Umberger v. Department of Land and Natural Resources., 403 P.3d 277

Background

Petitioners (divers, subsistence fishers, and conservation organizations) sued DLNR challenging issuance/renewal of aquarium-collection permits under HRS § 188-31 without prior HEPA review; sought declaratory and injunctive relief against ~50 permits and similar recent permits.
DLNR issues two permit types: commercial permits authorizing an effectively unlimited annual take; recreational permits authorize up to ~1,825 specimens per permit-year; DLNR asserted permits are non-discretionary/automatic and thus not subject to HEPA.
Petitioners submitted scientific and eyewitness declarations alleging significant reef impacts from large-scale, methodical collection techniques and underreporting; DLNR submitted declarations asserting collection is limited, monitored, and sustainable.
Circuit court granted DLNR summary judgment, holding aquarium collection is not a HEPA “action.” The ICA affirmed, reasoning aquarium collection is not a specifically identifiable program/project and highlighted overlapping regulatory schemes.
Hawaiʻi Supreme Court granted certiorari and held commercial aquarium collection under HRS § 188-31 and DLNR rules is a HEPA “action,” falls within triggers (use of state lands/conservation district), is not exempt, and requires agency discretionary approval; remanded to determine whether recreational permits may be exempt.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether aquarium-collection permits are a HEPA “action” (program/project)	Umberger: permits authorize systematic, methodical extraction (program/project) with environmental effects, so HEPA applies	DLNR: activity is too varied (from a parent taking one fish to commerce); not a specifically identifiable program/project	Held: Yes — properly defined by outer limits of permit (commercial & recreational schemes) and qualifies as a program/project (HEPA action)
Whether the activity falls within HRS § 343-5(a) triggers	Umberger: extraction uses state waters/submerged lands and conservation districts => triggers apply	DLNR: disputed relevance; some activities incidental or small	Held: Yes — marine waters/submerged lands are "state lands" and fall within conservation districts; collection is a substantive "use" of those lands
Whether aquarium collection is exempt under HRS § 343-6(a)(2) / HAR exemptions	Umberger: not exempt for commercial; perhaps recreational could be exempt or tiered/grouped	DLNR: argued environmental harm irrelevant or adequately addressed by other rules	Held: Commercial collection not exempt (unlimited take); record insufficient to resolve exemption status for recreational permits — remand needed
Whether DLNR must exercise discretionary approval (applicant action)	Umberger: HRS § 188-31 uses "may" and requires showing of facilities/health standards, so DLNR has discretion => HEPA applies	DLNR: process is automatic/online, no real discretion so HEPA not triggered	Held: Statute confers discretion ("may" vs "shall"; §188-31(b) conditions); DLNR has discretionary consent — HEPA applies to applicant action

Key Cases Cited

Sierra Club v. Dep’t of Transp. of the State of Haw., 115 Hawai‘i 299, 167 P.3d 292 (2007) (establishes HEPA three-part test and exemption analysis framework)
Nuuanu Valley Ass’n v. City & Cty. of Honolulu, 119 Hawai‘i 90, 194 P.3d 531 (2008) (defines limits of "use" under HRS § 343-5(a))
Kauai Springs, Inc. v. Planning Comm’n of Cty. of Kaua‘i, 133 Hawai‘i 141, 324 P.3d 951 (2014) (statutory interpretation principles; public trust water doctrine context)
Kepo‘o v. Watson, 87 Hawai‘i 91, 952 P.2d 379 (1998) (treats Hawaiian homelands/state trust lands as "state lands" for HEPA purposes)
Kilakila ‘O Haleakala v. Univ. of Hawai‘i, 138 Hawai‘i 364, 382 P.3d 176 (2016) (HEPA application to projects on state lands and conservation purposes)
Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 363 P.3d 224 (2015) (agency authority limited to statute; agencies are creatures of the legislature)