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NO. CAAP-18-0000057 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

KE KAUHULU O MĀNĀ, AN UNINCORPORATED ASSOCIATION, 

HAWAI‘I ALLIANCE FOR PROGRESSIVE ACTION, A NON-PROFIT 

CORPORATION, SURFRIDER FOUNDATION, A NON-PROFIT CORPORATION, 

KOHOLĀ LEO, A NON-PROFIT CORPORATION, PUNOHU KEKAUALUA III,

Plaintiffs-Appellants/Cross-Appellees,

v. 

BOARD OF LAND AND NATURAL RESOURCES, OF THE STATE OF HAWAI‘I,

Defendant-Appellee/Cross-Appellee,

and 

SYNGENTA SEEDS, LLC, A LIMITED LIABILITY COMPANY, 

SYNGENTA HAWAII, LLC, A LIMITED LIABILITY COMPANY,

Defendants-Appellees/Cross-Appellants,

and 

DOES 1-27, Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT 

(CIVIL NO. 17-1—0094) 

MEMORANDUM OPINION 

(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

 Plaintiffs-Appellants/Cross-Appellees Ke Kauhulu O 

Mānā, Hawai‘i Alliance for Progressive Action, Surfrider 

Foundation, Koholā Leo, and Punohu Kekaualua III (collectively, 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000057

30-APR-2024

07:56 AM

Dkt. 150 MO
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Appellants) appeal from the (1) December 20, 2017 "Order 

Granting [Defendants-Appellees/Cross-Appellants] Syngenta Seeds, 

LLC [(Syngenta Seeds)] and Syngenta Hawaii, LLC's [(Syngenta 

Hawaii)] [(collectively, Syngenta)] Motion to Dismiss Complaint 

or, in the Alternative, for Summary Judgment Filed on August 3,

2017; Order Denying [Appellants]' Motion for Summary Judgment 

Filed August 9, 2017" (Order Granting Syngenta's MSJ); and (2) 

January 10, 2018 Final Judgment entered in favor of Syngenta and 

Defendant-Appellee/Cross-Appellees Board of Land and Natural 

Resources, State of Hawai‘i (BLNR), both filed and entered by the 

Environmental Court of the Fifth Circuit (Environmental Court).1

Syngenta cross-appealed the Order Granting Syngenta's MSJ. 

These appeals arise out of BLNR's cancellation of 

Syngenta Seeds' revocable permit (RP) and issuance of a new RP

to Syngenta Hawaii in 2017 pursuant to Hawaii Revised Statutes 

(HRS) § 171-552 for use of state land located in Kekaha, Kaua‘i 

(Property); and whether BLNR properly exempted Syngenta Hawaii 

from having to prepare an environmental assessment (EA) under 

HRS Chapter 343, the Hawai‘i Environmental Policy Act (HEPA). 

While both Appellants and Syngenta raise a number of points of 

1 The Honorable Randal G.B. Valenciano presided. 

2 HRS § 171-55 authorizes BLNR to issue annual renewable permits 

for the temporary occupancy of state lands. HRS § 171-55 (2011), entitled 

"Permits," states in pertinent part: 

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. 
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error (POEs),3 the dispositive issues are whether the 

Environmental Court correctly concluded that (1) the 

cancellation of Syngenta Seeds' RP and issuance of Syngenta 

Hawaii's RP was an "action" triggering HEPA review, (2) the RP 

was not a "proposed" use subject to HEPA review, and (3) an 

exemption from HEPA review applied. 

We hold that summary judgment4 on all claims in 

Appellants' Complaint was erroneously granted, where Syngenta 

Hawaii was a new applicant proposing an "action" subject to HEPA 

review involving the use of state lands under a new RP, and 

because there were genuine issues of material fact on whether 

Syngenta Hawaii's proposed activity was exempt from the 

3 Appellants contend the Environmental Court erred by: (1) ruling 

that the RP was for "existing uses" and not "'proposed' uses" triggering HEPA 

review; (2) affirming BLNR's approval of an exemption from HEPA for its 

reissuance of Syngenta's RP; (3) "failing to address whether the [Department 

of Land and Natural Resources (DLNR)]'s recommended subdivision of land 

constituted an 'action' under HRS Chapter 343" triggering HEPA review; (4) 

"failing to address whether the 1982 conservation district use permit 

[(CDUP)]" was valid for the proposed uses permitted in 2017; and (5) "failing 

to address" whether BLNR's "failure to assess the environmental impacts" of 

Syngenta's land use "violated the public trust provisions" of the Hawai‘i 

Constitution.

On cross-appeal, Syngenta contends that the Environmental Court 

erred by: (1) "finding that HEPA applies to decisions under HRS §171-55[,]" 

and (2) "expanding the definition of 'action' under HEPA to include a 

decision that did not initiate any program or project but merely maintained 

the status quo." Syngenta's POE 1 lacks merit because the supreme court held 

in Carmichael v. Bd. of Land & Nat. Res., that "HRS § 171-55's 

'notwithstanding' clause does not nullify HEPA's EA requirement[,]" and that 

HEPA may apply to decisions under HRS § 171-55. 150 Hawai‘i 547, 567-68, 506 

P.3d 211, 231-32 (2022). 

In light of our disposition of Appellants' POEs 1, 2, and 

Syngenta's POE 2, vacating and remanding for further proceedings, we need not 

address the remaining POEs. 

4 "[A] motion seeking dismissal of a complaint is transformed into

a Hawai‘i Rules of Civil Procedure [(HRCP)] Rule 56 motion for summary

judgment when the circuit court considers matters outside the

pleadings." Goran Pleho, LLC v. Lacy, 144 Hawai‘i 224, 236, 439 p.3d 176, 188

(2019) (citation omitted). Because the Environmental Court "reviewed and

considered" the declarations and exhibits submitted with the motions, we

apply the summary judgment standard of review under HRCP Rule 56. See id.
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preparation of an EA under HRS § 343-6(a)(2)5 and related 

administrative rules. 

I. BACKGROUND 

On June 13, 2017, Appellants filed a Complaint that 

set forth claims for declaratory and injunctive relief: Count 

1, Violation of HRS Chapter 343; Count 2, Exemption from HRS 

Chapter 343 was Invalid; Count 3, Failure to Enforce 

Conservation District Laws; Count 4, Violation of the Public 

Trust; and Count 5, Injunction.

Syngenta's Motion for Summary Judgment 

On August 3, 2017, Syngenta filed a "Motion to Dismiss 

Complaint or, in the Alternative, for Summary Judgment" 

(Syngenta's MSJ), joined in part by BLNR.6 Syngenta's MSJ 

argued, inter alia, that "HEPA is not implicated" because 

Syngenta Hawaii's RP "is not an 'action' or the type of 

'proposed use' subject to HEPA review[,]" as it maintains the 

"existing use" of the Property. Alternatively, Syngenta argued 

that even if HEPA was implicated, Syngenta Hawaii's RP was 

exempt from HEPA because the RP would maintain the existing use

and "fits squarely within [an] exemption class . . . and its 

issuance w[ould] have no significant environmental effect, 

either individually or cumulatively." Syngenta's MSJ attached 

the following exhibits:7 (1) a February 24, 2017 DLNR staff 

5 HRS § 343-6(a)(2) is quoted infra. 

6 BLNR joined Syngenta's MSJ only "as to the result sought 

therein."

7 We deny Syngenta's requests filed June 13, 2018 and September 17, 

2018, for this court to take judicial notice of the following exhibits: an 

April 2014 report by the Government Accountability Office; and December 2014 

and December 2015 BLNR Staff Submittals for annual renewal of RPs on various 

islands. These documents were not presented below or considered by the 

Environmental Court, and they do not establish "adjudicative facts." See

Hawai‘i Rules of Evidence Rule 201; State v. Kwong, 149 Hawai‘i 106, 117, 

482 P.3d 1067, 1078 (2021) (appellate courts "rarely take judicial notice of 
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submittal recommending the approval of the cancellation of 

Syngenta Seeds' RP and issuance of a new RP to Syngenta Hawaii

(2017 RP Staff Submittal), which included an April 8, 1982 staff 

submittal recommending the approval of a Conservation District 

Use Application (1982 CDUA Staff Submittal) and a May 11, 1982 

letter by BLNR approving the 1982 CDUA (1982 CDUA Approval 

Letter); and (2) the February 24, 2017 BLNR meeting minutes 

reflecting approval of the 2017 RP Staff Submittal's 

recommendation (2017 RP Minutes).

Appellants' October 31, 2017 Memorandum in Opposition 

to Syngenta's MSJ (Opposition) argued, inter alia, that the 

"BLNR's approval of the RP constituted an 'action' subject to 

[HEPA]"; "[p]roposals for uses are not required for [HEPA] 

environmental review"; and the RP was not exempt from HEPA 

because BLNR did not take a "hard look" at the environmental 

consequences of the RP, did not consider the "cumulative 

impacts" of the RP, and relied on "facial compliance of the 

described land use . . . ." 

Appellants' Motion for Summary Judgment 

On August 9, 2017, six days after Syngenta's MSJ was 

filed, Appellants also filed a Motion for Summary Judgment 

(Appellants' MSJ). Appellants' MSJ argued that "BLNR violated 

[HEPA] by failing to prepare an EA for Syngenta's proposed use 

of public trust lands"; BLNR's grant of a HEPA "exemption for 

its issuance of the new RP to Syngenta was invalid and in 

violation of [HEPA]" because it did not follow the proper 

exemption procedures, did not take a "hard look" at the 

environmental impacts of the RP, and relied on an "outdated 

CDUP"; and BLNR thus "violated its duties as a trustee of public 

facts presented for the first time on appeal" (cleaned up)); Weinberg v. 

Dickson-Weinberg, 123 Hawai‘i 68, 79 n.8, 229 P.3d 1133, 1144 n.8 (2010) 

("Every appeal shall be taken on the record, and no new evidence shall be 

introduced in the appellate court." (cleaned up)). 
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trust resources." Appellants' MSJ attached the following 

pertinent exhibits: a 1981 CDUA for the 1982 CDUP;8 the 

transcript of a December 3, 1981 public hearing on the 1981 

CDUA; a January 8, 1982 published "Negative Declaration" (1982 

Negative Declaration) regarding the 1981 CDUA; two separate RPs 

issued pursuant to the 1982 CDUP; a December 20, 1985 request to 

amend the 1982 CDUP to permit the subdivision of the Property to 

facilitate the sale of a lease to one of the permittees; and the 

transcript of a November 6, 1986 public hearing on the requested 

amendment. 

On November 1, 2017, Syngenta's Opposition and BLNR's 

Opposition were filed. Syngenta argued, inter alia, that "HEPA 

does not apply to BLNR's authorization of a month-to-month [RP]" 

because the RP "maintained the status quo" and the "exemption 

complied with HEPA." BLNR did not argue that the RP was not a 

HEPA "action" or a "proposed use," but argued that the RP was 

exempt from the preparation of an EA; the 1982 CDUP concerned 

the "proposed use of land," which was not at issue; the 1982 

CDUP was not "outdated"; and the RP simply granted "possession 

of [the] [P]roperty." BLNR's Opposition attached, inter alia, a 

November 7, 1986 DLNR Staff Submittal recommending the 1982 CDUP 

be amended, and a December 11, 1986 letter by BLNR approving the 

1986 CDUA.

1982 Conservation District Use Permit

The exhibits attached to the cross-MSJs reflect the 

following pertinent history. In 1981, Kekaha Sugar Company, 

Ltd. (Kekaha) submitted a CDUA to use 62 acres of state 

conservation land located in Kekaha, Kaua‘i for "[f]arming 

operation[s] necessary to raise sugar cane."

8 It appears the parties rely on the 1982 CDUA Approval Letter as

constituting the 1982 CDUP. 
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On December 3, 1981, a public hearing was held on 

Kekaha's 1981 CDUA. At the hearing, Kekaha testified that 

Kekaha proposed to use the Property to "raise cane" and for 

"sugar cane cultivation . . . ." Kekaha additionally requested 

that Pride Company, Inc. (Pride) join Kekaha in the use of a 

portion of the Property for a "seed operation for research 

purposes" (seed research operation). BLNR's chairperson stated 

that the additional request regarding Pride would be "a major 

amendment" to the CDUA and questioned "whether it would be 

proper to modify" the CDUA to include more than one applicant. 

The case was left "open for another 15 days for written 

testimony," and the chairperson requested that Kekaha submit 

"something . . . in writing" "indicating that there [was] this 

possibility of a joint use" and that Pride submit "[s]omething 

indicating that they [were] interested in using part of" the 

Property.9 

The 1982 Negative Declaration was published in the 

January 8, 1982 Environmental Quality Commission Bulletin. As 

indicated below, the Bulletin explained what a Negative 

Declaration was, how the public could submit comments, and 

contained a deadline for challenging the Negative Declaration. 

The 1982 Negative Declaration for Kekaha's 1981 CDUA appeared as 

follows: 

NEGATIVE DECLARATIONS

The following are Negative Declarations or determinations 

made by proposing or approving agencies that certain

proposed actions will not have significant effects on the 

environment10 and therefore do not require [Environmental 

9 The record does not reflect whether there were any submissions by 

Kekaha or Pride regarding the new request for joint use of the Property with 

Pride. 

10 The 1982 Negative Declaration contained a finding of no 

significant impact (FONSI). "If the agency determines that there will be no 

significant environmental impact, it issues a finding of no significant 

impact (FONSI), allowing the project to proceed without further study,

although a FONSI determination may be challenged." Sierra Club v. Dep't of 

Transp., 115 Hawaiʻi 299, 308, 167 P.3d 292, 301 (2007); see Kilakila ‘O 
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Impact Statement (EIS)]'s (EIS Reg. 1:4p). Publication in 

the Bulletin of a Negative Declaration initiates a 60-day 

period during which litigation measures may be instituted. 

Copies are available upon request to the Commission. 

Written comments should be submitted to the agency 

responsible for the determination (indicated in project 

title). The Commission would appreciate a copy of your 

comments. 

KAUAI

CONSERVATION DISTRICT USE APPLICATION FOR COMMERCIAL 

AGRICULTURAL USE, KEKAHA, KAUAI, 

Kekaha Sugar Company, Ltd./Dept. of Land and Natural 

Resources 

The applicant proposes to clear brush from the land and 

improve the sandy soil for the purpose of raising sugar 

cane. This would be done by incorporating mud press, 

settling basin mud and cane trash. The area, when planted 

with cane, will be irrigated by either an overhead or a 

drip irrigation system and will be incorporated into the 

adjacent cane field system. The entire parcel consists of 

132.5 acres, of which 62 acres are proposed for use. The 

parcel is located between a racing drag strip and cane and 

corn farming operations, TMK:4-1-02:40. 

(Bolding and footnote added, underscoring and italics in 

original.) The 1982 Negative Declaration did not include Pride 

or mention Pride's proposed use for a seed research operation, 

and only mentioned Kekaha's proposed "commercial agricultural 

use" of "raising sugar cane."

The April 8, 1982 CDUA Staff Submittal recommended 

that BLNR approve the 1981 CDUA, and expressly noted Kekaha's 

request from the December 3, 1981 public hearing for Pride to be 

included as a co-applicant. The 1982 CDUA Staff Submittal 

stated that Pride proposed to use 43.6 acres of the Property for 

"growing of research seed stock fields, primarily corn, 

sunflowers, and soybeans"; and that Kekaha proposed to use 17.6

Haleakala v. Univ. of Haw. & David Lassner, 138 Hawai‘i 364, 371, 382 P.3d 

176, 183 (2016) (explaining that if an "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 [(FONSI)] (i.e., a 

negative declaration) . . . prior to implementing or approving the action." 

(citations omitted)). 
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acres of the Property for "growing seed cane for use in more 

productive sugar cane growing areas." 

On May 11, 1982, BLNR sent the 1982 CDUA Approval 

Letter to Kekaha, noting that Pride was copied as a "coapplicant." The 1982 CDUA Approval Letter addressed to Kekaha 

stated that the CDUA for "commercial agriculture use" was 

approved and subject to conditions, including the requirement to 

"obtain appropriate authorization" from DLNR "for the occupancy 

of State lands[.]" 

1983 Revocable Permits

In 1983, pursuant to HRS § 171-55, two RPs were issued 

to Kekaha and Pride. Pride received an RP to "[o]ccupy and use" 

43.6 acres of the Property "for the following specified purposes 

only: AGRICULTURAL (corn seed cultivation)." Pride later 

assigned its RP to a company that later became known as Syngenta 

Seeds. 

Kekaha received an RP for 17.6 acres of the Property 

for "[a]gricultural purposes (cane seed cultivation)." In 2001, 

Kekaha surrendered its RP. Thereafter, the Agribusiness 

Development Corporation (ADC), which mistakenly thought it had 

control over the 17.6 acres of the Property (the portion of 

Kekaha's RP), entered into a license with Syngenta Seeds for the 

17.6 acres of the Property "for agricultural purposes" from 2007 

to 2017. 

Syngenta Hawaii's 2017 Revocable Permit

On February 24, 2017, DLNR submitted its 2017 RP Staff 

Submittal, recommending that BLNR "[a]uthorize the cancellation

of Revocable Permit No. S-5983 to Syngenta Seeds, LLC and the 

issuance of a new revocable permit to Syngenta Hawaii, LLC," 

covering the "entire 61.2 acres because [Syngenta Seeds] has 

been using the entire area since December 2007 and the CDUP 

allowed for cultivation of the larger area." The 2017 RP Staff 

Submittal explained that Syngenta Seeds had formed Syngenta 
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Hawaii as a "wholly-owned subsidiary" of Syngenta Seeds to 

"consolidate[e] its Hawaii operations and assets in a Hawaii 

limited liability company[,]" allowing Syngenta Hawaii and 

Syngenta Seeds "to facilitate various management, tax and other

business objectives." The 2017 RP Staff Submittal noted that 

"[t]here will be no change in operations, use, or personnel 

following the cancellation and reissuance" of the RP, and that 

"[u]nder the [BLNR]'s current practice, revocable permits are 

not assignable by the permittee." 

The 2017 RP Staff Submittal's HRS Chapter 343 HEPA 

analysis stated as follows: 

CHAPTER 343 – ENVIRONMENTAL ASSESSMENT: 

In accordance with Hawaii Administrative Rule [(HAR)]

Section 11-200-8 and the Exemption List for the 

[DLNR] concurred with by the Environmental Council 

and dated June 5, 2015, the subject request is exempt 

from the preparation of an [EA] pursuant to Exemption 

Class No. 1. See Exemption Declaration [(Exemption 

Notification)] attached as Exhibit B.

Additionally, [CDUA] No. KA-11/9/81-1380 to Kekaha 

Sugar Company, Ltd. and Pride Company, Inc. was 

approved by [BLNR] at its meeting on April 8, 1982, 

Item H-4.

 

(Emphases added.) The 2017 RP Staff Submittal's HEPA 

recommendation for an EA exemption stated: 

RECOMMENDATION: That the [BLNR]: 

1. Declare that, after considering the potential effects of 

the proposed disposition as provided by Chapter 343, 

HRS, and Chapter 11-200, HAR, this project will probably 

have minimal or no significant effect on the environment 

and is therefore exempt from the preparation of an [EA].

The Exemption Notification attached to the 2017 RP 

Staff Submittal pertinently stated the following "[r]egarding 

the preparation of an [EA] pursuant to Chapter 343, HRS and 

Chapter 11-200, HAR": 
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Exemption Class No.: In accordance with [HAR] Section 11- 

200-8 and the Exemption List for 

[DLNR] concurred with by the 

Environmental Council and dated June 

5, 2015, the subject request is 

exempt from the preparation of an 

[EA] pursuant to Exemption Class No. 

1, Item 51, which states the 

"Permits, licenses, registrations, 

and rights-of-entry issued by the 

[DLNR] that are routine in nature,

involving negligible impacts beyond 

that previously existing". [sic]

The subject lands have been in 

agricultural use for many decades, 

which has resulted in no known 

significant impacts to the natural 

and environmental resources in the 

area. As such staff believes that 

the proposed issuance of a [RP] for 

the same use to a new entity would 

involve negligible or no expansion 

or change in use of the subject area 

beyond that previously existing. 

 

. . . .

Recommendation: It is recommended that [BLNR] find 

that this disposition will probably 

have minimal or no significant 

effect on the environment and is 

presumed to be exempt from the 

preparation of an [EA].

(Emphases added.)

The 2017 RP Minutes reflect BLNR approved the issuance 

of the new RP to Syngenta Hawaii, but the new RP itself is not 

part of the record.

Environmental Court's MSJ Ruling 

On November 9, 2017, a hearing was held on the 

parties' MSJs. The Environmental Court heard argument regarding 

the three conditions described in Umberger v. Dep't of Land & 

Nat. Res. that necessitate preparation of an EA.11 As to 

Condition No. 1, the Environmental Court held that Syngenta 

11 In Umberger, the Hawai‘i Supreme Court held that:

An [EA] under HEPA is required if three conditions are 

satisfied: (1) the proposed activity is an "action" under 
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Hawaii's RP "is an action under the [Umberger] analysis." As to 

Condition Nos. 2 and 3, the Environmental Court ruled as 

follows:

THE COURT: . . . . So when you look at 343-5(a)(1), 

all of the actions, all of the nine actions, do start off

with "proposed." So when they talk about proposed, the 

Court believes they are talking about future action, action 

that is going to occur, not existing action. 

In this situation, we had a permit that involved

existing action and there's been no evidence that the 

action has changed before the issuance of the permit or 

after the issuance of the permit, so the second factor the 

[Appellants] cannot satisfy. 

The third factor -- when you look at the exemption

section, whether it's 11-200-8 – if you look at the first 

one and even the exemption cited by Syngenta, it refers to 

existing use, and so those are exempt activities, existing 

use. So because of that, what the Court is doing is the 

Court is granting the motion to dismiss, [Syngenta's]

motion to dismiss, and denying [Appellants]' [MSJ]. 

(Emphases added.)

 On December 20, 2017, the Environmental Court filed 

its Order Granting Syngenta's MSJ, followed by the January 10, 

2018 Final Judgment in favor of BLNR and Syngenta on all claims

in Appellants' Complaint. These appeals followed. 

II. STANDARD OF REVIEW 

Motion for Summary Judgment 

A grant or denial of summary judgment is reviewed de 

novo on appeal. Carmichael, 150 Hawai‘i at 560, 506 P.3d at 224. 

"Summary judgment is appropriate if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together 

HRS § 343-2 (2010) [(Condition No. 1)]; (2) the action 

proposes one or more of the nine categories of land uses or 

administrative acts enumerated in HRS § 343-5(a) (2010) 

[(Condition No. 2)]; and (3) the action is not declared 

exempt pursuant to HRS § 343-6(a)(2) (2010) [(Condition No.

3)]. 

140 Hawai‘i 500, 512, 403 P.3d 277, 289 (2017) (citation omitted). 
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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." Id. (citation omitted). "This 

court must review the evidence and inferences in the light most 

favorable to the non-moving party[,]" and "[t]he 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." Kilakila ‘O Haleakala, 

138 Hawai‘i at 375, 382 P.3d at 187 (citations omitted). 

"In cases of public importance,12 a circuit court 

should grant a motion for summary judgment 'sparingly, and never 

on limited and indefinite factual foundations.'" Id. (footnote 

added) (quoting Molokai Homesteaders Coop. Ass'n v. Cobb, 63 

Haw. 453, 458, 629 P.2d 1134, 1139 (1981)). 

"When both sides move for summary judgment and the 

trial court grants one motion and denies the other, the 

reviewing court should review both sides' summary judgment 

evidence and determine all questions presented." FM Props. 

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) 

(citation omitted); see Unite Here! Local 5 v. City & Cnty. of 

12 This case is one of "public importance" because Appellants allege 

a violation of HEPA and the public trust doctrine involving BLNR's approval 

of the use of state land. See Kia‘i Wai v. Dep't of Water, 151 Hawai‘i 442, 

447, 454, 517 P.3d 725, 730, 737 (2022) (applying "public importance" summary 

judgment standard to challenge of EA for proposed 18-inch-diameter watertransmission relief line); Kilakila ‘O Haleakala, 138 Hawai‘i at 367-68, 375, 

382 P.3d at 179-80, 187 (applying "public importance" summary judgment 

standard to challenge of BLNR's determination that EIS not required for 

construction of telescope at Haleakala observatory site); Molokai 

Homesteaders Co-op. Ass'n v. Cobb, 63 Haw. 453, 455, 458, 629 P.2d 1134, 

1137, 1139 (1981) (applying "public importance" summary judgment standard to 

challenge of agreement between BLNR and corporation for use of Molokai 

Irrigation System transmission facilities to transport water to resort 

complex); Ho‘opakele v. Dep't of Acct. & Gen. Servs., No. CAAP-14-0001328, 

2016 WL 197012, at *1-3 (Haw. App. Jan. 12, 2016) (mem. op.) (applying 

"public importance" summary judgment standard to challenge of EA for Mauna 

Kea correctional facility). 
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Honolulu, 123 Hawai‘i 150, 161-66, 178-81, 231 P.3d 423, 434-39, 

451-54 (2010) (looking to the evidence attached to both 

defendants' and plaintiffs' cross-motions for summary judgment 

in determining whether the defendants' summary judgment was 

appropriately granted). 

III. DISCUSSION 

The Environmental Court's summary judgment ruling 

turned on its analysis of the three conditions triggering HEPA 

review set forth in Umberger, 140 Hawai‘i at 512, 403 P.3d at 

289. We conclude that the Environmental Court erred in its 

analysis of Umberger Condition Nos. 2 and 3 and in granting 

Syngenta's MSJ.

A. Umberger Condition No. 1: Syngenta Hawaii's 

proposed activity under the new RP was an 

"action" under HRS § 343-2 subject to HEPA 

review. 

As to Condition No. 1, an EA is required if "the 

proposed activity is an 'action' under HRS § 343-2 (2010)[.]" 

Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 (citation omitted). 

The Environmental Court concluded in its oral ruling that 

Syngenta's new RP was an "action" under Umberger. We initially 

note that the parties and the Environmental Court did not 

differentiate between BLNR's issuance of an HRS § 171-55 

revocable permit, and the permittee's proposed activity under a

permit. Here, BLNR's issuance of a revocable permit was not an 

"action" for purposes of HEPA. It was the permittee's activity

under the permit that potentially constitutes an "action." 

Carmichael, 150 Hawai‘i at 569, 506 P.3d at 233 (explaining that 

the revocable permits themselves were not HEPA "actions," but 

rather it was the applicant's permitted activity that 

constituted HEPA "actions"); Umberger, 140 Hawai‘i at 504, 514-

15, 403 P.3d at 281, 291-92. 
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Syngenta argues that the issuance of the RP was not an 

"action" because it was not a "project" or "program," as it 

"merely maintained the status quo" or "existing conditions on a 

temporary basis with no new actions/plans contemplated or 

authorized."13 Appellants argue that "[p]rograms or projects 

subject to [HEPA] may be ongoing" and that BLNR made "no 

specific finding" that Syngenta's RP would "maintain the status

quo." 

"Action" is defined as "any program or project to be 

initiated by any agency or applicant." HRS § 343-2 (2010). In 

Umberger, the supreme court defined "project" as "a specific 

plan or design" or "a planned undertaking[,]" and a "program" as 

"a plan or system under which action may be taken toward a 

goal." 140 Hawai‘i at 513, 403 P.3d at 290. In both Umberger

and Carmichael, the supreme court held that the continuation of 

permitted activity may constitute an "action" for HEPA purposes. 

See Carmichael, 150 Hawai‘i at 553, 569, 506 P.3d at 217, 233 

(holding that the continuation of water permits "during the past 

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

from east Maui streams required an [EA]" pursuant to HEPA); 

Umberger, 140 Hawai‘i at 504, 514-15, 403 P.3d at 281, 291-92 

(holding that the continuation of one-year aquarium collection 

permits, which "authorize[d] the collection of fish or other 

aquatic life for aquarium purposes" "per year" was a "program" 

or "project" and a HEPA "action"). The Carmichael court 

explained that while neither the "continuation decision nor the

[RPs] themselves are HEPA 'actions,' . . . it is applicant's 

permitted activity -- i.e., the activity for which the 

[applicants] initially sought permit approval -- that 

13 BLNR "assumes, without conceding, that the cancellation and reissuance of [the RP] was an 'action' under HRS § 343-2 . . . ." 
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constitutes 'action' within the meaning of HEPA." Id. at 569, 

506 P.3d at 233 (citation omitted). The Carmichael permittees' 

activity constituted a "project" because "the permits 

facilitated a deliberate and coordinated effort by the . . . 

Defendants to use their water system to deliver water and manage 

water use for the permitted areas." Id. (citation omitted). 

The permitted activity was also a "program" because it involved

a "'plan or system'" with the purpose of "meet[ing] . . . 

Defendants' (and their customers') water needs." Id. (citation 

omitted). 

 Here, BLNR's cancellation of Syngenta Seeds' RP and 

issuance of the new RP to Syngenta Hawaii were not HEPA 

"actions." The commercial agricultural activity proposed by 

Syngenta Hawaii under the new RP, however, constituted an 

"action" within the meaning of HEPA. See id. The new RP 

permitted a new entity, Syngenta Hawaii, to occupy the Property 

to engage in a "project" or "program" of commercial agriculture

in order to earn profit. See HRS § 343-2. Syngenta Hawaii's 

permitted activity is a "project" because it "facilitated a 

deliberate and coordinated effort" to use the property for 

commercial agricultural purposes. See Carmichael, 150 Hawaiʻi at 

569, 506 P.3d at 233; Umberger, 140 Hawai‘i at 514, 403 P.3d at 

291. The permitted activity is also a "program" because it 

involves a "'plan or system'" to use the Property for commercial 

agricultural purposes with a "'goal'" to earn profit. See 

Carmichael, 150 Hawai‘i at 569, 506 P.3d at 233 (citation 

omitted); Umberger, 140 Hawai‘i at 514, 403 P.3d at 291. The 

Environmental Court correctly concluded that Syngenta Hawaii's

proposed activity under the new RP was an "action" subject to 

HEPA review, and that Condition No. 1 was met. See id. at 560, 

506 P.3d at 224; Kilakila ʻO Haleakala, 138 Hawaiʻi at 375, 382 

P.3d at 187. 
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B. Umberger Condition No. 2: Syngenta Hawaii 

was a new applicant proposing an "action" 

under a new RP for the use of state lands 

under HRS § 343-5(a)(1). 

As to Condition No. 2, an EA is required if "the 

action proposes one or more of the nine categories of land uses

or administrative acts enumerated in HRS § 343-5(a) (2010)."14 

Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 (citation omitted). 

HRS § 343-5(a)(1) provides that an EA is required for actions 

that "[p]ropose the use of state . . . lands . . . ." While 

Syngenta Hawaii's proposed activity under the new RP involved 

the use of state lands, the Environmental Court concluded that 

HRS § 343-5(a)(1) applies to actions that are "proposed," which 

the court construed to mean "future action" and excluding 

"existing action[,]" and thus, the second condition triggering 

HEPA review was not met on this basis. 

 Relying on Umberger and Carmichael, Appellants argue 

that the Environmental Court erroneously ruled that BLNR's 

issuance of the RP to Syngenta Hawaii was for "existing uses" 

and not "'proposed' uses" subject to HEPA review. BLNR 

"assumes, without conceding, that the cancellation and reissuance of [the RP] . . . met one of the 'triggers' under HRS 

§ 343-5(a)." Syngenta argues, inter alia, that unlike the RP in 

Carmichael, its RP did not grant Syngenta Hawaii the "permission 

14 HRS § 343-5(a) (2010), entitled "Applicability and requirements," 

mandates an EA for various categories of land use set forth in subsections 

(1) through (9), of which subsection (1) pertaining to use of state land, is 

relevant here. This subsection states:

(a) Except as otherwise provided, an [EA] shall be required 

for actions that: 

(1) Propose the use of state or county lands . . .; 

provided that the agency shall consider environmental 

factors and available alternatives in its feasibility 

or planning studies; . . . .

(Emphases added.)
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to use any resources," but rather sought a "corporate name 

change to an existing [RP]." 

 Here, the record reflects that Syngenta Hawaii was a 

new applicant for a new RP. Syngenta Seeds and Syngenta Hawaii 

are separate legal entities. The 2017 Exemption Notification 

noted the RP would be issued "to a new entity . . . ." BLNR 

adopted the 2017 RP Staff Submittal's recommendation to cancel 

Syngenta Seeds' RP and to issue "a new [RP] to Syngenta Hawaii

. . . ." Thus, Syngenta Hawaii was a new applicant proposing an 

"action" under a new RP for the use of state lands under HRS 

§ 343-5(a)(1), and the Environmental Court erred by concluding 

that Condition No. 2 was not met. See Carmichael, 150 Hawai‘i at 

569, 506 P.3d at 233; Kilakila ‘O Haleakala, 138 Hawai‘i at 375, 

382 P.3d at 187.

C. Umberger Condition No. 3: There were 

genuine issues of material fact about 

whether Syngenta Hawaii's proposed activity 

was exempt from HEPA review. 

As to Condition No. 3, an EA is required if "the 

action is not declared exempt pursuant to HRS § 343-6(a)(2)

(2010)."15 Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 

(citation omitted). Pursuant to HRS § 343-6(a)(2), HAR § 11-

15 HRS § 343-6(a)(2) (2010), entitled "Rules," provides for agencies 

to adopt rules and establish procedures to exempt actions from environmental 

review. This subsection states: 

(a) After consultation with the affected agencies, 

the council shall adopt, amend, or repeal necessary 

rules for the purposes of this chapter in accordance 

with chapter 91 including, but not limited to, rules 

that shall:

. . . .

(2) Establish procedures whereby specific types of 

actions, because they will probably have minimal or 

no significant effects on the environment, are 

declared exempt from the preparation of an [EA][.]

(Emphasis added.)
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200-8(a) (repealed 2019), established "Exempt Classes of Action" 

as follows:

(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 [EA] 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 [EA] under this section are not 

exempt from complying with any other applicable statute or 

rule. . . . 

(Emphasis added.) DLNR's exemption list under HAR § 11-200-8(a) 

included Exemption Class No. 1, Item 51, which exempted: 

"Permits, licenses, registrations, and rights-of-entry issued by 

the [DLNR] that are routine in nature, involving negligible 

impacts beyond that previously existing." (Emphasis added.) The 

Environmental Court concluded that because the exemption at 

issue here "refers to existing use," it applied to Syngenta 

Hawaii. 

Appellants argue, inter alia, that BLNR improperly 

relied on the 1982 CDUP for HEPA compliance because "Syngenta's 

proposed uses of the [Property] were not covered under its 

terms[,]" and that the 1982 CDUP was "issued to a different 

applicant and for different uses . . . ." Appellants argue that 

the 1982 Negative Declaration was for Kekaha's "soil 

improvements, clearing brush, [and] 'raising sugar cane,'" and 

that the "CDUP processes did not entail examination of 

Syngenta's agribusiness practices, which include restricted use 

pesticide use and GMO cultivation." Appellants argue that 

because of the "[l]acking . . . environmental disclosure 

documents, [BLNR] was not informed of the amount and types of 

pesticides that would be used" in conjunction with the seed 

research operation.
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BLNR argues, inter alia, that Syngenta's RP would 

"change the name on the permit and amend the acreage of land it

covered, while not changing anything that Syngenta was already 

permitted to do on the [Property]." BLNR argues that the 1982 

CDUP authorized the use of the Property for "commercial 

agricultural use"; Syngenta's RP would "only authorize the 

occupancy of the [state] land on a temporary basis"; and the RP 

does "not authorize any specific type of land use . . . ." 

Additionally, BLNR "noted that there were no known environmental 

consequences from the past agricultural use of the [Property] by 

Syngenta . . . ." Syngenta argues, inter alia, that the new RP 

"did not change Syngenta's existing seed farm operations, 

facilities and personnel in any manner." 

In determining whether an "action" is exempt from 

HEPA, "the agency must conduct a four-step analysis:" 

an action is exempt from HEPA if (1) it is within an exempt 

class promulgated by the Environmental Council in HAR § 11-

200-8(a) or within an exemption category created by the 

agency itself pursuant to its authority under HAR § 11-200-

8(d); (2) the relevant exemption category can be applied 

because the activity does not have a significant cumulative 

impact and it does not have a significant impact on a 

particularly sensitive environment, see HAR § 11-200-8(b); 

(3) the agency obtained the advice of other agencies or 

individuals having jurisdiction or expertise as to the 

propriety of the exemption, HAR § 11-200-8(a); and (4) the 

action will probably have minimal or no significant effects 

on the environment, HRS § 343-6(a)(2); see also HAR § 11-

200-8(d); Sierra Club, 115 Hawai‘i at 315-16, 167 P.3d at 

308-09.

Umberger, 140 Hawai‘i at 524, 403 P.3d at 301 (emphasis added). 

"If the action fails to satisfy any of the four requirements 

discussed, it is not exempt from HEPA." Id. (citation omitted). 

Here, the Environmental Court's analysis was 

incomplete because it stopped at step (1) of the above analysis

(i.e. the exemption class determination), and it did not 

consider steps (2), (3), and (4). See id. We conclude that 
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there was a material factual dispute as to step (1), whether the 

exemption was properly applied as a matter of law, given HAR 

§ 11-200-8(a)'s requirement that the action be one that "will 

probably have minimal or no significant effect on the 

environment" for inclusion in the exemption class.

The 2017 Exemption Notification explained that the 

Property had "been in agricultural use for many decades, which 

has resulted in no known significant impacts to the natural and

environmental resources in the area." To support this finding, 

the 2017 RP Staff Submittal relied on the 1982 CDUP, and 

attached the 1982 CDUA Staff Submittal and 1982 CDUA Approval 

Letter. The record reflects, however, that the 1981 CDUA was 

initiated by Kekaha for raising sugar cane; Pride was later 

added as a co-applicant for its seed research operation; the 

FONSI in the 1982 Negative Declaration only applied to Kekaha 

and not Pride; and the FONSI determined that Kekaha's proposed 

activity of "raising sugar cane" would "not have significant 

effects on the environment" and did "not require [an] EIS

. . . ." The record of the 1982 CDUP presented here does not 

reflect that the environmental impact of Pride's proposed seed 

research operation activity was considered or reviewed with 

Kekaha's 1981 CDUA. 

In addition, the record is insufficient to support the 

2017 Exemption Notification's determination that there was "no 

expansion or change in use of the subject area beyond that 

previously existing." The record does not contain a detailed 

description of Syngenta Hawaii's activity under the new RP visà-vis the previously existing permitted activity to support the 

conclusion of "no expansion or change in use . . . ." Nor does 

the record establish whether Syngenta Seeds' permitted activity 

was similar to the "raising sugar cane" activity included in the 

1982 FONSI, or similar to the seed research operation activity 
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that was not included in the 1982 FONSI. Appellants presented 

evidence of what they claimed were environmental impacts from 

Syngenta's seed research operation, which included, inter alia,

harm to marine life, insects and native plants, soil, and an 

increase in certain types of illnesses from Syngenta's use of 

pesticides. That evidence created genuine issues of material 

fact which should have precluded summary judgment.

On this record, we conclude there are genuine issues 

of material fact as to whether BLNR could properly rely on the 

1982 CDUP in determining that there were "no known significant 

impacts" on the environment from Syngenta Hawaii's proposed 

activity, and whether Syngenta Hawaii's proposed activity under 

the new RP "will probably have minimal or no significant effect 

on the environment" for an HAR § 11-200-8(a) exemption. Thus, 

as to Condition No. 3, the Environmental Court erred in 

concluding as a matter of law that Syngenta Hawaii's proposed 

activity was exempt from HEPA review because it qualified for 

inclusion in "Exemption Class No. 1, Item 51[.]" See HRCP Rule 

56; Carmichael, 150 Hawai‘i at 560, 506 P.3d at 224; Kilakila ‘O

Haleakala, 138 Hawai‘i at 375, 382 P.3d at 187.

IV. CONCLUSION 

For the foregoing reasons, we vacate the (1) December 

20, 2017 "Order Granting Syngenta Seeds, LLC and Syngenta 

Hawaii, LLC's Motion to Dismiss Complaint or, in the 

Alternative, for Summary Judgment Filed on August 3, 2017; Order 

Denying Plaintiffs' Motion for Summary Judgment Filed August 9,

2017"; and (2) January 10, 2018 Final Judgment, both filed and 

entered by the Environmental Court of the Fifth Circuit. We 
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remand for further proceedings in accordance with this 

Memorandum Opinion. 

DATED: Honolulu, Hawai‘i, April 30, 2024.

On the briefs:

Lance D. Collins

for Plaintiffs-Appellants/

Cross-Appellees.

Timothy H. Irons

for Defendants-Appellees/

Cross-Appellants.

Ewan C. Rayner

Deputy Solicitor General

for Defendant-Appellee/

Cross-Appellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge