Keep the N. Shore Country v. Bd. of Land & Natural Res.

150 Hawai‘i 486

506 P.3d 150

KEEP THE NORTH SHORE COUNTRY, Appellant-Appellant,

v.BOARD OF LAND AND NATURAL RESOURCES; The Department of Land and Natural Resources; Suzanne D. Case, in her official capacity as Chairperson of the Board of Land and Natural Resources; and Na Pua Makani Power Partners, LLC, Appellees-Appellees.

SCAP-19-0000449

Supreme Court of Hawai‘i.

FEBRUARY 22, 2022

Lance D. Collins and Bianca Isaki, for Appellant-Appellant

Ewan C. Rayner, (Kimberly T. Guidry, William J. Wynhoff, Linda L.W. Chow, Honolulu, and Cindy Y. Young on the briefs), for Appellees-Appellees Board of Land and Natural Resources, Department of Land and Natural Resources, and Suzanne D. Case in her official capacity as Chairperson of the Board of Land and Natural Resources

John P. Manaut, Honolulu, (Puananionaona P. Thoene with him on the briefs), for Appellee-Appellee Na Pua Makani Power Partners, LLC

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE VIOLA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY NAKAYAMA, J.

This appeal arises from a challenge to the Na Pua Makani Wind Farm (the Wind Farm), an eight-turbine wind power plant proposed for the North Shore of O‘ahu. To operate the Wind Farm, Appellee-appellee Na Pua Makani Power Partners, LLC (Applicant) must obtain an incidental take license as part of a habitat conservation plan approved by Appellee-appellee Board of Land and Natural Resources (the Board or BLNR).

After years of study and collaboration with state and federal agencies, Applicant submitted a proposed habitat conservation plan and requested the Board's approval. However, Appellant-appellant Keep the North Shore Country (KNSC) opposed the application, citing the Wind Farm's potential impact on ‘ope‘ape‘a, the Hawaiian hoary bat. Following significant state and federal agency review, numerous public meetings, and a contested case hearing, the Board approved Applicant's habitat conservation plan, and authorized Applicant to take up to fifty-one ‘ope‘ape‘a over the course of twenty-one years, or fewer than two and a half bats per year.

On appeal to the circuit court, KNSC argued the Board unlawfully approved the habitat conservation plan because of alleged procedural irregularities and because the habitat conservation plan does not comply with Hawai‘i's endangered species statute, Hawai‘i Revised Statutes (HRS) chapter 195D. For the reasons explained below, KNSC's arguments are unavailing. We accordingly affirm the Circuit Court of the First Circuit's (circuit court) May 23, 2019 Final Judgment.

I. Background

A. Introduction

1. Habitat Conservation Plans and Incidental Take Licenses

The Legislature enacted the Hawai‘i endangered species statute, HRS chapter 195D, "[t]o insure the continued perpetuation of indigenous aquatic life, wildlife, and land plants[.]" HRS § 195D-1 (2011). To effectuate this goal, the Legislature made it unlawful to take¹ any threatened² or endangered³ species. HRS § 195D-4(e)(2).⁴ Nevertheless, the Legislature recognized some degree of take is unavoidable — even necessary — and therefore authorized the Board⁵ to issue "incidental take licenses" when certain conditions are met. See HRS § 195D-4(g).

In order to issue an incidental take license, the Board must issue the license as part of a habitat conservation plan. Id. Broadly speaking, a habitat conservation plan is an agreement to "protect[ ], maintain[ ], restor[e], or enhance[e] identified ecosystems, natural communities, or habitat types" protected species depend upon, as well as to "increase the likelihood of recovery of the endangered or threatened species that are the focus of the plan." HRS § 195D-21(b)(1).⁶ "All habitat conservation plans, ... incidental take licenses, and subsequent actions authorized under those plans ... and licenses shall be designed to result in an overall net gain in the recovery of Hawaii's threatened and endangered species." HRS § 195D-30 (2011).

Before the Board may approve a habitat conservation plan, applicants and the Board must undergo a complex administrative process.

First, the applicant must draft the habitat conservation plan, identifying the area(s) affected, the species involved, the action(s) to be taken, an implementation schedule, and a funding source. HRS § 195D-21(a).⁷ The plan must provide "sufficient information for the board to ascertain with reasonable certainty the likely effect of the plan upon any endangered, threatened, proposed or candidate species in the plan area and throughout its habitat range." HRS § 195D-21(c) (2011).

Second, the Board must notify the public and make the proposed plan available for public review and comment for at least 60 days. HRS § 195D-21(a).

In addition to public review, the Endangered Species Recovery Committee (the Committee or ESRC)⁸ must also review the proposed plan and make a recommendation for the Board to approve, amend, or reject the plan. HRS § 195D-25(b)(1).⁹ The Committee's recommendation must be based on "the best available scientific and other reliable data and at least one site visit to each property that is the subject of the action," as well as a "consideration of the cumulative impacts of the proposed action on the recovery potential of the [relevant] species[.]" Id.

Third, following review by the public and the Committee, the Board may approve a habitat conservation plan and incidental take license if (1) the Committee recommends approval,¹⁰ (2) at least two-thirds of the Board's members vote in favor of approval, and (3) the Board makes three key determinations. HRS § 195D-21(b)(1). These determinations are:

(A) The plan will further the purposes of [HRS chapter 195D] by protecting, maintaining, restoring, or enhancing identified ecosystems, natural communities, or habitat types upon which endangered, threatened, proposed, or candidate species depend within the area covered by the plan;

(B) The plan will increase the likelihood of the recovery of the endangered or threatened species that are the focus of the plan; and

(C) The plan satisfies all the requirements of this chapter.

Id. The BLNR must make these determinations using "the best available scientific and other reliable data available at the time the plan is approved." HRS § 195D-21(c).

Furthermore, an applicant may receive an incidental take license only if ten statutory conditions are met. First, the take must be "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." HRS § 195D-4(g). Additionally,

(1) The applicant, to the maximum extent practicable, shall minimize and mitigate the impacts of the take;

(2) The applicant shall guarantee that adequate funding for the plan will be provided;

(3) The applicant shall post a bond, provide an irrevocable letter of credit, insurance, or surety bond, or provide other similar financial tools, including depositing a sum of money in the endangered species trust fund created by section 195D-31, or provide other means approved to the board, adequate to ensure monitoring of the species by the State and to ensure that the applicant takes all actions necessary to minimize and mitigate the impacts of the take;

(4) The plan shall increase the likelihood that the species will survive and recover;

(5) The plan takes into consideration the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed;

(6) The measures, if any, required under section 195D-21(b) shall be met, and the department has received any other assurances that may be required so that the plan may be implemented;

(7) The activity, which is permitted and facilitated by the license, does not involve the use of submerged lands, mining, or blasting;

(8) The cumulative impact of the activity, which is permitted and facilitated by the license, provides net environmental benefits; and (9) The take is not likely to cause the loss of genetic representation of an affected population of any endangered, threatened, proposed, or candidate plant species.

Id.

2. Na Pua Makani Wind Farm

Around 2009, West Wind Works, LLC began developing plans for the Wind Farm. The Wind Farm would be the third wind turbine power plant on O‘ahu, joining the Kawailoa Wind Farm and the Kahuku Wind Farm. Champlin Hawaii Wind Holdings, LLC acquired these plans in 2012, and formed Na Pua Makani Power Partners, LLC to complete the development and construction of the Wind Farm. Beginning in January 2013, Applicant began consulting with the United States Fish and Wildlife Service (FWS) as well as the Department's Division of Forestry and Wildlife (DOFAW) to develop a proposed habitat conservation plan and incidental take license.

On February 17, 2015, Applicant submitted a proposed habitat conservation plan and incidental take license (Proposed Plan) to the Department for publication in the Office of Environmental Quality Control's March 8, 2015 Environmental Notice. In the Proposed Plan, Applicant proposed building eight to ten wind turbines with a maximum height of 156 meters each. According to Applicant's site evaluations and consultations with FWS and DOFAW, the Wind Farm could take eight federally protected species, including ‘ope‘ape‘a.¹¹

Applicant proposed minimizing the take of ‘ope‘ape‘a by utilizing a low-wind speed curtailment (LWSC)¹² rate of 5.0 meters per second (m/s). Additionally, Applicant would minimize and mitigate the impacts of the take by funding efforts to restore the nearby Poamoho Ridge forest to a native state, as well as by funding research on ‘ope‘ape‘a to develop additional mitigation efforts. Taking these measures into consideration, Applicant, FWS, and DOFAW anticipated the Wind Farm would take up to fifty-one ‘ope‘ape‘a over the course of twenty-one years, or fewer than two and a half ‘ope‘ape‘a per year.

B. Procedural History

1. Endangered Species Recovery Committee Proceedings

In the course of reviewing the Proposed Plan, the Committee held four public meetings. First, on March 30, 2015,...