** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **
Electronically Filed Supreme Court SCWC-XX-XXXXXXX 26-AUG-2025 07:52 AM Dkt. 40 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o--- ________________________________________________________________
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, Petitioners/Plaintiffs-Appellants/Cross-Appellees,
vs.
BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʻI, Respondent/Defendant-Appellee/Cross-Appellee,
and
SYNGENTA SEEDS, LLC, A LIMITED LIABILITY COMPANY, SYNGENTA HAWAII, LLC, A LIMITED LIABILITY COMPANY, Respondents/Defendants-Appellees/Counterclaim-Appellants. ________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 5CC171000094)
AUGUST 26, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, and DEVENS, JJ., and CIRCUIT JUDGE HAMMAN, IN PLACE OF GINOZA, J., RECUSED
OPINION OF THE COURT BY McKENNA, J. ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **
I. Introduction
This case arises out of the Board of Land and Natural
Resources’ (“BLNR”) decision to exempt Syngenta Hawaii, LLC,
from preparing an environmental assessment (“EA”) for its seed
research operation on state land. Hawaiʻi Revised Statutes
(“HRS”) Chapter 343, the Hawaiʻi Environmental Policy Act
(“HEPA”), requires EAs for actions proposing use of state lands,
unless exempted.
In 2017, when BLNR issued a new revocable permit (“RP”) to
Syngenta Hawaiʻi, LLC, it declared an EA was not required because
the land’s usage was not being changed and because there was
minimal or no significant effect on the environment. In so
determining, BLNR referred to its 1982 approval of a
conservation district use permit (“CDUP”) for which a “finding
of no significant impact” (“FONSI”) had issued.
But the 1982 CDUP and FONSI had been based on use of the
land for sugar cane cultivation. BLNR had not analyzed possible
environmental impacts of a seed research operation involving the
use of restricted use pesticides (“RUPs”) and genetically
modified organisms (“GMOs”).
Ke Kauhulu o Mānā and others (collectively referred to as
“Ke Kauhulu”) challenged BLNR’s 2017 EA exemption declaration in
the Environmental Court of the Fifth Circuit (“environmental
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court”). The environmental court1 upheld the exemption
declaration and granted summary judgment in favor of Syngenta
and BLNR.
On appeal, the Intermediate Court of Appeals (“ICA”)
ruled in relevant part that issues of fact as well as gaps
in BLNR’s record precluded summary judgment. The ICA
ordered a remand to the environmental court for it to
readdress the EA exemption declaration.
On certiorari, Ke Kauhulu argues the ICA erred when it
ordered a remand instead of determining that an EA was required
as a matter of law.
We agree with Ke Kauhulu and hold that (1) whether an
agency has “followed proper procedures” or “considered
appropriate factors” in declaring an EA exemption are questions
of law reviewed de novo; and (2) because BLNR did not “follow
proper procedures” or “consider appropriate factors” in its 2017
EA exemption declaration, an EA is required as a matter of law.
Therefore, the ICA should not have ordered a remand for the
environmental court to readdress the EA exemption declaration.
Instead, we order a remand to the environmental court for
further proceedings consistent with this opinion, which includes
1 The Honorable Randal G.B. Valenciano presided.
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requiring the BLNR to prepare an EA regarding possible
environmental impacts from use of the land for seed research.
II. Background
A. Factual and pre-litigation background
The following background shows that BLNR never analyzed the
potential environmental impacts of using state conservation land
for seed research operations.
1. The land
The land involved is within TMK (4) 1-2-002:040 in Kekaha,
Waimea, Kauaʻi, in a state-owned conservation district. It
consists of approximately 132 acres located about 400 feet from
the ocean; about half of that acreage is involved here.
2. 1982 CDUP and FONSI
In 1981, Kekaha Sugar Company (“Kekaha Sugar”) applied for
a CDUP to use sixty-two acres of the land for “[f]arming
operation[s] necessary to raise sugar cane.” In late 1981, BLNR
held a public hearing on the application. At the hearing,
Kekaha Sugar said it proposed to use the land to “raise cane”
and for “sugar cane cultivation[.]” Kekaha Sugar also said that
Pride Company, Inc. (“Pride”), which was not included in its
original application, would use a portion of the land for seed
research.
This proposed use of state land triggered HEPA
environmental review requirements.
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In January 1982, BLNR published a negative declaration with
a FONSI. The negative declaration only referred to Kekaha
Sugar’s proposed sugar cane cultivation use and did not mention
Pride’s proposed seed research operation:
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 environment2 and therefore do not require [Environmental Impact Statement (“EIS”)] . . . .
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.
In 1982, BLNR approved the CDUP. In 1983, BLNR issued two
RPs pursuant to HRS § 171-55.3 RP S-5966 was issued to Kekaha
2 “If the agency determines that there will be no significant environmental impact, it issues a [FONSI], allowing the project to proceed without further study, although a FONSI determination may be challenged.” See Kilakila ‘O Haleakala v. Univ. of Haw., 138 Hawaiʻi 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 [FONSI] (i.e., a negative declaration) . . . prior to implementing or approving the action.”).
3 HRS § 171-55 (2011) states in relevant part:
Notwithstanding any other law to the contrary, the board of land and natural resources may issue permits for the
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Sugar regarding use of 17.6 acres for “cane seed cultivation.”
RP S-5983 was issued to Pride regarding use of 43.6 acres for
“corn seed cultivation.”
3. Assignments and name changes before 2017
In 1993, BLNR consented to the assignment of RP S-5983 from
Pride to Northrup King, Co., which later changed its name to
Novartis Seeds, Inc. In 2000, BLNR approved another name change
from Novartis Seeds, Inc., to Syngenta Seeds, Inc.
In early 2001, Kekaha Sugar surrendered RP S-5966 regarding
the other 17.6 acres. In 2007, the Agribusiness Development
Corporation (“ADC”), which thought it had control over the 17.6
acres, licensed them to Syngenta Seeds, Inc., which then began
using the entire 61.2 acres—-43.6 acres under RP S-5983 and 17.6
acres under the ADC licensing agreement.
In 2015, Syngenta Seeds, Inc., converted from a Delaware
corporation to a Delaware limited liability company named
Syngenta Seeds, LLC (“Syngenta Seeds”), which then formed a
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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wholly-owned subsidiary, Syngenta Hawaii, LLC (“Syngenta
Hawaii”).
4. 2017 RP to Syngenta Hawaii
In early 2017, Syngenta Seeds filed an application seeking
a name change on RP S-5983 to Syngenta Hawaii. During its
review of the application, Department of Land and Natural
Resources (“DLNR”) staff realized that RP S-5983 only covered
43.6 acres, although Syngenta Seeds had been using the full 61.2
acres. The other 17.6 acres was being used under Syngenta
Seeds’ licensing agreement with the ADC, which did not control
the parcel. Therefore, DLNR recommended that, along with the
name change, BLNR issue a new RP for the entire 61.2 acres
approved under the 1982 CDUP. DLNR indicated there would be no
change in operations, but that under existing regulations, RPs
were not assignable.
DLNR also recommended that the new RP to Syngenta Hawaii be
deemed exempt from HEPA:
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].
BLNR staff said the parcel had been in “agricultural use for
decades,” resulting in “no known significant environmental
impacts” and “the proposed issuance of a revocable permit for
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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.”
BLNR’s HEPA analysis referred back to the 1982 FONSI, which
had never analyzed possible environmental impacts of a seed
research operation:
CHAPTER 343 – ENVIRONMENTAL ASSESSMENT:
[T]he 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, [CDUP] 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.
And according to Exhibit B:
In accordance with Hawaii Administrative Rule Section 11- 200-8 and the Exemption List for the Department of Land and Natural Resources concurred with by the Environmental Council and dated June 5, 2015, the subject request is exempt from the preparation of an environmental assessment pursuant to Exemption Class No. 1, Item 51, which states the “Permits, licenses, registrations, and rights-of-entry issued by the Department that are routine in nature, involving negligible impacts beyond that previously existing[].[”]
In preparing the exemption recommendation, DLNR staff
indicated they consulted with several other state agencies: the
Department of Hawaiian Homelands (“DHHL”), Department of
Agriculture (“DOA”), ADC, Office of Hawaiian Affairs (“OHA”),
and the Kauaʻi County Planning Office. The record does not
reflect that DLNR consulted the Department of Health (“DOH”).
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BLNR unanimously approved DLNR’s recommendations. It
approved a name change from Syngenta Seeds, LLC, to Syngenta
Hawaii, included the entire 61.2 acres in a new RP, and declared
the new RP exempt from preparation of an EA.
B. Environmental court proceedings
1. Complaint
On June 13, 2017, Ke Kauhulu filed a complaint in the
environmental court. Ke Kauhulu named BLNR, Syngenta Seeds and
Syngenta Hawaii as defendants (Syngenta Seeds and Syngenta
Hawaii are sometimes collectively referred to as “Syngenta”).4
Relevant to this certiorari proceeding, Ke Kauhulu claimed BLNR
violated HEPA by failing to prepare an EA for the proposed
action.5
4 At oral argument, Syngenta’s counsel argued for the first time that the case was moot and should be dismissed because there was a new permittee, Hartung Brothers Hawaii, LLC (“Hartung”). In early 2017, BLNR knew that Syngenta Hawaii was trying to sell its Hawaiʻi operations and that unless the sale was through an equity transfer, the buyer would have to apply for a new RP. Hartung then purchased the equity interest in Syngenta Hawaii before June 29, 2017, and the permittee’s name was changed to Hartung on that date. Later RPs have apparently been issued in Hartung’s name, but this lawsuit continued to be defended in Syngenta’s name with no motion to dismiss or add or substitute Hartung as a party. Syngenta’s counsel orally moved for a mootness dismissal based on his understanding that mootness is an issue of subject matter jurisdiction. But mootness is a prudential issue, not a subject matter jurisdiction issue. State v. Hewitt, 153 Hawaiʻi 33, 42, 526 P.3d 558, 567 (2023). In any event, Hartung continues the seed research operation and the “capable of repetition, yet evading review” and public interest exceptions to the mootness doctrine would apply here. See Carmichael v. Bd. of Land & Nat. Res., 150 Hawaiʻi 547, 560, 506 P.3d 211, 224 (2022). We therefore reject the untimely oral motion to dismiss.
5 Ke Kauhulu also alleged BLNR failed to enforce conservation district laws under HRS chapter 183C and violated the public trust doctrine of Article XI, Section 1 of the Hawaiʻi Constitution. Because the HEPA issues are dispositive, we need not and do not address these other issues.
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2. Motions for summary judgment
In August 2017, Ke Kauhulu and Syngenta filed competing
motions for summary judgment (“MSJ”). BLNR joined Syngenta’s
motion in part.6
The only issue before this court is whether the ICA should
have ordered a remand to the environmental court for it to
readdress whether an EA exemption was properly declared. Thus,
only the arguments relevant to this issue are discussed.
a. Ke Kauhulu’s arguments
Ke Kauhulu argued BLNR’s finding of an exemption was
invalid and violated HEPA. BLNR had said there were no
significant effects by noting that the parcel had been “in
agricultural use for many decades” and that such use had
resulted in “no known significant impacts to the natural and
environmental resources in the area.” Ke Kauhulu argued that
this was not the proper legal standard; rather, BLNR needed to
take a “hard look” at environmental factors, consider
foreseeable direct and indirect impacts, and discuss adverse
impacts.
6 BLNR joined Syngenta’s MSJ only “as to the result sought therein.”
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Ke Kauhulu argued that BLNR was required to look beyond the
action’s facial compliance with an exemption class, and to also
determine that the activity will probably not have a significant
effect – which it failed to do here. Ke Kauhulu further argued
that BLNR’s reliance on Kekaha Sugar’s 1982 CDUP as part of its
HEPA assessment did not constitute a “hard look” because the
1982 FONSI was issued only for soil improvements, clearing
brush, and raising sugar cane – not the impacts of Syngenta’s
proposed action, including use of RUPs and cultivation of GMOs.
Ke Kauhulu also asserted that cumulative impacts of
successive actions at the parcel, over several decades, were
significant and rendered the exemption improper. According to
Ke Kauhulu, the parcel includes and is near a critical habitat
for endangered or threatened species and contains important
natural resources essential to the preservation of natural
ecosystems and sustainability of the water supply. Ke Kauhulu
further argued that without any environmental disclosure
documents or other proper assessments, BLNR was not sufficiently
informed of Syngenta’s pesticide use on the parcel.
Ke Kauhulu also asserted that BLNR failed to comply with
exemption consultation requirements. According to HAR §
11-200-8, BLNR is required to obtain the advice of other outside
agencies having jurisdiction or expertise, Ke Kauhulu asserted.
Ke Kauhulu further pointed out that BLNR’s exemption
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notification did not list the DOH as a consulted party despite
DOH being the agency that reviews Syngenta’s GMO permits.
b. Syngenta’s arguments
Syngenta argued the only reason for the new RP was for a
name change and to clarify which arm of the state manages the
property. Syngenta maintained that BLNR’s exemption complied
with HEPA. It contended the new RP was exempt because
maintaining the existing use “fits squarely within [an]
exemption class . . . and its issuance [would] have no
significant environmental effect, either individually or
cumulatively.”
As to Ke Kauhulu’s argument that BLNR should have consulted
DOH, Syngenta argued BLNR was not required to do so. It posited
that BLNR consulted the DOA and the National Resource
Conservation Service, both of which have expertise over RUPs and
GMOs.
c. BLNR’s arguments
BLNR argued that whether a HEPA exemption applies is a
mixed question of law and fact. BLNR argued that “judicial
review of the propriety of a given exemption should be narrowly
tailored to the specific project at issue[.]”
3. Ruling on MSJs
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On November 9, 2017, the environmental court held a hearing
on the parties’ MSJs.
As to the HEPA exemption, the environmental court stated:
THE COURT:
[W]hen 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 [Ke Kauhulu’s] [MSJ].
On December 20, 2017, the environmental court entered its
order granting Syngenta’s and denying Ke Kauhulu’s MSJ. On
January 10, 2018, final judgment was entered.
C. ICA proceedings
On January 31, 2018, Ke Kauhulu appealed. On February 13,
2018, Syngenta cross-appealed. With respect to the EA exemption
issue, the parties repeated their arguments from below.
On April 30, 2024, the ICA issued its memorandum opinion.
Ke Kauhulu O Mānā v. Bd. of Land & Nat. Res., No. CAAP-18-
0000057, 2024 WL 1886115 (Haw. App. Apr. 30, 2024) (mem. op.).
The ICA reviewed the environmental court’s analysis of
whether an EA was required for the 2017 Syngenta Hawaii RP. Ke
Kauhulu O Mānā, 2024 WL 1886115, at *1. The ICA cited to
Umberger v. Department of Land & Natural Resources, 140 Hawai‘i
500, 403 P.3d 277 (2017), which held that under HEPA, an EA is
required if: (1) the proposed activity is an “action” under HRS
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§ 343-2 (2010); (2) the action proposes one or more of the nine
categories of land uses or administrative acts enumerated in HRS
§ 343-5(a) (2010); and (3) the action is not exempt pursuant to
HRS § 343-6(a)(2)(2010). Umberger, 140 Hawaiʻi at 512, 400 P.3d
at 289.
The ICA determined that the first two Umberger conditions
requiring an EA were met. Ke Kauhulu O Mānā, 2024 WL 1886115,
at *8-9.7 These ICA holdings are not challenged on certiorari.
Thus, the only issues on certiorari concern the ICA’s
holding regarding the third Umberger condition, as to whether
the 2017 RP to Syngenta was properly declared exempt from
preparation of an EA.
Regarding the BLNR’s exemption declaration, the ICA pointed
out that Umberger further outlines four steps an agency must
consider in determining whether an exemption applies:
7 For the first condition, which examines whether the proposed activity is an “action” under HRS § 343-2, the ICA pointed out that the new RP allowed a new entity, Syngenta Hawaii, to occupy the parcel to engage in a “project” or “program” of commercial agriculture to earn a profit. The ICA determined Syngenta Hawaii’s permitted activity is a “project” and a “program” because it “facilitated a deliberate and coordinated effort” to use the property for commercial agricultural purposes and involved a “plan or system” to use the parcel with the “goal” to earn profit. The ICA thus determined that the environmental court’s finding that the proposed activity under the new RP was an “action” subject to HEPA review was correct.
For the second condition, which lists nine categories of land or administrative uses that trigger environmental review, the ICA stated that the record reflected that Syngenta Hawaii was a new applicant for a new RP. 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). Therefore, the ICA determined the environmental court erred by concluding that the second condition was not met.
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[A]n 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 (emphasis added).
Ke Kauhulu O Mānā, 2024 WL 1886115, at *10 (citing Umberger, 140
Hawaiʻi at 524, 403 P.3d at 301).
The ICA discussed the exemption at issue here regarding
“minimal or no significant effect”:
HAR § 11-200-8(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 . . . .
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.” The Environmental Court concluded that because the exemption at issue here “refers to existing use,” it applied to Syngenta Hawai‘i.
Ke Kauhulu O Mānā, 2024 WL 1886115, at *9 (cleaned up; emphases
in original).
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The ICA ruled there was a material factual dispute as to
HAR § 11-200-8(a)’s requirement that the action be one with
“minimal or no significant effect on the environment.” Ke
Kauhulu O Mānā, 2024 WL 1886115, at *11. The ICA also deemed
the record insufficient to support the 2017 exemption
determination because it neither detailed Syngenta’s proposed
activity under the new RP nor whether the previously permitted
activity was similar to the “raising sugar cane” activity
addressed in the 1982 FONSI. Ke Kauhulu O Mānā, 2024 WL
1886115, at *11.
The ICA determined these questions constituted genuine
issues of material fact that precluded summary judgment. The
ICA vacated the environmental court’s judgment in favor of
Syngenta and remanded for further proceedings consistent with
its memorandum opinion. Ke Kauhulu O Mānā, 2024 WL 1886115, at
*11.
D. Issue on certiorari
On certiorari, Ke Kauhulu asserts that the ICA erred when
it ordered a remand “for trial” instead of determining that, as
a matter of law, an exemption to the EA could not be found to
apply.
III. Discussion
A. Whether an agency has “followed proper procedures” or “considered appropriate factors” in declaring an EA exemption are questions of law reviewed de novo
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We first address the standard of review applicable to the
EA exemption declared by BLNR.
This court discussed the standard of review for EA
exemptions in Sierra Club v. Department of Transportation, 115
Hawaiʻi 299, 167 P.3d 292 (2007) (“Superferry I”); we determined
that the appropriate standard of review depends on the question
under consideration. But whether an agency has “followed proper
procedures” or “considered appropriate factors” are questions of
law reviewed de novo:
HEPA does not provide direct guidance as to what standards of review should apply to an agency’s determination that a project is exempt from the preparation of an EA. Therefore, this court must decide which standard of review to apply. Based on this review of the statutory framework and our caselaw, we conclude that the appropriate standard of review depends on the specific question under consideration. In general, agency exemption determinations that involve factual questions should be reviewed under a clearly erroneous standard . . . . However, as discussed below, whether 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.
Superferry I, 115 Hawaiʻi at 314–15, 167 P.3d at 307–08 (emphasis
added).
Thus, where an agency’s EA exemption declaration raises
questions regarding whether the agency “followed proper
procedures” or “considered appropriate factors,” those questions
will be reviewed de novo.
B. Because BLNR did not follow proper procedures or consider appropriate factors in its 2017 EA exemption declaration, an EA is required as a matter of law
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1. BLNR did not follow proper procedures in its 2017 exemption declaration
Whether BLNR “followed proper procedures” in declaring an
EA exemption for Syngenta Hawaii’s 2017 RP is a question of law
reviewed de novo.
The ICA correctly deemed the record insufficient to support
the 2017 exemption’s determination that there was no expansion
or change in use of the subject area. The ICA also correctly
determined that the record did not establish whether Syngenta’s
seed research operation was similar to the “raising sugar cane”
activity included in the 1982 FONSI.
With respect to “proper procedures,” however, HEPA “places
the burden of compiling information on the agency so that the
public and interested government departments can conveniently
monitor and criticize the agency’s action.” Kiaʻi Wai o
Waiʻaleʻale v. Dep’t of Water, 151 Hawaiʻi 442, 461, 517 P.3d 725,
744 (2022). Therefore, while a challenger of an agency’s
environmental review process may present extra-record evidence,
allowance of such evidence in HEPA cases “is not a two-way
street”; an agency cannot rely on extra-record evidence as a
substitute for the analysis it should have included in its
record. Kiaʻi Wai, 151 Hawaiʻi at 460, 517 P.3d at 743.
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In other words, an agency’s existing record must include
the information justifying its exemption declaration. Here, as
correctly determined by the ICA, the record was insufficient.
Therefore, BLNR did not “follow proper procedures” in its
exemption declaration.8
2. BLNR also did not consider appropriate factors in its 2017 exemption declaration
Whether BLNR “considered appropriate factors” in declaring
an EA exemption is also a question of law reviewed de novo.
BLNR’s record also does not show it “considered appropriate
factors” in declaring an EA exemption. With respect to EA
exemptions, the agency declaring the exemption must determine
that the action will probably have minimal or no significant
effects on the environment, not merely that it fits an exemption
category. Superferry I, 115 Hawaiʻi at 316, 167 P.3d at 309.
Here, the ICA correctly determined there were material
disputes as to HAR § 11-200-8(a)’s requirement that the action
be one with “minimal or no significant effect on the
environment.” Issues of fact exist because BLNR never compiled
information regarding possible environmental impacts of the seed
research operation. But an agency is required to take a “hard
8 Although not necessary to our decision, it also appears, as argued by Ke Kauhulu, that the BLNR did not satisfy the third Umberger factor, which requires that the agency obtain the advice of other agencies having jurisdiction or expertise as to the propriety of the exemption. The record does not indicate BLNR consulted the DOH, which reviews Syngenta’s GMO permits.
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look” at environmental factors before declaring an EA exemption
based on a FONSI. Superferry I, 115 Hawaiʻi at 335, 167 P.3d at
342.
As a challenger of BLNR’s environmental review process, Ke
Kauhulu presented various possible environmental effects, listed
above, from the use of RUPs and GMOs in seed research
operations. Yet, the original FONSI which BLNR relied upon in
declaring Syngenta’s 2017 RP exempt from the EA requirement
dealt only with sugar cane cultivation and never addressed any
possible environmental effects of seed research operations.
Therefore, the questions of fact discerned by the ICA
actually establish BLNR’s failure to take a “hard look” and to
consider appropriate factors in its EA exemption declaration.
3. An EA is required as a matter of law so a remand should not have been ordered for the environmental court to readdress the exemption declaration
Because BLNR’s failure to follow proper procedures and
consider appropriate factors before issuing its exemption
declaration are questions of law, the ICA erred by ordering a
remand based on the existence of factual questions.
In this regard, we note that this case is distinguishable
from Umberger, 140 Hawaiʻi 500, 403 P.3d 277, and Carmichael v.
Bd. of Land & Nat. Res., 150 Hawaiʻi 547, 506 P.3d 211 (2022), in
which we ordered remands to determine whether EA exemptions
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could apply. Those cases involved determinations of whether
HEPA applies in the first instance, not whether an agency
improperly declared an EA exemption based on a FONSI.
In Umberger and Carmichael, BLNR had incorrectly assumed
that HEPA did not apply to the activities at issue. In
Umberger, we held that HEPA applies to commercial aquarium
permits. 140 Hawaiʻi at 504, 403 P.3d at 281. In Carmichael, we
held that HEPA applies to revocable water rights permits. 150
Hawaiʻi at 553, 506 P.3d at 217. As BLNR had never addressed
whether EA exemptions might apply, we ordered remands for BLNR
to initially address the issue. Umberger, 140 Hawaiʻi at 504-05,
403 P.3d at 278; Carmichael, 150 Hawaiʻi at 571, 506 P.3d at 235.
In contrast, in this case, BLNR has recognized from the
outset that use of this state conservation land is subject to
HEPA. But it declared the use exempt from an EA requirement.
This case is therefore comparable to Superferry I, in which the
State Department of Transportation (“DOT”) recognized the
applicability of HEPA but improperly declared an EA exemption
for harbor improvements. 115 Hawaiʻi at 310, 167 P.3d at 303.
In Superferry I, we set out the standards for reviewing EA
exemption declarations discussed in Section III.A above.
Applying those standards, we held that where DOT’s record
indicated it did not consider whether the action would have
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minimal or no significant environmental impact, the EA exemption
declaration was erroneous as a matter of law, and that an EA
must be prepared. 115 Hawaiʻi at 335, 167 P.3d at 342.
The ICA should therefore have likewise ordered that an EA
be prepared. Instead, it ordered a remand. In that regard, we
disagree with Ke Kauhulu’s assertion on certiorari that the ICA
remanded the matter “for trial.” Instead, the ICA ordered a
remand for further proceedings consistent with its opinion,
which was for the environmental court to reassess the propriety
of BLNR’s EA exemption declaration.
But this remand order may very well have led to discovery
on the issues identified by the ICA, which would have been
improper here. To reiterate, while Ke Kauhulu was allowed to
present extra-record evidence to identify problems with the
environmental review process, including possible environmental
impacts, as a matter of law, BLNR could not rely on extra-record
evidence as a substitute for the analysis it should have
conducted and included in its original agency record. The
legitimacy of BLNR’s exemption declaration was required to be
clear from BLNR’s existing record. Therefore, the ICA’s remand
order might have allowed discovery on remand, which would have
been improper under the circumstances here.
At bottom, as the problems with BLNR’s exemption
determinaton were matters of law, the ICA erred by remanding
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this case to the environmental court without requiring the
environmental court to order the BLNR to prepare an EA regarding
possible environmental impacts. The applicability of an EA
exemption was not clear from BLNR’s existing agency record. So,
the BLNR failed to meet its burden, and an EA was required as a
matter of law.
IV. Conclusion
For these reasons, we vacate the ICA’s May 31, 2024,
judgment on appeal as well as the environmental court’s
(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.
We remand to the environmental court for further
proceedings consistent with this opinion, which includes
environmental impacts from use of the land for seed research
operations.
Lance D. Collins and /s/ Mark E. Recktenwald Bianca Isaki for
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petitioners /s/ Sabrina S. McKenna
Ewan C. Rayner, /s/ Todd W. Eddins Deputy Solicitor General for respondent Board of Land /s/ Vladimir P. Devens and Natural Resources, State of Hawaiʻi /s/ Kirstin M. Hamman
Paul Alston and Timothy H. Irons, for respondents Syngenta Seeds, LLC and Syngenta Hawaii, LLC