Haleakala v. Univ. of Hawai‘i

138 Hawai'i 364

382 P.3d 176

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

SCWC–13–0000182

Supreme Court of Hawai'i.

OCTOBER 6, 2016

As Corrected October 27, 2016

David Kimo Frankel and Sharla Ann Manley for petitioner, Kilakila ‘O Haleakala.

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 Manoa.

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 OF THE COURT BY POLLACK, J.

I. Introduction

Haleakala, 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 Haleakala as the most sacred place on Maui where numerous cultural practices continue, including religious ceremonies and prayer. The summit of Haleakala 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 Haleakala.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 Haleakala (Kilakila), an organization that strives to protect the sacredness of the Haleakala 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 Haleakala.³ SeeHAR § 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...