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Umberger v. Department of Land and Natural Resources

Intermediate Court of Appeals of Hawaii

August 31, 2016

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,
v.
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I, Defendant-Appellee

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-2625-10 JHC)

          Paul H. Achitoff, Summer Kupau-Odo, (EarthJustice), for Plaintiffs-Appellants.

          William J. Wynhoff, Deputy Attorney General, for Defendant-Appellee.

          FUJISE, PRESIDING JUDGE, LEONARD AND REIFURTH, JJ.

          OPINION

          LEONARD, J.

         Plaintiffs-Appellants 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, 2013. [1]

         The 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), [2] before DLNR issues a permit pursuant to HRS § 188-31(a) (2011).

         Appellants 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.

         I. BACKGROUND FACTS

         Appellants 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 Hawai'i.

         DLNR is 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 aquarium purposes.

         The department may adopt rules pursuant to chapter 91 for the purpose of this section.

(d) For the purposes of this section:
(1) "Aquarium purposes" means to hold salt water fish, freshwater nongame fish, or other aquatic life alive in a state of captivity as pets, for scientific study, or for public exhibition or display, or for sale for these purposes; and
(2) "Aquarium fish permit" means a permit issued by the board for the use of fine mesh nets and traps to take salt water fish, freshwater nongame fish, or other aquatic life for aquarium purposes.

         On 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."

         On 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."

         On 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" under HEPA.

         After 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."

         In its 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 collection' 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.

         Appellants filed a timely notice of appeal on July 18, 2013.

         II. POINT OF ERROR ON APPEAL

         Appellants 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.

         III. APPLICABLE ...


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