RENE UMBERGER, MIKE NAKACHI, KA'IMI KAUPIKO, WILLIE KAUPIKO, CONSERVATION COUNCIL FOR HAWAI'I, HUMANE SOCIETY OF THE UNITED STATES, and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs-Appellants,
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I, Defendant-Appellee
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO.
H. Achitoff, Summer Kupau-Odo, (EarthJustice), for
William J. Wynhoff, Deputy Attorney General, for
FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.
Rene Umberger, Mike Nakachi, Ka'imi Kaupiko, Willie
Kaupiko, Conservation Council for Hawai'i (CCH), Humane
Society of the United States (Humane Society), and Center for
Biological Diversity (CBD) (collectively, Plaintiffs or
Appellants), appeal from the Circuit Court of the First
Circuit's (Circuit Court) June 24, 2013 Order Granting
Department of Land and Natural Resources State of
Hawaii's [(DLNR's)], Motion for Summary Judgment
filed February 4, 2013, and Denying Plaintiffs' Motion
for Summary Judgment filed February 5, 2013 (Summary Judgment
Order), and the Final Judgment in Favor of Defendant and
Against Plaintiffs (Judgment), also filed on June 24,
dispute concerns whether DLNR must require each applicant for
an aquarium fish permit to comply with the environmental
review procedures set forth in Hawaii Revised Statutes
(HRS) chapter 343, the Hawai'i
Environmental Policy Act (HEPA),
before DLNR issues a permit pursuant to HRS
§ 188-31(a) (2011).
ask the court to vacate the Circuit Court's Summary
Judgment Order and Judgment and require the Circuit Court to:
(1) issue a declaratory judgment concluding that (a) DLNR is
in violation of HEPA for failing to comply with the statute
prior to approving the aquarium collection permits, and (b)
DLNR's issuance and/or renewal of such permits without
complying with HEPA is invalid and illegal; and (2) issue an
injunction enjoining collection under existing aquarium fish
permits and enjoining DLNR from approving any additional
permits until it fully complies with HEPA. For the following
reasons, we affirm the Summary Judgment Order and Judgment.
consist of concerned individuals and three nonprofit
organizations. CCH is a citizens' organization with
approximately 5, 500 members and its mission is to
"protect native Hawaiian species and to restore native
Hawaiian ecosystems for future generations." The Humane
Society is a national organization "dedicated to the
protection of wildlife and habitat." The Humane Society
has over 11 million members, including 55, 000 of which live
in Hawai'i. CBD is an organization "dedicated to
preserving, protecting, and restoring biodiversity, native
species, ecosystems, and public lands." CBD has
approximately 450, 000 members, many of whom reside in
the state agency responsible for managing, administering, and
exercising control over the State's water resources and
ocean waters. HRS § 171-3 (2011). The Division of
Aquatic Resources is the division within DLNR responsible for
evaluating and administering aquarium collection permits.
DLNR has the authority to issue and renew aquarium fish
permits pursuant to HRS § 188-31, which provides:
§ 188-31 Permits to take aquatic life for
aquarium purposes. (a) Except as prohibited by law,
the department, upon receipt of a written application, may
issue an aquarium fish permit, not longer than one year in
duration, to use fine meshed traps, or fine meshed nets other
than throw nets, for the taking of marine or freshwater
nongame fish and other aquatic life for aquarium purposes.
(b) Except as prohibited by law, the permits shall be issued
only to persons who can satisfy the department that they
possess facilities to and can maintain fish and other aquatic
life alive and in reasonable health.
(c) It shall be illegal to sell or offer for sale any fish
and other aquatic life taken under an aquarium fish permit
unless those fish and other aquatic life are sold alive for
department may adopt rules pursuant to chapter 91 for the
purpose of this section.
(d) For the purposes of this section:
(1) "Aquarium purposes" means to hold salt water
fish, freshwater nongame fish, or other aquatic life alive in
a state of captivity as pets, for scientific study, or for
public exhibition or display, or for sale for these purposes;
(2) "Aquarium fish permit" means a permit issued by
the board for the use of fine mesh nets and traps to take
salt water fish, freshwater nongame fish, or other aquatic
life for aquarium purposes.
October 24, 2012, Appellants filed a complaint for
declaratory and injunctive relief, seeking, inter
alia, a declaration that DLNR is in violation of
HEPA because it has failed to require aquarium fish permit
applicants to, at a minimum, prepare environmental
assessments (EAs) and engage in the related process of
consultation, information gathering, and public review and
comment. Appellants also asserted that DLNR's
"issuance and renewal of the challenged permits required
discretionary agency approval to allow the applicants to use
State lands-the State's waters-to collect fish and
invertebrates for the aquarium trade."
February 4, 2013, DLNR filed a motion for summary judgment,
contending that there are no disputed issues of fact and that
the issue of whether an EA is required is a matter of law.
DLNR argued that an EA is not required for two reasons: (1)
the collection of aquarium fish under DLNR-issued permits
does not constitute applicant action; and (2) there is no
agency approval. DLNR argued that aquarium collection under
DLNR-issued permits does not constitute an applicant action
because it is not a specific, identifiable project.
Additionally, DLNR contended that the permit application
process is online and completely-automatic and that
"there is no space in the process for the State or its
officials to exercise discretion."
February 5, 2013, Appellants filed a motion for summary
judgment, contending that they are entitled to judgment as a
matter of law because "HEPA requires DLNR to, at a
minimum, require preparation of EAs before allowing aquarium
collection under the [p]ermits and before approving any
additional permits." Appellants argued that aquarium
collection under the DLNR-issued permits constitutes the use
of state land which triggers environmental review under HEPA
and that DLNR's issuance of the permits is a
discretionary action that constitutes "approval"
further submissions from the parties, on May 21, 2013, the
Circuit Court held a hearing on the motions for summary
judgment. In a minute order entered on May 28, 2013
(Minute Order), the Circuit Court granted
DLNR's motion for summary judgment and denied
Appellants' motion for summary judgment. The Circuit
Court noted that the parties "agree that there are no
genuine issues of material fact and [that] this court may
rule on the question presented as a matter of law."
Minute Order, the Circuit Court stated that the
"applicant 'action' at issue here, according to
plaintiffs, is 'aquarium collection' for each
individual permit authorized by DLNR pursuant to HRS §
188-31" and that the "broad 'action' of
'aquarium collection' is neither a program nor a
project as those terms are generally defined." The
Circuit Court recognized that the cases cited by the parties
in their motions for summary judgment involve specifically
identifiable programs or projects such as the Koa Ridge
development project, the Hawai'i Superferry project and a
research program concerning genetically modified algae. The
Circuit Court concluded, as a matter of law, that
"'aquarium collection1 does not specifically
identify any program or project to review for HEPA
purposes." The Circuit Court also concluded, as a matter
of law, "'aquarium collection' is not an
applicant 'action' that triggers HEPA." The
Summary Judgment Order, entered on June 24, 2013, states that
the court denied Appellants' motion and granted
DLNR's motion "on the ground that there is no
applicant 'action' that triggers [HEPA]."
Judgment was entered in favor of DLNR on June 24, 2013.
filed a timely notice of appeal on July 18, 2013.
POINT OF ERROR ON APPEAL
raise a single point of error, contending that the Circuit
Court erred when it concluded that aquarium collection under
an aquarium fish permit issued by DLNR is not an
"applicant action" under HEPA.