Legislative Hearings Set for Judicial Nominees

Judicial vacancies on Hawaii's trial and appellate courts are being filled. Most notably is the nomination of Judge Katherine Leonard as Chief Justice of the Hawai‘i Supreme Court. Here is a short description of the process and the list of nominees.

Pursuant to article VI, section 3 of Hawaii's Constitution,

[t]he governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

Governor Lingle's appointees are the following people:

• Judge Katherine Leonard to the Chief Justice of the Hawai‘i Supreme Court
• Jeannette H. Castagnetti to the Circuit Court of the First Circuit
• Fa‘auuga L. To‘oto‘o to the Circuit Court of the First Circuit
• Colette Y. Garibaldi to the Circuit Court of the First Circuit

For District Court appointments, article VI, section 3 of Hawaii's Constitution provides as follows:

The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. . . . The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment.

Chief Justice Moon's appointees are the following people:

• Sherri-Ann L. Iha to the District Court of the First Circuit
• Steven M. Nakashima to the District Court of the First Circuit
• Matthew J. Viola to the District Court of the First Circuit
• Michael K. Tanigawa to the District Court of the First Circuit

The legislature will consider these nominees in the 2010 First Special Session. Hearings are scheduled for August 2 and 3, before the Senate Committee on Judiciary and Government Operations.

State to Exempt "Alien or Pest Species Control" from Environmental Review

The Hawaii Department of Land and Natural Resources ("DLNR") is proposing an "alien or pest species control" exemption to the Hawaii Environmental Policy Act ("HEPA"). If adopted by the environmental council, it may allow the state to move forward with some controversial programs without the benefit of environmental review or public disclosure.

DLNR's Proposed Amended Exemption List, dated May 26, 2010, is posted at the Office of Environmental Quality Control's ("OEQC") Web site. On page 5 of DLNR's proposed list, under the heading, Exemption Class #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, is the following proposed exemption:

29. Actions that are intended to maintain or improve the sustainability of those natural resources under the jurisdiction of the Department, including law enforcement, regulation compliance, resource and environmental monitoring, alien or pest species control, and other administrative and management measures.

The "alien or pest species control" exemption comes at an interesting time considering the following: Hawaii Department of Land and Natural Resources Proposes the Release of Alien Insect from Brazil into Hawaii's Environment to Control Strawberry Guava. However, the proposed exemption list is not a free pass for DLNR.

First, DLNR's exemption list must be adopted by the environmental council. The environmental council has HEPA rulemaking authority under HRS § 343-6. This includes the authority to "establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an environmental assessment[.]" Pursuant to HEPA's administrative rules, HAR § 11-200-8, these lists and any amendments to the lists must be submitted to the environmental council for review and concurrence. The environmental council is subject to Hawaii's sunshine law; therefore, the public will have an opportunity to comment before the environmental council takes action at one of its public meetings.

Second, even if the new exemption list is adopted, this would not give DLNR carte blanche to exempt all of its alien or pest species control programs. As the Hawaii Supreme Court said in the famed Superferry Case (Sierra Club v. Dep't of Transp., 167 P.3d 292 (Haw. 2007)), "blind deference to agency exemption determinations is not appropriate." As the Court explained, an agency making an exemption determination must comply with the procedural consultation requirements of HEPA and make four determinations: (1) defining the action, (2) whether it fits into an exempt class, (3) whether an exclusion to the exemption applies, and (4) whether the exemption is consistent with the letter and intent of HEPA because it will “probably have minimal or no significant effects on the environment."

One of the lessons of the Superferry Case is that even though an agency (in that case, the state Department of Transportation) relies on an exemption list adopted by the environmental council, the agency must be sure that a particular project fits the exemption. In the Superferry Case, the Court concluded,

Contrary to the expressly stated purpose and intent of HEPA, the public was prevented from participating in an environmental review process for the Superferry project by DOT's grant of an exemption to the requirements of HRS chapter 343. The exemption was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements. “All parties involved and society as a whole” would have benefitted had the public been allowed to participate in the review process of the Superferry project, as was envisioned by the legislature when it enacted the Hawai‘i Environmental Policy Act.

Although DLNR's proposed rules have been posted on OEQC's Web site, it is unclear where the environmental council is in its review process. According to the OEQC's guidance, Guidelines for Preparing Exemptions, the proposed list must be noticed in the Environmental Notice which triggers a 30-day public comment period.

UPDATE 8/02/10: Notice for the Proposed Exemption Lists for Aquatic Resources, State Parks, Forestry and Wildlife, Boating and Ocean Recreation, and Department-Wide were posted in the July 8, 2010 edition of the Environmental Notice. According to the notice, comments are due "within 30 days of the date of this Notice to the Department of Land and Natural Resources, Engineering Division, Project Planning and Management Branch, ph: 587-0229, fax: 587-0283, email: carty.s.chang@hawaii.gov, and the Office of Environmental Quality Control, 235 South Beretania Street, Honolulu, HI 96813, fax: 586-4185."

Old EIS Documents Beware

Turtle Bay Resort, LLC, has reached the end of its legal challenges to the Hawaii Supreme Court's recent decision in Unite Here! Local 5 v. City and County of Honolulu, Haw. S. Ct No. 28602, April 8, 2010.

In Unite Here!, the Court reversed the intermediate court of appeal's decision that Turtle Bay was not required to prepare a supplemental environmental impact statement (EIS) for its subdivision approval application. On July 20, 2010, the Court denied Turtle Bay's motion for reconsideration of its decision, which effectively requires Turtle Bay to prepare a supplemental EIS before it proceeds with its plans to expand its resort.

The Court's denial of reconsideration also puts numerous land developments and master planned projects with completed EIS documents on notice that a court will consider whether the passage of time per se renders an original statement no longer valid.  The Court did not settle on a specific time when an EIS would become invalid.  In this case, Turtle Bay relied on a 20 year-old EIS previously prepared for the project.

Obama Administration Establishes National Ocean Council

On July 19, 2010, President Obama signed an Executive Order entitled, National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes ("National Policy"). The Order sets forth the first of its kind National Policy and creates a National Ocean Council ("NOC") to strengthen ocean governance and coordination.

The Order is based on final recommendations of the Ocean Policy Task Force ("Final Recommendations"). The Final Recommendations prioritize actions for the NOC to pursue, and it calls for a flexible framework for coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, coasts, and the Great Lakes.

Section 1 of the Order lays out its purpose as follows:

• establish a national policy to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources,
• enhance the sustainability of ocean and coastal economies,
• preserve our maritime heritage,
• support sustainable uses and access,
• provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification,
• coordinate with our national security and foreign policy interests, and
• provide for the development of coastal and marine spatial plans that build upon and improve existing Federal, State, tribal, local, and regional decisionmaking and planning processes.

Under Section 2 of the Order, ten policy objectives are identified as follows:

1. protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources;
2. improve the resiliency of ocean, coastal, and Great Lakes ecosystems, communities, and economies;
3. bolster the conservation and sustainable uses of land in ways that will improve the health of ocean, coastal, and Great Lakes ecosystems;
4. use the best available science and knowledge to inform decisions affecting the ocean, our coasts, and the Great Lakes, and enhance humanity's capacity to understand, respond, and adapt to a changing global environment;
5. support sustainable, safe, secure, and productive access to, and uses of the ocean, our coasts, and the Great Lakes;
6. respect and preserve our Nation's maritime heritage, including our social, cultural, recreational, and historical values;
7. exercise rights and jurisdiction and perform duties in accordance with applicable international law, including respect for and preservation of navigational rights and freedoms, which are essential for the global economy and international peace and security;
8. increase scientific understanding of ocean, coastal, and Great Lakes ecosystems as part of the global interconnected systems of air, land, ice, and water, including their relationships to humans and their activities;
9. improve our understanding and awareness of changing environmental conditions, trends, and their causes, and of human activities taking place in ocean, coastal, and Great Lakes waters; and
10. foster a public understanding of the value of the ocean, our coasts, and the Great Lakes to build a foundation for improved stewardship.

The Order directs all executive departments, agencies, and offices that are members of the NOC to implement the policies set forth in section 2 of the Order, to participate in the process for coastal and marine spatial planning, and to comply with NOC certified coastal and marine spatial plans.

The NOC plans to hold its first meeting later this summer to begin implementing the National Policy.

Governor Appoints former Maui Public Works Director to Land Use Commission

According to a July 16, 2010 news release, the governor has appointed Charles Jencks to serve as an interim commissioner on the state Land Use Commission (LUC).   Jencks will replace former LUC commissioner Ransom Piltz, who recently stepped down to run for mayor of the County of Maui.

Jencks formerly served as the Director of Public Works and Waste Management under then mayor Linda Lingle.  Jencks is currently a representative for Honua‘ula Partners, LLC, which is the developer of the contentious Wailea 670 project on Maui.

Jencks may serve out Piltz's term, which ends in 2014.

HSCT Extends Enforcement of Hawaii's Land Use Laws to Private Citizens

The Hawaii Supreme Court's ("HSCT") recent decision in County of Hawaii v. Ala Loop Homeowners, July 9, 2010, holds that complainant had a private right of action under article XI, section 9 of the Hawai'i Constitution to enforce its HRS chapter 205 (Hawaii's land use law) claims against a landowner.

The decision abrogates the ICA’s decision in Pono v. Molokai Ranch, Ltd., 119 Hawai'i 164 (2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008).  In Pono, the ICA held that “private citizens do not have a private right of action to enforce the provisions of HRS chapter 205 and, therefore, lack standing to invoke a circuit court’s jurisdiction to determine their claims to enforce Chapter 205.” (Emphasis added.)

The HSCT opined that the Pono court failed to look at whether any of Hawaii's constitutional provisions provided a private right of action to enforce HRS chapter 205. In particular, article XI, section 9 of the Hawai'i Constitution provides as follows:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

The HSCT determined that this constitutional provision provides both substantive and procedural rights.  It then concluded that (1) article XI, section 9 applies to HRS chapter 205 because it is a "law[] relating to environmental quality"; (2) article XI, section 9 is self executing; and (3) the legislature did not limit or restrict the ability of private persons to enforce the provisions of HRS chapter 205.

The impact of this decision is far reaching. The broad interpretation of article XI, section 9 potentially expands the causes of action under various, as yet identified, "environmental quality" statutes. This will have an exponential effect on the number of plaintiffs' law suits. However, while creating more causes of action, the opinion does not change the requirements for establishing standing.  Standing must be established regardless of the existence of new and additional causes of action cognizable in Hawaii's courts.

A copy of the opinion is posted at http://www.courts.state.hi.us/opinions_and_orders/opinions/2010.