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Haleakala v. University of Hawai'i

Supreme Court of Hawaii

October 6, 2016

KILAKILA 'O HALEAKALA, Petitioner/Plaintiff/Appellant-Appellant,
v.
UNIVERSITY OF HAWAI'I and DAVID LASSNER, in his official capacity as Chancellor of the University of Hawai'i 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]

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

          David Kimo Frankel and Sharla Ann Manley for petitioner Kilakila 'O Haleakalā

          Darolyn H. Lendio, Bruce Y. Matsui, Lisa Woods Munger, Lisa A. Bail and Christine A. Terada for respondents University of Hawai'i and David Lassner, in his official capacity as Chancellor of the University of Hawai'i 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.

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

          OPINION

          POLLACK, J.

         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 Hawai'i (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 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 'O 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 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. 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 Hawai'i 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 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 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. Hawai'i Environmental Policy Act

         The Hawai'i Environmental Policy Act of 1974 (HEPA), Chapter 343 of the Hawai'i 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 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 Hawai'i 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 Hawai'i 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 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 Hawai'i 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 Hawai'i 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 significant impact on the environment.[8] HRS § 343-2; HAR § 11-200-2 (1996); see also Sierra Club, 115 Hawai'i 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).

         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 Hawai'i 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).

         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 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 'ua'u; 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 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 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 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 "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.

         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 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 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 ...


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