DAVID M. LOUIE 2162 Attorney General of Hawai' i

WILLIAM J. WYNHOFF 2558 COLIN J. LAU 6058 Deputy Attorneys General Department of the Attorney

General, State of Hawai' i 465 S. King St., Room 300 Honolulu, Hawai'i 96813 Telephone: (808) 587-2991 Fax: (808) 587-2999

Attorneys for Defendant STATE OF HAWAI'I

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IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAI'I

PELE DEFENSE FUND, a Hawai'i non-profit corporation; et ai.,

Plaintiffs,

vs.

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HAWAI'I,

Defendants.

) CIVIL NO. 12-1-0568 ) (Declaratory Judgment) ) ) STATE OF HAWAI'I'S MOTION FOR ) SUMMARY JUDGMENT ) ) MEMORANDUM IN SUPPORT OF ) MOTION ) ) DECLARATION OF TANYA ) RUBENSTEIN ) ) DECLARATION OF COLIN J. LAU ) ) EXHIBITS "A" - "D" ) ) NOTICE OF HEARING MOTION ) ) CERTIFICATE OF SERVICE ) ) HEARING: ) DATE: January 22, 2014 ) TIME: 8:30 a.m. ) JUDGE: Hon. Glenn S. Hara )

No Trial Date Yet Set

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ST ATE OF HA WAPI'S MOTION FOR SUMMARY JUDGMENT

of Hawai'i moves this eourt, through eounsel and pursuant to Hawai'i Rules of

Vrr"'prlllr{~ (HRCP) 7 and summary Ln"!" ... '",,, as to all claims herein.

This motion is on the memorandum, declarations, and exhibits attached hereto and

the records

DATED: Honolulu, Hawai'i, December _5_,2013.

WILLIAM J. WYNHOFF COLIN 1. LAU Deputy Attorneys General Attorneys for State of Hawai'i

2

THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAI'I

FUND, a Hawai'i non-profit corporation; et aL

) CIVIL NO.1 1-0568 ) (Declaratory Judgment) )

Plaintiffs,

VS.

) ) MEMORANDUM IN SUPPORT OF ) MOTION )

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HAWAI'I,

) ) ) )

Defendants.

MEMORANDUM IN SUPPORT OF MOTION

TABLE OF CONTENTS

I. INTRODUCTION

II. STATEMENT OF UNDISPUTED FACTS

III. LEGAL STANDARD

IV. ARGUMENT

A General Overview ofHRS Chapter 343 (HEPA)

A. \Vhether an Environmental Assessment is Required is Purely an Issue of Law as is Recognized in Every Reported HRS Chapter 343 Case

B. As a Matter of Law, An Environmental Assessment was Not Required Because the Department is Exempt

C. The Determination and Finding of No Significant Impact is Supported Under the Rule of Reason

D. The Department's Judgment in Not Requiring an EIS is Entitled to Deference Because of its Experience and Expertise

V. CONCLUSION

1

2

4

5

6

7

11

12

13

14

TABLE OF AUTHORITIES Page{s)

CASES

Calif. State Grange v. N1WFS, 620 F.Supp.2d 1111, 1142 (E.D.CaL 2008) 5 Forest Guardians v. Us. Forest Service, 329 F.3d 1089, 1099-1100 (9th Cir., 2003) 15 Sensible Traffic Alternatives and Resources, Ltd. v. Federal Transit Admin. 10

of us. Dept. of Transp. , 307 F.Supp.2d 1149 (D.Haw. 2004) US. v. Snoring Relief Labs, Inc., 210 F.3d 1081,1085 (9th Cir. 2000) 5

Citizens for Protection of North Kohala Coastline v. County ofHawai 'i, 91 Haw. 94, 979 P.2d 1120 (1999)

Haole v. State ofHawai'i, 111 Haw. 144, 149-150, 140 P.3d 377,382-383 (2006) Hewitt v. Waikiki Shopping Plaza by Waikiki Shopping Plaza, Inc.,

6 Haw.App. 387, 722 P.2d 1055 (1986) Kahana Sunset Owners Ass 'n v. County of lvf.aui, 86 Haw. 66, 947 P .2d 378 (1997) Kaleikini v. Yoshioka, 128 Haw. 53, 87,283 P.3d 60,94 (2012) Kaneohe Bay Cruises, Inc. v. Hirata, 75 Haw. 250, 265, 861 P.2d 1,9 (1993) Kepo'o v. Kane, 106 Haw. 270,103 P.3d 939 (2005) Life of the Land v. Ariyoshi, 59 Haw. 156, 577 P .2d 1116 (1978) McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981) Medeiros v. Hawaii County Planning Com 'n,

8 Haw.App. 183, 797 P.2d 59 (Haw.App. 1990)

8

14 9

9 10 4, 7 10 10 9 10

lvfolokai Homesteaders Co-op. Ass'n v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981) 9 ~lvforgan v. Planning Dept., County of Kauai, 104 Haw. 173, 180,86 P.3d 982,989 (2004)14 Nuuanu Valley Ass 'n v. City and County of Honolulu, 119 Haw. 90, 194 P.3d 531 (2008) 8 'Ohana Pale Ke Ao v. Bd. of Agric., 118 Haw. 247, 188 P.3d 761 (Haw.App. 2008) 8 Pearl Ridge Estates Community Ass 'n v. Lear Siegler, Inc., 9

65 Haw. 133,648 P.2d 702 (1982) Price v. Obayashi, 81 Haw. 171,914 P.2d 1364 (1996). Sierra Club v. Department ofTransp., 115 Haw. 299,167 P.3d 292 (2007) Sierra Club v. Hawaii Tourism Authority ex reI. Board of Directors,

100 Haw. 242, 59 P.3d 877 (2002)

5,10,15 8 8

Sierra Club v. Office of Planning, State o/Haw., 109 Haw. 411,126 P.3d 1098 (2006) 8 Unite Here! Local 5 v. City and County of Honolulu, 10

123 Haw. 150,181,231 P.3d 423,454 (2010) Waianae Coast Neighborhood Bd. v. Hawaiian Elec. Co., Inc.,

64 Haw. 126,637 P.2d 776 (1981) Waikiki Resort Hotel, Inc. v. City and County of Honolulu,

63 Haw. 222, 624 P.2d 1353 (1981)

11

9

9

STATUTES

Haw. Rev. Stat. ("HRS") chapter 183 HRS § 183-1.5

HRS chapter 343 HRS §343-3 HRS §343-5 HRS §343-6 HRS §343-7

Act 246, 1974 Hawai'i Session Laws 706 Act 197, 1979 Hawai'i Session Laws 409 Act 241, 1992 Hawai' i Session Laws 639

ADMINISTRATIVE RULES

Haw. Admin. R. (HAR) chapter 11-200 HAR §11-200-8 HAR §11-200-12

OTHER AUTHORITIES

Haw. R. Civ. Proc. 56(b)

111

14 14

5-8,10,1 13 7

7, 14 7,11

6 - 10

6 6 6

4, 7 3,7,11 14

7

MEMORANDl;M IN SUPPORT OF MOTION

I. INTRODUCTION

This case involves a challenge to the sufficiency the State of Hawaii, Department of

Land and Natural Resources, Division of Forestry and Wildlife's Final Environmental

Assessment upon the Finding of No Significant Impact for the Ka'u Forest Reserve Management

Plan. The Ka'u Forest Reserve is approximately 61,641 acres of state land! situated in the

District of Ka'u, on the Island and County of Hawai'i, State of Hawai'i.

management plan is a planning document prepared by the Department of Land and

Natural Resources, Division of Forestry and Wildlife (DOFAW) for a proposed project in the

Ka'u Forest Reserve (Reserve). The management plan was intended to address threats to

Reserve resources in order to preserve and maintain the Reserve's unique native ecosystem and

watershed. The plan would ultimately restore areas within the Reserve to perpetuate natural

resources for Hawaiian cultural practices and future public use.

The State of Hawai'i submits this motion for summary judgment as against Plaintiffs'

complaint that more information is needed and that an environmental impact statement should be

done. There are two independent reasons the motion should be granted. First, the management

plan was and is exempt from the preparation of an environmental assessment. No EA or EIS was

required by law. So we simply do not reach the question of whether a FONSI is appropriate.

Second, despite the exemption, the State in fact prepared an environmental assessment to

consider potential environment impacts. Even assuming there is no exemption, the impacts

considered were found not to be significant and no further environmental review needs to be

taken.

1 61,641 acres is about 96.3 square miles. The relevant portion of the Ka'u forest reserve is located at Tax Map Key Nos. (3) 9-7-001:001, 009, 013 to 022; (3) 9-6-006:009, 010, 015, 018; and (3) 9-5-015:003(por.).

1

aucestl.on IS

material fact as to

law.

a determination by summary judgment. There is no genuine

matters, and the State of Hawai'i is entitled to judgment as a matter of

II. STATEMENT OF UNDISPUTED FACTS

Forest Reserve was established by Governor's Proclamation on August 1906

to protect the forested lower slopes at the 2,000 to 7,000 feet elevation of Mauna Loa and the

water supply for agricultural lands of Ka'il. The State of Hawaii, Department of Land and

Natural Resources, Division of Forestry and Wildlife (DOF A W) has management responsibility

for the 61,641-acre Ka'il Forest Reserve, since the 1903 formation of the (now 630,000+ acres)

state Forest Reserve System by the Territorial Government of Hawai'i.

OOF A W has conducted feral cattle control to protect the watershed and native ecosystem

in the Ka'il Forest Reserve, with hundreds removed since the 1980s. Invasive animal species

such as other feral ungulates (e.g., pigs, mouflon sheep), rats, mice, cats, mongoose, and

introduced birds are present in the Reserve. Invasive plant species also remain a threat to the

native forest ecosystem containing numerous rare, threatened, and endangered plant species.

A management plan for the Ka'il Forest Reserve was begun in 2011 and prepared in

conjunction with an environmental assessment. The primary management objectives were

formulated as part of the plan. The proposed IS-year project had the express purposes of

maintaining and restoring key watershed areas, preserving a unique ecosystem with critically

endangered plants and animals, perpetuating natural resources vital to Hawaiian culture and

practices, finding a suitable site to reintroduce the Hawaiian crow (' AlaUi) into the wild, and

provide for continued and expanded public use of the Ka'il Forest Reserve.

According to the final environmental assessment, a primary means to accomplish these

goals include fencing approximately 12,000 acres into management units to protect native forest

2

and allow removal of ungulates. to be installed would require walkovers and for

public access and cultural uses. Further actions include weed monitoring and control, trail and

access improvements for hunters and hikers, outplanting of rare plant species, cooperation with

water source users, and actions to foster reintroduction of the' AlaHi.

Prior to the preparation of the draft environmental assessment, the State of Hawai' i

Department of Land and Natural Resources (DLNR) sought approval ofa certain department-

wide list of exemptions. DOF A W already had an existing exemption list for certain agency

actions by DOF A W that had been reviewed and approved by the State of Hawai'i

Environmental Council on June 12,2008. See Exhibit "A".

On July 12,2011, DLNR obtained final review and concurrence of the proposed

department-wide list of exemptions by the State of Hawai'i Environmental Council? On the list

of exemptions is "Exemption Class 3. Number 1" regarding and exemption for fences. See

Exhibit "B".

On May 23,2012, the State of Hawai'i Department of Land and Natural Resources,

Division of Forestry and Wildlife (DOFAW)'s notice of the draft environmental assessment

("Draft EA") for the Ka'u Forest Reserve Management Plan ("Management Plan" or "Plan") was

published for public review and comment in the State ofHawai'i, Department of Health, Office

of Environmental Quality Control (OEQC),s publication, The Environmental Notice. DOFAW

considered and responded to public comment in its final environmental assessment ("Final EA")

to the Plan, recommending implementation of action Alternative B of the three action

2 Such lists are submitted to the Environmental Council for review and concurrence by agencies under HAR section Il-200-8(d) regarding activities that will probably have minimal or no significant effect on the environment.

3

no action alternative considered. The revised Management Plan was

completed in September of 20 1

28, 201 the Board of Land and Natural Resources accepted and

approved the EA and made a finding of no significant impact ("FONSI"). See Exhibit "C".

The Final was published with the determination of a FONSI in The Environmental Notice on

October 12. A full print version is attached as Exhibit "D". Also see Declaration of

Rubenstein.

PlaintifIs filed their Complaint for Declaratory and Injunctive Relief on November 20,

2012. The Complaint alleges that certain plaintiffs submitted testimony regarding the EA.

CompI. ~~ 3-5. Plaintiffs' indicated concern over the availability of the reserve for continued

hunting and gathering (Compi. ~'12, 4) and for loss of cultural and traditional resources for

Native Hawaiian relatives (CompI. ~ 4).4 Plaintiff Ralph Palikapu Dedman criticizes the cultural

assessment component of the EA, and states that "[p ]lanting trees is the only way to enhance the

future of its [sic] watershed and not fencing and killing animals." Compi. ~ 14(A).5 Plaintiffs

claim that failure to prepare an EIS "deprives Plaintiffs of the information that would be

generated through the EIS process". Compi. ~ 20.

III. LEGAL STANDARD

The sufficiency of an environmental review document is a question of law. "This is

because the only question presented is whether the [environmental review] complies with

3 The entire Final EA and transmittal letter is found in the EIS and EA library regarding the 2010s for the Island of Hawaii on the OEQC website (http://health.hawaii.gov/oegcO. 4 The loss of cultural and traditional resources alleged by Plaintiff Griffiths "on behalf of his Native Hawaiian wife and family" (Compl. ~ 4) does not follow case law, as one may not vicariously assert a constitutional right on behalf of another. Kaneohe Bay Cruises, Inc. v. Hirata, 75 Haw. 250, 265,861 P.2d 1,9 (1993)(citation omitted). 5 Plaintiffs further state concern that fencing vast tracts of the reserve "will allow the introduction of invasive species" and poisoning and contamination from cadmium leaching from galvanized fencing. Compl. ~ 16.

4

mandates, such as HRS chapter [Hawaii Administrative] Rules

There are no factual determinations to made [environmental review]

" Price v. Obayashi Hawaii Corp., 81 Haw. 171,182,914 P.2d 1364, l375 (1996). If

the has followed the proper procedures, the agency's environmental review "will only be

set aside [if it] is 'arbitrary and capricious,' given the known environmental consequences." Id.

at 183 n. 914 P.2d at 1376 n.l2 (quoting Stop H-3 Ass 'n v. Lewis, 538 F.Supp. 149, 159

(D.Haw. 1982).

According to the Ninth Circuit, under federal administrative law,

A decision is arbitrary and capricious if the agency: (1) has relied on factors which Congress has not intended it to consider; (2) entirely failed to consider an important aspect of the problem; (3) offered an explanation for its decision that runs counter to the evidence before the agency; or (4) is so implausible that it could not be ascribed to a difference in view or product of agency expertise. Calif State Grange v. NMFS, 620 F.SUPP.2d 1111. 1142 (E.D.Ca1.2008); United States v. Snoring Relief Labs, Inc .. 210 F .3d 1081, 1085 (9th Cir.2000).

It is well-settled that when reviewing the sufficiency of an environmental review

document:

[T]he court is guided by the "rule of reason," under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action. as well as to make a reasoned choice between alternatives. (emphases given)

Price, 81 Haw. at 182,914 P.2d at 1375 (quoting Life of the Land v. Ariyoshi, 59 Haw. 156, 164-

165,577 P.2d 1116,1121 (1978». The same standard is applicable to this case.

IV. ARGUMENT

The State of Hawai 'i requests that summary judgment be entered because summary

judgment is appropriate in cases involving the sufficiency of environmental review. The State of

5

Hawai'i is

section

to ummaJryjudgment because: (A) we observe that case under HRS

whether the environmental review accorded by an anr'''''''' is appropriate

has been decided as purely an of law; (8) DLNRlDOFAW was (and is) exempt from the

preparation of an environmental assessment; (C) in the alternative, an exhaustive environmental

assessment was prepared under the requirements of both HRS chapter 343 and HAR chapter 11-

200, which a determination of no significant impact was made; and (D) deference should be

accorded the agency's determination and judgment in its field of expertise.

A General Overview of HRS Chapter 343 (HEP A)

The Hawai'i Environmental Policy Act (HEPA) was enacted in 1974 and is codified as

Haw. Rev. Stat. (HRS) chapter 343. When enacted,6 chapter 343, did not provide for the concept

of an environmental assessment (EA) as an intermediate level of environmental review, but

instead directly required an environmental impact statement (EIS). The concept ofEAs was

added in 1979 by Act 197, 1979 Hawai'i Session Laws 409 (also re-numbering section 343-6(b)

as section 343-7(b ». In 1992, the concept of a draft EA and final EA was added. Act 241, 1992

Hawai'i Session Laws 639.

HRS section 343-5 (2010 and Supp. 2012), entitled "Applicability and requirements," is

the heart of chapter 343. Subsection 343-5(a) discusses the threshold question of when an

environmental assessment is required for an action - in other words, when the chapter is

"triggered." The subsection sets out nine different categories of actions that trigger applicability

of the chapter.

Even if there is a trigger, the requirement of an environmental assessment (EA) is

qualified by HRS section 343-6(a)(2)(2010), which allows for exemptions for certain classes of

actions. These exemptions are not contained within the statute. Rather, section 343-6 requires

6 Act 246, 1974 Hawai'i Session Laws 706.

6

to that "establish procedures whereby

will probably have minimal or no significant effects on the environment

are preparation of an assessment." HRS section (2010).

council duly . Admin. R. (HAR) section 11-200-8 to implement statute.

(c) and (d) of section 11-200-8 allow each executive branch agency to propose the

adoption or modification of exempt classes of actions specific to an agency, subject to the

approval the counciL

EA if required results in either a finding of no significant impact (FONSl) or a

requirement to prepare an environmental impact statement (ElS). An agency may bypass the EA

and go directly to an EIS if a FONSl seems unlikely. HRS section 343-5(b).

HRS section 343-7 (2010) also provides for judicial review of various decisions under

chapter 343. Subsection 343-7(b) is the subsection applicable to this case, allowing judicial

review of a FONSl:

(b) Any judicial proceeding, the subject of which is the determination that a statement is required for a proposed action, shall be initiated within sixty days after the public has been informed of such determination pursuant to section 343-3. Any judicial proceeding, the subject of which is the determination that a 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. The councilor the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by court action, may be adjudged aggrieved. (emphasis added)

A. Whether an EA is Required is Purely an Issue of Law as is Recognized in Every Reported HRS Chapter 343 Case

HRCP 56(b) provides that a defending party "may move with or without supporting

affidavits for a summary judgment in the party's favor as to all or any part thereof." Summary

judgment is proper "where the moving party demonstrates that there is no genuine issue of

material fact and it is entitled to summary judgment as a matter oflaw." Kaneohe Bay Cruises,

7

Inc. v. Hirata, 75 Haw. 250, 258, 861 P.2d 1,6 (1993) (citing Gossinger v. Assoc. of Apartment

Owners of The Regency Ala Wai, 73 Haw. 41 417,835 P.2d 627, 630 (1992».

In this regard, it is important to note that reported Hawai'i case dealing with any

type of challenge under HRS chapter 343, particularly section 343-7, has been decided as a

matter of law.

This includes every case where no EA was prepared:

,. Nuuanu Valley Ass 'n v. City and County of Honolulu, 119 Haw. 90, 194 P .3d 531

(2008)(The circuit court ruled on motion for summary judgment that chapter 343 was not

triggered so no EA was required. The Supreme Court affirmed.)

• 'Ohana Pale Ke Ao v. Bd. of Agric., 118 Haw. 247, 188 P.3d 761 (Haw.App.

2008)(summary judgment granted against Agriculture Board that EA required before

approval of biotech firm permit to import genetically engineered algae. ICA affirmed.)

• Sierra Club v. Department ofTransp., 115 Haw. 299, 167 P.3d 292 (2007)(The circuit

court upheld DOT's exemption for the superferry on motion for summary judgment. The

Supreme Court reversed and ordered as a matter of law that an EA was required.)

• Sierra Club v. Office of Planning, State of Haw., 109 Haw. 411, 126 P .3d 1098

(2006)(LUC changed land use classification without requiring an EA. The Supreme

Court held an EA was required as a matter oflaw.)

• Sierra Club v. Hawaii Tourism Authority ex ref. Board of Directors, 100 Haw. 242, 59

P.3d 877 (2002)(A challenge to the Hawai'i Tourism Authority'S decision to contract tor

tourism marketing services without conducting an EA was dismissed because plaintiff

lacked standing.)

• Citizens for Protection of North Kohala Coastline v. County of Hawai ii, 91 Haw. 94, 979

P.2d 1120 (1999)(Hawai'i County Planning Commission's determination that chapter

8

was not nOP'TPn was upheld on summary judgment in the circuit court. The

rp"PT"'~n and held that an was required.)

• Kahana Ass 'n v. County o/Afaui, 86 Haw. 66,947 P.2d 378 (1997) (EA

n1"n.nr..o<,d residential development required as a matter oflaw.)

• Pearl Estates Community Ass 'n v. Lear Siegler, Inc., 65 Haw. 133,648 P.2d 702

(1982)(The circuit court affirmed a Land Use Commission decision and order

certain lands from conservation to urban. The Supreme Court held that an

was required before the LUC could reclassify the lands.)

• Waianae Coast Neighborhood Ed. v. Hawaiian Elec. Co., Inc., 64 Haw. 126,637 P.2d

776 (l981)(The circuit court granted summary judgment, ruling that an EIS7 was not

required. The Supreme Court upheld.)

• McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981)(BLNR granted a permit without

requiring an EIS (under pre-1979 law). Circuit court and Supreme Court affirmed.)

• lvfolokai Homesteaders Co-op. Ass 'n v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981)(The

Supreme Court upheld summary judgment ruling that an EIS (under pre-1979 law) was

not required. )

• Waikiki Resort Hotel, Inc. v. City and County 0/ Honolulu, 63 Haw. 222, 624 P.2d 1353

(1981)(No EIS required under pre-1979 law.)

• Hewitt v. Waikiki Shopping Plaza by Waikiki Shopping Plaza, Inc., 6 Haw.App. 387, 722

P.2d 1055 (1986)(Summary judgment upheld on chapter 343 claim where an EIS (under

pre-l 979 law) was not required.)

This includes every reported case where (as here) a challenge was brought under HRS

7 Decided under pre-1979 law which directly required preparation of an EIS.

9

V'A.'U"""'" an EA but not an EIS was

• 106 Haw. 270,103 P.3d 939 (2005) (DHHL n'f'pr"'lt:l'f'P an and FONSI

re: ('nl,<:'tT1,('f1fYn of a cogeneration power plant. The circuit court required an EIS by way

judgment. The Supreme Court affirmed.)

• v. Hawaii County Planning Com 'n, 8 Haw.App. 1 797 P.2d (Haw.App.

1990)(Challenge to sufficiency of EA and FONSI untimely and denied as a matter of

law)

The reported cases in which a challenge was brought under HRS subsection 343-7(c) to

the adequacy of an EIS are:

• Kaleikini v. Yoshioka, 128 Haw. 53, 87, 283 P.3d 60, 94 (2012)(The circuit court ruled

that the rail EIS was adequate as a matter oflaw. The Supreme Court affirmed.)

• lJnite Here! Local 5 v. City and County of Honolulu, 123 Haw. 150, 181, 1 P.3d 423,

454 (201O)(Supreme Court required a supplemental EIS as a matter oflaw.)

• Price v. Obayashi Hawaii Corp., 81 Haw. 171,914 P.2d 1364 (1996)(The circuit court

ruled that the EIS was adequate as a matter of law. The Supreme Court affirmed.)

• Sensible Traffic Alternatives and Resources, Ltd v. Federal Transit Admin. of us. Dept.

ofTransp., 307 F.Supp.2d 1149 (D.Haw. 2004)(Challenge to EIS dismissed as untimely.)

• Life of the Land v. Ariyoshi, 59 Haw. 156,577 P.2d 1116 (l978)(The circuit court upheld

the adequacy of a (pre-1979) EIS as a matter of law. The Supreme Court affirmed.)

Just as in every previous chapter 343 case, this court should decide the issue as a matter

of law.

To recap the discussion of chapter 343 at pages six and seven above, an EA and EIS is

required if - but only if - an agency or applicant proposed an action that triggers chapter 343 and

the action is not exempt.

10

B. As a Matter of Law, An Environmental Assessment was Not Required Because the Department is Exempt

In citing to HRS section (CompI. ~ 8), Plaintiffs purport to cite the procedural

requirements that lead to the preparation of an but choose not to ",,-1,",,,,',,,, the reader on the

phrase in subsection (a) "Except as otherwise provided". In quoting subsection (b), reference to

agency actions" ... ===,,-==~,-==:c::.....::..=::~==~~-"'.," is omitted. ld. (emphasized)

These exemptions include general categories of exemption available under HAR section 11-200-

8 as adopted by the Environmental Council. Executive branch agencies are allowed to compile

lists of actions that are expected to have minimal or no impact on the environment and to which

Environmental Council also concur.

1. The Environmental Council Approved a June 12,2008 Exemption List for DOF A W actions

In addition to any general category of exemption available in HAR section 11-200-8,

DOFA W has a more extensive and specific list of actions that are generally exempt from the

preparation of an EA. See Exhibit "A". These actions include "Animal damage control actions,

when needed to maintain resource values, in [DOF A W] program areas, including application of

approved rodenticides, and ungulate removal" (p. 3, Exemption Class I, ~ 17); "Fences to

include areas no greater than 10 acres around individual or small colonies of rare, threatened or

endangered plants" (p. 5, Exemption Class 3, ~ I); "Minor alterations to existing vvildlife or plant

sanctuaries ... including weed control, outplanting of native plants, transplanting" (p. 5,

Exemption Class 4, ~ 3); and "Releases and recoveries of wildlife ... (after EA or EIS

preparation or acceptance8)", "Wildlife management actions including predator control, insect

controL snail control, non-native bird control" (p. 6, Exemption Class 5, ~~ 3,5). Id.

8 'AlaHi are currently extinct in the wild. See Exhibit "D", Plan Executive Summary, p. 2. Under the I5-year Plan, release of captive-bred 'Alala is anticipated. A prior draft EA and recovery plan regarding release are referenced in part. Exhibit "D", EA p.85, Table 3-7.

11

Plaintiffs complain either of lack of access or opportunity as hunters or gathers, and

specifically re: actions which arguably are covered by exemptions available to the agency trom

preparation of an environmental assessment to wit, the installation of fencing.

2. The Environmental Council Approved a Department-wide Exemption regarding Fences on July 1 2011

In the case at hand, DOF A W is exempt from the preparation of an environmental

assessment due to the Department of Land and Natural Resources having obtained a department-

wide exemption regarding fences on July 13,2011.

The exemption states as follows:

Fences around or to manage rare, threatened or endangered plants, covered and open areas for endangered species, game birds and mammals; ... and for watershed and native forest management and restoration. Fences shall contain step-overs or other features that permit pedestrian access for cultural and recreational use.

(emphasis added) See Exhibit "B".

The exemption was approved during the preparation of the Draft EA for the management plan,

and prior to the initial publication notice in The Environmental Notice.

Despite the exemptions available to DOF A W, a decision was made to complete an

environmental assessment, both to provide a further layer of review and protection, and to seek

public comment regarding the proposed action. See Declaration of Tanya Rubenstein.

The voluntary decision to do more than is required by law does not alter the meaning of the

statute and rules. According to statute and rule, the project was and could have been determined

as exempt as a matter oflaw; and that is the end of the inquiry.

C. The Determination and Finding of No Significant Impact is Supported Under the Rule of Reason

In the alternative, DOF A W' s nonobligatory completion of more than is required under

HRS chapter 343 should not be lightly taken. The Final EA to the management plan is an

12

indeed exhaustive account evidencing the _"'_"_.; s possible and

potential impacts the Plan's proposed project. The project is intended to manage and nr?'",p"n

an otherwise pristine ecosystem faced with many potential threats. As an integrated whole, the

Plan and EA consider such aspects as geology, air quality, soil type, climate, rainfall, water

resources, agricultural impact, historical uses, surrounding communities, relationships with other

landowners and agencies, forest ecosystem classification, native flora, native wildlife, cultural

and archaeological resources, public access, recreation, infrastructure, and possible threats to

native species including invasive species, wildfire, disease, volcanic activity, and illegal human

activity.

The Final EA and Plan explore management options, goals, and actions; drafts

guidelines, examines consistency with the existing regulatory and management framework,

considers mitigative measures, and constructs a means for assessing accomplishments. An

extensive section is also devoted to identifying cultural background to the area, identifying

cultural resources, and assessing cultural impacts. In preparing the Final EA, DOF A W received,

reviewed, considered, and responded to public comment, also in extensive fashion.

Plaintiffs' allegations fail to show the Final EA's analysis of alternatives was

unreasonable under the circumstances, or that the agency's approach to forest ecosystem,

watershed, and cultural resource management omitted consideration of any important aspect, or

reached an implausible conclusion. No infirmity ofHRS chapter 343 procedure is substantively

alleged as would render the findings improper.

In reaching the determination and finding of no significant impact, the agency was

required to consider the direct effects of action alternatives (Exhibit "D", generally EA p. 26) as

well as potential cumulative and secondary impacts. (Exhibit "D", see EA pp. 86-87). The Final

EA evaluated the expected consequences of implementation ofthe Plan according to the

13

considerations ofHAR C'Pf'Tl,,"n 11 ("Significance Criteria") and finally concluded that no

cumulative or substantial effects to the natural or cultural environment would

occur. Exhibit "D", EA p. 89-91. To imply that the agency took its environmental

responsibilities lightly does not do justice to the difficulty of the task and dedication of effort

required to effectively manage such an immense tract of land.

The Department's Judgment in Not Requiring an EIS is Entitled to Deference Because of its Experience and Expertise

The department's uniform understanding and practice regarding forest reserves, currently

found in HRS chapter 183, dates back to prior laws regarding the forest reserve enacted in 1903.

Under its statutory mandate, DOF A W is charged with the regulation and management of all

lands set aside as state forest reserve. HRS section 183-1.5 (2011).

[W]here an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, the courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.

i\1.organ v. Planning Dept., County of Kauai, 104 Haw. 173, 180,86 P.3d 982, 989 (2004)(citing

Ka Pa'akai 0 Ka 'Aina v. Land Use Comm'n, State ofHawai'i, 94 Haw. 31,41,7 P.3d 1068,

1078 (2000)). Stated differently:

Where an agency is statutorily responsible for carrying out the mandate of a statute which contains broad and ambiguous language, that agency's interpretation and application of the statute is generally accorded judicial deference on appellate review. Vail v. Employees' Retirement System, 75 Haw. 42, 59, 856 P.2d 1227, 1237 (1993). However, an interpretation by an agency of a statute it administers is not entitled to deference if the interpretation is plainly erroneous and inconsistent with both the letter and intent of the statutory mandate. Kahana Sunset Owners v. County ofMaui, 86 Haw. 66,72,947 P.2d 378,384 (1997).

Haole v. State ofHawai'i, 111 Haw. 144, 149-150, 140 P.3d 377,382-383 (2006)(quoting TIG

Ins. Co. v. Kauhane, 101 Haw. 311, 321, 67 P.3d 810,820 (Haw.App. 2003).

In addressing particular resource management problems, courts generally avoid

14

UQj2;m,em of an agency and accord such administrative decisions with

with feral ungulates. A federal court construing an administrative

actions under federal law is instructive:

need not be perfect; we may only set aside decisions that have and not those with which we disagree. =:....;::..::.:.:;;;...~==~::.t.;.:;;~~

~=~~-"'-'=-"-'-~-"-'-=->..:..:=~.=..:.~~. Thus, even if we were to conclude that could develop a better system of predicting wild ungulate use, or even

preventing overgrazing, we are not permitted to substitute our judgment for the

==~:.L("we may not substitute [our] judgment for that of the agency and must simply ensure that the agency has adequately considered and disclosed the environmental impact of its actions" (internal quotation marks omitted»). Forest Guardians v. US. Forest Service, 329 F.3d 1089, 1099-1100 (9th Cir., 2003).

The rule of reason indicated above in Price v. Obayashi Hawaii Corp. dictates that an

agency's environmental review should not be overturned if compiled in good faith with

sufficient information to allow a balanced and reasoned decision on alternatives regarding risks

to the environment against the benefits of the proposed action. The department's unvarying

understanding and practice acting in the discharge of its statutory and regulatory duties should

be accorded considerable weight based on the authorities cited above, and thus given deference.

v. CONCLUSION

For all these reasons, the State is entitled to summary judgment.

DATED: Honolulu, Hawai'i -------------------------------

Deputy Attorney General Attorney for State of Hawai'i

15

THE CIRCUIT COURT OF TilE TIIIRD CIRCUIT

STATE OF HAWAI'I

PELE DEFENSE FUND, a lIawai'i non-profit corporation; et aL,

CIVIL NO. I I-056X (Declaratory Judgment)

Plaintiffs,

vs.

DECLARATION OF T ANY A RUBENSTEIN

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HAWAI'I,

Defendants.

DECLARATION OF T ANY A RUBENSTEIN

TANY A RUBENSTEIN states under penalty of perjury:

I. I am employed in the Di vision of Forestry and Wildlife (DOF A W) as a

Project Coordinator for the Department of Land and Natural Resources, State of Hawai 'i,

and have been employed in that capacity for the past four years.

2. I make this declaration upon personal knowledge based upon review of the

motion for summary judgment prepared by Deputy Attorney General Colin Lau in Civ.

No. 12-1-0568, and the records and files maintained by DOF A W regarding this case.

3. DOF A W is required to manage the state forest reserve system according

to a mandate indicated at Hawaii Revised Statutes § 183-1.5, and has done so (via its

predecessor agency) from the time of the Territory of Hawai 'i.

4. As the DOF A W Project Coordinator assigned to the Ka'ii Forest Reserve

on the Island of Hawai 'i, I am familiar with the Ka '0 Forest Reserve Management Plan

("Plan") as I am the principal author of the Plan.

The Plan involves a I undertaking to henefit the environment via

certain management activities which include the preservation and protection of the native

forest ecosystem withm the Ka'u Forest Reserve.

6. The Plan was the result of conceptual work started in 2011 and continued

during the simultaneous preparation of the draft environmental assessment.

7. While I did not prepare the environmental assessment, I coordinated with

the contractor who prepared the environmental assessment, and am thus familiar with the

environmental assessment.

8. At the time that I hegan work on the Plan, I was aware that DOFA W had

an exemption list dated June 12,2008, approved by the State Environmental Council

which addresses exemption of certain state actions (by DOF A W) that involve the use of

fences or other forest ecosystem management activities, which are expected to require no

further environmental review due to no or minimal impact of the activities on the

environment.

9. A true and correct copy of the DOFA W exemption list dated June 12,

2008 is attached to the motion as Exhibit "A".

10. Also, prior to the preparation of the draft environmental assessment for the

Plan, the Department of Land and Natural Resources received final approval of the

Environmental Council on July 13, 2011, for a certain proposed department-wide

exemption list.

11. I am familiar with the July 13,2011 department-wide exemption list (a

true and correct copy of which is attached to the motion as Exhibit "8") which exempts

DLNR from the preparation of an environmental assessment - in particular Exemption

2

Number I, regarding the use of fences as a management lool for watershed and

native forest management and restoration.

12. A decision was made by DOFA W to proceed with an environmental

assessment for the Plan despite the availability of these exemptions - which could have

exempted from further environmental review the activities contemplated in the action

plan alternatives.

13. This was done in an abundance of caution, and to allow public input

regarding the management and preservation plans for this unique ecosystem of plants and

animals that are within the lands under plan review within the Ka'[j Forest Reserve.

14. The draft environmental assessment of roughly 394 pages was submitted

to the Department of Health's Office of Environmental Quality Control (OEQC) on May

II, 2012, and was thereafter published in "The Environmental Notice" on May 23, 2012.

15. A no action alternative and three action alternatives mainly regarding

placement of fencing were under consideration in the draft environmental assessment.

16. In response to public comments received during the 30-day public

comment period, an approximately 62 I-page final environmental assessment with an

anticipated finding of no significant impact was prepared.

17. Action Alternative B of the Plan was selected as the best for

implementation as explained on page 3 of the September 28, 2012, Item C-l submittal by

DOFAW to the Board of Land and Natural Resources ("Board").

18. A true and correct copy of the Item C-l board submittal and board minutes

are attached to the motion as Exhibit "C".

3

19. On 201 Hoard unanimously approved and accepted

the final environmental assessment for the Ka 'u Forest Reserve Management Plan, with a

finding of no Ikant on the environmental, economic and/or cultural resources

the area, and of a finding of no significant impact for the proposed project.

Exhibit "I)" to the motion is a true and correct copy of the final

environmental assessment for the Ka'u Forest Reserve Management Plan.

21. Upon the approval by the Board, the final document was submitted to

OEQC on October 3, 2012 for publication of the finding of no sign! tkant impact for the

proposed project.

The finding of no significant impact regarding the final environmental

assessment for the Plan was published in OEQC's The Environmental Notice on October

2012.

I, Tanya Rubenstein, do declare under penalty of law that the foregoing is true and

correct to the best of my information and belief.

DATED: Honolulu, Hawai'i, December -.l, 2013_.

4

THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAI'I

PELE DEFENSE FUND, a Hawai'j non-profit corporation; ct aI.,

Plaintiffs,

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HA WAI'I,

Defendants.

) CIVIL NO. I 1-056~

) (Declaratory J Lld~ment) ) ) DECLARATION OF C()LIN J. LAU )

) ) ) ) ) )

DECLAR;\TION OF COLIN J. LAU

I, Colin 1. Lau allege, aver and declare as follows:

1. I am a deputy attorney general with the State o!'Ha'vvai'j Department or

the Attorney General, licensed to practice law in the State of I Ia'vvai' i, and assigned to the

above-entitled case, and make this declaration upon personal knowledge.

2. I contacted Tanya Rubenstein, who is a Project Coordinator in the

Division of Forestry and Wildlife, Department of Land and N.ttural Resources.

3. I located environmental review documents for l he Ka' Ci Forest Reserve

Management Plan, maintained on the State ofHawai'i, Office of Environmental QualILy

Control (OEQC) website (http://health.hawaii.gov/oeqc/) including all draft and final

environmental assessments (EA) and environmental impact statemenls (EIS) submitted h)

the OEQC for publication in The Environmental Notice.

4. The OEQC website includes categorical agenc I exem!)tion lists.l

http:; /oeqc.doh.hawaii.goy/default.aspx?RootF older=%2fShared%20 [)ocumel!ts'YtJ.' lEnvirol1l11l'l1tai . Coul1cil'':(,2 'Exe mption _ Lists_ By-Department%2fState _ Agencies&View={ F4E3E6A 9-2607 --t9FC -l37A5-. 92,)l379F I OB4}

5. Exhibit "A" is a true and correct 7

DOFAW (entitled "Division of Forestry and Wildli of the

Natural Resources State of Hawaii, Reviewed and Concurred

Environmental Council on June 12,2008), attached hereto.

( J. Exhibit "8" is a true and correct copy the 1

.:nt of Land and

dcpat-tmcnl-\\ ide

exemption list entitled "Department of Land and 1\atural Res('tJrces Proposed

Department-wide Exemptions, Exemption Sub-Committee ,mJ Environmental Cuuncil,

July 13,2011 (Final version)" obtained from the OEQC webSite, also attached hereto.

7. Exhibit "C" is a true and correct copy of the l3-page DOFAW submitl~d

Item C-l, presented to and approved by the Board of Land ,md Natured Resources on

September 28,2012, with relevant board minutes regarding 11.:m C-l. as available on the

DLNR website ), attached hereto.

8. Exhibit "D" is a true and correct copy of the Final En, ironmental

Assessment for the Ka'il Forest Reserve Management Plan. a:c mai'luin,..?d on the OE(!C

website, and attached hereto.

9. I confirmed with Ms. Rubenstein the above DOFAW and DLl\R

exemption lists reviewed and concurred by The EnvironmentHI Council and also her

familiarity with the September 28,2012 board submittal, and i~iml! EA.

I, Colin 1. Lau, do declare under penalty oflaw that the foregc,ing is true and eonect to

the best of my information and belief.

DATED: Honolulu, Hawai'i, December 2013 .

2

COURT THIRD CIRCUIT

OF HAWAI'1

a i non-profit

Plaintiffs,

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HAWAI'I,

Defendants.

) CIVIL NO. 12-1-0568 ) (Declaratory Judgment) ) ) ) NOTICE OF HEARlNG MOTION ) ) ) ) ) ) ) )

NOTICE OF HEARING MOTION

TO: JAMES M. DOMBROSKI, ESQ. P.O. Box 751027 Petaluma, CA 94975

NOTICE IS HEREBY GIVEN that DEPARTMENT OF LAND AND NATURAL

RESOURCES, STATE OF HAWAI'I'S MOTION FOR SUMMARY JUDGMENT shall come

on for hearing on .Januarv 22,2014 ,at 8:30 a.m. before the Honorable Glenn S. Hara

in his courtroom at Hale Kaulike, 777 Kilauea Avenue, Hilo, Hawai'i 96720-4212, or as soon

thereafter as counsel may be heard.

DATED: Honolulu, Hawai'i, __ P_(C_e..-_/o._<:.-__ ~ ___ , 2013.

COLIN J. LAD Deputy Attorney General Attorney for State of Hawai'i

PELE

CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAI'I

a Hawai'i non-profit ) CIVIL NO.1 -0568

Plaintiffs,

) (Declaratory Judgment) ) )

vs. ) CERTIFICATE OF SERVICE )

DEPARTMENT OF LAND AND NATURAL RESOURCES, DIVISION OF FORESTRY AND WILDLIFE, STATE OF HAWAI'I,

Defendants.

) ) )

) ) )

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was duly served on the following

person( s) by first class mail on ___ ~_". L_' "'_,''''''_},_",_-__ ,:> ___ , 2013:

JAlvIES M. DOMBROSKI, ESQ. P.O. Box 751027 Petaluma, CA 94975

DATED: Honolulu, Hawai'i, ----------------------

Deputy Attorney General Attorney for State of Hawai'i