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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

HEALOHA CARMICHAEL, LEZLEY JACINTHO,

and NĀ MOKU AUPUNI O KOʻOLAU 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

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000071; 1CC151000650)

MARCH 3, 2022

Electronically Filed

Supreme Court

SCWC-16-0000071

03-MAR-2022

08:48 AM

Dkt. 219 OP
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RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.1

OPINION OF THE COURT BY WILSON, J.

 Since 1986, the water rights for 33,000 acres of 

ceded lands in the Koʻolau Forest Reserve and Hanawi Natural Area 

Reserve have been governed by four revocable permits issued by 

Respondent/Defendant-Appellant/Cross-Appellee/Cross-Appellant

the Board of Land and Natural Resources (“BLNR”) to for-profit 

corporate entities, Respondents/Defendants-Appellants/CrossAppellees Alexander & Baldwin, Inc. (“A&B”) and East Maui 

Irrigation Co., Ltd. (“EMI”). In this case, we consider whether 

BLNR’s authorization of these four permits during the past 

decade to divert more than 100 million gallons of water per day 

from east Maui streams required an environmental assessment 

(“EA”) pursuant to the Hawaiʻi Environmental Policy Act (“HEPA”), 

Hawaiʻi Revised Statutes (“HRS”) chapter 343.

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 

 

1 Associate Justice Richard W. Pollack, who was a member of the 

court when the oral argument was held, retired from the bench on June 30, 

2020.
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Circuit Court of the First Circuit (“circuit court”) for 

proceedings consistent with this opinion.

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 Honomanū license area, the Huelo license area, 

the Keʻanae license area, and the Nāhiku license area 

(collectively, the “license areas”)—spanning approximately 

33,000 acres of ceded lands in the Koʻolau 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. 

 

2 The four license areas are “affected and partly governed by” the 

East Maui Water Agreement made in 1939 between the then—Territory of Hawaiʻi

and EMI. That Agreement provided for “the joint use by the Territory and EMI 

of the aqueduct system” and “enabled the State to dispose of the water 

licenses at a public auction instead of restricting the sale only to EMI.” 

The aqueduct system runs through lands belonging to the government and to 

EMI. 
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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 (Honomanū), S-7264 (Huelo), S-7265 (Keʻanae), and 

S-7266 (Nāhiku) (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 

approximately 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 

 

3 A&B is a for-profit corporation that was engaged at all relevant 

times primarily in real estate development in Hawaiʻi and sugar cultivation in 

central Maui, and EMI is a subsidiary of A&B. 

4 For the 2000-01 fiscal year permits, A&B was the permittee for 

the Honomanū, Huelo, and Keʻanae license areas and EMI was the permittee for 

the Nāhiku license area. 
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stated that they were issued pursuant to HRS § 171-58 (1993).5 

The BLNR added, as a condition to the issuance of the revocable 

permits, that the Department of the Attorney General issue an 

opinion regarding compliance with HEPA as it related to these 

leases.6 

B. 2001 Long-Term Lease Application and Continuance of 

Revocable Permits

On May 14, 2001, A&B and EMI filed an application 

requesting that the BLNR (1) consolidate the four license areas 

 

5 HRS 171-58(c) (2011) provides:

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.

6 Petitioners allege this fact in their first amended complaint, 

and the State and A&B Defendants admit so in their answers. A May 25, 2001 

report from the Department of Land and Natural Resources (“DLNR”) stated 

that, as of the BLNR’s May 26, 2000 meeting, “[t]he Attorney General ha[d] 

been reviewing the issues and w[ould] report on that review to the [BLNR].” 

There is no evidence in the record that such an opinion was ever issued by 

the Department of the Attorney General.
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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 longterm lease”). On May 23, 2001, Petitioner/PlaintiffAppellee/Cross-Appellee/Cross-Appellant Nā Moku Aupuni O Koʻolau 

Hui (“Nā Moku”), a Native Hawaiian non-profit organization, 

along with three Native Hawaiian individuals, petitioned the 

BLNR, pursuant to HRS chapter 91, for a contested case hearing

on the proposed long-term lease for the license areas. The 

contested case proceedings—which concerned the same activity as, 

but do not form the basis for, this appeal—continued for nearly 

six years. Those proceedings included an appeal to and remand 

from the circuit court, as well as the publication of several 

orders containing findings of fact and conclusions of law by the 

BLNR. 

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]
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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 Nā 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 
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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 revocable 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 HRS § 

171-55 (1993) as its authority for this annual review process.9 

 

7 Documentation from the BLNR indicates that because the revocable 

permits were continued on a “holdover” basis, they did not appear on the 

December 2002 master listing. 

8 The revocable permits were not subject to this annual review and 

continuation process in 2003 or 2004 and first appeared on the master listing 

submitted to the BLNR on November 18, 2005. In a declaration, the 

administrator of the Land Division of the DLNR stated that he put the 

revocable permits on the 2005 master listing “to be consistent with how all 

of the other revocable permits were being addressed by DLNR.” 

9 HRS § 171-55 (2011) provides: 

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 

(continued . . . )
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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 Nā 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 

 

(. . . continued)

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.

10 At its December 12, 2014 meeting, consistent with the DLNR’s 

recommendation, the BLNR again approved the continuation of the revocable 

permits included in the master listing. The DLNR notified A&B and EMI in 

letters dated December 29, 2014 that the revocable permits were continued “on 

a month-to-month basis for an additional year up to December 31, 2015.” 

11 The Honorable Rhonda A. Nishimura presided.

12 Current BLNR Chair Suzanne Case was later substituted as a 

defendant for Carty Chang. See Hawaiʻi Rules of Civil Procedure Rule 25(d)(1)

(2001). 
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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 HRS 

§ 343-5 (Supp. 2012),14 the “renewal of [the A&B Defendants’] 

 

13 Petitioners’ amended complaint stated that the County was “only 

named as an interested party,” but in its answer, the County denied that it 

was only an interested party and argued that “[Petitioners]’ prayed [sic] for 

relief could have serious and widespread consequences on Defendant County and 

its citizens, and therefore, Defendant County has a heavy interest in the 

outcome of these proceedings.” 

14 HRS § 343-5 provides, in relevant part:

(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;

(continued . . . )
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revocable permit[s]” constituted applicant action proposing the 

use of State land and, as such, required the preparation of an 

EA pursuant to HEPA. Thus, Petitioners contended that HEPA was 

violated (1) when the BLNR failed to order an EA before its 2014 

continuation decision, and (2) when A&B and EMI continued to 

divert water without preparing an EA.15 Petitioners asked the 

circuit court to declare that HEPA had been violated, void the 

revocable permits, order the completion of an EA, and enjoin 

further diversion of water from the license areas, provided that 

 

(. . . continued)

(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.

15 Petitioners asserted—and the A&B and State Defendants admitted in 

their respective answers to Petitioners’ amended complaint—that no EA has 

ever been completed in connection with the revocable permits. 
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up to 8.4 million gallons per day could still be diverted to the 

County for the public health, safety, and welfare of existing 

customers served by East Maui surface-water diversions. 

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:

A. Declare that Defendants [A&B] and [EMI] violated HRS

chapter 343.

B. Declare that the [State Defendants] violated HRS chapter 343.

C. Declare that [the revocable permits] are null and void.

D. 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].

E. 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 
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decision. Petitioners disputed that they were “relitigating the 

2002 holdover[ decision]’s validity” and responded that the 2002 

holdover decision “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 HRS 

chapter 171 to issue temporary permits: 

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] and 171-55 

 

16 HRS § 171-40 (2011) provides:

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.

(continued . . . )
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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 oneyear 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 HRS 

chapter 171 to authorize temporary disposition of water rights 

in holding over the revocable permits for over a decade:

[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]

and 171-55 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

 

(. . . continued)

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.

17 It appears that the circuit court mistakenly wrote “HRS § 171-10”

when it meant to write “HRS § 171-40,” as it did in its minute order. HRS § 

171-10 (2011) does not authorize temporary occupations of public lands; it 

sets out the classifications of public lands used by the BLNR. 
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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. HRS § 343-

5(a)(1). However, Petitioners asserted that the circuit court 

did not err in granting their MPSJ, that a correct decision 

should not be disturbed on the grounds of incorrect reasoning, 

and that they filed their cross-appeal “in an abundance of 

caution.” The A&B Defendants argued that the circuit court 

erred by: (1) granting Petitioners’ MPSJ despite its finding 

that the BLNR’s 2014 continuation decision was not “action” 

subject to HEPA’s EA requirement; and (2) granting Petitioners’ 

MPSJ when genuine issues of material fact existed as to whether 

the BLNR’s 2014 continuation decision constituted “action” 

within the meaning of HRS § 343-5(a)(1).18 

 

18 The A&B Defendants also argued that the circuit court erred by: 

invalidating the revocable permits based on the BLNR’s authority (or lack 

thereof) under HRS chapter 171, when the only basis for relief asserted by 

Petitioners was under HEPA, and invalidating the revocable permits when the 

BLNR had the authority to issue such permits under the public trust doctrine. 

The County and State Defendants advanced similar arguments on cross-appeal. 

(continued . . . )
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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 HRS § 171-58 

did not give the BLNR authority to extend the revocable permits 

past one year of their issuance (i.e., past July 1, 2001), HRS 

§ 171-55 authorized the BLNR to place the revocable permits in 

holdover status so long as the revocable permits were 

“temporary” and “serve[d] the best interests of the State.” The 

ICA reasoned that the BLNR had authority under HRS § 171-55, 

“[n]otwithstanding any other law to the contrary” —that is, 

notwithstanding HRS § 171-58’s limitation of temporary permits 

to a “maximum term of one year.” The ICA found there were 

genuine issues of material fact as to whether the BLNR’s 2014 

continuance decision (1) was “temporary” or “de facto

indefinite,” and (2) “serve[d] the best interests of the State”

under HRS § 171-55, and held that the circuit court erred by

granting Petitioners’ MPSJ. 

 

(. . . continued)

The ICA found “no merit” to the Defendants’ arguments that they 

were not on notice as to the issue of an HRS chapter 171 violation, and 

construed the HRS chapter 171 issue as if it had been raised in the 

pleadings, holding that it was “tried by implied consent.” The ICA noted 

that the A&B and State Defendants had argued in their opposition memoranda to 

Petitioners’ MPSJ that the ongoing validity of the revocable permits came not 

from the BLNR’s 2014 continuation decision, but “instead derived from a 

continuance of the [2002] holdover status,” which was authorized under HRS 

chapter 171.
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Finally, the ICA found that HRS § 171-55’s 

“notwithstanding” clause “nullified” HEPA’s EA requirement for 

temporary permits issued under HRS § 171-55, and held that the 

circuit court did not err in finding HEPA inapplicable, even 

though it used different reasoning. The ICA concluded that the 

purpose of HRS § 171-55 is to allow the BLNR to issue temporary 

permits to an applicant pursuing a long-term lease and that the 

BLNR’s 2014 continuation decision was not subject to HEPA’s EA 

and Environmental Impact Statement (“EIS”) requirements.

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.19 Petitioners present five 

questions: 

1. 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? 

2. 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 

by HRS § 171-58 for the disposition of water rights specifically?

 

19 The Sierra Club, Maui Tomorrow, and Mahi Pono LLC filed amicus 

curiae briefs in support of Petitioners. 
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3. 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?

4. 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 by HRS § 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? 

5. 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 HRS § 171-55 and the erroneous conclusion that HRS § 171-55’s 

“notwithstanding” clause implicitly exempts temporary revocable 

permits from compliance with (1) HEPA’s EA requirement and (2) 

HRS § 171-58’s one-year limit on revocable permits. Petitioners

also argue that the ICA erred by upholding the revocable permits 

when the BLNR had not made explicit findings pursuant to HRS 

§ 171-55 that “the permit holder’s occupancy [was] temporary” 

and that the permit was issued “under conditions and rent which 

will serve the best interests of the State.” 

The State Defendants assert that both HRS § 171-55 and 

the public trust doctrine supported the BLNR’s 2014 continuance 

decision. The State Defendants argue that HRS § 171-55 (1) is 

the applicable statute in this case, and (2) does not conflict 

with HRS § 171-58, which is not applicable to the disposition of 
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water rights during the pendency of a contested case. The State 

Defendants claim that HRS § 171-55’s “notwithstanding” clause

applies not only to the public auction requirement, but to any

contrary law, including HEPA’s EA requirement. Finally, the

State Defendants contend that Petitioners’ argument that the 

revocable permits are invalid is moot because the permits, 

continued in 2014 for the year 2015, have long since expired 

“and it would be pointless to re-examine the basis for 

continuance.” 

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 
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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 

HRS § 171-55 would lead to absurd results: a “regulatory morass 

[that] would apply to hundreds of [revocable] permits” that 

would require the BLNR to perform independent environmental 

reviews for each revocable permit in every case where there is a 

pending long-term lease. The County contends that this 

regulatory burden would prevent the BLNR from authorizing the

use of State land and, more importantly, water “that is 

necessary to the health, safety and welfare of 35,000 residents 

in upcountry Maui.” 

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 Hawaiʻi 29, 34, 445 P.3d 701, 706 (2019) 

(internal quotation marks, citations, and brackets removed)
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(quoting Nu‘uanu Valley Ass’n v. City & Cnty. of Honolulu, 119 

Hawai‘i 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 Hawai‘i 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.
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C. Constitutional Law

“Questions of constitutional law are reviewed de novo, 

under the right/wrong standard.” In re Gas Co., 147 Hawai‘i 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 doctrine 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
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(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 

 

20 Although these two exceptions have sometimes been treated as 

though they were the same, we have more recently clarified that they are 

“separate and distinct.” Kahoʻohanohano v. State, 114 Hawaiʻi 302, 333 n.23, 

162 P.2d 696, 727 n.23 (2007).
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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 
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323, 327, 193 P.3d, 1067, 1071 (2007), the disposition of the 

water rights at issue directly 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 HRS § 171-58 and to continue such permits under HRS § 171-

55 would be of significant value to the BLNR and DLNR officials

who oversee the administration of the revocable-permit system. 

Clarifying whether the BLNR is or is not required to conduct (or 

order applicants like the A&B Defendants to conduct)21 EAs and/or 

EIS’s under HEPA when continuing revocable permits would also be 

of value to these officials. Thus, the second factor weighs in 

favor of applying the public interest exception.

 

21 The A&B Defendants contend that this court cannot order effective 

relief because A&B has already prepared and published a DEIS. As Petitioners 

note, the DEIS was published in 2019 and is not part of the record on appeal. 

Moreover, the scope of this case is not limited to the A&B Defendants’ 

unilateral decision to prepare an EIS; a core issue focuses on whether the

BLNR was (1) authorized to continue the revocable permits under HRS chapter 

171 and (2) required to conduct or order the permit applicants to conduct EAs 

and/or EIS’s under HEPA. Thus, the fact that a DEIS has been published does 

not render Petitioners’ appeal moot.
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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 

concerning 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 HRS § 171-58, which 
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limits the disposition of water rights by temporary permit to a 

maximum term of one year,22 it was potentially authorized by HRS 

§ 171-55, which allows the BLNR to continue revocable permits on 

a month-to-month basis for successive one-year periods.23 HRS 

§ 171-58 expressly limits the temporary disposition of water 

rights to a maximum term of one year; thus, the ICA was correct 

in finding that the BLNR’s 2014 continuation decision was not 

authorized under HRS § 171-58. Next, the ICA held that although 

HRS § 171-55 potentially authorized the BLNR in 2014 to place 

the revocable permits in holdover status for a year, there were 

genuine issues of material fact as to whether the BLNR’s 

continuance decision (1) was “temporary” or “de facto

indefinite,” and (2) “serve[d] the best interests of the State,” 

such that it was inappropriate to dispose of this case at the 

summary judgment stage. 

The ICA erred by ruling on the basis of perceived

issues of material fact. HRS § 171-55 did not authorize the 

BLNR’s 2014 continuation decision because the BLNR did not make 

 

22 HRS 171-58(c) states, in relevant part, that “[d]isposition 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.” (Emphasis 

added.)

23 HRS § 171-55 states, in relevant part, that “[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.)
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factual findings or enter conclusions of law positing that it 

was serving the State’s best interests. As a trustee of the 

public trust, the BLNR failed to demonstrate that it properly 

exercised the discretion vested in it by the constitution and 

the statute.

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, HRS § 171-58 titled,—“Minerals 

and water rights”—is applicable to the instant case. As the ICA 

noted, the revocable permits themselves stated that they were 

originally issued “pursuant to [HRS] section 171-58.” Since the 

BLNR would have no authority to make continuation decisions 

without valid revocable permits in the first place, the ICA did 

not err by considering whether the BLNR’s actions subsequent to 

the issuance of the revocable permits were authorized under HRS 

§ 171-58.

As the ICA concluded, HRS § 171-58 conferred authority 

on the BLNR to issue one-year revocable permits, but did not 

authorize the BLNR to extend the revocable permits past one year 

of their issuance, that is, past July 1, 2001. As noted above, 

HRS § 171-58 limits temporary permits for water rights to a term 

of one year:

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 
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and subject to a maximum term of one year and other 

restrictions under the law[.]

HRS § 171-58(c) (emphasis added). The “fundamental starting 

point for statutory interpretation is the language of the 

statute itself” and “where the statutory language is plain and 

unambiguous, our sole duty is to give effect to its plain and 

obvious meaning.” Wheeler, 121 Hawaiʻi at 390, 219 P.3d at 1177 

(quoting Citizens Against Reckless Dev., 114 Hawaiʻi at 193, 159 

P.3d at 152). The language of HRS § 171-58 plainly and 

unambiguously limits temporary revocable permits to “a maximum 

term of one year” with no exceptions or conditions within § 171-

58 that would allow the BLNR to extend a permit beyond that 

maximum term.

 Moreover, HRS § 171-58 should be read in contrast 

with HRS § 171-55. See Wells Fargo Bank, N.A. v. Omiya, 142 

Hawai‘i 439, 450, 420 P.3d 370, 381 (2018) (citing the canon of 

construction that laws in pari materia, or on the same subject 

matter, may be considered together). Significantly, HRS § 171-

55 provides that a permit issued under that section “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.) By contrast, HRS § 171-58 omits 

this and any similar language, bolstering the conclusion that 

permits issued under its authority may not be renewed for 
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additional one-year periods. Read together, it is clear that 

the former statute authorizes permits to be renewed for multiple 

one-year periods while the latter does not.

Thus, the ICA did not err in finding that the BLNR was 

not authorized under HRS § 171-58 to continue the revocable 

permits in 2014.

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 HRS § 171-55. 

HRS § 171-55 states:

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. 

(Emphasis added.) 

The ICA agreed that the BLNR had authority under HRS 

§ 171-55 to continue the revocable permits in 2014, so long as 

the continuation of the revocable permits was “temporary” and 

“serve[d] the best interests of the State.” HRS § 171-55. 

However, the ICA concluded that there were genuine issues of 

material fact as to whether the BLNR’s 2014 continuation
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decision (1) was “temporary” or “de facto indefinite,” and 

(2) “serve[d] the best interests of the State” under HRS § 171-

55. 

While the ICA correctly held that HRS § 171-55 

potentially authorized the BLNR to continue the revocable 

permits,24 the ICA erred by ruling on the basis of perceived 

issues of fact. First, the permits were “temporary” within the 

meaning of the statute. Second, the BLNR failed to demonstrate 

that the 2014 continuation of the revocable permits “serve[d]

the best interests of the State.” HRS § 171-55. Because the

BLNR did not make factual findings or enter conclusions of law 

positing that the permits served the State’s best interests, the 

BLNR failed to demonstrate that it properly exercised the 

discretion vested in it by the constitution and the statute. 

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 

 

24 This holds true notwithstanding that there is a more specific 

statute, HRS § 171-58, that deals with water rights. HRS § 171-55 authorizes 

dispositions of “state lands or an interest therein.” In turn, HRS § 171-1

(2011) defines “land” to include “all interests therein . . . including 

water.” Thus, HRS § 171-55’s reference to “lands” also authorizes the BLNR 

to dispose of water rights.
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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 HRS § 171-55, which expressly allows a permit to 

be continued “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.” HRS § 171-55. “Temporary,” as used in HRS § 171-55, 

is used to distinguish revocable permits from long-term leases; 

it refers to the month-to-month nature of revocable permits and 

that such permits may last without additional approval for only 

one year. The term “temporary” does not, however, prohibit 

annual renewal of permits. In fact, HRS § 171-55 explicitly 

authorizes the BLNR to continue revocable permits for 

“additional one year periods.” Thus, the BLNR’s 2014 

continuation decision was not precluded by HRS § 171-55’s use of 

the term “temporary.”
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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 HRS § 171-55’s mandate that 

the issuance or continuance of a revocable permit “serve the 

best interests of the State.” The BLNR did not make factual 

findings or enter conclusions of law positing that it was 

serving the State’s best interests when it made its 2014 

continuation decision that wholesale continued the revocable 

permits along with more than 300 other permits. Thus, the 2014 

continuation decision was not authorized by HRS § 171-55 because 

the BLNR did not sufficiently demonstrate that it considered the 

“best interests of the State” as required by the statute and the 

BLNR’s obligation as a public trustee. 

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 

HRS chapter 171 as a whole, it is clear that the BLNR’s power to 

issue and continue revocable permits under HRS § 171-55 was 

intended to be narrowly exercised. 

Many of the provisions currently codified in HRS 

chapter 171 that govern the management and disposition of public 

lands were enacted in a 1962 omnibus public-lands bill, Act 32. 

Act 32 was an urgency measure passed to provide “a set of laws 
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for the management and disposition of our public lands in 

accordance with present day needs.” 1962 Haw. Sess. Laws Act 

32, § 1 at 95. Act 32 contained numerous provisions emphasizing 

that the public-auction process would be the predominant means 

by which state lands would be leased. For example, Revised Laws 

of Hawaiʻi (“RLH”) § 103A-14, titled, “Auction,” provided that 

“[e]xcept as otherwise specifically provided, all dispositions 

of public lands shall be made at public auction after public 

notice as provided in section 16 of this chapter.”25 1962 Haw. 

Sess. Laws Act 32, § 2 at 101 (emphasis added). Similarly, RLH 

§ 103A-32, titled, “Policy,” stipulated that “[u]nless otherwise 

specifically authorized in this chapter or by subsequent 

legislative acts, all dispositions shall be by lease only, 

disposed of by public auction in accordance with the procedure 

set forth in sections 14 and 15 of this chapter.”26 1962 Haw. 

Sess. Laws Act 32, § 2 at 109 (emphasis added). These 

provisions evinced a strong legislative preference for public 

auction.27 A 1962 standing committee report further explained

 

25 RLH § 103A-14 is now codified as HRS § 171-14 (2011) and has 

remained substantively unchanged since its enactment.

26 RLH § 103A-32 is now codified as HRS § 171-32 (2011) and has 

remained substantively unchanged since its enactment.

27 In circumstances where disposition by public auction is not 

possible or appropriate (for example, the issuance of land licenses), the 

replacement disposition process must serve the public interest. See HRS 

§ 171-54 (“The board of land and natural resources may issue land licenses 

affecting public lands for a period not exceeding twenty years. No land 

(continued . . . )
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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 a narrow 

set of circumstances, such as “houselots, . . . small personally 

occupied farm, dairy and pasture lots, and . . . natural 

disasters.” Id. 

The legislative history of HRS § 171-55 also reveals 

the legislature’s efforts to constrain the use of revocable 

permits by requiring annual review. HRS § 171-55 has remained 

 

(. . . continued)

license shall be disposed of except at public auction as provided in this 

chapter; provided that the board may . . . dispose of a land license by 

negotiation, without recourse to public auction, if it determines that the 

public interest will best be served thereby. The disposition of a land 

license by negotiation shall be upon such terms and conditions as the board 

determines shall best serve the public interest.” (emphasis added)).
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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-

 

28 As originally enacted, RLH § 103A-52 stated:

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 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.

29 The second sentence of RLH § 103A-52 originally read:

Where such permit on a month-to-month basis extends for a 

period beyond one year from the date of 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 deleted 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).
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37

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 HRS § 171-55

to include its current language by adding, in relevant part, the 

“[n]otwithstanding any other law to the contrary” clause and 

language stating that the BLNR could issue temporary permits “by 

direct negotiation and without public auction.” 1990 Haw. Sess. 

Laws Act 90, § 1 at 165-66. The legislative history indicates 

that this amendment was intended to make “absolutely clear” that 

the BLNR had the ability to approve permits without public 

auction. S. Stand. Comm. Rep. No. 2988, in 1990 Senate Journal, 

at 1218. 

Thus, the legislative history of HRS chapter 171 and 

HRS § 171-55 demonstrates the legislature’s intent that 

temporary permits without public auction should be issued only 

in cases of “overriding public interest” and subject to annual 

review by the BLNR. While attempts were made by the legislature 

to clarify that the BLNR had the authority in certain situations

to issue temporary permits without public auction, nothing in 

the legislative history indicates that temporary permitting 

could or should be used as a long-term substitute for the 
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38

public-auction process.30 In the present case, the BLNR 

continued the revocable permits for more than ten years31—using a

sweeping process that applied to hundreds of other permits—

without scrutiny and without an adequate explanation as to why a 

continuance served the best interests of the State. 

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 HRS § 171-55 or its public trust obligations. “The 

Hawai‘i Constitution adopts the public trust doctrine as a 

fundamental principle of constitutional law.” Kauai Springs, 

Inc. v. Plan. Comm’n of Kauai, 133 Hawai‘i 141, 171, 324 P.3d 

951, 981 (2014) (cleaned up). The public trust encompasses all 

the water resources in the state, and it requires that state 

agencies “must take the initiative in considering, protecting, 

and advancing public rights in the resource at every stage of 

the planning and decision-making process.” Id. at 172-73, 324 

P.3d at 982-83. In particular, where an agency performs as a 

 

30 There is evidence that at least one legislator, the chair of the 

House Committee on Lands, expressly disapproved of using temporary permitting 

as a matter-of-course alternative for leases sold at public auction: before 

Act 32 was passed, during floor debate of the bill, he posited that one of 

the goals of Act 32 “was to get the State out of the business of having so 

many revokable [sic] permits for ten and twelve years.” 1962 House Journal, 

at 210 (exchange between Representatives Milligan and McClung).

31 This does not include the 2001 and 2002 holdover decisions, but 

counts from the first continuation decision, made in 2005, when the revocable 

permits were included on the annual master listings of permits. 
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39

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 Hawai‘i

97, 158, 9 P.3d 409, 470 (2000)).

In this case, the 2014 continuation decision was not 

authorized by HRS § 171-55 because the BLNR did not make any 

findings of fact or conclusions of law.32 The BLNR failed to 

demonstrate that it properly exercised the discretion vested in 

it by the constitution and the statute.33

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 

 

32 The A&B Defendants’ role under the revocable permits in 

delivering water “for residential domestic use, businesses, government 

institutions, schools, churches, farms, non-profits, fire prevention, and 

Hawaiian Homelands homesteads in Upcountry Maui” is worth noting. 

33 We find no merit in the A&B and State Defendants’ argument that 

the BLNR’s 2014 continuation decision was issued in accordance with the 

public trust doctrine. As this court has held—and as the BLNR recognized in 

a 2007 order issued in the contested case proceedings—“private commercial 

use” is not “a protected ‘trust purpose.’” In re Water Use Permit 

Applications, 94 Hawaiʻi at 138, 9 P.3d at 450. Thus, the fact that some of 

the water would be used for public purposes does not necessarily justify the 

continued use of the remaining water for commercial purposes.
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to enable an appellate court to track the steps that the agency 

took in reaching its decision.” Kauai Springs, 133 Hawai‘i at

173, 324 P.3d at 983 (citing Kilauea Neighborhood Ass’n v. Land 

Use Comm’n, 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 HRS § 343-5(a) that “an [EA] shall be 

required” for certain actions conflicts with HRS § 171-55’s 

provision authorizing the BLNR to issue revocable permits. 

Thus, because HRS § 171-55 also provides that it applies

“[n]otwithstanding any other law to the contrary,” Defendants 

argue that the provisions of HRS § 171-55 supersede and control 

over HEPA. The ICA agreed with Defendants that HRS § 171-55’s 

“notwithstanding” clause “nullified” HEPA’s EA and EIS

requirements for revocable permits. We disagree: HRS § 171-

55’s “notwithstanding” clause does not “nullify” HEPA’s EA 

requirement. 

The first sentence of HRS § 171-55 states that 

“[n]otwithstanding any other law to the contrary,” in certain 

circumstances, the BLNR may issue temporary revocable permits 

without public auction:
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41

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 Hawaiʻi 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 Hawaiʻi 19, 35, 960 P.2d 1227, 1243 

(1998)). Thus, HRS § 171-55’s “notwithstanding” clause has the 

potential to nullify HEPA’s EA requirement only if it is 

impossible to give force to both statutes. HRS § 171-55 does 

not contain an environmental-review process, and similarly, HRS 

§ 343-5 does not address the BLNR’s authority to issue revocable 

permits without public auction. Because it is possible to 

integrate HRS § 343-5(a)’s EA requirement into the revocablepermitting process authorized by HRS § 171-55, HEPA contains no

“law to the contrary” of HRS § 171-55. 

Additionally, the legislative history of HRS § 171-55 

supports our conclusion that the “notwithstanding” clause does 
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42

not create an exemption from HEPA compliance. In 1990, the 

legislature amended HRS § 171-55 to include the 

“notwithstanding” clause. 1990 Haw. Sess. Laws Act 90, § 1 at 

165-66. The standing committee report explains the reason for 

the 1990 amendment: 

[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 HRS 

§ 343-2 (2010); (2) the action proposes one or more of the nine 
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43

categories of land uses or administrative acts enumerated in HRS 

§ 343-5(a) []; and (3) the action is not declared exempt 

pursuant to HRS § 343-6(a)(2) (2010).” Umberger v. Dep’t of 

Land & Nat. Res., 140 Hawaiʻi 500, 512, 403 P.3d 277, 289 (2017).

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 the 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 HRS §§ 343-2

(2010), 343-5(a)(1). Petitioners are correct. Contrary to the 

conclusion of the circuit court, the A&B Defendants’ land use

 

34 Although it has no bearing on this appeal, in 2003 the BLNR 

issued an order in the contested case proceedings for the long-term lease

finding that the proposed long-term lease was “exempt from the requirements 

of an EA pursuant to [Hawaiʻi Administrative Rules (“HAR”)] § 11-200-8(a)(1)” 

so long as “existing structures, facilities, equipment or topographical 

features” were kept in operation with no expansion or change of use. The 

circuit court reversed this finding on appeal. The BLNR issued a second 

order in the contested case proceedings in 2005 denying “a summary ruling 

that an EA must be prepared prior to any interim disposition of water such as 

the [2002 holdover decision] and/or a stay or continuance of the contested 

case proceedings with respect to the [2002 holdover decision] and the interim 

disposition of water.” (Emphasis omitted.) 

35 Before the circuit court, in opposition to Petitioners’ MPSJ, 

Defendants argued that the BLNR’s 2014 continuation decision did not 

constitute “action” under HEPA because it was not a “program” or “project” 

that was “initiated” by the BLNR or the A&B Defendants. 
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under the revocable permits constituted “action[] that . . . 

[p]ropose[d] the use of state or county lands” within the 

meaning of HRS § 343-5(a)(1). 

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 HRS § 343-2. Because 

“program” and “project” are left undefined by HEPA, we “resort 

to legal or other well accepted dictionaries as one way to 

determine the ordinary meaning” of those terms. Umberger, 140 

Hawaiʻi at 513, 403 P.3d at 290 (quoting State v. Guyton, 135 

Hawaiʻi 372, 378, 351 P.3d 1138, 1144 (2015)). “‘Program’ is 

generally defined as ‘a plan or system under which action may be 

taken toward a goal.’ ‘Project’ is defined as ‘a specific plan

or design’ or ‘a planned undertaking.’” Id. (footnotes 

omitted) (citing Merriam-Webster.com). 

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 

 

36 “Agency” is defined as “any department, office, board, or 

commission of the state or county government which is a part of the executive 

branch of that government” and “applicant” is defined as “any person who, 

pursuant to statute, ordinance, or rule, officially requests approval for a 

proposed action.” HRS § 343-2.
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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 Hawaiʻi 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.” 

 

37 The A&B Defendants are “applicants” as defined by HRS § 343-2 

because they sought official approval from the BLNR pursuant to a statute—

i.e., revocable permits pursuant to HRS § 171-5—to engage in the 

“development, diversion, and use of water” back in 2000. 
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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 systematic 

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, whether 
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construed as a “project” or a “program,” constitutes “action” 

within the meaning of HEPA. HRS §§ 343-2, 343-5(a).

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 Hawaiʻi 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 was 

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

 

38 We note that HEPA contains provisions allowing agencies to 

consider and incorporate previous environmental review. See HAR § 11-200.1-

11; HAR § 11-200.1-12. “These provisions alleviate the concern that an 

environmental assessment would necessarily have to be prepared whenever an 

applicant applies for [a new one-year permit].” Umberger, 140 Hawaiʻi at 528, 

403 P.3d at 305.
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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 Hawaiʻi at 512, 403 P.3d at 

289 (citing HRS § 343-5(e)). Under HEPA, “[a]pproval” is 

defined as requiring “discretionary consent . . . from an agency 

prior to actual implementation of an action” and 

“[d]iscretionary consent” is defined as “consent, sanction, or 

recommendation from an agency for which judgment and free will 

may be exercised by the issuing agency.” HRS § 343-2. The A&B 

Defendants’ “action” required approval from the BLNR in the form 

of a revocable permit issued or continued pursuant to HRS § 171-

55. And the BLNR clearly exercised “discretionary consent”

during the approval process. Under HRS § 171-55, the BLNR “may 

issue” revocable permits and “may continue” such permits “on a 

month-to-month basis for additional one year periods.” “The 

term ‘may’ is generally construed to render optional, 

 

39 In their opening brief, Petitioners contend that the “action” 

here qualifies as either an “agency action” (i.e., action proposed by the 

BLNR) or an “applicant action” (i.e., action proposed by the A&B Defendants). 

The present “action” is more accurately construed as an “applicant action.” 

The A&B Defendants “proposed” HEPA “action” by seeking the BLNR’s permission 

to develop, divert, and use the water across the license areas, that is: by

expressly requesting that the BLNR “[a]uthorize temporary continuation of the 

year-to-year revocable permit[s] . . . pending issuance of the [proposed 

long-term] lease” in 2001. The BLNR’s 2014 continuation decision constituted 

such authorization, and the BLNR conveyed the authorization to the A&B 

Defendants. Without the BLNR’s 2014 continuation decision, the revocable 

permits would have expired on January 1, 2015, and the A&B Defendants would 

not have been authorized in their ongoing water use. And until the long-term 

lease is issued, the A&B Defendants will continue to derive the authority to 

engage in their water use from the revocable permits. 
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permissive, or discretionary the provision in which it is 

embodied[.]” Umberger, 140 Hawaiʻi at 526, 403 P.3d at 303 

(quoting State v. Kahawai, 103 Hawaiʻi 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 HRS § 171-55 in 2014, the BLNR exercised “discretionary 

consent” in approving the A&B Defendants’ “action.” HRS § 343-2.

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 HRS § 343-5(a). Umberger, 140 Hawaiʻi at 512, 403 

P.3d at 289. Under HRS § 343-5(a)(1), an EA is required for 

actions that

[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).

HRS § 343-5(a)(1) (emphasis added). 

The A&B Defendants’ permitted activity constitutes 

HEPA “action” that involves “the use of state land” under HRS 

§ 343-5(a)(1). The revocable permits granted the A&B Defendants 

the right to “[o]ccupy and use” the Honomanū, Huelo, Keʻanae, and 
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Nāhiku premises—all “parcel[s] of government land” —for the 

“development, diversion, and use of water.” The A&B Defendants’ 

“action” undoubtedly “use[s]” state land within the meaning of 

HRS § 343-5(a)(1).

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 HRS § 343-6(a)(2). 

Umberger, 140 Hawaiʻi at 512, 403 P.3d at 289. HRS § 343-6(a)(2) 

authorizes the environmental council40 to adopt rules that 

“[e]stablish 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 [EA.]” Pursuant to HRS § 343-6(a)(2), the 

environmental council issued Hawaiʻi Administrative Rules (“HAR”) 

§ 11-200-8, which provides that the relevant agency may exempt 

certain “classes of actions” from environmental review under 

HEPA so long as the agency “obtain[ed] the advice of other 

outside agencies or individuals having jurisdiction or expertise 

 

40 HRS § 343-6(a) refers to “the council,” which means “the 

environmental council.” HRS § 343-2. The environmental council was created 

by HRS § 341-3(c) (2010).
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as to the propriety of the exemption.” HAR § 11-200-8(a) 

(repealed 2019).41 For example, under HAR § 11-200-8, “action” 

involving the “[o]peration[], repair[], or maintenance of 

existing structures, facilities, equipment, or topographical 

features, involving negligible or no expansion or change of use 

beyond that previously existing” may be exempt from HEPA’s EA 

requirement. HAR § 11-200-8(a)(1). However, HAR § 11-200-8

also provides that “[a]ll exemptions under the classes in this 

section are inapplicable when the cumulative impact of planned 

successive actions in the same place, over time, is significant, 

or when an action that is normally insignificant in its impact 

 

41 HAR § 11-200 was repealed and replaced by HAR § 11-200.1 on 

August 9, 2019. HAR § 11-200.1-32, titled “Retroactivity,” provides that 

“[c]hapter 11-200 shall continue to apply to environmental review of agency 

and applicant actions which began prior to the adoption of chapter 11-200.1.” 

Therefore, as the present case concerns HEPA “action” that occurred pre-2019, 

the provisions of HAR § 11-200 apply.

HAR § 11-200-8(a) provides in relevant part:

(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[.]
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on the environment may be significant in a particularly 

sensitive environment.” HAR § 11-200-8(b).

Because analysis under HAR § 11-200-8 turns heavily on 

the nature and impact of the A&B Defendants’ specific “action,” 

we find that this inquiry properly lies within the circuit 

court’s purview. On remand, the circuit court should determine 

(1) whether the A&B Defendants’ “action” falls into one of the 

exempt classes enumerated by HAR § 11-200-8(a) and, if so, (2) 

whether HAR § 11-200-8(b) renders the exemption inapplicable. 

If the circuit court finds that either HAR § 11-200-8(a) does 

not apply or an exemption is inapplicable under HAR § 11-200-

8(b), the circuit court should determine how best to apply 

HEPA’s EA requirement to the revocable permits, taking into 

consideration relevant actions already taken by Defendants 

toward issuance of the long-term lease, including A&B’s 

publication of a DEIS. 

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.
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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 HRS 

§ 171-55. The circuit court’s October 21, 2015 order is vacated 

in part as to its holding that there is no “action” within the 

meaning of HRS § 343-5(a) and that HEPA’s environmental review 

process is, thus, inapplicable. The case is remanded to the 

circuit court for further proceedings consistent with this 

opinion. On remand, the circuit court should continue to 

exercise its equitable power as it pertains to the municipaland residential-water needs of the upcountry Maui community. 

David Kauila Kopper /s/ Mark E. Recktenwald

for petitioners Healoha

Carmichael, Lezley Jacintho, /s/ Paula A. Nakayama

and Nā Moku Aupuni O Koʻolau 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