HEALOHA CARMICHAEL, LEZLEY JACINTHO, and NA MOKU AUPUNI O KO‘OLAU HUI, Petitioners/Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants, vs. BOARD OF LAND AND NATURAL RESOURCES, SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources, the DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Defendants-Appellees/Cross-Appellees/Cross-Appellants, and ALEXANDER & BALDWIN, INC., EAST MAUI IRRIGATION CO., LTD., and HAWAIIAN COMMERCIAL AND SUGAR CO., Respondents/Defendants-Appellants/Cross-Appellees, and COUNTY OF MAUI, DEPARTMENT OF WATER SUPPLY, Respondent/Defendant-Appellee/Cross-Appellant/Cross-Appellee.
SCWC-16-0000071
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
MARCH 3, 2022
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000071; 1CC151000650)
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1
Since 1986, the water rights for 33,000 acres of ceded lands in the Ko‘olau Forest
Given the significant environmental impact of the permitted action, the BLNR‘s authority to issue revocable permits is subject to the environmental review requirements of HEPA. The Intermediate Court of Appeals’ (“ICA”) July 31, 2019 judgment on appeal pursuant to its June 18, 2019 memorandum opinion is therefore vacated, and this case is remanded to the Circuit Court of the First Circuit (“circuit court”) for proceedings consistent with this oрinion.
I. BACKGROUND
A. 2000 Issuance of Revocable Water Permits
In 1985, the BLNR approved the public-auction sale of a thirty-year water license that would have consolidated four license areas—the Honomanu license area, the Huelo license area, the Ke‘anae license area, and the Nahiku license area (collectively, the “license areas”)—spanning approximately 33,000 acres of ceded lands in the Ko‘olau Forest Reserve and Hanawi Natural Area Reserve under a single license.2 However, issuance of the thirty-year license was suspended at the request of the Department of the Attorney General pending the settlement of a separate water case. Water rights for the license areas came to be governed thereafter by annual revocable water permits issued for each fiscal year.
On May 26, 2000, the BLNR approved the issuance of four annual revocable water permits to A&B and EMI,3 effective July 1, 2000 and expiring on June 30, 2001. Each of the permits—S-7263 (Honomanu), S-7264 (Huelo), S-7265 (Ke‘anae), and S-7266 (Nahiku) (collectively, the “revocable permits”)—gave the permittee4 the “[r]ight, privilege, and authority for the development, diversion, and use of water” from the relevant license area, “pursuant to the terms and conditions” in the relevant expired general leases. These permits authorized EMI to divert more than 100 million gallons of water per day from east Maui streams for sugar-cane irrigation by Hawaiian Commercial and Sugar Co. (“HC&S”), another subsidiary of A&B, in central Maui. The permits also authorized the delivery of aрproximately 8.6 million gallons of water per day from east Maui streams to Maui County water treatment facilities that provided the majority of water to a population of approximately 35,000 people in upcountry Maui. Each of the revocable permits stated that they were issued pursuant to
Notes
B. 2001 Long-Term Lease Application and Continuance of Revocable Permits
On May 14, 2001, A&B and EMI filed an application requesting that thе BLNR (1) consolidate the four license areas under one thirty-year lease and sell the lease at public auction and (2) authorize “temporary continuation” of the four revocable permits pending issuance of the long-term lease (“proposed long-term lease”). On May 23, 2001, Petitioner/Plaintiff-Appellee/Cross-Appellee/Cross-Appellant Na Moku Aupuni O Ko‘olau Hui (“Na Moku”), a Native Hawaiian non-profit organization, along with three Native Hawaiian individuals, petitioned the BLNR, pursuant to
1. 2001 “Holdover” of Revocable Permits
At a May 25, 2001 meeting, the BLNR considered an agenda item titled “Discussion on Long-term Dispositions of Water Licenses and Issuance of Interim Revocable Permits to [A&B] and [EMI] for the [License Areas.]” The administrator of the Land Division of the DLNR recommended that the BLNR authorize the issuance of interim revocable permits to EMI and A&B, and “explained that the long-term disposition process [was] subject to discussion, that there [was] going to be a [HEPA] requirement, and that the applicant [would] be required to prepare the necessary environmental documents.” An A&B representative requested that the BLNR also approve the proposed long-term lease it had requested in its May 14 letter to the BLNR. However, a Deputy Attorney General “clarified that the only matter before the [BLNR] for action [was] the issuance of the 4 interim revocable permits” and that the proposed long-term lease was “listed on the agenda for discussion only and [could not] be acted on by the Board at [that] time.” A Na Moku representative testified that they would be petitioning for a contested case hearing. The BLNR voted to defer action and instead “grant a holdover permit on a month-to-month basis [to EMI and A&B], pending the results of the contested case hearing” (“2001 holdover decision”).
2. 2002 “Holdover” of Revocable Permits and Subsequent “Continuation” or “Renewal”
Nearly a year later, at the BLNR‘s February 22, 2002 meeting, the BLNR indicated that it would review the rental rates for the revocable permits. At the BLNR‘s May 24, 2002 meeting, upon consideration of an agenda item titled “Re-issuance of Interim Revocable Permits to [A&B] and [EMI] for the [License Areas]” BLNR staff recommended that the BLNR “authorize the re-issuance of permits for the subject waters in the interim and pending the outcome of the contested case.” The BLNR Chair stated that the BLNR‘s intention was “to keep the status quo and that [the revocable permits] w[ere] brought back to the Board because of questions raised about authority to holdover permits beyond a year.” The BLNR again voted to “defer and grant a holdover of the existing revocаble permit on a month-to-month basis pending the results of the contest [sic] case hearing” (“2002 holdover decision”).7
After the BLNR‘s 2002 holdover decision, the revocable permits were annually “continued” by a process in which the BLNR reviewed and voted to approve for continuation a “master listing” of hundreds of revocable permits submitted by the DLNR.8 This process continued the revocable permits included on the master listing on a month-to-month basis for a one-year period. The DLNR‘s submissions to the BLNR from 2002 to 2004 cite
The revocable permits issued to A&B and EMI appeared on the master listings dated November 18, 2005; October 27, 2006; November 16, 2007; October 24, 2008; October 23, 2009; November 12, 2010; January 13, 2012; December 14, 2012; January 10, 2014; and December 12, 2014.10
C. Circuit Court Proceedings11
In response to the BLNR‘s December 12, 2014 decision approving the continuation of the revocable permits (“2014 continuation decision”), on April 10, 2015, Petitioners/Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants Healoha Carmichael, Lezley Jacintho, and Na Moku (collectively, “Petitioners”) filed a complaint for declaratory and injunctive relief against the BLNR, its interim chair, Carty Chang,12 and the DLNR (collectively, “the State Defendants”); A&B, EMI, and HC&S (collectively, “the A&B Defendants”); and the Maui County Department of Water Supply (“the County”) in the circuit court.13 Petitioners alleged in their amended complaint that, under
1. Petitioners’ Motion for Partial Summary Judgment and the A&B Defendants’ Cross-Motion for Partial Summary Judgment
On October 21, 2015, Petitioners filed a motion for partial summary judgment (“MPSJ”) asking the circuit court to:
- Declare that Defendants [A&B] and [EMI] violated
HRS chapter 343 . - Declare that the [State Defendants] violated
HRS chapter 343 . - Declare that [the revocable permits] are null and void.
- Declare that Defendants [A&B] and [EMI] have no legal or statutory authority to continue using the land areas or diverting water covered by [the revocable permits].
- Declare that [the State Defendants] have no legal or statutory basis to authorize Defendants A&B and EMI‘s continued use of land areas or diversion of water covered by [the revocable permits].
The A&B Defendants filed a cross-MPSJ, which was joined by the State Defendants and the County. Opposing Petitioners’ MPSJ, the A&B and State Defendants argued that the decision authorizing the use of State lands occurred on May 26, 2000, when the revocable permits were first issued, and that the annual review process and continuation of the revocable permits did not constitute “use of State land” or “applicant action” for which an EA was required under HEPA. The A&B Defendants contended, moreover, that Petitioners’ complaint and MPSJ, actually constituted an untimely challenge to the 2002 holdover decision. Petitioners disputed that they were “relitigating the 2002 holdover[ decision]‘s validity” and responded that the 2002 holdover deсision “ha[d] no legal significance” and that the BLNR‘s 2014 continuation decision was “[t]he only relevant decision” at issue.
2. Circuit Court‘s Order
The circuit court granted Petitioners’ MPSJ. In a minute-order decision, the circuit court found that the BLNR‘s 2014 continuation decision was not HEPA “action” requiring an EA, but held that the revocable permits were, nonetheless, invalid because they exceeded the BLNR‘s authority under
At the outset, the December 2014 revocable permits are not “actions” subject to Chapter 343 environmental assessment requirements. The December 2014 revocable permits were not programs or projects INITIATED by DLNR, BLNR, or the Defendants. Instead, the December 2014 revocable permits were of a continuing (preserving the status quo), temporary nature placing the occupancy of the lands in a holdover status. Nevertheless, both
HRS §§ 171-40 16 and171-55 speak to the “temporary” nature of the permits, notwithstanding affording the board discretion to continue the permit on a month-to-month basis for additional one year periods. Temporary is not statutorily defined under Chapter 171. Black‘s Law Dictionary, 10th Edition, speaks to “temporary” as “lasting for a time only; existing or continuing for a limited (usu. short) time; transitory.”The revocable permits expired on June 30, 2001. The December 2014 revocable permits which were either continued or renewed on a holdover status (uninterrupted for the last 13 years through December 2014) are not “temporary” as envisioned under Chapter 171. Otherwise, hold-over tenants could arguably be allowed to temporarily occupy “public lands”, almost in perpetuity for continuous, multiple one-year periods, which would not be in a manner consistent with the public interest or legislative intent. (e.g., finite terms are set forth throughout Chapter 171, see
HRS § 171-36 ,§ 171-54 ,§ 171-58 .)
(Emphasis added.) The circuit court granted Petitioners’ MPSJ, invalidated the revocable permits, and denied the A&B Defendants’ cross-MPSJ. In its order, the circuit court emphasized that the BLNR had exceeded its authority under
[P]ursuant to
HRS § 171-58(c) , the BLNR authorized A&B‘s use on a holdover basis. This holdover status has continued uninterrupted for the last 13 years.HRS §§ 171-10 17 and171-55 authorize the “temporary” occupation of public lands. A&B‘s continuous uninterrupted use of these public lands on a holdover basis for the last 13 years is not the “temporary” use that HRS Chapter 171 envisions. See also Black‘s Law Dictionary, 10th edition. Otherwise, holdover tenants could arguably be allowed to occupy public lands almost in perpetuity for continuous, multiple one-year periods. Such a prospect is inconsistent with the public interest and legislative intent.
(Emphasis added.)
D. ICA Proceedings
The A&B Defendants, the State Defendants, the County, and Petitioners all appealed the circuit court‘s order. Petitioners argued that the circuit court erred by holding that the BLNR‘s 2014 continuation decision did not constitute “action” subject to a mandatory EA under HEPA.
On June 18, 2019, the ICA filed a memorandum opinion vacating the circuit court‘s order and remanding the case for further proceedings. The ICA found that although
Finally, the ICA found that
E. Supreme Court Proceedings
On certiorari, Petitioners contend that the primary question is “what lawful authority, if any, BLNR acted under when it placed the challenged revocable permits in holdover status and thereafter continued to maintain them in holdover status for over a decade,” and urge us to conclude that the BLNR acted with no lawful authority.20 Petitioners present five questions:
- Does
HRS chapter 343 apply to BLNR‘s decision to continuously renew revocable permits authorizing the daily use of public lands to divert millions of gallons of water on a holdover basis for over a decade and counting? - Does
HRS § 171-55 allow for the renewal of revocable permits for the use of state land and water indefinitely despite the maximum term of one year prescribed byHRS § 171-58 for the disposition of water rights specifically?
- Did the Circuit Court err by refusing to grant summary judgment to Petitioners on the grounds set forth in counts 1 and 2 of their First Amended Complaint?
- Did the ICA err by concluding
HRS § 171-55 ‘s “notwithstanding any other law to the contrary” language nullifies (a) the maximum term of one year prescribed byHRS § 171-58 for “temporary” revocable permits and (b)HRS chapter 343 EA and environmental impact statement (EIS) requirements for “temporary” revocable permits where such interpretations conflict with well-settled case law, are unsupported by the legislative history, and run contrary to the plain meaning of the statutes? - Did the ICA err by refusing to rule that BLNR‘s decision to renew the Revocable Permits on a holdover basis violated
HRS chapter 171-55 as a matter of law due to BLNR‘s failure to make findings that the permits are “temporary” and serve the “best interests of the State”?
Petitioners argue that the ICA erred by ignoring rules of statutory construction, which led to an incorrect interpretation of
The State Defendants assert that both
The A&B Defendants add that Petitioners no longer have an adverse interest in the case, rendering their claims moot. The A&B Defendants claim “things have materially changed” since Petitioners initiated this case, namely, that: sugar cultivation has ceased, decreasing the water diverted subject to the revocable permits to a fraction of what it was before; the Commission on Water Resource Management (“CWRM”) has set interim instream flow standards, ensuring that Petitioners have sufficient water to support their customary and traditional practices; a draft EIS (“DEIS”) relating to the long-term lease has been published; and the BLNR has capped the diversions allowed under the revocable permits to 45 million gallons of water a day for 2020. The A&B Defendants also contend that, as a consequence of the CWRM‘s actions and the publication of the DEIS, Petitioners no longer have an “effective remedy.” They argue further that this case does not fall under the exception to the mootness doctrine for cases that are capable of repetition yet evading review because the BLNR has approved the continuation of the revocable permits for 2020 and a long-term lease is anticipated to be issued shortly thereafter, meaning that the revocable permits “will not be needed much longer.”
The County adds that Petitioners’ interpretation of
II. STANDARDS OF REVIEW
A. Summary Judgment
On appeal, the grant or denial of summary judgment is reviewed de novo. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Villaver v. Sylva, 145 Hawai‘i 29, 34, 445 P.3d 701, 706 (2019) (internal quotation marks, citations, and brackets removed)
(quoting Nuʻuanu Valley Assʻn v. City & Cnty. of Honolulu, 119 Hawaiʻi 90, 96, 194 P.3d 531, 537 (2008)).
B. Statutory Interpretation
“Statutory interpretation is a question of law reviewable de novo.” State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177 (2009) (internal quotation marks omitted) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007)). This court‘s construction of statutes is guided by the following:
First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
Id. When there is ambiguity in a statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” Id. A court may also resort to extrinsic aids in determining legislative intent, such as legislative history or the reason and spirit of the law. Id.
C. Constitutional Law
“Questions of constitutional law are reviewed de novo, under the right/wrong standard.” In re Gas Co., 147 Hawaiʻi 186, 198, 465 P.3d 633, 645 (2020).
III. DISCUSSION
A. The Public Interest Exception to the Mootness Doctrine Applies to Petitioners’ Appeal
Defendants contend that Petitioners’ appeal is moot because: the revocable permits continued by the BLNR in December 2014 have “long expired“; changed circumstances have eliminated Petitioners’ adverse interest; and A&B published a DEIS in September 2019, which precludes this court from ordering an effective remedy. Defendants also contend that the exception from the mootness doctrinе for cases that are capable of repetition yet evading review does not apply. Though Defendants are correct that the continuance granted by the BLNR in 2014 has expired and A&B has published a DEIS, Petitioners’ appeal qualifies under the “capable of repetition, yet evading review” and public interest exceptions to the mootness doctrine.
Under the mootness doctrine, this court will generally refrain from deciding a case that has “lost its character as a present, live controversy,” and in which “the reviewing court can no longer grant effective relief.” In re Marn Family, 141 Hawaiʻi 1, 7, 403 P.3d 621, 627 (2016) (quoting Cnty. of Haw. v. Ala Loop Homeowners, 123 Hawaiʻi 391, 405, 235 P.3d 1103, 1117 (2010), abrogated on other grounds by Tax Found. of Haw. v. State, 144 Hawaiʻi 175, 439 P.3d 127 (2019)). “However, this court has explicitly recognized two exceptions to the mootness doctrine: (1) the ‘capable of repetition, yet evading review’ exception . . . and (2) the public interest exception.” Hamilton ex rel. Lethem v. Lethem, 119 Hawaiʻi 1, 5, 193 P.3d 839, 843 (2008).20
The “capable of repetition, yet evading review” exception provides that “a court will not dismiss a case on the grounds of mootness where a challenged governmental action would evade full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of for the period necessary to complete the lawsuit.” Id. (quoting In re Thomas, 73 Haw. 223, 226-27, 832 P.2d 253, 255 (1992)). Although this case is moot because the 2014 continuation decision—which extended the revocable permits through 2015—has long since expired, the “capable of repetition” exception applies. Because the BLNR‘s continuation decisions for revocable permits apply for only one calendar year at a time, those decisions “evade full review” and no plaintiff would be able to complete a lawsuit seeking to void the continuation of a permit before the continuation itself expired. Id. Thus, this case satisfies the requirements for the “capable of repetition” exception to the mootness doctrine.
The second exception, the public interest exception, is broader than the “capable of repetition” exception; it overcomes Defendants’ contention that because the 2014 continuation decision has expired and a DEIS has been published, Petitioners no longer have an adverse interest or an effective remedy. In determining whether the public interest exception applies, this court considers “(1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question.” Kaleikini v. Thielen, 124 Hawaiʻi 1, 12–13, 237 P.3d 1067, 1078–79 (2010) (quoting Hamilton, 119 Hawaiʻi at 6–7, 193 P.3d at 844–45). In this case, all three factors weigh in favor of applying the public interest exception.
The first factor considers whether the questions presented by the case are “personal to” the parties and “of a private nature,” or if they implicate broader “political and legislative issues that affect a significant number of Hawaiʻi residents.” Hamilton, 119 Hawaiʻi at 7, 193 P.3d at 845. Here, although “the underlying proceedings are, at bottom, a private battle” between different users of water, Doe v. Doe, 116 Hawaiʻi 323, 327, 193 P.3d, 1067, 1071 (2007), the disposition of the water rights at issue dirеctly affects a broad swath of the Maui community and these proceedings have required the involvement and input of numerous State agencies. Thus, the first factor weighs in favor of applying the public interest exception.
As to the second factor, this court‘s analysis in the present case will provide necessary guidance to public officers in the future. The record indicates that the BLNR continues hundreds of revocable permits yearly. Given this practice, clarification of the BLNR‘s authority to issue revocable permits under
Finally, as to the third factor, which considers whether the issue will recur in the future, there is a strong likelihood that the question of whether it is permissible for an agency to continue revocable permits will recur. As noted above, the BLNR continues hundreds of revocable permits every year. Disputes over the use of land and State resources are frequent in Hawaiʻi, and given the ubiquity of these revocable permits, disputes over revocable permits are likely to arise in the future. See Ala Loop Homeowners, 123 Hawaiʻi at 405-06, 235 P.3d at 1117-18 (noting the “volume of land development activity in the State” in the context of individual enforcement actions cоncerning the Land Use Commission). In other words, “[r]esolution of the issue may affect similarly situated parties who in the future seek to assert their right[s] . . . in proceedings before agencies and other governmental bodies.” In re Maui Elec. Co., 141 Hawaiʻi 249, 257, 408 P.3d 1, 9 (2017). Thus, the third factor weighs in favor of applying the public interest exception.
Given that all three factors weigh in favor of applying the public interest exception, Petitioners’ appeal is not barred by the mootness doctrine.
B. Statutory and Constitutional Authority for the 2014 Continuation Decision
The ICA found that although the BLNR‘s 2014 continuation decision was not authorized by
The ICA erred by ruling on the basis of perceived issues of material fact.
1. HRS § 171-58 limits temporary disposition of water rights to a maximum of a year and did not authorize the BLNR to continue the revocable permits in 2014.
As an initial matter,
As the ICA concluded,
Disposition of water rights may be made by lease at public auction as provided in this chapter or by permit for temporary use on a month-to-month basis under those conditions which will best serve the interests of the State and subject to a maximum term of one year and other restrictions under the law[.]
Moreover,
Thus, the ICA did not err in finding that the BLNR was not authorized under
2. HRS § 171-55 did not authorize the BLNR‘s 2014 continuation decision because the BLNR did not demonstrate that the revocable permits served the best interests of the State.
Defendants contend that the BLNR‘s 2014 continuation decision was authorized under
Notwithstanding any other law to the contrary, the board of land and natural resources may issue permits for the temporary occupancy of state lands or an interest therein on a month-to-month basis by direct negotiation without public auction, under conditions and rent which will serve the best interests of the State, subject, however, to those restrictions as may from time to time be еxpressly imposed by the board. A permit on a month-to-month basis may continue for a period not to exceed one year from the date of its issuance; provided that the board may allow the permit to continue on a month-to-month basis for additional one year periods.
(Emphasis added.)
The ICA agreed that the BLNR had authority under
While the ICA correctly held that
a. The revocable permits were temporary within the meaning of HRS § 171-55 .
Unlike the ICA, which found there to be genuine factual questions related to whether the permits were temporary, the circuit court held that the revocable permits, “uninterrupted for the last 13 years” and continued by the BLNR‘s 2014 decision, were not “‘temporary’ as envisioned under Chapter 171.” (Citing Temporary, Black‘s Law Dictionary (10th ed. 2014) (defining “temporary” as “lasting for a time only; existing or continuing for a limited [] time; transitory“).) The circuit court reasoned that if the revocable permits were “temporary,” then “holdover tenants could arguably be allowed to occupy public lands almost in perpetuity for continuous, multiple one-year periods,” which would be “inconsistent with the public interest and legislative intent.”
The term “temporary” must be read in the context of the entirety of
b. The BLNR did not sufficiently demonstrate that the 2014 continuation decision served the best interests of the State.
The BLNR‘s authority to make the 2014 continuation decision was, however, limited by
As an initial matter, what constitutes “the best interests of the State” is not explained by the statute. However, particularly when appraising the legislative history of
Many of the provisions currently codified in
that non-public-auction sales were to be permitted only in cases of “overriding public interest” and that lease negotiations were appropriate only “in certain limited situations“:
Your Committee believes that this bill, as amended, incorporates a sound policy for the administration, management, and disposition of the public lands of the State. Every consideration has been given throughout the bill, particularly in the disposition sections, to adequately preserve the assets of the State by authorizing only leases disposable only by public auction, except where an overriding public interest necessitates the disposition by sales in fee simple or by leases without public auction. These overriding considerations are seen in the need for houselots, for small personally occupied farm, dairy and pasture lots, and in cases of natural disasters. Due regard was also given that in certain limited situations, negotiations for leases should be permitted.
H. Stand. Comm. Rep. No. 240, in 1962 House Journal, at 356 (emphasis added). The standing committee report also reflects the legislature‘s original intent that the disposition of State land by non-public-auction lease would be limited to а narrow set of circumstances, such as “houselots, . . . small personally occupied farm, dairy and pasture lots, and . . . natural disasters.” Id.
The legislative history of
relatively unchanged, substantively, since it was first enacted in 1962 as RLH § 103A-52, a provision of Act 32.28 In 1967, the legislature amended the second sentence of RLH § 103A-52 to clarify that while annual continuations of a revocable permit were permitted, the BLNR would have to approve each continuation annually:29
Section 103A-52 is amended to require that at the end of each year during a continuance of a permit, the board must give its approval before a permit may be continued. It is intended that a permit on a month to month basis shall be for a duration of one year unless extended by the board. At the end of each year, if the permit on a month to month basis is extended for another year, the board approval must be had. Certain language clarity was necessary inasmuch as existing law does not expressly state that a periodic annu-
al review is required but may be construed to mean that only one initial review is necessary after the first one year period.
H. Stand. Comm. Rep. No. 522, in 1967 House Journal, at 670 (emphasis added). In 1990, the legislature amended
Thus, the legislative history of
Because the BLNR did not make any findings of fact or conclusions of law demonstrating that the revocable permits “serve[d] the best interests of the State,” the BLNR did not comply with
trustee, it is “duty bound to demonstrate that it has properly exercised the discretion vested in it by the constitution and the statute.” Id. at 173-74, 324 P.3d at 983-84 (emphasis added) (quoting In re Water Use Permit Applications, 94 Hawaiʻi 97, 158, 9 P.3d 409, 470 (2000)).
In this case, the 2014 continuation decision was not authorized by
In sum, the BLNR‘s failure to make findings here was particularly troubling in light of the magnitude of the water diversions authorized and the BLNR‘s role as a public trustee of the State‘s water resources. While we do not fully set out the scope of the BLNR‘s duty to make the requisite findings, we note that the duty may vary in conjunction with the resources implicated. At minimum, the BLNR must make findings “sufficient
to enable an appellate court to track the steps that the agency took in reaching its decision.” Kauai Springs, 133 Hawaiʻi at 173, 324 P.3d at 983 (citing Kilauea Neighborhood Assʻn v. Land Use Commʻn, 7 Haw. App. 227, 230, 751 P.2d 1031, 1034 (1988)).
C. Applicability of HEPA to the Revocable Permits
1. HRS § 171-55 ‘s “notwithstanding” clause does not nullify HEPA‘s EA requirement.
In the present case, the State and the A&B Defendants argue that “there is a fundamental conflict between [HRS] § 171-55 and the EA and EIS requirements of [HEPA].” Defendants assert that the mandate in
The first sentence of
Notwithstanding any other law to the contrary , the board of land and natural resources may issue permits for the temporary occupancy of state lands or an interest therein on a month-to-month basis by direct negotiation without public auction, under conditions and rent which will serve the best interests of the State, subject, however, to those restrictions as may from time to time be expressly imposed by the board.
(Emphasis added.) When interpreting “notwithstanding any other law to the contrary” clauses, “[t]he term “contrary” denotes a “conflict.“” State v. Schnabel, 127 Hawai‘i 432, 448, 279 P.3d 1237, 1253 (2012) (citing Merriam-Webster‘s Collegiate Dictionary 765 (10th ed. 1989)) (interpreting a “[n]otwithstanding any other law to the contrary” clause). “Two statutes conflict where it is not possible to give effect to both.” Id. (internal quotation marks and brackets omitted) (quoting State v. Richie, 88 Hawai‘i 19, 35, 960 P.2d 1227, 1243 (1998)). Thus,
Additionally, the legislative history of
[T]he Office of the Attorney General has suggested that it is appropriate to make it absolutely clear that such temporary permits may be issued without public auction. Your Committee finds that the Board of Land and Natural Resources should be allowed to issue such permits and believes that this bill should serve as the vehicle for it.
Your Committee has therefore amended the bill by deleting it‘s [sic] substance and inserting language allowing the [BLNR] to issue permits for the temporary occupancy of State lands on a month-to-month basis by direct negotiation without public auction.
S. Stand. Comm. Rep. No. 2988, in 1990 Senate Journal, at 1218 (emphasis added).
Thus, the purpose of the “notwithstanding” language was to clarify that the BLNR has authority to issue temporary permits without public action. The legislative history does not indicate that the “notwithstanding” clause was intended to create an exemption from HEPA or any other regulatory scheme. The “notwithstanding” clause was directed solely at the issue of whether public auction was required.
2. HEPA‘s EA requirement applies to the revocable permits so long as the A&B Defendants’ “action” does not qualify for an exemption pursuant to HRS § 343-6(a)(2) .
HEPA requires an EA “if three conditions are satisfied: (1) the proposed activity is an “action” under
The circuit court held that HEPA was inapplicable to the present case because it found that “the December 2014 revocable permits [we]re not “actions” subject to [HEPA‘s] [EA] requirements” because thе permits “were not programs or projects INITIATED by DLNR, BLNR, or the [A&B] Defendants.”34 Petitioners argue that, pursuant to HEPA, the BLNR should order the A&B Defendants to complete an EA because the A&B Defendants’ activity under the revocable permits constituted “action” that involves the “use of state or county lands.”35
under the revocable permits constituted “action[] that . . . [p]ropose[d] the use of state or county lands” within the meaning of
a. The A&B Defendants’ development, diversion, and use of water constitutes “action” within the meaning of HRS § 343-5(a) .
HEPA defines “action” as “any program or project to be initiated by any agency or applicant.”36
In the present case, the activity Petitioners contend is a HEPA “action” is the A&B Defendants’ “development, diversion, and use of [the] water” located across approximately 33,000 acres of State land in Maui. In its minute-order
decision denying Petitioners’ MPSJ, the circuit court rejected Petitioners’ argument and found no HEPA “action“:
At the outset, the December 2014 revocable permits are not “actions” subject to Chapter 343 environmental assessment requirements. The December 2014 revocable permits were not programs or projects INITIATED by DLNR, BLNR, or the Defendants. Instead, the December 2014 revocable permits were of a continuing (preserving the status quo), temporary nature placing the occupancy of the lands in a holdover status.
(Emphasis added.)
While the circuit court is correct that neither the BLNR‘s 2014 continuation decision nor the revocable permits themselves are HEPA “actions,” the circuit court erred by concluding there is no HEPA “action” in the present case. As demonstrated by our opinion in Umberger, it is the applicant‘s permitted activity—i.e., the activity for which the A&B Defendants initially sought permit approval—that constitutes “action” within the meaning of HEPA.37 140 Hawai‘i at 514-15, 403 P.3d at 291-92 (finding that recreational—and commercial—aquarium collection conducted under permits issued by the DLNR qualifies as a HEPA “action“). That the revocable permits here were not requested by the applicant does not preclude the permitted activity itself from qualifying as HEPA “action.”
The A&B Defendants’ permitted activity constitutes HEPA “action” because it qualifies as either a “project” or a program.” The activity is a “specific plan” or “planned undertaking“—and is, therefore, a “project“—because the permits facilitated a deliberate and coordinated effort by the A&B Defendants to use their water system to deliver water and manage water use for the permitted areas. See id. at 514, 403 P.3d at 291 (finding that recreational and commercial aquarium collection was a “project” because “it involve[d] the systematiс and deliberate extraction of aquatic life” using established procedures “for the specific purpose of holding captive such aquatic life for aquarium purposes“). The activity is also a “plan or system under which action may be taken“—and is, therefore, a “program“—because although each revocable permit corresponded to a separate geographical area, the four areas “were all a part of the same collection and delivery system extending from Nahiku to Honopou” and the permits worked in conjunction to meet the A&B Defendants’ (and their customers‘) water needs. See id. (finding that recreational and commercial aquarium collection was a “program” because it involved “the purposeful and methodical extraction of aquatic life” designed to further the “desired goal” of “tak[ing] aquatic life from its habitat and hold[ing] it in a state of captivity for aquarium purposes“). The A&B Defendants’ permitted activity, whetherconstrued as a “project” or a “program,” constitutes “action” within the meaning of HEPA.
Additionally, the A&B Defendants’ permitted activity constitutes “action” within the meaning of HEPA despite the “continuing” nature of the activity, which the defendants characterize as merely maintaining the status quo. In Umberger, this court held that aquarium collection authorized by one-year permits from the DLNR constituted “action” under HEPA even though the aquarium collection had been occurring for years. 140 Hawai‘i at 513-16, 403 P.3d at 290-93. The continuing water use in this case similarly constitutes “action” under HEPA. Furthermore, because the A&B Defendants’ water use wаs conditioned on one-year permits, the continued use under a renewed permit did not merely maintain the status quo. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 784 (9th Cir. 2006) (holding that lease extensions did not “merely preserve[] the status quo” because “[w]ithout the affirmative re-extension of the 1988 leases, [the lease applicant] would have retained no rights at all to the leased property“).38
Next, where the “action” is proposed by an applicant and requires approval by an agency, in order for HEPA to apply the agency must “exercise[] discretionary consent in the approval process.”39 Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 (citing
permissive, or discretionary the provision in which it is embodied[.]” Umberger, 140 Hawai‘i at 526, 403 P.3d at 303 (quoting State v. Kahawai, 103 Hawai‘i 462, 465, 83 P.3d 725, 728 (2004)). The BLNR is not required to issue or continue a revocable permit; this authority is wholly discretionary under the statute. Thus, in continuing the revocable permits pursuant to
b. The A&B Defendants’ “action” involves the use of state lands under HRS § 343-5(a)(1) .
Next, the HEPA “action” must involve at least one of the nine categories of land uses or administrative acts enumerated in
[p]ropose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies; provided further that an environmental assessment for proposed uses under section 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to section 205-5(b).
The A&B Defendants’ permitted activity constitutes HEPA “action” that involves “the use of state land” under
c. On remand, the circuit court should determine whether the A&B Defendants’ “action” is exempt from HEPA‘s EA requirement.
Having determined that the A&B Defendants’ permitted activity is HEPA “action” that constitutes a “use of state . . . lands,” we lastly consider whether such activity is exempt from HEPA‘s environmental-review process under
as to the propriety of the exemption.”
on the environment may be significant in a particularly sensitive environment.”
Because analysis under
Although the court is aware that the permits in this case were continued along with hundreds of other permits, we do not opine on the validity of other permits not before the court. Given the duration, magnitude, and nature of the uses authorized by the revocable permits here, they may be distinguishable from other, smaller-scale uses similarly authorized by the BLNR.
IV. CONCLUSION
For the foregoing reasons, the ICA‘s July 31, 2019 judgment on appeal pursuant to its June 18, 2019 memorandum opinion is vacated and the circuit court‘s October 21, 2015 order granting Petitioners’ MPSJ is affirmed in part as to its holding that the revocable permits were not authorized under
David Kauila Kopper /s/ Mark E. Recktenwald
for petitioners Healoha Carmichael, Lezley Jacintho, /s/ Paula A. Nakayama
and Na Moku Aupuni O Ko‘olau Hui
/s/ Sabrina S. McKenna
Linda L.W. Chow (William J. Wynhoff on the briefs) for /s/ Michael D. Wilson
respondents BLNR, Suzanne Case in her official capacity as Chairman of BLNR, and DLNR
David Schulmeister (Trisha H.S.T. Akagi on the briefs) for respondents Alexander & Baldwin, Inc. and East Maui Irrigation Co., Ltd.
Caleb P. Rowe (Kristin K. Tarnstrom on the briefs) for respondent County of Maui, Department of Water Supply
Disposition of water rights may be made by lease at public auction as provided in this chapter or by permit for temporary use on a month-to-month basis under those conditions which will best serve the interests of the State and subject to a maximum term of one year and other restrictions under the law; provided that any disposition by lease shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both in any regular or special session next following the date of disposition; provided further that after a certain land or water use has been authorized by the board subsequent to public hearings and conservation district use application and environmental impact statement approvals, water used in nonpolluting ways, for nonconsumptive purposes because it is returned to the same stream or other body of water from which it was drawn, essentially not affecting the volume and quality of water or biota in the stream or other body of water, may also be leased by the board with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution.
The text of the statute has remained unchanged since the BLNR first issued the revocable permits in 2000.
Notwithstanding any other law to the contrary, the board of land and natural resources may issue permits for the temporary occupancy of state lands or an interest therein on a month-to-month basis by direct negotiation without public auction, under conditions and rent which will serve the best interests of the State, subject, however, to those restrictions as may from time to time be expressly imposed by the board. A permit on a month-to-month basis may continue for a period not to exceed one year from the date of its issuance; provided that the board may allow the permit to continue on a month-to-month basis for additional one year periods.
The text of the statute has remained unchanged since the DLNR first invoked it in 2002.
(a) Except as otherwise provided, an environmental assessment shall be required for actions that:
(1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects that the agency has not approved, adopted or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies; provided further that an environmental assessment for proposed uses under section 205-2(d)(11) or 205-4.5(a)(13) shall only be required pursuant to section 205-5(b);
. . . .
(c) For environmental assessment for which a finding of no significant impact is anticipated:
(1) A draft environmental assessment shall be made available for public review and comment for a period of thirty days;
(2) The office shall inform the public of the availability of the draft environmental assessment for public review and comment pursuant to section 343-3;
(3) The agency shall respond in writing to comments received during the review and prepare a final environmental assessment to determine whether an environmental impact statement shall be required;
(4) A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment; and
(5) The agency shall file notice of the determination of the office. When a conflict of interest may exist because the proposing agency and the agency making the determination are the same, the office may review the agency‘s determination, consult the agency, and advise the agency of potential conflicts, to comply with this section. The office shall publish the final determination for the public‘s information pursuant to section 343-3.
The draft and final statements, if required, shall be prepared by the agency and submitted to the office. The draft statement shall be made available for public review and comment through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statement for public review and comment pursuant to section 343-3. The agency shall respond in writing to comments received during the review and prepare a final statement.
The office, when requested by the agency, may make a recommendation as to the acceptability of the final statement.
Upon expiration of the lease term, if the leased land is not otherwise disposed of, the board of land and natural resources may allow the lessee to continue to hold the land for a period not exceeding one year upon such rent, terms, and conditions as the board may prescribe; provided that if, immediately prior to the expiration of the lease, the land was cultivated with crops having ratoons for at least one cycle, as defined hereinafter, the board may permit the lessee to continue to hold the leased land until the crops from the last remaining cycle have been harvested. The term “cycle” as used in this section means the period required to plant and cultivate the original crop, including the harvesting of the first ratoon, being a period exceeding two years.
Upon expiration of the one-year extension, if the board has not yet decided upon the re-lease of the land or reservation for other purposes, the board may issue a temporary permit to the lessee, subject to section 171-55 and the rent and such other terms and conditions as the board may prescribe.
The board may issue permits for the temporary occupancy of State lands or interest therein on a month-to-month basis under such conditions which will serve the best interests of the State, subject, however, to such restrictions as may from time to time be expressly provided by law. Where such permit on a month-to-month basis extends for a period beyond one year from the date of its issuance, any renewal of the permit beyond such one year period shall be only upon approval of the board.
1962 Haw. Sess. Laws Act 32, § 2 at 116.
Where such permit on a month-to-month basis extends for a period beyond one year from the date of its issuance, any renewal of the permit beyond such one year period shall be only upon approval of the board.
1962 Haw. Sess. Laws Act 32, § 2 at 116. The above sentence was delеted and replaced with the following:
Such permit on a month to month basis may continue for a period not to exceed one year from the date of its issuance; provided, that the board may allow such permit to continue on a month to month basis for additional one year periods.
1967 Haw. Sess. Laws Act 234, § 11 at 355 (emphasis added).
(a) Chapter 343, HRS, states that a list of classes of actions shall be drawn up which, because they will probably have minimal or no significant effect on the environment, may be declared exempt by the proposing agency or approving agency from the preparation of an environmental assessment provided that agencies declaring an action exempt under this section shall obtain the advice of other outside agencies or individuals having jurisdiction or expertise as to the propriety of the exemption. Actions declared exempt from the preparation of an environmental assessment under this section are not exempt from complying with any other applicable statute or rule. The following list represents exempt classes of action:
(1) Operations, repairs, or maintenance of existing structures, facilities, equipment, or topographical features, involving negligible or no expansion or change of use beyond that previously existing[.]