Hawai'i Unites v. Board of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-APR-2025
08:11 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HAWAI#I UNITES, a 501(c)(3) NONPROFIT CORPORATION;
TINA LIA, AN INDIVIDUAL, Plaintiffs-Appellants,
v.
BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI#I,
and DEPARTMENT OF LAND AND NATURAL RESOURCES,
STATE OF HAWAI#I, Defendants-Appellees,
and
AMERICAN BIRD CONSERVANCY, Defendant-Intervenor-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Hawai#i Unites and Tina Lia (together, Hawai#i Unites)
appeal from the February 6, 2024 Final Judgment for the Hawai#i
Department of Land and Natural Resources (DLNR), the Board of
Land and Natural Resources (BLNR), and American Bird Conservancy
(ABC) entered by the Environmental Court of the First Circuit.1
We hold that BLNR did not clearly err by concluding that DLNR's
proposed action will not have a significant effect,2 but DLNR's

1
The Honorable John M. Tonaki presided.
2
"Significant effect" means "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 as established
by law, or adversely affect the economic welfare, social welfare, or cultural
practices of the community and State." Hawaii Revised Statutes (HRS) § 343-2
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

final environmental assessment did not comply with Hawaii
Administrative Rules (HAR) § 11-200.1-20(d) (2019). We vacate in
part the Final Judgment and remand for the Environmental Court to
order that DLNR amend the final environmental assessment to
comply with HAR § 11-200.1-20(d).
Endangered species of native Hawaiian birds are
threatened by avian malaria. The disease is spread by mosquitos.
DLNR proposed to suppress mosquitos using the incompatible insect
technique. During a March 24, 2023 public meeting, BLNR approved
a final environmental assessment3 (EA) for DLNR's proposed action
and made a finding of no significant impact4 (FONSI). The EA and
FONSI were published on April 8, 2023.
Hawai#i Unites sued DLNR and BLNR (the State) on May 8,
2023. They sought declarations that DLNR must prepare an
environmental impact statement5 (EIS) for its proposed action
under the Hawaii Environmental Protection Act (HEPA), Hawaii
Revised Statutes (HRS) Chapter 343 (Count 1), and that BLNR
violated the Hawaii Administrative Procedures Act, HRS Chapter 91
(Count 2).
The State moved to dismiss Count 2. The Environmental
Court entered an order granting the motion on August 10, 2023.
Hawai#i Unites do not challenge the dismissal of Count 2.
The State then moved for summary judgment on Count 1.
ABC intervened as a defendant and joined in the motion. The

2
(...continued)
(2022).
3
An environmental assessment is "a written evaluation to determine
whether an action may have a significant effect." HRS § 343-2.
4
"Finding of no significant impact" means "a determination based on
an environmental assessment that the subject action will not have a
significant effect and, therefore, will not require the preparation of an
environmental impact statement." HRS § 343-2.
5
An environmental impact statement is "an informational document
prepared in compliance with the rules adopted under [HRS] section 343-6 and
which discloses the environmental effects of a proposed action, effects of a
proposed action on the economic welfare, social welfare, and cultural
practices of the community and State, effects of the economic activities
arising out of the proposed action, measures proposed to minimize adverse
effects, and alternatives to the action and their environmental effects." HRS
§ 343-2.

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Environmental Court entered an order granting the motion and the
Final Judgment on February 6, 2024. This appeal followed.
Hawai#i Unites state three points of error: (1) the
Environmental Court erred by (a) applying the rule of reason
standard to BLNR's determination that the draft EA satisfied
legal requirements, and (b) granting summary judgment when
material facts were in dispute; (2) the Environmental Court erred
by not considering additional facts presented in Hawai#i Unites'
opposition to the State's motion for summary judgment; and
(3) the final EA violated HAR § 11-200.1-20. We review a grant
of summary judgment de novo. Kilakila #O Haleakalā v. Univ. of
Haw., 138 Hawai#i 364, 375, 382 P.3d 176, 187 (2016).
(1) (a) When the Environmental Court decided the
State's motion for summary judgment, the supreme court had
applied the rule of reason standard to environmental impact
statements, but not to environmental assessments. See, e.g.,
Life of the Land v. Ariyoshi, 59 Haw. 156, 164, 577 P.2d 1116,
1121 (1978) (rule of reason "govern[s] a court's determination
whether an EIS contains sufficient information to satisfy
statutory requirements"); Price v. Obayashi Haw. Corp., 81
Hawai#i 171, 182, 914 P.2d 1364, 1375 (1996) ("[W]e use the 'rule
of reason' to determine whether the EIS is legally sufficient in
adequately disclosing facts to enable a decision-making body to
render an informed decision."). The supreme court has since
applied the rule of reason to environmental assessments. Unite
Here! Local 5 v. PACREP LLC, ___ Hawai#i ___, ___, ___ P.3d ___,
___, No. SCAP-XX-XXXXXXX, 2025 WL 573299, at *14 (Haw. Feb. 21,
2025) ("[A]lthough this case presents the question of the
sufficiency of the State's compliance with regulations regarding
an EA rather than an EIS, we recognize the same latitude in the
HAR given to the accepting agency over EISs for EAs, and apply
the same standard in evaluating EAs.").
(b) Count 1 of Hawai#i Unites' complaint sought a
declaration that BLNR violated HEPA by "failing to require an EIS

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and instead accepting only an EA and FONSI."6 Hawai#i Unites
argue the clearly erroneous standard applied to the Environmental
Court's review of BLNR's decision to issue the FONSI and not
require an EIS. Their argument finds support in Kilakila.
There, the University of Hawai#i (UH) prepared an EA
for a plan to manage facilities in an astronomy site in a
conservation district near the summit of Haleakalā on Maui. The
EA stated the management plan would have no significant impact.
Kilakila sued UH, DLNR, and BLNR, seeking a declaratory judgment
and an injunction requiring an EIS. The parties filed cross-
motions for summary judgment. The circuit court applied the rule
of reason and concluded that an EIS was not required. Kilakila,
138 Hawai#i at 375, 382 P.3d at 187. On certiorari, Kilakila
argued an EIS should have been required because the EA did not
consider significant impacts of a telescope's future
construction. The supreme court stated:

[W]e 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.

Id. at 368, 382 P.3d at 180 (emphasis added). The supreme court
also recited this standard of review:

For agency determinations under HEPA, the appropriate
standard of review depends on the specific question under
consideration. Generally, a court reviews agency
determinations that involve factual questions under a
clearly erroneous standard. 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, whether 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.

Id. at 375–76, 382 P.3d at 187–88 (cleaned up) (emphasis added).

6
"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." Kilakila, 138 Hawai#i at 370, 382 P.3d at 182.

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A mixed determination of law and fact is clearly
erroneous if the record lacks substantial evidence to support the
determination or, despite substantial evidence to support the
determination, the appellate court is left with the definite and
firm conviction that a mistake has been made. Unite Here!, 2025
WL 573299, at *14. "Substantial evidence" is credible evidence
which is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion. Id.
Hawai#i Unites argue that scientific studies and
evidence "raised substantial questions as to whether the
[incompatible insect] technique planned for use will have
significant effect." They also contend the EA didn't address
mitigation measures or biosecurity protocols. Mitigation was
discussed in EA Chapter 2, Tables 6 and 7, Chapter 3, Table 14,
and Appendix D. Biosecurity was discussed in Chapter 3 and
Appendices D and H.

[C]ourts generally grant significant weight to an agency's
determinations based on technical or scientific facts. This
deference arises from the fact that agencies possess and
exercise subject-matter expertise and experience the courts
generally lack. These qualities place agencies in a better
position than the courts to evaluate scientific
investigations and research. Courts are therefore hesitant
to substitute their judgment for an agency's when the agency
uses its expertise and experience to make a mixed
determination of law and fact.

Keep the N. Shore Country v. Bd. of Land & Nat. Res., 150 Hawai#i
486, 504, 506 P.3d 150, 168 (2022) (cleaned up); see also Safari
Club Int'l v. Haaland, 31 F.4th 1157, 1173 (9th Cir. 2022)
(stating "we are not a panel of scientists empowered to instruct
agencies on how to choose among scientific studies, nor can we
correctly order the agency to explain every possible uncertainty
in scientific realms that are properly entrusted to its
expertise"). BLNR's acceptance of the EA and issuance of the
FONSI was supported by substantial evidence in the record.
BLNR's mixed finding and conclusion that DLNR's proposed action
will not have a significant effect and will not require
preparation of an EIS was not clearly erroneous. The

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Environmental Court did not err by granting the State's motion
for summary judgment on that basis.
(2) Hawai#i Unites contend the Environmental Court
erred by not considering evidence presented in their opposition
to the State's motion for summary judgment — a declaration by Lia
and purported printouts from www.flightaware.com. The State
objected based on Lia's lack of personal knowledge and hearsay.
The record doesn't include a transcript of the hearing on the
State's motion,7 but the Environmental Court's minute order
states:

[Hawai#i Unites] argue that the FEA did not adequately
disclose or failed to address numerous issues. These
arguments are based on their belief and their expert's
belief. A reading of the FEA reveals that many of the
alleged issues raised by [Hawai#i Unites] were, in fact,
addressed in the FEA and that some of the potential impacts
of the project were raised as mere possibilities by [Hawai#i
Unites]. Such arguments do not establish that BLNR's
acceptance of the FEA and issuance of FONSI were clearly
erroneous. Kilakila #O Haleakala v. University of Hawai#i,
138 Haw. 364, 375-76 (2016).

The Environmental Court seems to have considered Lia's
declaration and printout, but characterized them as raising "mere
possibilities." This was neither wrong nor an abuse of
discretion. Lia's declaration was not based on personal
knowledge as required by Rule 602, Hawaii Rules of Evidence,
Chapter 626, HRS (2016) (HRE). It was based on "information and
belief" and her "review of what I believe to be Mosquito Release
Helicopter Flight Tracking from the website flightaware.com[.]"
The website printout seems to show altitude, speed, and flight
route of four aircraft, identified by Federal Aviation
Administration tail number. It doesn't show the type of
aircraft, who owned it, who flew it, who filed the flight plan,
or the purpose of the flight — which could have been an air tour.
It wasn't authenticated as required by HRE Rule 901, and the
information it purported to reflect was hearsay, inadmissible
under HRE Rule 802, not falling within any exception. The

7
Hawai#i Unites ordered the transcript on March 11, 2024, but no
transcript has been filed.

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proffered evidence was neither substantial nor probative of
whether BLNR's determination — that DLNR's proposed action will
not have a significant effect and will not require preparation of
an EIS — was clearly erroneous.
(3) HAR § 11-200.1-20(c) (2019) requires that a final
EA respond to all timely submitted substantive comments. HAR
§ 11-200.1-20(d) requires, if the proposing agency groups its
comment responses under topic headings (as did DLNR here), that
the names of commenters who raised an issue under a topic heading
be clearly identified in a distinctly labeled section with that
topic heading. It also requires that all comments (except form
letters or petitions that have identical or near-identical
language and raise the same issues on the same topic) be appended
in full to the final EA. Hawai#i Unites contend, and the State
and ABC do not contest, that DLNR's final EA did not comply with
HAR § 11-200.1-20(d).
Hawai#i Unites request that we remand for the
Environmental Court to order that DLNR amend the final EA to
comply with HAR § 11-200.1-20(d). The State points out it would
be within the Environmental Court's inherent power to do so under
HRS § 603-21.9(6). ABC does not oppose the request.
The February 6, 2024 Final Judgment is vacated in part
to the extent it is inconsistent with this summary disposition
order. This case is remanded to the Environmental Court. On
remand, the Environmental Court shall order that DLNR amend the
final environmental assessment to comply with HAR § 11-200.1-
20(d).
DATED: Honolulu, Hawai#i, April 14, 2025.

On the briefs:
/s/ Katherine G. Leonard
Margaret Wille, Acting Chief Judge
Timothy Vandeveer,
for Plaintiffs-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Julie H. China,
Danica L. Swenson, /s/ Clyde J. Wadsworth
Miranda C. Steed, Associate Judge
Deputy Attorneys General,
State of Hawai#i,

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for Board of Land and
Natural Resources, State of
Hawai#i and Department of
Land and Natural Resources,
State of Hawai#i.

Maxx Phillips,
David Kimo Frankel,
William F. Sheehan,
for Defendant-Intervenor-
Appellee American Bird
Conservancy.

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