We Lost, We Won, We Will Appeal – (Summary of Yesterdays Results in Court) – Ke Kauhulu O Mana Versus the State Board of Land and Natural Resources (BLNR) and Syngenta
The hui, Ke Kauhulu O Mana includes west side residents Loui Cabebe and Punohu Kekaualua III. The plaintiffs also include the Surfrider Foundation, Kohola Leo and Hawaii Alliance for Progressive Action (H.A.P.A.).
Our Board President, Gary Hooser shares his reflections on the court ruling from November 9th.:
For those wondering what happened in court on November 9th below are my thoughts and observations.
Judge Randal Valenciano seemed very familiar with the section of law being argued, HRS343 – the Hawaii Environmental Policy Act (HEPA). He also seemed to have studied closely prior to the hearing the arguments being presented by both sides. And it is also likely that he had come to his core decision prior to hearing the oral arguments presented yesterday (which would not be unusual).
As a plaintiff, our position was that the BLNR/Syngenta did not comply with HRS343 and improperly exempted from environmental review activity being conducted on approximately 60 acres of land part of which was conservation zoned and located adjacent to the coastline, and historically designated as “Crown Lands”.
The other sides position was that because this was “ongoing use” that HEPA did not apply, and if it did apply the activities were “exempt” because of the “ongoing use”. Syngenta’s attorney dwelt on the use of the word “proposed” in the HEPA law and argued it only applied to a “proposed use” and not an “ongoing use”.
Syngenta also attempted to argue that the BLNR did not even have to exempt the matter from HEPA, because HEPA did not apply. The BLNR attorney however acknowledged that HEPA did apply and the Judge stated clearly that Syngenta was incorrect.
However acknowledging that HEPA did apply while significant in an of itself (and is a decision by the court that we are celebrating) was not the end of the story. The next step in the courts decision making process was to address the question of, “Did the action/activity qualify as a ‘proposed use’ or not?”
While our side argued that the current use on the property had never undergone any environmental review, had operated under faulty CDUP conditions (or lack thereof), that its original use as sugar cane had changed dramatically over the years, and that a significant portion of the property had essentially never gotten the required permits needed to conduct the present activities – the judge in the end and we believe erroneously, sided with the State/Syngenta.
Judge Valenciano verbally acknowledged but apparently failed to be swayed by the fact that Hawaii Administrative Rules (HAR) state clearly that:
“If an exempt action is proposed in a particularly sensitive environment, or if successive exempt actions could have a cumulative impact, the exempt status of the action would be invalid.”
This provision is intended to supersede all exemptions to the HEPA law, however for whatever reason this was not considered or otherwise was discounted by the court. Clearly the actions of Syngenta with regards to the intense application of Restricted Use Pesticides, have a “cumulative impact” and the actions are being conducted in a “particularly sensitive environment”.
Another key component that the judge acknowledged but refused to consider is that the State/Syngenta failed to consult with the State Department of Health (SDPH) prior to issuing its exemption even though the Office of Environmental Quality Control states clearly in their exemption guidelines:
“The proposing or approving agency must consult with agencies or individuals having jurisdiction and expertise before declaring a project to be exempt from preparing an environmental assessment.”
The SDOH is the agency that holds all of Syngenta’s experimental permits, and obviously is an agency that “has jurisdiction and expertise” pertaining to the potential health and environmental impacts involved in this matter.
So to summarize the summary:
The Judge ruled against our primary contention that the State/Syngenta failed to comply with HRS343, based on his belief that they are conducting an “ongoing use” and it is not a “proposed use”. We believe his reasoning in reaching this conclusion was flawed, did not take into consideration the scope and breadth of the existing use nor the factual and historical background, and we will be appealing the decision.
However, Judge Valenciano did affirm that HRS343 does apply to the State/Syngenta (and other companies in a similar situation) when the use is a “proposed use”. So based on this courts decision, when Syngenta or others attempt to expand their use of State lands in the future beyond their existing foot-prints, this would trigger HRS343 and the “existing and ongoing use” argument would not be relevant. We believe this acknowledgment by the court is significant and are celebrating it as a win. Important note: In general, HRS343 applies only to State or County lands and not to private lands.
Disclaimer: I am not a lawyer, though I did briefly attend the UH Richardson School of Law and have been involved in making law at both the County and the State level for the past 16 years. In addition, I served for a brief time as the Director of the OEQC, the agency that administers and manages HEPA and HRS343. In addition, I am the volunteer President of the Board of Directors for the Hawaii Alliance for Progressive Action (HAPA) who is one of the plaintiffs in this case.
Note 1: Judge Valenciano frequently referred to “Umberger” that clearly was used as the basis for his decision: Umberger v. Department of Land & Natural Resources https://law.justia.com/cases/hawaii/supreme-court/2017/scwc-13-0002125.html
Note 2: Earlier I posted on FaceBook copies of some of the Syngenta permits that are heavily redacted but indicate they are conducting activities in areas near or adjacent to “critical habitat” and the presence of endangered species. https://www.facebook.com/garyhooser/posts/10214047127596734?pnref=story
Note 3: Here is another Hooser Blog item that further details key elements surrounding the law suit: https://garyhooser.wordpress.com/2017/11/06/state-blnr-grants-syngenta-free-pass-on-environmental-review/