficial, and less than

significant, because the Management Plan is intended to minimize

the impacts from other actions that may themselves have adverse

(. . .continued)
Advanced Technology Solar Telescope; Maui Electric Co., Inc.; and Hawaiian
Telcom.

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impacts on visual resources.37 The EA additionally concluded

that the Management Plan would have some beneficial impacts to

“baseline noise levels from implementation of noise reduction

requirements for any construction activity,” and therefore, the

cumulative impacts combined with the Management Plan’s

requirements for noise management would be less than

significant.

Considering cultural and historic resources within the

Observatory Site, the EA stated “that there have been impacts on

traditional cultural resources resulting from past and ongoing

actions” and that “[o]ver the years, development at the

[Observatory Site] has displaced and damaged cultural

resources.” The EA further observed that past, present, and

reasonably foreseeable future actions have had adverse impacts

on cultural and traditional resources within the Observatory

Site, but it found that the Management Plan’s incremental impact

on cultural resources would be less than significant and “would

not substantially contribute to the adverse impacts from past,

present, and reasonably foreseeable future activities on

cultural resources.” The EA additionally found that past and

ongoing actions have resulted in less than significant impacts

37
The EA observed that the proposed Telescope Project “would have
adverse impacts on visual resources beyond those addressed in the [Management
Plan], and [that] those have been analyzed elsewhere.”

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on historic resources and that implementing the Management Plan

“would not combine with any other actions to produce

incrementally different impacts on historic or archeological

resources.”

Thus, the EA expressly considered the incremental

impact of implementing the Management Plan when added to past,

present, and reasonably foreseeable future actions, including

the Telescope Project, and it concluded that the Management

Plan’s cumulative impact on each resource considered would be

less than significant, would be beneficial, or would result in

no change. As Kilakila has not argued that any individual

management activity implemented by the Management Plan may cause

an adverse impact, Kilakila has not shown that the EA’s

conclusion as to the Management Plan’s cumulative impact is

clearly erroneous.

Accordingly, the record does not demonstrate that UH

failed to follow proper procedures under HEPA or HAR § 11-200-12

or that UH failed to adequately consider the Telescope Project’s

impacts before concluding that the Management Plan would have no

significant environmental impact. Consequently, UH’s negative

declaration is not clearly erroneous, and thus UH was not

required to prepare an environmental impact statement for the

Management Plan. Further, the record does not indicate that

there is any genuine issue as to any material fact relating to

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whether UH complied with the requirements under HEPA and its

implementing regulations or as to whether UH adequately

considered all environmental impacts before issuing its negative

declaration. Therefore, the circuit court did not err by

granting summary judgment in favor of UH and DLNR and in denying

summary judgment to Kilakila.

V. Conclusion

Accordingly, the ICA’s Judgment on Appeal is affirmed

for the reasons stated herein.

David Kimo Frankel and /s/ Mark E. Recktenwald
Sharla Ann Manley
for petitioner /s/ Paula A. Nakayama
Kilakila ʻO Haleakalā
/s/ Sabrina S. McKenna
Darolyn H. Lendio,
Bruce Y. Matsui, /s/ Richard W. Pollack
Lisa Woods Munger,
Lisa A. Bail and /s/ Michael D. Wilson
Christine A. Terada
for respondents
University of Hawaiʻi and David
Lassner, in his official
capacity as Chancellor of the
University of Hawaiʻi at Mānoa

William J. Wynhoff and
Julie H. China
for respondents
Department of Land and Natural
Resources, Board of Land and
Natural Resources and Suzanne
Case, in her official capacity
as Chairperson of the Board of
Land and Natural Resources

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