506 P.3d 150
Haw.2022Background
- Na Pua Makani proposed an eight-turbine wind farm on Oʻahu and sought an incidental-take license and habitat conservation plan (HCP) under HRS ch. 195D to permit limited take of the endangered Hawaiian hoary bat (ʻōpeʻapeʻa).
- Applicant modeled bat take using adjacent Kahuku Wind Farm data, proposed a low-wind-speed curtailment (LWSC) of 5.0 m/s, and estimated up to 51 bats taken over 21 years; mitigation relied on restoring and protecting Poamoho Ridge forest.
- The Endangered Species Recovery Committee (ESRC) reviewed the HCP (including site visits and post-submission amendments), then recommended approval; one ESRC member (Gon) later joined the Board.
- KNSC sought a contested case, arguing the HCP failed statutory requirements: insufficient science, LWSC should be 6.5 m/s, exclusion of Kawailoa data, inadequate mitigation analysis, and that Gon should be disqualified; a hearing officer recommended denial.
- The Board disagreed with the hearing officer, approved the HCP with conditions (limit to eight turbines and max tip height 173 m), and the circuit court affirmed; the Supreme Court affirmed the circuit court.
Issues
| Issue | Plaintiff's Argument (KNSC) | Defendant's Argument (Board/Applicant) | Held |
|---|---|---|---|
| Whether the Board used the best scientific and other reliable data available | Board ignored superior studies/data; used insufficient or selective science | Agency and ESRC considered available studies, reasonably selected applicable data | Mixed law/fact; reviewed for clear error; substantial evidence supports Board's selection of best available data |
| Whether LWSC of 5.0 m/s failed to minimize take to the maximum extent practicable (should be 6.5 m/s) | Studies show 6.5 m/s reduces bat mortality more; Board failed to show 6.5 m/s impracticable | Record contained studies showing no significant difference and local wind/bat activity data supported 5.0 m/s | Board reliance on 5.0 m/s supported by substantial evidence; not clearly erroneous |
| Whether proposed mitigation (Poamoho restoration) will increase likelihood of species recovery | No direct studies confirm forest restoration will restore Oʻahu population | ESRC, FWS recovery plan and guidance identify habitat loss as primary threat; restoration is appropriate mitigation | Substantial evidence supports that habitat protection/restoration will increase likelihood of recovery |
| Whether Board erred by excluding Kawailoa data and failing to analyze turbine height/blade effects | Kawailoa data and turbine size are relevant and should have been included | Kawailoa showed much higher bat activity and was not comparable; studies on height/blade were mixed | Board reasonably excluded Kawailoa data and adequately considered height/blade evidence; substantial evidence supports its conclusions |
| Whether Gon’s prior ESRC participation required recusal under statutes or due process | Gon considered extra-record information and prejudged issues; recusal required | Statutory scheme contemplates Board members (including chair/designee) participating in ESRC; prior participation does not imply disqualifying bias | No statutory or due-process disqualification; participation was permissible and did not show bias |
| Whether Board committed ex parte communication error by distributing Senator Inouye’s letter | Failure to disclose/provide letter prejudiced KNSC | KNSC did not timely object below; letter was not considered | KNSC waived the argument for appellate review; court suggests Board retain such materials in future |
Key Cases Cited
- Flores v. Bd. of Land and Natural Res., [citation="143 Hawai'i 114"] (Haw. 2018) (secondary-appeal standard; apply HRS § 91-14 to agency decisions)
- Poe v. Hawaii Labor Relations Bd., [citation="87 Hawai'i 191"] (Haw. 1998) (categorization of legal, factual, and mixed questions; review standards)
- In re Water Use Permit Applications, [citation="94 Hawai'i 97"] (Haw. 2000) (deference to agencies on technical/scientific matters; "substantial evidence" standard)
- Korean Buddhist Dae Won Sa Temple v. Sullivan, [citation="87 Hawai'i 217"] (Haw. 1998) (agency decisions carry presumption of validity; heavy burden on challenger)
- Koʻolau Agric. Co. v. Comm’n on Water Resource Mgmt., [citation="83 Hawai'i 484"] (Haw. 1996) (courts defer to agency expertise in scientific evaluations)
- Liberty Dialysis–Hawaii, LLC v. Rainbow Dialysis, LLC, [citation="130 Hawai'i 95"] (Haw. 2013) (permitting participation in sequential administrative actions)
- Cement Institute v. FTC, 333 U.S. 683 (U.S. 1948) (prior agency investigations or positions do not automatically disqualify adjudicators)
- Pangburn v. Civil Aeronautics Bd., 311 F.2d 349 (1st Cir. 1962) (no due-process violation where agency performs multiple, related statutory functions)