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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

KILAKILA ʻO HALEAKALᾹ, 

Petitioner/Plaintiff/Appellant-Appellant, 

vs. 

UNIVERSITY OF HAWAIʻI and DAVID LASSNER, in his official capacity 

as Chancellor of the University of Hawaiʻi at Manoa; BOARD OF 

LAND AND NATURAL RESOURCES, SUZANNE CASE, in her capacity as the 

Chairperson of the Board of Land and Natural Resources; and 

DEPARTMENT OF LAND AND NATURAL RESOURCES, 

Respondents/Defendants/Appellees-Appellees.1

SCWC-13-0000182 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-13-0000182; CIVIL NO. 10-1-2510) 

OCTOBER 6, 2016 

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. 

OPINION OF THE COURT BY POLLACK, J. 

 1

 Chancellor of the University of Hawaiʻi at Manoa David Lassner was 

automatically substituted as respondent/defendant/appellee-appellee in place 

of former Chancellor Robert Bley-Vroman. State of Hawaiʻi Board of Land and 

Natural Resources (BLNR) chairperson Suzanne Case was automatically 

substituted as a respondent/defendant/appellee-appellee in place of former 

BLNR chairperson William J. Aila, Jr., who was sued in his official capacity. 

Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2010). 

Electronically Filed

Supreme Court

SCWC-13-0000182

06-OCT-2016

08:58 AM
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I. Introduction 

 Haleakalā, on the island of Maui, has been a site of 

great historical and cultural importance to Native Hawaiians for 

more than one thousand years. Today, many consider Haleakalā as 

the most sacred place on Maui where numerous cultural practices 

continue, including religious ceremonies and prayer. The summit 

of Haleakalā is also considered as one of the premier locations 

for astronomical research in the world and has been used for 

such purposes for over fifty years. An 18.166 acre area set 

aside for astronomical research (Observatory Site) is located 

within a conservation district near the summit of Haleakalā.2

 In 2004, a National Science Foundation working group 

identified the Observatory Site as the location for constructing 

a new telescope, the Advanced Technology Solar Telescope 

(Telescope Project). Under the applicable administrative rules, 

approval of a management plan for the Observatory Site was a 

prerequisite for construction of the Telescope Project. The 

University of Hawaiʻi (UH) prepared a Management Plan containing 

guidelines and management strategies that apply to all 

facilities within the astronomical site area. An environmental 

assessment of the Management Plan was conducted to evaluate 

 2

 Under the Governor’s Executive Order No. 1987, the Observatory 

Site is under the control and management of the University of Hawaii’s Board 

of Regents. 
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environmental impacts that may result from implementing the 

Management Plan. UH concluded that the Management Plan would 

not have a significant environmental impact and that, therefore, 

an environmental impact statement was not required under the 

Hawai#i Environmental Policy Act (HEPA). The Management Plan was 

then approved by the Board of Land and Natural Resources (BLNR). 

 Kilakila ʻO Haleakalā (Kilakila), an organization that 

strives to protect the sacredness of the Haleakalā summit, 

initiated a court action to challenge UH’s finding that the 

Management Plan would have no significant impact on the 

environment. Kilakila maintained that the environmental 

assessment did not comply with HEPA and that it did not consider 

the Telescope Project as a component of the Management Plan, nor 

as a secondary and cumulative impact of the Management Plan. 

 During the pendency of its court challenge, Kilakila 

filed discovery requests seeking to obtain documents and 

admissions from UH and the Department of Land and Natural 

Resources (DLNR) relating to the environmental assessment. UH 

and DLNR sought a protective order regarding Kilakila’s 

discovery requests, arguing that judicial review under HEPA is 

limited to the record before UH at the time it rendered its 

determination that the Management Plan would not have a 

significant impact upon the environment. The Circuit Court of 
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the First Circuit (circuit court) granted the protective order 

without prejudice to subsequent discovery requests. 

 On certiorari, Kilakila argues that the circuit court 

erred by limiting its judicial review to the administrative 

record considered by UH. Kilakila also contends that the 

circuit court’s determination that the environmental assessment 

for the Management Plan complied with HEPA was flawed as the 

environmental assessment failed to consider significant impacts 

of the plan and that, consequently, the court further erred in 

ruling that an environmental impact statement was not required.

 Upon review of the issues presented, we hold that in a 

declaratory action brought to challenge an agency’s 

determination that an environmental impact statement is not 

required, judicial review is not restricted to an administrative 

record. However, the circuit court in this case did not err 

because the parties were permitted to submit documents beyond 

those contained within the agency record, and the court did not 

foreclose further discovery requests by Kilakila. 

 Additionally, we conclude that the environmental 

assessment for the Management Plan complied with procedures 

under HEPA and did not fail to properly consider the Telescope 

Project. Because UH’s conclusion that the Management Plan would 

not cause significant environmental impacts is not clearly 

erroneous, an environmental impact statement was not required. 
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Consequently, the circuit court did not err in granting summary 

judgment in favor of UH and the DLNR and in denying summary 

judgment to Kilakila. Accordingly, the Intermediate Court of 

Appeals’ Judgment on Appeal is affirmed for the reasons stated 

herein. 

II. Background 

A. Management Plan 

 The Hawaiʻi Administrative Rules (HAR) in this case 

required approval of a management plan for the Observatory Site 

in order to construct the Telescope Project within the 

conservation district on Haleakalā.3

 See HAR § 13-5-22, -24, -25 

(effective 1994-2010).4 The required contents of the management 

plan included (1) a description of the proposed land use in 

general terms; (2) a description of how the proposed land use is 

consistent with the purpose of the conservation district and the 

property’s subzone; (3) a location map; (4) a discussion of 

 3

 Under the 1994 version of the HAR, which were in effect at the 

relevant time period in this case, a “management plan” was defined as “a 

comprehensive plan for carrying out multiple land uses.” HAR § 13-5-2 

(effective 1994-2010). 

4

 HAR § 13-5-22(b) provided that “[i]dentified land uses beginning 

with the letter (D) require a board permit, and where indicated, a management 

plan.” HAR § 13-5-22(b)(4). HAR § 13-5-24 set forth permitted land uses in 

a resource subzone, including “[a]stronomy facilities under an approved 

management plan.” HAR § 13-5-24. HAR § 13-5-25 extended the permitted uses 

of resource subzones to the general subzone, unless otherwise noted. HAR § 

13-5-25(a). 
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existing conditions on the parcel;5 (5) the proposed land use and 

its relationship to other existing and proposed land uses; (6) a 

site plan showing the location of all existing and proposed land 

uses; (7) the expected timing of the project; (8) monitoring 

strategies; (9) an environmental assessment; (10) steps to 

ensure that historic preservation concerns were met; and (11) a 

reporting schedule. HAR Chapter 13-5, Exhibit 3 (Sept. 6, 

1994).6

 UH issued its Management Plan for the Observatory Site 

in March 2010, replacing the Long Range Development Plan (Long 

Range Plan) that had been implemented in 2005 to manage the 

Observatory Site. The Management Plan retained many of the 

management strategies and guidelines, as well as the overall 

objectives, set forth in the Long Range Plan. To fulfill the 

objectives of the Management Plan and Long Range Plan, both 

contain specific guidelines and strategies that apply to 

astronomical facilities within the Observatory Site. For 

example, under both the Management Plan and Long Range Plan, the 

 5

 The management plan was required to address, inter alia, 

ownership, resources (e.g. biological, archaeological, geological), the 

presence of threatened or endangered species, constraints (e.g. flood plain, 

tsunami, volcanic, topography), existing land uses, existing conservation 

district use permits, access, and soils. HAR Chapter 13-5, Exhibit 3 (Sept. 

6, 1994). 

6

 The amended rules for the required contents of a management plan, 

effective August 12, 2011, deleted reference to an environmental assessment. 

HAR Chapter 13-5, Exhibit 3 (Aug. 12, 2011). 
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overall objective for managing the astronomical facilities in 

the Observatory Site is to create a structure for sustainable, 

focused management of the resources and operations of the 

Observatory Site in order to (1) protect historic, cultural, and 

natural resources within the site area; (2) protect and enhance 

education and research in the site area; and (3) provide the 

opportunity for future expansion of the scope of activities at 

the Observatory Site, where appropriate. 

 An environmental assessment of the Management Plan was 

then prepared to evaluate potential environmental impacts from 

implementing the Management Plan. As discussed below, UH’s 

review of the environmental assessment was governed by HEPA and 

the applicable administrative rules. 

B. Hawaiʻi Environmental Policy Act 

 The Hawaiʻi Environmental Policy Act of 1974 (HEPA), 

Chapter 343 of the Hawaiʻi Revised Statutes (HRS), establishes “a 

system of environmental review which will ensure that 

environmental concerns are given appropriate consideration in 

decision making along with economic and technical 

considerations.” HRS § 343-1 (1993). HEPA is intended to 

“integrate the review of environmental concerns with existing 

planning processes” and to “alert decision makers to significant 

environmental effects which may result from the implementation 

of certain actions.” Id. As with the National Environmental 
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Policy Act of 1969 (NEPA),7 HEPA serves primarily as a procedural 

framework under which an agency may evaluate and consider the 

environmental, social, and economic factors of a proposed action 

prior to taking action. See Sierra Club v. Dep’t of Transp., 

115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007). Through the HEPA 

review process, “environmental consciousness is enhanced, 

cooperation and coordination are encouraged, and public 

participation during the review process benefits all parties 

involved and society as a whole.” HRS § 343-1. 

 HEPA’s basic framework entails several review stages 

by the proposing or accepting agency, each of which may require 

additional assessment procedures. Sierra Club, 115 Hawaiʻi at 

306, 167 P.3d at 299. First, a determination must be made as to 

whether a project or an action is subject to the environmental 

review process under HEPA. Id. An action or project is subject 

to HEPA if (1) it is initiated by a government agency or by a 

private entity and requires government approvals for the project 

or action to proceed and (2) it proposes one or more of nine 

enumerated land uses or administrative acts set forth in HRS 

Chapter 343. Id. These land uses or administrative acts 

include those that propose (1) the use of State or county lands 

 7

 HEPA was patterned after the National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. § 4321 et seq. (2015). See Sierra Club v. Dep’t of 

Transp., 115 Hawaiʻi 299, 306, 167 P.3d 292, 299 (2007). 
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or funds or (2) any use within a conservation district. 

HRS § 343-5(a)(1), (2) (Supp. 2009). 

 If an action is subject to environmental review under 

HRS § 343-5(a) and is not declared exempt, the applicant of the 

proposed project or action must develop a draft environmental 

assessment. Sierra Club, 115 Hawaiʻi at 307, 167 P.3d at 300. 

An environmental assessment is “an informational document 

prepared by either the agency proposing an action or a private 

applicant, which is used to evaluate the possible environmental 

effects of a proposed action.” Id. An environmental assessment 

must include the following: (1) a detailed description of the 

proposed action or project; (2) an evaluation of the direct, 

indirect, and cumulative impacts; (3) a discussion of 

alternatives to the proposed project or action; and (4) a 

description of any measures proposed to minimize potential 

impacts. See id.; see also HRS § 343-2 (1993). Upon completion 

of a draft environmental assessment, a thirty-day period begins 

for review and comment by the public. See Sierra Club, 115 

Hawaiʻi at 308, 167 P.3d at 301. 

 After this review period, the applicant responds to 

public comments and finalizes the draft environmental 

assessment. See id. At this point, the agency proposing or 

approving the action reviews the final environmental assessment 

to determine whether the proposed action could have a 
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significant impact on the environment.8 HRS § 343-2; HAR § 11-

200-2 (1996); see also Sierra Club, 115 Hawaiʻi at 308, 167 P.3d 

at 301. A “significant impact” is defined as follows: 

the sum of effects on the quality of the environment, 

including actions that irrevocably commit a natural 

resource, curtail the range of beneficial uses of the 

environment, are contrary to the state’s environmental 

policies or long-term environmental goals and guidelines as 

established by law, or adversely affect the economic or 

social welfare, or are otherwise set forth in section 11-

200-12 of this chapter. 

HAR § 11-200-2. Generally, ecological, aesthetic, historic, 

cultural, economic, social, or health “effects” are considered. 

Id. “Effects” may also include those “resulting from actions 

which may have both beneficial and detrimental effects, even if 

on balance the agency believes that the effect will be 

beneficial.” Id. In evaluating the impacts of a proposed 

action, consideration must be given to “every phase of a 

proposed action, the expected consequences, both primary and 

secondary, and the cumulative as well as the short-term and 

long-term effects of the action.”9

 HAR § 11-200-12(b) (1996). 

Additionally, the agency must consider thirteen instances where 

an action shall be determined, “in most instances,” to have a 

significant impact on the environment. HAR § 11-200-12(b). 

 8

 The terms “impacts” and “effects” are synonymous and are used 

interchangeably throughout HEPA. HAR § 11-200-2 (1996). 

9

 Under the HAR, the terms “primary impact” and “direct impact” are 

interchangeable. HAR § 11-200-2. “Secondary impact” and “indirect impact” 

are also interchangeable. Id. 
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 Upon completion of the final environmental assessment, 

if the reviewing agency determines that the proposed action is 

likely to cause a significant impact on the environment, an 

environmental impact statement must be prepared. Price v. 

Obayashi Haw. Corp., 81 Hawaiʻi 171, 180, 914 P.2d 1364, 1373 

(1996). Alternatively, if the reviewing agency determines that 

the proposed action will not result in a significant 

environmental impact, then the agency must issue and publish a 

finding of no significant impact (i.e., a negative declaration) 

in the Office of Environmental Quality Control’s bulletin prior 

to implementing or approving the action. See HRS § 343-2 

(defining a “finding of no significant impact” as “a 

determination that the subject action will not have a 

significant effect and, therefore, will not require the 

preparation of an environmental impact statement”); HAR § 11-

200-2 (stating that a “negative declaration is required prior to 

implementing or approving the action”). Publication of a 

negative declaration initiates a thirty-day period during which 

that determination may be challenged through litigation.10 See 

HRS § 343-7(b) (1993). 

 10 Under HEPA, an aggrieved party may bring a legal challenge at 

three distinct phases of environmental review: “(1) when no [environmental 

assessment] is prepared, (2) when an agency determines that an environmental 

impact statement will or will not be required, and (3) when an [environmental 

impact statement] is accepted.” Sierra Club, 115 Hawai#i at 308, 167 P.3d at 

301; see HRS § 343-7. 
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C. Environmental Assessment of the Management Plan 

 An environmental assessment of the Management Plan was 

prepared as required by HEPA.11 On March 1, 2010, UH issued a 

draft environmental assessment and solicited public comment. On 

October 22, 2010, UH sent a letter to the Office of 

Environmental Quality Control, stating that it found the 

Management Plan would have no significant environmental impact. 

Thereafter, on October 25, 2010, UH issued its final 

environmental assessment (EA). 

 The executive summary of the EA stated that “the 

purpose of the environmental assessment was to inform the 

relevant state agencies and the public of the likely 

environmental consequences of the [Management Plan] on ongoing 

and future actions at [the Observatory Site] in support of 

astronomical research.” The EA evaluated the environmental 

effects that might occur as a result of implementing the 

Management Plan’s site management strategies and guidelines.12 

The EA considered proposed practices at the site area that 

 11 The parties debated whether an environmental assessment was 

required for the Management Plan or whether it was exempt from HEPA as a 

planning document under HRS § 343-5(b). The final environmental assessment 

states that it was “trigger[ed]” under HEPA because it involved the use of 

State funds and the use of conservation district lands. 

12 The Management Plan generally included monitoring and management 

strategies for (1) astronomical and space surveillance experiments, (2) 

requirements for new facility design, construction, and operation, and (3) 

the replacement of Observatory Site facilities in support of long-term 

science investigation. 
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included the following: weeding of the Observatory Site; vector 

control for rodents; soil and erosion control to maintain 

habitat ecosystems; nighttime lighting restrictions to prevent 

misdirecting ʻuaʻu; and frequent removal of trash to prevent 

predators from obtaining food sources. Additional strategies 

set forth in the Management Plan for managing environmental 

resources were evaluated, including practices for reducing dust 

and emissions if construction equipment is used and prohibitions 

on the importation of fill material, unless sterilized. The EA 

also reviewed the Management Plan’s strategies related to 

cultural resources, such as placing a sign welcoming Native 

Hawaiians to practice traditional cultural practices within the 

Observatory Site; mandating cultural training for all personnel 

working within the Observatory Site; and engaging a cultural 

specialist for any construction requiring a permit from DLNR. 

 The EA was limited to evaluating the Management Plan 

for activities that would be undertaken at the Observatory Site 

“in support of ongoing and future astronomical research 

activities.”13 The EA expressly indicated that its evaluation of 

the Management Plan was not intended to assess impacts from the 

construction or operation of any new project at the Observatory 

 13 The EA provided a comparative summary of the potential impacts 

for both the implementation of the Management Plan and the no-action 

alternative of not implementing the Management Plan. 
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Site or to authorize any construction at the Observatory Site.14 

Rather, the EA stated that a separate evaluation for potential 

impacts to resources within the Observatory Site was required 

for any new proposed project within the site area. The EA also 

noted that the relevant State agencies and the public would be 

informed of the environmental consequences of any new proposed 

project within the Observatory Site. 

 The EA concluded that implementing the Management Plan 

would result in no impact to “land use and existing activities, 

topography, geology and soils, infrastructure and utilities, 

climatology and air quality, and socioeconomics.” However, the 

EA noted that the presence of facilities and ongoing operations 

at the Observatory Site would impact cultural resources. The EA 

stated that some believe any man-made structures or activities 

in the site area would have adverse impacts on the sacredness of 

the summit area at Haleakalā. Considering this view and others, 

the EA concluded that, while some Native Hawaiians would not 

consider the Management Plan as beneficial, the impact of 

implementing the Management Plan on cultural and historic 

 14 The EA explained that “future actions, which are not the subject 

of this [Management Plan], may include developing” (1) facilities and 

experiments dedicated to searching for and characterizing planets around the 

sun and other stars; (2) facilities and experiments devoted to the study of 

oscillations and stellar activity in other stars; and (3) experiments that 

study the sun and its outer atmosphere. 
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resources would be less than significant.15 The EA found that 

while the Management Plan’s practices and procedures were 

intended to be helpful and to reduce adverse impacts from the 

routine management of the Observatory Site, the cumulative 

impact of the Management Plan, along with past and ongoing 

actions, would still be adverse to cultural and historic 

resources but less than significant. That is, the Management 

Plan would “not substantially contribute to the adverse impacts 

from past, present, and reasonably foreseeable future activities 

on cultural resources” and would “not combine with any other 

actions to produce incrementally different impacts on historic 

or archeological resources.” 

 Although the EA stated that the Management Plan would 

have no significant impact, the EA also concluded that future 

projects at the Observatory Site could result in significant 

impacts. For example, the EA found that future projects may 

have adverse impacts on the stormwater and drainage system, the 

roadways and traffic, noise levels and the visual character of 

the site area, even though the Management Plan would result in 

some beneficial impacts on these resources. Additionally, the 

 15 The EA noted that the current ambient noise level within the 

Observatory Site is low but observed that “cultural practitioners within the 

immediate vicinity of a noise source could be disturbed.” However, the EA 

stated that most noise disturbances are “low level discrete events” and thus 

the current noise levels are compatible with existing activities. 
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EA noted that “there was overwhelming evidence, from a cultural 

and traditional standpoint, that construction of a large, 

visible structure at [the Observatory Site] would result in a 

significant impact on some Native Hawaiian traditional cultural 

practices and beliefs.” The EA thus observed that the 

construction of new facilities affecting cultural resources 

would be individually analyzed with separate environmental 

documentation completed for each new project. 

 Based on the EA’s analysis, UH determined that 

implementing the Management Plan would “either have beneficial, 

less than significant, or no impacts” at the Observatory Site. 

In light of its determination that the Management Plan would 

have no significant environmental impact, UH did not prepare an 

environmental impact statement. 

 On November 22, 2010, BLNR held a hearing concerning 

the Management Plan and a conservation district use application 

for the Telescope Project.16 On December 1, 2010, BLNR held a 

second hearing, in which both the Management Plan and the 

conservation district use application were “taken together” but 

 16 In addition to an approved management plan, approval of the 

Telescope Project within the conservation district required a conservation 

district use permit. Kilakila is challenging BLNR’s issuance of the permit 

for the Telescope Project in a separate case before this court. 

 According to the minutes from the hearing, a DLNR employee stated 

that “[s]taff is here to see the Board’s approval of the Management Plan. We 

will then discuss the proposed [Telescope] Project which will be the first 

telescope approved under the Management Plan that the Board is considering.” 
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“voted [upon] separately.” At this hearing, BLNR approved the 

Management Plan with one amendment requiring a report in five 

years. 

D. Court Proceedings 

 On November 22, 2010, prior to BLNR’s approval of the 

Management Plan, Kilakila filed a complaint in the circuit court 

seeking declaratory and injunctive relief against UH,17 BLNR, and 

DLNR.18 The complaint sought to “ensure the preparation of an 

[environmental impact statement] for the [Management Plan],” 

contending that UH improperly concluded that the Management Plan 

would have no significant impact and thus UH’s actions violated 

HEPA.19 UH and DLNR denied that the EA improperly concluded that 

the Management Plan would have no significant impact or that UH 

violated HEPA. 

 17 Kilakila named Virginia Hinshaw, Chancellor of UH, in her 

official capacity as Chancellor of UH, as a defendant. During the pendency 

of this case, Thomas M. Apple succeeded Virginia Hinshaw, and Robert BleyVroman succeeded Thomas M. Apple as Chancellor of UH. 

18 Laura Thielen was additionally named in her official capacity as 

Chair of BLNR. She was succeeded by William Aila, who was then succeeded by 

Suzanne D. Case, during the pendency of this case. 

19 Kilakila prayed for the following relevant relief: (1) a 

declaration that UH violated HRS Chapter 343; (2) a declaration that UH must 

prepare an environmental impact statement for the Management Plan; (3) a 

declaration that UH improperly accepted the EA for the Management Plan; (4) a 

declaration that the Management Plan “may have a significant impact”; (5) a 

declaration that “any permits granted pursuant to the EA for the [Management 

Plan] are null and void”; (6) a declaration that the Management Plan was null 

and void; and (7) a declaration that all permits granted pursuant to the 

Management Plan, “including the [permit] for the Telescope Project, are null 

and void.” 
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1. Discovery Requests and Protective Order 

 Kilakila made a series of discovery requests to UH and 

DLNR attempting to authenticate documents prepared by UH and to 

obtain admissions from UH as to various statements that were 

made in the documents. Kilakila also sought “to obtain all 

relevant documents” and “attempted to discover the factual basis 

of all of [UH’s] defenses.” DLNR, UH, and Kilakila met and 

conferred in an effort to resolve the dispute over Kilakila’s 

discovery requests. UH and DLNR maintained that the case must 

be decided based only on the record before UH when it made its 

finding of no significant impact. Kilakila was informed that UH 

was preparing an administrative record that would be filed in 

circuit court, which could be supplemented upon further 

agreement of the parties. 

 UH then moved for a protective order, pursuant to 

Hawai#i Rules of Civil Procedure (HRCP) Rule 26(c),20 as to “all 

 20 HRCP Rule 26(c) provides, in pertinent part, 

Protective Orders. Upon motion by a party or by the person 

from whom discovery is sought, accompanied by a 

certification that the movant has in good faith conferred or 

attempted to confer with other affected parties in an effort 

to resolve the dispute without court action, and for good 

cause shown, the court in which the action is pending or 

alternatively, on matters relating to a deposition, the 

court in the circuit where the deposition is to be taken may 

make any order which justice requires to protect a party or 

person from annoyance, embarrassment, oppression, or undue 

burden or expense . . . . 

HRCP Rule 26. 
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outstanding discovery directed to [UH] by [Kilakila] and any 

subsequently filed requests.” UH argued that its motion for 

protective order should be granted because the question of 

whether UH complied with HEPA was a question of law that 

required no factual determinations. UH contended that HEPA does 

not permit discovery beyond an administrative record and that 

Kilakila therefore “should not be permitted discovery into 

issues not before the agency at the time it made its decision.” 

DLNR joined the motion and separately argued that Kilakila’s 

discovery requests “seek irrelevant and intrusive information 

and will not lead to the discovery of admissible evidence.” 

 After filing the motion for protective order, UH filed 

an Administrative Record pertaining to its review of the EA, 

which contained the following documents: the draft environmental 

assessment for the Management Plan; the published notice of the 

draft environmental assessment by the Office of Environmental 

Quality Control; a letter from Virginia Hinshaw, then-Chancellor 

of UH, to the Director of the Office of Environmental Quality 

Control, containing UH’s finding of no significant impact on the 

environment for the Management Plan; the EA for the Management 

Plan; and the Notice of the EA published by the Office of 

Environmental Quality Control. The draft Management Plan, the 

final Management Plan, and a series of post-Long Range Plan 
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studies regarding the Observatory Site were attached as 

appendices to the Administrative Record.21

 In response to the motion for protective order, 

Kilakila argued that it would be an abuse of discretion for the 

circuit court to grant a blanket ban on discovery without 

balancing the “need for the information against the injury that 

might result if uncontrolled disclosure is permitted.”22 

Kilakila contended that the circuit court’s review should not be 

limited to the Administrative Record because this case was not 

an HRS Chapter 91 contested case appeal. 

 In its reply, UH asserted that the Administrative 

Record contained all of the information that UH had considered 

in making its determination under HRS Chapter 343 and the 

relevant HAR. UH further contended that discovery was not 

necessary because Kilakila already had in its possession the 

documents sought as Kilakila had attached those documents to its 

response to the motion for protective order. After a hearing, 

the circuit court granted UH’s motion for protective order 

 21 A number of studies were conducted at the Observatory Site, 

including an archeological recovery plan, a stormwater management plan, a 

2007 supplemental anthropod inventory and a 2009 anthropod study, a 

supplemental cultural impact assessment, and a botanical survey. 

22 Attached to Kilakila’s response were selected portions of the 

environmental impact statement for the Telescope Project. 
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(Protective Order) “without prejudice to any future discovery 

requests” by Kilakila. 

2. Motions for Summary Judgment 

 Each of the parties then filed a motion for summary 

judgment (MSJ).23 In its MSJ, Kilakila contended that HEPA’s 

implementing rules identify three types of impacts on the 

environment--direct, secondary, and cumulative--and that each 

must be assessed to ensure that all possible impacts of a 

project are considered. Kilakila argued that by failing to 

consider the Telescope Project as a direct, secondary, and 

cumulative impact of the Management Plan, the EA ignored 

significant impacts and improperly segmented the required 

analysis under HEPA. Kilakila concluded that the circuit court 

should grant its MSJ because the Management Plan would likely 

have a significant impact on the environment and, consequently, 

required the preparation of an environmental impact statement. 

 In its MSJ,24 UH argued that it had followed the proper 

procedures under HEPA and that the EA provided sufficient 

 23 The parties attached exhibits to their respective MSJ, responses, 

or replies that went beyond the Administrative Record. For example, UH 

attached the Long Range Plan to its reply. For its MSJ, Kilakila attached, 

inter alia, the Telescope Project’s environmental impact statement and 

declarations from two individuals. Kilakila also attached to its memorandum 

in opposition to UH’s MSJ, inter alia, a DLNR Staff Submittal on the 

Telescope Project and minutes of two BLNR meetings. 

24 In its MSJ, DLNR substantively joined UH’s MSJ. DLNR 

additionally argued that an environmental assessment was not required because 

the Management Plan was a planning document and that DLNR was not a necessary 

(continued. . .) 
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22 

information to permit informed decision-making. UH also 

asserted that the Telescope Project was not a direct or 

secondary impact of the Management Plan and maintained that the 

EA properly considered the cumulative impacts of the Management 

Plan’s implementation--that is, the incremental impact of the 

Management Plan when added to other past, present, and 

reasonably foreseeable actions. UH contended that the 

incremental impact of the Management Plan would be less than 

significant and, on the whole, beneficial to the environment. 

 After a hearing on the parties’ MSJs, the circuit 

court granted UH’s MSJ and DLNR’s MSJ and denied Kilakila’s MSJ 

(MSJ Order).25 In the MSJ Order, the circuit court found that 

the Management Plan is a guideline and planning tool that sets 

forth certain policies and monitoring strategies applicable to 

future actions. The circuit court determined that the 

Management Plan does not authorize specific projects, such as 

the Telescope Project, and that future projects would require 

their own environmental review. The circuit court concluded 

that, under the rule of reason standard set forth in Hawaiʻi case 

law, the EA for the Management Plan complied with HRS Chapter 

 

(. . .continued) 

or proper party to the litigation. These arguments are not presented in 

DLNR’s response to the application for writ of certiorari, and thus they are 

not addressed. 

25 The Honorable Rhonda Nishimura presided. 
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23 

343 and that preparation of an environmental impact statement 

was not required. The circuit court entered final judgment. 

Kilakila timely appealed, arguing that the circuit court erred 

in granting the Protective Order and erred in granting UH’s and 

DLNR’s respective MSJs while denying Kilakila’s MSJ. 

3. ICA Opinion 

 The ICA, in a published opinion, held that the circuit 

court did not err by concluding that the EA complied with HRS 

Chapter 343 and that an environmental impact statement was not 

required. Kilakila ʻO Haleakalā v. Univ. of Haw., 134 Hawaiʻi 

86, 94-98, 332 P.3d 688, 696-700 (App. 2014). The ICA also held 

that the circuit court did not abuse its discretion in granting 

the Protective Order because “[w]hether the Management Plan’s EA 

and its Negative Declaration complied with HRS Chapter 343 is a 

question of law that does not require factual determinations 

beyond the administrative record.” Id. at 98-99, 332 P.3d at 

700-01. Accordingly, the ICA affirmed the circuit court’s 

Protective Order, MSJ Order, and final judgment. Id. at 99, 332 

P.3d at 701. 

III. Standards of Review 

A. Motion for Summary Judgment 

 Hawaiʻi appellate courts review an award of summary 

judgment de novo under the same standard applied by the circuit 
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24 

court. Thomas v. Kidani, 126 Hawaiʻi 125, 127-28, 267 P.3d 1230, 

1232-33 (2011). That standard has been articulated as follows: 

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. 

Kepoo v. Kane, 106 Hawaiʻi 270, 287, 103 P.3d 939, 956 (2005) 

(quoting Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264, 

1270 (1983)). “A fact is material if proof of that fact would 

have the effect of establishing or refuting one of the essential 

elements of a cause of action or defense asserted by the 

parties.” Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719 

(2001) (quoting Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 

647 P.2d 713, 716 (1982)). The moving party bears the burden of 

demonstrating that there is no genuine issue as to any material 

fact with respect to the essential elements of the claim or 

defense and must prove that the moving party is entitled to 

judgment as a matter of law. French v. Haw. Pizza Hut, Inc., 

105 Hawaiʻi 462, 470, 99 P.3d 1046, 1054 (2004). This court must 

review the evidence and inferences in the light most favorable 

to the non-moving party. Thomas, 126 Hawaiʻi at 128, 267 P.3d at 

1233. 

 In cases of public importance, a circuit court should 

grant a motion for summary judgment “sparingly, and never on 

limited and indefinite factual foundations.” Molokai 
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25 

Homesteaders Coop. Ass’n v. Cobb, 63 Haw. 453, 458, 629 P.2d 

1134, 1139 (1981). However, if there is no genuine issue as to 

any material fact and the moving party clearly demonstrates that 

they should prevail as a matter of law, then summary judgment is 

proper. Id. 

B. Review Under HEPA 

 For agency determinations under HEPA, “the appropriate 

standard of review depends on the specific question under 

consideration.” Sierra Club v. Dep’t of Transp., 115 Hawaiʻi 

299, 315, 167 P.3d 292, 308 (2007). Generally, a court reviews 

agency determinations that involve factual questions under a 

clearly erroneous standard. Id. at 315, 167 P.3d at 308; see 

also Del Monte Fresh Produce (Haw.), Inc. v. Int’l Longshore and 

Warehouse Union, 112 Hawaiʻi 489, 499, 146 P.3d 1066, 1076 (2006) 

(“[An agency’s] conclusion of law that presents mixed questions 

of fact and law is reviewed under the clearly erroneous standard 

because the conclusion is dependent upon the facts and 

circumstances of the particular case.”). However, “[w]hether or 

not an agency has followed proper procedures or considered the 

appropriate factors in making its determination is a question of 

law, and will be reviewed de novo.” Sierra Club, 115 Hawaiʻi at 

315, 167 P.3d at 308. 
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26 

IV. Discussion 

 In its application for writ of certiorari, Kilakila 

appeals the ICA’s affirmance of the MSJ Order, arguing that the 

ICA opinion is flawed because judicial review is not confined to 

an administrative record in cases of this nature. Kilakila 

additionally contends that (1) the ICA erred in concluding that 

UH complied with HEPA and HAR § 11-200-12 when UH made its 

negative declaration for the EA and (2) UH’s conclusion that the 

Management Plan would not have a significant environmental 

impact is clearly erroneous. Kilakila specifically argues that 

because the Telescope Project would have a significant impact 

and is a component, secondary, and cumulative impact of the 

Management Plan, UH is required to prepare an environmental 

impact statement for the Management Plan. 

A. Scope of Judicial Review under HEPA 

The ICA held that the circuit court did not abuse its 

discretion in granting the Protective Order because whether the 

EA complied with HRS Chapter 343 was a question of law that did 

not require review beyond the Administrative Record. Kilakila, 

134 Hawaiʻi at 98-99, 332 P.3d at 700-01. Kilakila argues that 

the ICA’s opinion is flawed because an administrative record 

does not exist in cases of this nature and there is nothing in 

HEPA, the Hawaiʻi Rules of Civil Procedure, or the Rules of 

Circuit Court that prohibits presenting evidence related to a 
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27 

motion for summary judgment. Kilakila contends that confining 

review to an administrative record “sets a dangerous precedent” 

for future litigation under HEPA and that restricting judicial 

review to the administrative record limited the ICA’s analysis 

by allowing the court “to ignore the significant impacts” 

disclosed in the Telescope Project’s environmental impact 

statement. 

Kilakila brought this case as a declaratory action 

under HRS § 632-1 (1993)26 and HRS § 343-7(b) (1993). Under 

HRS § 343-7(b), “[a]ny judicial proceeding, the subject of which 

is the determination that a[n] [environmental impact] statement 

is not required for a proposed action, shall be initiated within 

thirty days after the public has been informed of such 

determination pursuant to section 343-3.” HRS § 343-7(b). The 

term “administrative record” or its equivalent does not appear 

 26 HRS § 632-1 provides, in part, 

Relief by declaratory judgment may be granted in civil 

cases where an actual controversy exists between contending 

parties, or where the court is satisfied that antagonistic 

claims are present between the parties involved which 

indicate imminent and inevitable litigation, or where in 

any such case the court is satisfied that a party asserts a 

legal relation, status, right, or privilege in which the 

party has a concrete interest and that there is a challenge 

or denial of the asserted relation, status, right, or 

privilege by an adversary party who also has or asserts a 

concrete interest therein, and the court is satisfied also 

that a declaratory judgment will serve to terminate the 

uncertainty or controversy giving rise to the proceeding. 

HRS § 632-1. 
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anywhere in HRS § 632-1 (declaratory judgment action), HRS 

Chapter 343 (HEPA), or HAR § 11-200-1 et seq. (HEPA’s 

implementing administrative rules). That is, none of these 

statutes or rules prescribes limitations as to the extent of 

discovery that is permitted in a declaratory judgment action 

brought pursuant to HEPA or restricts a court’s consideration of 

the issues to an administrative record.27 

By contrast, judicial review of an appeal from a 

contested case proceeding brought pursuant to HRS § 91-14 (Supp. 

2004) “shall be confined to the record.” HRS § 91-14(f).28 The 

record for a contested case appeal, prepared by the agency, must 

include the following: (1) all pleadings, motions, and 

intermediate rulings; (2) evidence received or considered, 

including oral testimony, exhibits, and a statement of matters 

officially noticed; (3) offers of proof and rulings thereon; (4) 

proposed findings and exceptions; (5) report of the officer who 

presided at the hearing; and (6) staff memoranda submitted to 

members of the agency in connection with their consideration of 

 27 The only express restriction on an action brought under HEPA is 

that in a judicial action brought to challenge the acceptance of an 

environmental impact statement, the “contestable issues” are “limited to 

issues identified and discussed in the written comment” during the 

“designated review period.” HRS § 343-7(c). 

28 The two exceptions to this requirement are in cases where a trial 

de novo, including a trial by jury, is provided by law and in cases where the 

record does not reflect alleged procedural irregularities before the agency; 

in these situations, the court is authorized to receive testimony. HRS § 91-

14(f). 
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29 

the case. HRS § 91-9(e) (Supp. 2003). Thus, a circuit court 

reviewing a contested case may not consider matters beyond the 

administrative record because it acts as an appellate court, not 

as a trial court considering a declaratory judgment action.29 

See HRS § 91-14(g) (indicating that a circuit court reviewing a 

contested case may affirm, remand, reverse, or modify the 

decision and order of the agency); cf. Dep’t of Envtl. Servs. v. 

Land Use Comm’n, 127 Hawaiʻi 5, 12, 275 P.3d 809, 816 (2012) 

(noting that this court’s standard of review for “a decision 

made by the circuit court upon its review of an agency’s 

decision is a secondary appeal” in which this court “must 

determine whether the circuit court was right or wrong in its 

decision [by] applying the standards set forth in HRS § 91-14(g) 

. . . to the agency’s decision” (quoting Save Diamond Head 

Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawaiʻi 16, 24, 211 

P.3d 74, 82 (2009))). 

In contrast, a declaratory judgment action is an action 

before the circuit court that affords the court “plenary” 

authority and does not limit the scope of review vested in the 

court. See Punohu v. Sunn, 66 Haw. 485, 487, 666 P.2d 1133, 

1135 (1983) (“Since the scope of review vested in the circuit 

 29 The limited exception to this principle is stated supra in note 

27. 
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30 

court in an appeal pursuant to § 91-14, HRS, is much more 

limited than the court’s plenary authority in an original action 

commenced before it, it would be anomalous to permit a 

declaratory judgment action to be substituted for an appeal from 

an agency determination in a contested case.”); see also 

Hawaii’s Thousand Friends v. City and Cty. of Honolulu, 75 Haw. 

237, 248, 858 P.2d 726, 732 (1993) (stating that although an 

agency’s decision “carries a presumption of validity in a 

generic agency appeal” under HRS § 91-14, the circuit court “was 

not required to defer” to the agency’s determination on the 

potential environmental impact of a project when considering a 

petition for declaratory judgment under HRS § 632-1 and could 

“make its own independent findings regarding the salient facts” 

of the case). 

This court has indicated that a reviewing court 

considering a declaratory judgment action under HEPA is not 

limited to an administrative record. Unite Here! Local 5 v. 

City and Cty. of Honolulu, 123 Hawaiʻi 150, 231 P.3d 423 (2010), 

which arose from the proposed expansion of a hotel resort for 

which an 1985 environmental impact statement (EIS) had been 

completed and accepted, considered whether the resort’s 

subdivision application twenty years later triggered the need 

for a supplemental EIS. Id. at 154, 231 P.3d at 427. In 

reviewing whether a supplemental EIS should have been required, 
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this court considered post-1985 EIS reports and studies 

regarding traffic conditions, monk seals, and green sea turtles 

that were not part of the agency record but were submitted to 

the circuit court by the plaintiffs. Id. at 179, 231 P.3d at 

452. Based on these extra-record reports and studies, which 

constituted “new” evidence that was not originally disclosed and 

not previously considered by the reviewing agency, this court 

determined that a supplemental EIS should have been prepared and 

reviewed. Id. Unite Here! indicated that its consideration of 

these extra-record documents was consistent with the public 

purpose underlying HEPA, which was to “ensure that environmental 

concerns are given appropriate consideration in decision 

making.” Id. at 180, 231 P.3d at 453. 

Several federal courts have adopted a similar approach 

in allowing judicial review beyond the administrative record for 

actions arising under NEPA, the federal counterpart to HEPA. 

See Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999) 

(setting forth the requirements and purpose of NEPA as 

justification for allowing judicial review of extra-record 

evidence in NEPA cases); Sierra Club v. Hassell, 636 F.2d 1095, 

1097-98 (5th Cir. 1981) (stating that a reviewing court must 

review the administrative records as well as other evidence to 

determine whether an agency adequately considered NEPA’s values 

and the proposed project’s potential environmental effects 
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32 

before reaching a decision on whether an environmental impact 

statement was necessary); Gulf Coast Rod Reel & Gun Club, Inc. 

v. U.S. Army Corps of Eng’rs, No. 3:13:-CV-126, 2015 WL 1883522, 

at *2 (S.D. Tex. Apr. 20, 2015) (indicating that allowing 

judicial review beyond the administrative record is based on the 

underlying requirements and purpose of NEPA, which calls for a 

comparative inquiry). 

The Fifth Circuit Court of Appeals has concluded that 

consideration by the reviewing court of evidence beyond the 

administrative record may be necessary to ensure that the record 

available to the agency enabled a full discussion of the 

environmental effects and alternatives. 

To limit the judicial inquiry regarding the completeness of 

the agency record to that record would, in some 

circumstances, make judicial review meaningless and 

eviscerate the very purposes of NEPA. The omission of 

technical scientific information is often not obvious from 

the record itself, and a court may therefore need a 

plaintiff’s aid in calling such omissions to its attention. 

Thus, we have held that the consideration of extra-record 

evidence may be appropriate in the NEPA context to enable a 

reviewing court to determine that the information available 

to the decisionmaker included a complete discussion of 

environmental effects and alternatives. 

Peterson, 185 F.3d at 370 (quoting Nat’l Audubon Soc’y v. 

Hoffman, 132 F.3d 7, 14-15 (2d Cir. 1997)). Another federal 

court similarly noted that “[d]eciding whether an agency has 

sufficiently considered environmental impacts requires some 

sense of the universe of information that was available for the 

agency to consider,” which often necessitates consideration of 
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other evidence, apart from the agency record, to ensure 

effective judicial review. Gulf Coast Rod Reel & Gun Club, 

Inc., 2015 WL 1883522, at *2; see also Davis Mountains TransPecos Heritage Ass’n v. Fed. Aviation Admin., 116 F. App’x 3, 12 

(5th Cir. 2004) (noting that a reviewing court is not limited to 

the agency record “where examination of extra-record materials 

is necessary to determine whether an agency has adequately 

considered environmental impacts under NEPA”). 

 Accordingly, in a declaratory action brought to 

challenge an agency’s determination that an environmental impact 

statement is not required, a reviewing court may consider other 

evidence in addition to the agency record to determine whether 

the agency decision-maker adequately considered the potential 

environmental effects and alternatives for a particular project 

or action. 

 We note that the record in this case indicates that 

the parties were not restricted from attaching extra-record 

evidence to their pleadings and, in fact, submitted exhibits 

that went beyond the Administrative Record. Additionally, in 

issuing the Protective Order, the circuit court did so “without 

prejudice to future discovery requests,” and, consequently, the 

Protective Order did not bar Kilakila from filing additional 
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34 

discovery requests.30 Further, the circuit court did not 

restrict its review of the parties’ MSJs to the Administrative 

Record. The circuit court based its ruling on the parties’ MSJs 

and “the files and records herein” which, as noted, included 

numerous documents submitted by the parties that were not part 

of the Administrative Record. Accordingly, judicial review was 

not restricted to the Administrative Record in this case. 

B. Sufficiency of the Environmental Assessment 

 Kilakila maintains that the ICA erred in affirming the 

circuit court’s MSJ Order because UH did not comply with the 

procedures under HEPA and UH’s negative declaration is clearly 

erroneous. Kilakila contends that the EA failed to consider the 

Telescope Project as a component of the Management Plan and as a 

secondary and cumulative impact of the Management Plan. 

Kilakila also argues that the Administrative Record and other 

evidence submitted to the circuit court by the parties raised a 

genuine issue as to material facts that precluded the grant of 

summary judgment in favor of UH and DLNR. 

1. Single Action “Component” Analysis 

As stated, Kilakila contends that the EA was deficient 

because it failed to consider the effects of the Telescope 

Project as a component of the Management Plan. Kilakila’s 

 30 Kilakila did not challenge the issuance of the Protective Order 

in its application for writ of certiorari. 
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35 

contention appears to be that the Telescope Project is a 

component of the Management Plan and therefore the two actions 

constitute a single action under HAR § 11-200-7 (1996).31 A 

group of discrete actions may require a collective environmental 

assessment if the actions satisfy one of the four elements of 

the single action test set forth in HAR § 11-200-7. Two or more 

actions are to be treated as a single action if the component 

actions “are phases or increments of a larger total 

undertaking.” HAR § 11-200-7(1). Thus, if the effects of the 

Telescope Project and Management Plan must be considered 

together as a single action, then they cannot be improperly 

segmented into separate environmental reviews, as this would 

 31 The single action test provides that a group of actions proposed 

by an agency or applicant are to be treated as a single action when any of 

the following apply: 

(1) The component actions are phases or increments of a 

larger total undertaking; 

(2) An individual project is a necessary precedent for a 

larger project; 

(3) An individual project represents a commitment to a 

larger project; or 

(4) The actions in question are essentially identical and 

a single statement will adequately address the 

impacts of each individual action and those of the 

group of actions as a whole. 

HAR § 11-200-7. Although Kilakila did not cite to HAR § 11-200-7 in its 

arguments before this court, Kilakila argued in its application for writ of 

certiorari that the Telescope Project is a component of the Management Plan. 

The other three statutory subsections providing for a group of actions to be 

treated as a “single action” were not asserted by Kilakila. 
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evade the preparation of an environmental impact statement for 

the single action. See id. 

In Kahana Sunset Owners Association v. County of Maui, 

86 Hawai#i 66, 74, 947 P.2d 378, 386 (1997), this court applied 

HAR § 11-200-7(1) to determine whether, for purposes of 

environmental review under HEPA, a proposed drainage system and 

a proposed residential development constituted a single action 

and thus required a single environmental assessment. We held 

that the proposed development and drainage system constituted a 

single action under HAR § 11-200-7(1) because “[t]he proposed 

drainage system is part of the larger [residential development] 

project.” Id. The court explained that the drainage system 

would have no “independent utility” and would not be constructed 

without the residential development. Id. Consequently, the 

drainage system and housing development were a “single action” 

under HAR § 11-200-7, and a single environmental assessment was 

required to evaluate the entire proposed development, i.e., the 

combined impacts of both the drainage system and housing 

development. Id. 

In accordance with Kahana Sunset, in determining 

whether a project is a “component” of another project and thus a 

single action for the purposes of environmental review under 

HEPA, consideration must be given as to whether the proposed 
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action has independent utility from the other project.32 See id. 

Here, it is clear from the record that the Management Plan has 

independent utility from the Telescope Project. As discussed 

above, the strategies and guidelines within the Management Plan 

apply to the entire Observatory Site, which includes numerous 

existing astronomical facilities. Additionally, many of the 

strategies and guidelines within the Management Plan have been 

previously implemented by the previous Long Range Plan, 

indicating that the strategies have utility separate and 

independent from the Telescope Project. Further, the management 

and monitoring strategies within the Management Plan apply to 

future development within the Observatory Site, including, but 

not limited to, the Telescope Project. 

Because the Management Plan’s strategies and 

guidelines apply to the entire Observatory Site and may be 

implemented regardless of whether the Telescope Project is 

constructed, the Management Plan has independent utility from 

the Telescope Project, and, consequently, the Telescope Project 

and Management Plan do not constitute a “single action” under 

HAR § 11-200-7(1). 

 32 To determine whether multiple actions should be treated as a 

single action under NEPA, federal courts have applied a similar “independent 

utility” test. See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th 

Cir. 2006). Under the “independent utility” test, “[w]hen one of the 

projects might reasonably have been completed without the existence of the 

other, the two projects have independent utility and are not ‘connected’ for 

NEPA’s purposes.” Id. 
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2. Secondary Impact Analysis 

Kilakila further argues that the Telescope Project is 

a secondary impact because the Management Plan “is a necessary 

step in the authorization of the Telescope Project” and because 

it facilitates the Telescope Project. Secondary impacts are 

those “caused by the action and are later in time or farther 

removed in distance, but are still reasonably foreseeable,” 

including “growth inducing effects and other effects related to 

induced changes in the pattern of land use, population density 

or growth rate, and related effects on air and water and other 

natural systems, including ecosystems.” HAR § 11-200-2. In 

arguing that the Telescope Project is a secondary impact of the 

Management Plan, Kilakila relies, in part, on this court’s 

analysis in Sierra Club v. Department of Transportation, 115 

Hawai#i 299, 167 P.3d 292 (2007). 

In Sierra Club, environmental groups brought a 

challenge against the Department of Transportation’s (DOT) 

determination that physical improvements to a harbor to 

accommodate the Hawaiʻi Superferry were exempt from environmental 

review under HEPA. Id. at 306, 167 P.3d at 299. The 

environmental groups argued that DOT’s exemption determination 

failed to consider the secondary effects from improving the 

harbor, namely, the operation of the Superferry. Id. at 336, 

167 P.3d at 329. This court found that DOT did not consider the 
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secondary effects that may occur from operating the Superferry, 

which were incident to and a consequence of the harbor 

improvements. Id. at 341-42, 167 P.3d at 334-35. The court 

noted that the harbor improvements were “necessary to 

accommodate the Superferry project, including the construction 

of a removable barge . . . and other improvements to assist in 

Superferry operations.” Id. at 305, 167 P.3d at 298. 

Accordingly, the court held that DOT failed to comply with HEPA 

because the record showed that DOT did “not consider whether its 

facilitation of the Hawaii Superferry Project will probably have 

minimal or no significant impacts, both primary and secondary, 

on the environment.” Id. at 342, 167 P.3d at 335. 

In this case, in contrast to Sierra Club, where 

improvements to the harbor were “necessary to accommodate the 

Superferry project” and “to assist in Superferry operations,” 

implementing the Management Plan imposes restrictions and 

conditions on existing operations and future development within 

the Observatory Site, including the Telescope Project. For 

example, implementation of the Management Plan imposes nighttime 

lighting restrictions within the Observatory Site and prohibits 

any fill material at the site unless sterilized in order to 

prevent the importation of non-native species. The 

implementation of such strategies and requirements do not 
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40 

facilitate,33 or make easier, the Telescope Project; rather, they 

impose conditions and restrictions on the construction and 

operation of any present and future operations at the 

Observatory Site. 

Additionally, as noted, the Management Plan has 

independent utility by providing guidelines and monitoring 

strategies that universally apply to all ongoing and future 

actions within the Observatory Site as long as the Management 

Plan is in effect. Implementing such guidelines and strategies 

will neither result in nor cause the construction or operation 

of the Telescope Project. The Management Plan is operative 

regardless of whether the Telescope Project is built. Thus, the 

fact that the Management Plan is a requirement to obtain a 

conservation district use permit for astronomical facilities 

within a conservation district does not render the Telescope 

Project as a secondary impact of the Management Plan. 

3. Cumulative Impact Analysis 

 Kilakila’s last argument turns on whether the EA 

properly considered the Telescope Project when evaluating the 

Management Plan’s cumulative impact on the environment. 

Kilakila maintains that because the environmental impact 

 33 As defined in Black’s Law Dictionary, “facilitate” means “To make 

the occurrence of (something) easier; to render less difficult.” Black's Law 

Dictionary (10th ed. 2014) 
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41 

statement for the Telescope Project concluded that the Telescope 

Project would “result in major, adverse, short- and long-term, 

direct impacts” on cultural resources, and because the Telescope 

Project is a reasonably foreseeable future action, the 

cumulative impact of the Management Plan cannot be less than 

significant, and therefore, UH’s conclusion that the Management 

Plan will not have a significant environmental impact is clearly 

erroneous. 

 Under HEPA, “cumulative impacts” are the incremental 

impacts from the proposed action: that is, the impacts from the 

implementation of the Management Plan when added to other past, 

present, and reasonably foreseeable future actions.34 HAR § 11-

200-2. “Cumulative impacts can result from individually minor 

but collectively significant actions taking place over a period 

of time.”35 Id. Accordingly, the EA was required to determine 

whether the incremental impact of implementing the Management 

 34 NEPA provides a nearly identical definition of “cumulative 

impacts” as HEPA does. See 40 CFR § 1508.7 (2016). 

35 The Ninth Circuit provides the following example of individually 

minor, but collectively significant, impacts to the environment: 

[T]he addition of a small amount of sediment to a creek may 

have only a limited impact on salmon survival, or perhaps 

no impact at all. But the addition of a small amount here, 

a small amount there, and still more at another point could 

add up to something with a much greater impact, until there 

comes a point where even a marginal increase will mean that 

no salmon survive. 

Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 

(9th Cir. 2004). 
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Plan, such as implementing soil and erosion control, nighttime 

lighting restrictions, and cultural training, on past, present, 

and reasonably foreseeable actions would have significant 

impacts on the environment. 

 Contrary to Kilakila’s argument, the impact of the 

Telescope Project on cultural resources as determined by the 

environmental impact statement would not automatically render 

any other action within the Observatory Site to be of similar 

magnitude. As Kilakila does not contend that any of the 

strategies or guidelines within the Management Plan would 

themselves have a significant impact on the environment, or that 

they would add to the Telescope Project’s impact, we address 

whether the EA properly considered the Telescope Project within 

the cumulative impact analysis of the Management Plan. 

 Here, the EA discussed and evaluated the cumulative 

impact of the Management Plan--i.e., the incremental impact of 

implementing the Management Plan on past, present, and 

reasonably foreseeable future actions, including the Telescope 

Project.36 After evaluating the Management Plan’s cumulative 

 36 The Telescope Project was just one of fifteen “Past, Present, and 

Reasonably Foreseeable Future Actions Subject to the Observatory Site 

Management Plan” that were evaluated and discussed by the EA. The EA also 

considered the following past, present, and reasonably foreseeable actions 

subject to the Management Plan: Mees Solar Observatory; Atmospheric Airglow; 

Zodiacal Light; Cosmic Ray Neutron Monitor Station; Baker-Nunn Site; Faulkes 

Telescope Facility; Pan-STARRS, PS-1 South; PS-2 North, 2nd facility; Maui 

Space Surveillance Complex; SLR-2000; Haleakalā Visitor Center Comfort 

Station; FAA site adjacent to Observatory Site, Homeland Security Tower; 

(continued. . .) 
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impact, the EA concluded that the Management Plan’s cumulative 

impact would be beneficial, less than significant, or result in 

no impact to the following resources: land use; cultural, 

historic, and archeological resources; biological resources; 

topography, geology, and soils; visual resources and view plain; 

hydrology; infrastructure and utilities, including storm water 

drainage systems and traffic; air quality; public health, 

including hazardous materials and noise; socioeconomics; and 

natural hazards. 

 For example, considering the incremental impact of the 

Management Plan on land use resources, the EA concluded that 

while “construction of the proposed [Telescope Project] would 

increase the level of existing telescope activities” within the 

Observatory Site, the “combined impacts of implementing the 

[Management Plan] with all past, present, and reasonably 

foreseeable future actions would be less than significant.” The 

EA found that the impact on visual resources from implementing 

the Management Plan would be beneficial, and less than 

significant, because the Management Plan is intended to minimize 

the impacts from other actions that may themselves have adverse 

 

(. . .continued) 

Advanced Technology Solar Telescope; Maui Electric Co., Inc.; and Hawaiian 

Telcom. 
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44 

impacts on visual resources.37 The EA additionally concluded 

that the Management Plan would have some beneficial impacts to 

“baseline noise levels from implementation of noise reduction 

requirements for any construction activity,” and therefore, the 

cumulative impacts combined with the Management Plan’s 

requirements for noise management would be less than 

significant. 

 Considering cultural and historic resources within the 

Observatory Site, the EA stated “that there have been impacts on 

traditional cultural resources resulting from past and ongoing 

actions” and that “[o]ver the years, development at the 

[Observatory Site] has displaced and damaged cultural 

resources.” The EA further observed that past, present, and 

reasonably foreseeable future actions have had adverse impacts 

on cultural and traditional resources within the Observatory 

Site, but it found that the Management Plan’s incremental impact 

on cultural resources would be less than significant and “would 

not substantially contribute to the adverse impacts from past, 

present, and reasonably foreseeable future activities on 

cultural resources.” The EA additionally found that past and 

ongoing actions have resulted in less than significant impacts 

 37 The EA observed that the proposed Telescope Project “would have 

adverse impacts on visual resources beyond those addressed in the [Management 

Plan], and [that] those have been analyzed elsewhere.” 
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45 

on historic resources and that implementing the Management Plan 

“would not combine with any other actions to produce 

incrementally different impacts on historic or archeological 

resources.” 

Thus, the EA expressly considered the incremental 

impact of implementing the Management Plan when added to past, 

present, and reasonably foreseeable future actions, including 

the Telescope Project, and it concluded that the Management 

Plan’s cumulative impact on each resource considered would be 

less than significant, would be beneficial, or would result in 

no change. As Kilakila has not argued that any individual 

management activity implemented by the Management Plan may cause 

an adverse impact, Kilakila has not shown that the EA’s 

conclusion as to the Management Plan’s cumulative impact is 

clearly erroneous. 

Accordingly, the record does not demonstrate that UH 

failed to follow proper procedures under HEPA or HAR § 11-200-12 

or that UH failed to adequately consider the Telescope Project’s 

impacts before concluding that the Management Plan would have no 

significant environmental impact. Consequently, UH’s negative 

declaration is not clearly erroneous, and thus UH was not 

required to prepare an environmental impact statement for the 

Management Plan. Further, the record does not indicate that 

there is any genuine issue as to any material fact relating to 
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46 

whether UH complied with the requirements under HEPA and its 

implementing regulations or as to whether UH adequately 

considered all environmental impacts before issuing its negative 

declaration. Therefore, the circuit court did not err by 

granting summary judgment in favor of UH and DLNR and in denying 

summary judgment to Kilakila. 

V. Conclusion 

Accordingly, the ICA’s Judgment on Appeal is affirmed 

for the reasons stated herein. 

David Kimo Frankel and 

Sharla Ann Manley 

for petitioner 

Kilakila ʻO Haleakalā

Darolyn H. Lendio, 

Bruce Y. Matsui, 

Lisa Woods Munger, 

Lisa A. Bail and 

Christine A. Terada 

for respondents 

University of Hawaiʻi and David 

Lassner, in his official 

capacity as Chancellor of the 

University of Hawaiʻi at Mānoa 

William J. Wynhoff and 

Julie H. China 

for respondents 

Department of Land and Natural 

Resources, Board of Land and 

Natural Resources and Suzanne 

Case, in her official capacity 

as Chairperson of the Board of 

Land and Natural Resources 

/s/ Mark E. Recktenwald 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Michael D. Wilson