Keep the North Shore Country v. Board of Land and Natural Resources.

506 P.3d 150, 150 Haw. 486

• Court: Hawaii Supreme Court
• Decided: February 22, 2022
• Docket: SCAP-19-0000449
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 22-FEB-2022 11:00 AM Dkt. 35 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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KEEP THE NORTH SHORE COUNTRY, Appellant-Appellant, vs. BOARD OF LAND AND NATURAL RESOURCES; THE DEPARTMENT OF LAND AND NATURAL RESOURCES; SUZANNE D. CASE, IN HER OFFICIAL CAPACITY AS CHAIRPERSON OF THE BOARD OF LAND AND NATURAL RESOURCES; and NA PUA MAKANI POWER PARTNERS, LLC, Appellees-Appellees.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CIV. NO. 1CC181000960)

FEBRUARY 22, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE VIOLA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY NAKAYAMA, J.

This appeal arises from a challenge to the Na Pua

Makani Wind Farm (the Wind Farm), an eight-turbine wind power *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

plant proposed for the North Shore of Oʻahu. To operate the Wind

Farm, Appellee-appellee Na Pua Makani Power Partners, LLC

(Applicant) must obtain an incidental take license as part of a

habitat conservation plan approved by Appellee-appellee Board of

Land and Natural Resources (the Board or BLNR).

After years of study and collaboration with state and

federal agencies, Applicant submitted a proposed habitat

conservation plan and requested the Board’s approval. However,

Appellant-appellant Keep the North Shore Country (KNSC) opposed

the application, citing the Wind Farm’s potential impact on

‘ōpe‘ape‘a, the Hawaiian hoary bat. Following significant state

and federal agency review, numerous public meetings, and a

contested case hearing, the Board approved Applicant’s habitat

conservation plan, and authorized Applicant to take up to fifty-

one ‘ōpe‘ape‘a over the course of twenty-one years, or fewer than

two and a half bats per year.

On appeal to the circuit court, KNSC argued the Board

unlawfully approved the habitat conservation plan because of

alleged procedural irregularities and because the habitat

conservation plan does not comply with Hawaiʻi’s endangered

species statute, Hawaiʻi Revised Statutes (HRS) chapter 195D.

For the reasons explained below, KNSC’s arguments are

unavailing. We accordingly affirm the Circuit Court of the

First Circuit’s (circuit court) May 23, 2019 Final Judgment. 2 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

I. Background

A. Introduction

1. Habitat Conservation Plans and Incidental Take Licenses

The Legislature enacted the Hawaiʻi endangered species

statute, HRS chapter 195D, “[t]o insure the continued

perpetuation of indigenous aquatic life, wildlife, and land

plants[.]” HRS § 195D-1 (2011). To effectuate this goal, the

Legislature made it unlawful to take1 any threatened2 or

endangered3 species. HRS § 195D-4(e)(2).4 Nevertheless, the

1 As relevant here, “‘[t]ake’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered or threatened species of . . . wildlife . . . or to attempt to engage in any such conduct.” HRS § 195D-2 (2011).

2 Under Hawaiʻi law, a species is “threatened” if it “appears likely, within the foreseeable future, to become endangered and has been so designated.” HRS §§ 195D-2, 195D-4(a) (2011); see also 16 U.S.C. § 1532(20) (2012). The determination of whether a species is threatened may be made by either the Department of Land and Natural Resources (the Department or DLNR) or the United States Secretary of the Interior or Secretary of Commerce. HRS §§ 195D-2, 195D-4(a)-(b); 16 U.S.C. §§ 1532(15), 1533 (2012).

3 Under Hawaiʻi law and as relevant here, a species is “endangered” if its “continued existence as a viable component of Hawaii’s indigenous fauna or flora is determined to be in jeopardy and has been so designated pursuant to section 195D-4.” HRS §§ 195D-2, 195D-4(a); see also 16 U.S.C. § 1532(6). As with the threatened species designation, the determination of whether a species is endangered may be made by either the Department or the United States Secretary of the Interior or Secretary of Commerce. HRS §§ 195D-2, 195D-4(a)-(b); 16 U.S.C. §§ 1532(6), 1533.

4 HRS § 195D-4 (2011) provides in relevant part:

(e) With respect to any threatened or endangered species of aquatic life, wildlife, or land plant, it is unlawful, except as provided in subsections (f), (g), and (j), for any person to:

. . .

(2) Take any such species within this State[.]

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. . . .

(f) The department may issue temporary licenses, under such terms and conditions as it may prescribe, to allow any act otherwise prohibited by subsection (e), for scientific purposes or to enhance the propagation or survival of the affected species.

(g) After consultation with the endangered species recovery committee, the board may issue a temporary license as a part of a habitat conservation plan to allow a take otherwise prohibited by subsection (e) if the take is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity; provided that:

(1) The applicant, to the maximum extent practicable, shall minimize and mitigate the impacts of the take; (2) The applicant shall guarantee that adequate funding for the plan will be provided; (3) The applicant shall post a bond, provide an irrevocable letter of credit, insurance, or surety bond, or provide other similar financial tools, including depositing a sum of money in the endangered species trust fund created by section 195D-31, or provide other means approved by the board, adequate to ensure monitoring of the species by the State and to ensure that the applicant takes all actions necessary to minimize and mitigate the impacts of the take; (4) The plan shall increase the likelihood that the species will survive and recover; (5) The plan takes into consideration the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed; (6) The measures, if any, required under section 195D- 21(b) shall be met, and the department has received any other assurances that may be required so that the plan may be implemented; (7) The activity, which is permitted and facilitated by issuing the license to take a species, does not involve the use of submerged lands, mining, or blasting; (8) The cumulative impact of the activity, which is permitted and facilitated by the license, provides net environmental benefits; and (9) The take is not likely to cause the loss of genetic representation of the affected population of any endangered, threatened, proposed, or candidate plant species.

Board approval shall require an affirmative vote of not less than two-thirds of the authorized membership of the board after holding a public hearing on the matter on the affected island. The department shall notify the public of

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Legislature recognized some degree of take is unavoidable — even

necessary — and therefore authorized the Board5 to issue

“incidental take licenses” when certain conditions are met. See

HRS § 195D-4(g).

In order to issue an incidental take license, the

Board must issue the license as part of a habitat conservation

plan. Id. Broadly speaking, a habitat conservation plan is an

agreement to “protect[], maintain[], restor[e], or enhance[e]

identified ecosystems, natural communities, or habitat types”

protected species depend upon, as well as to “increase the

likelihood of recovery of the endangered or threatened species

that are the focus of the plan.” HRS § 195D-21(b)(1).6 “All

a proposed license under this section through publication in the periodic bulletin of the office of environmental quality control and make the application and proposed license available for public review and comment for not less than sixty days prior to approval.

5 The Board is the executive board that heads the Department. HRS § 171- 3(a) (2011). The Board is comprised of seven members appointed by the governor subject to the senate’s advice and consent. HRS § 171-4(a) (Supp. 2014). At least one member of the Board must possess a background in conservation and natural resources, and at least one other member of the Board must have a demonstrated expertise in native Hawaiian traditional and customary practices. HRS § 171-4(b)-(c).

6 HRS § 195D-21(b) (2011) provides in relevant part:

(1) Except as otherwise provided by law, the board, upon recommendation from the department, in cooperation with other state, federal, county, or private organizations and landowners, after a public hearing on the island affected, and upon an affirmative vote of not less than two-thirds of its authorized membership, may enter into a habitat conservation plan, if it determines that:

(A) The plan will further the purposes of this chapter by protecting, maintaining, restoring,

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habitat conservation plans, . . . incidental take licenses, and

subsequent actions authorized under those plans . . . and

licenses shall be designed to result in an overall net gain in

the recovery of Hawaii’s threatened and endangered species.”

HRS § 195D-30 (2011).

or enhancing identified ecosystems, natural communities, or habitat types upon which endangered, threatened, proposed, or candidate species depend within the area covered by the plan; (B) The plan will increase the likelihood of recovery of the endangered or threatened species that are the focus of the plan; and (C) The plan satisfies all the requirements of this chapter.

In the event the board votes to enter into a habitat conservation plan for which the majority of the endangered species recovery committee recommended disapproval, the board may not enter into the habitat conservation plan unless the plan is approved by a two-thirds majority vote of both houses of the legislature. Habitat conservation plans may allow conservation rental agreements, habitat banking, and direct payments. Any habitat conservation plan approved pursuant to this section shall be based on the best available scientific and other reliable data available at the time the plan is approved.

(2) Each habitat conservation plan shall:

(C) Identify the steps that will be taken to minimize and mitigate all negative impacts, including without limitation the impact of any authorized incidental take, with consideration of the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed; and the funding that will be available to implement those steps[.]

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Before the Board may approve a habitat conservation

plan, applicants and the Board must undergo a complex

administrative process.

First, the applicant must draft the habitat

conservation plan, identifying the area(s) affected, the species

involved, the action(s) to be taken, an implementation schedule,

and a funding source. HRS § 195D-21(a).7 The plan must provide

7 HRS § 195D-21(a) provides:

(a) The department may enter into a planning process with any landowner for the purpose of preparing and implementing a habitat conservation plan. An agreement may include multiple landowners. Applications to enter into a planning process shall identify:

(1) The geographic area encompassed by the plan; (2) The ecosystems, natural communities, or habitat types within the plan area that are the focus of the plan; (3) The endangered, threatened, proposed, and candidate species known or reasonably expected to occur in the ecosystems, natural communities, or habitat types in the plan area; (4) The measures or actions to be undertaken to protect, maintain, restore, or enhance those ecosystems, natural communities, or habitat types within the plan area; (5) A schedule for implementation of the proposed measures and actions; and (6) An adequate funding source to ensure that the proposed measures and actions are undertaken in accordance with the schedule.

After a habitat conservation plan is prepared, the board shall notify the public of the proposed habitat conservation plan through the periodic bulletin of the office of environmental quality control and make the proposed plan and the application available for public review and comment not less than sixty days prior to approval. The notice shall include, but not be limited to, identification of the area encompassed by the plan, the proposed activity, and the ecosystems, natural communities and habitat types within the plan area. The notice shall solicit public input and relevant data.

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“sufficient information for the board to ascertain with

reasonable certainty the likely effect of the plan upon any

endangered, threatened, proposed or candidate species in the

plan area and throughout its habitat range.” HRS § 195D-21(c)

(2011).

Second, the Board must notify the public and make the

proposed plan available for public review and comment for at

least 60 days. HRS § 195D-21(a).

In addition to public review, the Endangered Species

Recovery Committee (the Committee or ESRC)8 must also review the

proposed plan and make a recommendation for the Board to

approve, amend, or reject the plan. HRS § 195D-25(b)(1).9 The

8 The Committee “serve[s] as a consultant to the [B]oard and the [D]epartment on matters relating to endangered, threatened, proposed, and candidate species.” HRS § 195D-25(a) (Supp. 2014). The Committee consists of up to seven members, specifically:

two field biologists with expertise in conservation biology, the chairperson of the [B]oard or the chairperson’s designee, the ecoregion director of the United States Fish and Wildlife Service or the director’s designee, the director of the United States Geological Survey, Biological Resources Division or the director’s designee, the director of the University of Hawaii Environmental Center or the director’s designee, and a person possessing a background in native Hawaiian traditional and customary practices[.]

Id. The nongovernmental members, i.e., the two field biologists and the person possessing a background in native Hawaiian traditional and customary practices, are appointed by the governor subject to the senate’s advice and consent. Id. If either of the two federal governmental members, i.e., the ecoregion director of FWS and the director of the United States Geological Survey, Biological Resources Division, declines to participate, the Committee may act despite their absence. Id.

9 HRS § 195D-25(b)(1) (2011) provides:

(b) The endangered species recovery committee shall:

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Committee’s recommendation must be based on “the best available

scientific and other reliable data and at least one site visit

to each property that is the subject of the action,” as well as

a “consideration of the cumulative impacts of the proposed

action on the recovery potential of the [relevant] species[.]”

Id.

Third, following review by the public and the

Committee, the Board may approve a habitat conservation plan and

incidental take license if (1) the Committee recommends

approval,10 (2) at least two-thirds of the Board’s members vote

in favor of approval, and (3) the Board makes three key

determinations. HRS § 195D-21(b)(1). These determinations are:

(A) The plan will further the purposes of [HRS chapter 195D] by protecting, maintaining, restoring, or enhancing identified ecosystems, natural communities, or habitat types upon which endangered, threatened, proposed, or candidate species depend within the area covered by the plan;

(1) Review all applications and proposals for habitat conservation plans, safe harbor agreements, and incidental take licenses and make recommendations, based on a full review of the best available scientific and other reliable data and at least one site visit to each property that is the subject of the proposed action, and in consideration of the cumulative impacts of the proposed action on the recovery potential of the endangered, threatened, proposed, or candidate species, to the department and the board as to whether or not they should be approved, amended, or rejected[.]

10 In the event the Committee recommends that the Board reject the proposed habitat conservation plan, the Board may only enter into the plan following approval by a two-thirds majority vote of both houses of the Legislature. HRS § 195D-21(b)(1).

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(B) The plan will increase the likelihood of the recovery of the endangered or threatened species that are the focus of the plan; and (C) The plan satisfies all the requirements of this chapter.

Id. The BLNR must make these determinations using “the best

available scientific and other reliable data available at the

time the plan is approved.” HRS § 195D-21(c).

Furthermore, an applicant may receive an incidental

take license only if ten statutory conditions are met. First,

the take must be “incidental to, and not the purpose of, the

carrying out of an otherwise lawful activity.” HRS § 195D-4(g).

Additionally,

(1) The applicant, to the maximum extent practicable, shall minimize and mitigate the impacts of the take; (2) The applicant shall guarantee that adequate funding for the plan will be provided; (3) The applicant shall post a bond, provide an irrevocable letter of credit, insurance, or surety bond, or provide other similar financial tools, including depositing a sum of money in the endangered species trust fund created by section 195D-31, or provide other means approved to the board, adequate to ensure monitoring of the species by the State and to ensure that the applicant takes all actions necessary to minimize and mitigate the impacts of the take; (4) The plan shall increase the likelihood that the species will survive and recover; (5) The plan takes into consideration the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed; (6) The measures, if any, required under section 195D-21(b) shall be met, and the department has received any other assurances that may be required so that the plan may be implemented; (7) The activity, which is permitted and facilitated by the license, does not involve the use of submerged lands, mining, or blasting; (8) The cumulative impact of the activity, which is permitted and facilitated by the license, provides net environmental benefits; and (9) The take is not likely to cause the loss of genetic representation of an affected population of any

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endangered, threatened, proposed, or candidate plant species.

2. Na Pua Makani Wind Farm

Around 2009, West Wind Works, LLC began developing

plans for the Wind Farm. The Wind Farm would be the third wind

turbine power plant on Oʻahu, joining the Kawailoa Wind Farm and

the Kahuku Wind Farm. Champlin Hawaii Wind Holdings, LLC

acquired these plans in 2012, and formed Na Pua Makani Power

Partners, LLC to complete the development and construction of

the Wind Farm. Beginning in January 2013, Applicant began

consulting with the United States Fish and Wildlife Service

(FWS) as well as the Department’s Division of Forestry and

Wildlife (DOFAW) to develop a proposed habitat conservation plan

and incidental take license.

On February 17, 2015, Applicant submitted a proposed

habitat conservation plan and incidental take license (Proposed

Plan) to the Department for publication in the Office of

Environmental Quality Control’s March 8, 2015 Environmental

Notice. In the Proposed Plan, Applicant proposed building eight

to ten wind turbines with a maximum height of 156 meters each.

According to Applicant’s site evaluations and consultations with

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FWS and DOFAW, the Wind Farm could take eight federally

protected species, including ‘ōpe‘ape‘a.11

Applicant proposed minimizing the take of ‘ōpe‘ape‘a by

utilizing a low-wind speed curtailment (LWSC)12 rate of 5.0

meters per second (m/s). Additionally, Applicant would minimize

and mitigate the impacts of the take by funding efforts to

restore the nearby Poamoho Ridge forest to a native state, as

well as by funding research on ‘ōpe‘ape‘a to develop additional

mitigation efforts. Taking these measures into consideration,

Applicant, FWS, and DOFAW anticipated the Wind Farm would take

up to fifty-one ‘ōpe‘ape‘a over the course of twenty-one years, or

fewer than two and a half ‘ōpe‘ape‘a per year.

B. Procedural History

1. Endangered Species Recovery Committee Proceedings

In the course of reviewing the Proposed Plan, the

Committee held four public meetings. First, on March 30, 2015,

the Committee conducted a site visit meeting. Prior to and

11 The Wind Farm may also impact the ʻaʻo or Newell’s shearwater, the aeʻo or Hawaiian black-necked stilt, the ʻalae keʻokeʻo or Hawaiian coot, the ʻalaeʻula or Hawaiian common moorhen, the koloa maoli or Hawaiian duck, the nēnē or Hawaiian goose, and the pueo or Hawaiian short-eared owl. Because KNSC solely challenges the Wind Farm’s impact on ‘ōpe‘ape‘a, this opinion does not discuss Applicant’s plans in relation to these other protected species.

12 LWSC is a process that sets the minimum wind speed at which a wind turbine starts generating energy. While LWSC is in effect, i.e., while the turbine is curtailed, the turbine’s blades are turned parallel to the wind direction to minimize the spinning of the wind turbines. Thus, with a LWSC rate of 5.0 m/s, the wind turbine blades are positioned to be mostly stationary while wind speeds are below 5.0 m/s, and turned to “catch” the wind, spin, and generate energy once wind speeds exceed 5.0 m/s.

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during the site visit, the Committee and Applicant answered

questions regarding the Wind Farm. Second, on March 31, 2015,

the Committee received public comment on the proposed habitat

conservation plan. During both meetings, Applicant indicated

the maximum height for the wind turbines would be 156 meters,

and not all turbines would be the same height.

Between March 31, 2015 and December 17, 2015,

Applicant worked with DOFAW and FWS to address concerns raised

by public commenters, FWS, DOFAW, and the Committee. Applicant

increased the maximum wind turbine height from 156 meters to 200

meters. This change, among others, was made known to the public

as part of the materials prepared for the Committee’s

December 17, 2015 meeting.

During this time, the state senate also confirmed

Dr. Samuel M. ʻOhukaniʻohiʻa Gon III (Gon) to the Committee as a

member with a background in native Hawaiian traditional and

customary practices. 2015 Senate Journal, at 478 (Apr. 10,

2015); see also Letter from David Y. Ige, Governor, State of

Hawaiʻi, to Donna M. Kim, President, Hawaiʻi State Senate (Mar.

30, 2015).

On December 17, 2015, the Committee held a third

public meeting. At the beginning of the Committee’s discussion

of the Wind Farm, DOFAW staff highlighted changes to the

Proposed Plan, including the proposed maximum wind turbine

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height increase. The Committee asked Applicant to make

additional amendments to the Proposed Plan, but did not comment

on Applicant’s proposed maximum wind turbine height increase or

its potential impact on take. No member of the public commented

on the increased turbine height either. The Committee

unanimously decided to postpone its recommendation.

In January 2016, Applicant produced an amended habitat

conservation plan (Finalized Plan) that incorporated the

Committee’s requested amendments.

On February 25, 2016, the Committee reviewed the

Finalized Plan. Gon moved to recommend that the Board approve

the Finalized Plan, which was unanimously approved by all voting

Committee members.13

2. Contested Case Hearing Officer Proceedings

The Board took up the Finalized Plan on November 10,

2016. As the Board began its consideration, Gon14 disclosed

he was briefly on the endangered species advisory committee that advises windfarm projects. He is no longer on that

13 One Committee member, Dr. Eric VanderWerf, recused himself.

14 On August 9, 2016, Governor Ige appointed Gon to fill a vacancy on the Board. Governor Appoints Samuel Gon III to Board of Land and Natural Resources, Ofc. of the Governor Press Releases (Aug. 9, 2016), https://governor.hawaii.gov/newsroom/governors-office-news-release-governor- appoints-samuel-gon-iii-to-board-of-land-and-natural-resources/. The member Gon replaced, Ulalia Woodside, was nominated to satisfy the statutory requirement for one Board member to possess demonstrated expertise in native Hawaiian traditional and customary practices. Governor Appoints 3 Members to Board of Land and Natural Resources, Ofc. of the Governor News Releases (July 12, 2014), https://dlnr.hawaii.gov/blog/2014/07/12/gov-appoints-3-members- blnr/; see also HRS § 171-4(c).

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committee and this particular company and proposal was not one that he provided substantial input to.

Following Gon’s disclosure, no party objected to Gon

participating in the Board’s consideration of the Finalized

Plan.

The Board heard testimony from Applicant and members

of the public. Several members of the public, including KNSC,

requested a contested case hearing. The Board unanimously

deferred deciding whether to grant a contested case hearing, as

well as its consideration of the Finalized Plan, until its next

meeting. KNSC submitted a written petition for a contested case

hearing on November 21, 2016.

At its December 9, 2016 meeting, the Board addressed

KNSC’s contested case hearing petition. Board Chair Suzanne

Case and Board members Gon and James Gomes disputed the need for

a contested case hearing. Gon explained, with James Gomes

agreeing, that

when a habitat conservation plan is put together it has to pass the Fish and Wildlife Service and the DLNR. The suggestion that the habitat conservation plan is fatally flawed or inadequate[ly] researched [is] problematic in his mind.

No comments objecting to Gon’s statement appear in the record.

The Board granted KNSC’s petition in a four to three vote.

The contested case hearing proceedings began on

approximately February 14, 2017, with the appointment of

Yvonne Y. Izu as the hearing officer. During the contested case

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hearing, the parties addressed whether the Finalized Plan

satisfied the requirements of HRS chapter 195D. Following

briefing and a two-day evidentiary hearing, the hearing officer

recommended the Board disapprove of the Finalized Plan.

As relevant here, the hearing officer concluded:

1.e. ‘Ope‘ape‘a. By providing for LWSC at 5 m/s, instead of 6.5 m/s, the [Finalized Plan] fails to minimize impacts to ‘ope‘ape‘a to the maximum extent practicable, and, therefore, may not be protecting or maintaining the habitat used by ‘ope‘ape‘a (i.e., the Project area) as required under HRS § 195D-21(b)(1)(A). FOF 197-210. Because of limited knowledge about ‘ope‘ape‘a, it cannot be concluded that the proposed mitigation of improvement of habitat at Poamoho Ridge will protect, maintain, restore, or enhance the ecosystems, natural communities, or habitat types upon which ‘ope‘ape‘a depend. FOF 216. As the [Finalized Plan] does not include an effective adaptive management strategy for revising mitigation measures if future research reveals that different mitigation measures would be more effective in protecting and maintaining habitat used by ‘ope‘ape‘a, FOF 228-238, the [Finalized Plan] does not [satisfy HRS § 195D- 21(b)(1)(A)-(B)] with respect to ‘ope‘ape‘a.

5.e. ‘Ope‘ape‘a. . . . . Because very little is known about the population status of ‘ope‘ape‘a (estimates range from a few hundred to a few thousand), and given the fact that take of ‘ope‘ape‘a by wind energy facilities may have been underestimated in the past, a robust analysis of potential take is critical. By relying solely on the Kahuku Wind Project as a surrogate and electing not to consider data from other wind facilities on Oahu or the other islands, and by failing to consider the impact of turbine height on bat mortality, the estimated take set forth in the [Finalized Plan] is not reliable enough for the Board to determine the cumulative impacts on ‘ope‘ape‘a. FOF 194.

11. In three instances, Applicant failed to use the best scientific and reliable data in assessing impacts and mitigation as required under HRS § 195D-21(c): (i) electing to use LWSC cut-in speed of 5 m/s, instead of 6.5 m/s; (ii) concluding that the height of [wind turbine generators] has no impact on take of ‘ope‘ape‘a; and (iii) by relying solely on data from the Kahuku Wind Project for estimating the Project’s take of ‘ope‘ape‘a.

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12. Because of the less than robust analysis of anticipated take of ‘ope‘ape‘a by the Project, combined with the limited information available about ‘ope‘ape‘a populations on Oahu and statewide, it cannot be determined with confidence whether the Project will jeopardize the continued existence of ‘ope‘ape‘a. HRS § 195D-21(c)(1). FOF 194.

14. The [Finalized Plan], by (i) relying solely on data from the Kahuku Wind Project [and] excluding data from other wind projects in the State, and (ii) failing to analyze the impact of the increased height of [wind turbine generators] on ‘ope‘ape‘a, failed to provide sufficient information for the Board to ascertain with reasonable certainty the effect of the plan on ‘ope‘ape‘a in the plan area and throughout its habitat range. HRS § 195D-21(c). FOF 194.

18. [HRS § 195D-4(g)(1)] requires the applicant to minimize and mitigate impacts of the take to the maximum extent practicable. Increasing cut-in speed to 6.5 m/s, rather than 5 m/s, would minimize impacts to the maximum extent. However, the HCP provides for cut-in speed at 5 m/s and Applicant did not provide evidence that increasing cut-in speed to 6.5 m/s is not practicable. Therefore, the [Finalized Plan] does not satisfy HRS § 195D-4(g)(1). FOF 208-210.

21. The minimization and mitigation measures proposed in the [Finalized Plan] are aimed at increasing the likelihood of survival and recovery of all of the Covered Species except ‘ope‘ape‘a. HRS § 195D-4(g)(4). See COL 5.a. through 5.e., above. Additionally, not enough information is known about the potential acquisition of property for protection of ‘ope‘ape‘a habitat for the Board to analyze whether it would mitigate the impacts of take. FOF 226.

22. Because Applicant conducted a less than robust analysis of anticipated take of ‘ope‘ape‘a, especially given the higher than anticipated rate of take experienced at other wind energy projects in the state, the Board is unable to adequately assess the cumulative impact of the take of ‘ope‘ape‘a as required by HRS § 195D-4(g)(5). FOF 194.

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27. The required public hearing was held on the [Proposed Plan] on June 4, 2015. Additionally, the public had the opportunity to attend [Committee] meetings during which the [Proposed Plan] was discussed. Although the height of the [wind turbine generators] was changed subsequent to the June 4, 2015 public hearing, and there was no active discussion about the change in [wind turbine generator] height at the [Committee] meetings, [HRS § 195D- 4(g)] does not require that additional public hearings be held after changes are made to the [Proposed Plan]. FOF 8- 10.

3. Board of Land and Natural Resources Hearing Proceedings

After the hearing officer issued her recommended

findings of fact, conclusions of law, and decision and order,

Applicant and KNSC submitted further briefing in the form of

exceptions to the hearing officer’s recommendations.

On January 12, 2018, the Board heard arguments from

both the Applicant and KNSC.

Before the parties made their arguments, Board Chair

Suzanne Case disclosed that the Board

received a letter from Senator Lorraine Inouye to be distributed to the board in this matter. We did not -- we actually did distribute it accidentally, because I was out sick and our regular board person was out sick, and our protocol is to check with me first, and so we didn’t have that in place. So it went out, but I immediately saw that it had gone out and I followed up in an immediate email to ask the board members not to read the letter. So none of us have read that letter, because we didn’t want to have any ex parte communications in that, but I wanted to make that disclosure that that happened.

KNSC did not raise any objections regarding the letter during

the hearing.15 KNSC also did not seek the recusal of any Board

members based upon the letter.

15 KNSC later requested a copy of the letter on January 24, 2018.

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During the hearing, Applicant argued the hearing

officer’s conclusions were flawed because

There was virtually no analysis or evaluation in the recommendations provided by the hearing officer about why the agencies or the specific experts for the agencies were wrong in their recommendation for approval. There was no finding of fact or conclusion of law that explains how [or] why [DOFAW] or the ESRC failed to properly analyze the statute or not use the best available science.

Applicant added KNSC did not provide any additional studies or

data that contravened the agencies’ conclusions. Nevertheless,

Applicant volunteered two conditions to the Board’s approval of

the Finalized Plan to address the “inherent uncertainty” of the

studies and science the agencies relied upon regarding the

impact of wind turbine height on ‘ōpe‘ape‘a take. First,

Applicant would limit the maximum turbine height to 173 meters.

Second, Applicant would further reduce the total number of

turbines from nine to eight.

KNSC responded that the hearing officer was correct to

recommend that the Board disapprove of the Finalized Plan

because (1) Applicant relied solely on data from the Kahuku Wind

Farm, (2) Applicant did not study the impacts of wind turbine

height on ‘ōpe‘ape‘a take, and (3) there is no evidence in the

record that a LWSC rate of 6.5 m/s is impracticable.

4. KNSC’s Motion to Recuse Gon

During the hearing, KNSC orally requested that Gon

recuse himself “due to prior decision making in his capacity on

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the Endangered Species Recovery Committee on this exact Habitat

Conservation Plan.”

After the parties made their arguments, Gon spoke on

KNSC’s recusal request.

I don’t have a question, but I should point out in response to the request for -- for my recusal. This was -- we discussed this with the attorney general’s office and also with the ethics -- ethics commission and the opinion is that -- is that my serving on the Endangered Species Recovery Committee is via my expertise as a conservation biologist. I have in fact published on Hawaiian bats.

So, you know, the -- the idea of turning this [Finalized Plan] back [to] the ESRC at this stage, mere months after its issuance and approval, is not going to result in any -- in any significant change in the information that has already been considered by the ESRC and by the state and federal agencies. And yet I’m very interested in hearing and in fact have looked over the -- this contested case record.

The idea of my ability to take in fresh information and provide for an opinion on this particular case is not in question. I enjoy looking at new information, considering whether or not it provides a significant deviation from what has already been known at the time. I’m actually in a really good position to determine whether or not what I hear today, what I’ve read in the contested case information does represent relatively new information. So the decision was made in consultation with the [attorney general] for me to remain in this deliberation.

And then continuing on now, the idea that the ESRC did not consider other turbine projects and other bats and the ramifications of that on this particular case is probably erroneous. I mean, the fact that it doesn’t show up in the [Finalized Plan] record kind of flies in the face of the fact that the ESRC went to visit as many of these projects in person to look at the areas that were being surveyed, to consider the records for each of those places, the different conditions and habitat, the -- everything from the vegetation, to the wind, typical wind, behavior, and the like in order to assess what was most appropriate to apply to this particular [habitat conservation plan].

So I just wanted to point out that the decision by the ESRC to follow the guidance of the state and federal representatives there to utilize the Kahuku -- the adjacent Kahuku information was not lightly made, nor was it meant

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to try to fudge the data or in other ways influence or minimize the potential impact of this. In fact they considered, with a great deal of concern, the fact that the take of ‘ope‘ape‘a were higher than anticipated in almost all of the sites, actually. So that’s another consideration to take as we consider -- continue in this deliberation.

On January 24, 2018, KNSC submitted written briefing

to elaborate on its request for Gon’s recusal. KNSC specified

that Gon’s “participation would have provided him very specific

information about this habitat conservation plan that is not in

the record.” As evidence of Gon’s alleged extra-record

considerations, KNSC pointed to Gon’s statement during the Board

hearing that

The fact that it does not show up in the [Finalized Plan] record, kind of flies in the face of the fact that the ESRC went to visit as many of these projects in person to look at the areas that were being surveyed, to consider the records for each of those places, the different conditions and habitat, everything from the vegetation, to typical wind behavior and the like, in order to assess what was most appropriate to apply to this particular [Finalized Plan].

KNSC also argued Gon’s vote for the Board to approve of the

Finalized Plan meant that he prejudged the issues before the

Board.

Gon submitted a supplemental written disclosure on

February 21, 2018. Gon noted, inter alia, that “I was invited

to serve on the ESRC of the DLNR, where, with other experts and

agency managers of endangered species, we considered the impacts

and mitigation recommendations for various projects of relevance

to the DLNR. While on the ESRC, I considered the [habitat

conservation plan] at issue currently.”

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On March 23, 2018, the Board denied KNSC’s request for

Gon’s recusal. The Board observed that “[n]othing in the record

shows that Member Gon has not complied or will not comply with

HRS §§ 91-9(g) and 91-13.” The Board also reasoned that the

fact that HRS § 195D-25 authorizes the Board chair to also serve

on the Committee means there is no inherent conflict from Gon

sitting on both the Committee and the Board. The Board noted

that this court’s decision in Liberty Dialysis-Hawaii, LLC v.

Rainbow Dialysis, LLC, 130 Hawaiʻi 95, 306 P.3d 140 (2013)

supports its conclusion because, there, this court held that an

administrator could participate in both an initial decision and

a subsequent reconsideration. Additionally, the Board stated

that “KNSC has not shown that Member Gon’s participation on the

ESRC during the ESRC’s review and deliberation on the habitat

conservation plan prejudices his views in this contested case.”

C. Board Decision

On May 18, 2018, the Board entered its findings of

fact, conclusions of law, and decision and order approving

Applicant’s Finalized Plan. The Board summarized its decision

to follow the Committee’s recommendation and disagree with the

hearing officer in four points:

a. The hearing officer did not give sufficient weight to the scientific expertise of the ESRC and DOFAW, which recommended approval of the [Finalized Plan].

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b. The [Finalized Plan] properly relied upon the actual experience of the adjacent Kahuku wind farm in estimating the probable take of ‘ōpe‘ape‘a.

c. The [Finalized Plan] requires that the wind farm idle its turbines at speeds less than 5.0 meters per second (“m/s”), during the months that bats are found more often. The hearing officer supported a 6.5 m/s requirement. Current science does not establish that this will significantly reduce bat fatalities, and it is not what the ESRC recommends. The Board’s decision would require that turbines be idled at wind speeds higher than 5.0 m/s under certain circumstances.

d. The hearing officer was skeptical that part of the proposed mitigation for the take of bats—the protection of existing ‘ōpe‘ape‘a habitat in a native forest—would be effective. This type of mitigation is supported by the consensus of scientific opinion, including the ESRC, DOFAW, and the U.S. Fish and Wildlife Service’s Endangered Species Recovery Plan.

Furthermore, the Board imposed two relevant conditions: “[b]ased

on the representations of the Applicant, [(1)] the Project shall

include not more than eight wind turbines, [(2)] with a maximum

blade tip height of not more than 173 meters above pad

elevation.”

The Board elaborated

The [Finalized Plan] was developed through consultation not only with the ESRC, but also with DOFAW and [FWS], species experts, other important stakeholders, and the public. Input and incorporation of requirements and revisions from the ESRC occurred throughout the development process and public review periods of the [Finalized Plan].

The Board emphasized that, rather than “rubber-stamp[ing]” the

Finalized Plan, the Committee actually requested amendments

during its December 17, 2015 meeting. Furthermore, the

Committee based its decision on the Hawaiian Hoary Bat Guidance

Document, which was analyzed during a two-day workshop “attended

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by government regulators, ecological researchers, consultants,

industry personnel, and members of the public.”

With respect to Applicant and the Committee’s focus on

the Kahuku Wind Farm data, the Board reasoned there was “ample

justification” for the Finalized Plan’s reliance on the Kahuku

Wind Farm data and rejection of the Kawailoa Wind Farm data.

The Board explained

The choice to use only Kahuku data, not Kawailoa, was proper because:

a. Kahuku is immediately adjacent to [the Wind Farm].

b. Kahuku is also on the windward side of the Koʻolau Mountains; Kawailoa is more than four miles away on the leeward side.

c. Kahuku has similar topography and vegetation. . . . .

d. Kahuku has similar levels of bat activity to the [Wind Farm] site.

e. Kawailoa has a much higher level of bat activity than Kahuku, and hence higher projected take, than the [Wind Farm] site.

f. If Kawailoa data was included, there would have to be some weighting of the Kawailoa data vs. the Kahuku data. Any weighting—50/50? 20/80?—would be arbitrary.

The Board also rejected KNSC’s claims that the

Kawailoa Wind Farm data should be considered because it has

larger turbines that are closer in blade tip height and rotor

sweep16 to the Wind Farm’s. In particular, the Board pointed out

16 A wind turbine’s “rotor sweep” is a function of its blade length. This relationship is dictated by the mathematical relationship between the blade length (which creates the radius of a circle) and the rotor sweep area (the area of the circle formed by the blade’s rotation).

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that record evidence indicated neither turbine blade tip height

nor turbine rotor sweep is correlated with ‘ōpe‘ape‘a take.

Moreover, even assuming that either factor correlated with

‘ōpe‘ape‘a take, the Board noted the Finalized Plan actually

overestimated its potential take by (1) increasing possible take

by 50%; (2) using a heightened unobserved take estimate;

(3) basing its calculations on nine turbines when only eight

would be approved; and (4) not including Kahuku Wind Farm data

showing no observed take in fiscal year 2016.

In terms of KNSC’s challenge to the LWSC rate, the

Board explained the record evidence was inconclusive on whether

increasing the LWSC rate from 5.0 to 6.5 m/s would minimize

‘ōpe‘ape‘a take. The Board noted studies showed ‘ōpe‘ape‘a

typically are not present when average wind speeds exceed 5.0

m/s, and that 80% of ‘ōpe‘ape‘a observations occur at wind speeds

below 5.0 m/s.

As for Applicant’s proposed means of mitigation, the

Board concluded Applicant’s measures “provid[e] an improved

natural habitat for bats which presumably would provide

additional food resources, thereby improving ōpe‘ape‘a survival

and productivity and contributing to an increased likelihood of

the survivability of the species.” The Board noted, in

particular, that the FWS determined “the decline of the ōpe‘ape‘a

is probably a result of habitat loss.” The Board also found 25 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

that the “main” threats to ‘ōpe‘ape‘a included “reduction in tree

cover, loss of roosting habitat, [and] roost disturbance.” The

nearby Poamoho Ridge forest “currently provides habitat for the

ōpe‘ape‘a,” but it is “declining because of feral pigs, which

destroy vegetation, and invasive weeds.” As part of its

mitigation measures, Applicant proposed “fund[ing] fence

maintenance, feral pig removal, invasive weed control,

monitoring, and research.” Thus, the Board determined “[t]he

proposed mitigation should more than offset the take of

ōpe‘ape‘a.” The Board further stated the measures

“overcompensate[]” because they compensate for the take of

fifty-one ‘ōpe‘ape‘a, when it is likely that fewer than thirty-

four bats will be taken.

D. Circuit Court Proceedings

On June 15, 2018, KNSC appealed the Board’s decision

to approve the Finalized Plan to the Circuit Court of the First

Circuit (circuit court).17 KNSC asked the circuit court to

reverse the Board’s decision on six grounds:

(1) Applicant failed to minimize ‘ōpe‘ape‘a take to the

maximum extent practicable, contrary to HRS §§ 195D-4(g)(1) and

195D-21(b)(2)(C);

17 The Honorable Jeffrey P. Crabtree presided.

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(2) Applicant failed to provide evidence that ‘ōpe‘ape‘a

will survive and recover as a species, contrary to HRS §§ 195D-

4(g)(4), 195D-21(b)(1)(B), and 195D-30;

(3) Applicant failed to adequately assess the

cumulative impacts of the take on the Oʻahu ‘ōpe‘ape‘a population,

contrary to HRS §§ 195D-4(g)(5) and 195D-21(b)(2)(C);

(4) the Committee did not base its recommendation on

the best scientific and other reliable data available, contrary

to HRS § 195D-25(b)(1);

(5) the Board should have excluded Gon from

participating in the contested case hearing because Gon

considered extra-record evidence and demonstrated bias in favor

of the Applicant, contrary to HRS §§ 91-9(g) and 91-13 and

KNSC’s right to a fair hearing; and

(6) the Board should have provided the letter from

state Senator Inouye to KNSC because it constituted an ex parte

communication that exerted improper political pressure on the

Board, contrary to Hawaiʻi Administrative Rules (HAR) § 13-1-3718

and KNSC’s right to a fair hearing.

18 HAR § 13-1-37 (2009) provides in relevant part:

No party or person petitioning to be a party in a contested case, nor the party’s or such person’s to a proceeding before the board nor their employees, representatives or agents shall make an unauthorized ex parte communication either oral or written concerning the contested case to the

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Following briefing and a hearing, the circuit court

summarily rejected each of KNSC’s alleged bases for reversal.

The circuit court noted that pursuant to HRS § 91-14, the

Board’s findings of fact and mixed determinations of law and

fact are reviewed under the clearly erroneous standard, while

the Board’s conclusions of law are freely reviewable.

Turning to KNSC’s claims, the circuit court pointed

out KNSC’s first three claims “argue a mixed question of law and

fact on whether the BLNR’s findings comply with HRS Section 195

regarding the likelihood that ‘ōpe‘ape‘a deaths are minimized as a

result of the [Finalized Plan], and the likelihood that the

‘ōpe‘ape‘a population will increase as a result of the [Finalized

Plan].” Thus, the circuit court concluded that KNSC’s first

three arguments raised “factual issues where the decision-making

or analysis could reasonably vary from what the ESRC and BLNR

concluded.” Considering the record – and the Committee’s

Hawaiian Hoary Bat Guidance document in particular – the circuit

court was “satisfied that those decisions were based on the best

available data, and the [take estimates] were reasonably

adjusted to account for ambiguity or uncertainty on these

factors.” Furthermore, the circuit court noted that “if the

presiding officer or any member of the board who will be a participant in the decision-making process.

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essential facts relied on in approving the [Finalized Plan] and

[incidental take license] turn out to be wrong, the adaptive

measures which are part of the [Finalized Plan] should step in

and provide further protection for the ‘ōpe‘ape‘a.”

As for KNSC’s demand for Gon’s recusal, the circuit

court noted that “a potential problem” arose from Gon’s

participation in both the Committee and the Board. However, the

circuit court was unable to identify any legal authority

precluding Gon’s sequential involvement with both bodies.

Lastly, the circuit court deemed KNSC’s challenge to

state Senator Inouye’s letter waived insofar as KNSC did not

raise any objection before the Board.

The circuit court entered a final order and its

judgment on May 23, 2019.

KNSC timely appealed the circuit court’s decision to

the Intermediate Court of Appeals, and submitted an application

to transfer said appeal to this court. This court granted

KNSC’s application for transfer.

II. STANDARDS OF REVIEW

A. Secondary Appeals

Appellate review of a circuit court decision reviewing

an agency decision constitutes a secondary appeal. Flores v.

Bd. of Land and Natural Res., 143 Hawaiʻi 114, 120, 424 P.3d 469,

475 (2018). The appellate court must determine whether the

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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.

Id. The statute provides:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitions may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

HRS § 91-14(g) (Supp. 2016). “[U]nder HRS § 91-14(g),

conclusions of law are reviewable under subsections (1), (2),

and (4); questions regarding procedural defects under subsection

(3); findings of fact under subsection (5); and an agency’s

exercise of discretion under subsection (6).” Paul’s Elec.

Serv., Inc. v. Befitel, 104 Hawaiʻi 412, 416, 91 P.3d 494, 498

(2004) (brackets in original) (quoting In re Hawaiian Elec. Co.,

81 Hawaiʻi 459, 465, 918 P.2d 561, 567 (1996)).

In a secondary appeal, “[t]his court’s review is

further qualified by the principle that the agency’s decision

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carries a presumption of validity and appellant has the heavy

burden of making a convincing showing that the decision is

invalid . . . .” Korean Buddhist Dae Won Sa Temple of Hawaii v.

Sullivan, 87 Hawaiʻi 217, 229, 953 P.2d 1315, 1327 (1998) (citing

Bragg v. State Farm Mut. Auto. Ins., 81 Hawaiʻi 302, 304, 916

P.2d 1203, 1205 (1996)).

B. Statutory Interpretation

The interpretation of a statute is a question of law

which this court reviews de novo. State v. Ruggiero, 114 Hawai‘i

227, 231, 160 P.3d 703, 707 (2007).

III. DISCUSSION

A. The circuit court properly applied the clear error standard in reviewing KNSC’s challenges based on mixed questions of law and fact.

On appeal, KNSC asserts the circuit court erred in

reviewing KNSC’s fact-based arguments under the clear error

standard. Specifically, KNSC claims the Board “violated its

statutory mandate or exceeded its statutory authority by failing

to adhere to parameters required by HRS chapter 195D, committed

other errors of law, and issued its decision upon an unlawful

procedure” because the Board did not use the “best scientific

and other reliable data available.” KNSC proceeds to claim that

three of the Board’s determinations are unsupported by any

studies or data: (1) a LWSC rate of 5.0 m/s would minimize and

mitigate the impact of ‘ōpe‘ape‘a take to the maximum extent

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practicable, as required by HRS § 195D-4(g)(1); (2) the

Finalized Plan will increase the recovery of ‘ōpe‘ape‘a in

compliance with HRS §§ 195D-4(g)(4), 195D-21(b)(1)(B), and 195D-

30; and (3) the Board had sufficient information to assess the

cumulative impacts of take on the Oʻahu ‘ōpe‘ape‘a population as

mandated by HRS §§ 194D-4(g)(5) and 195D-21(c).

Whether the Board utilized the best scientific and

other reliable data available constitutes a mixed question of

law and fact. The circuit court therefore correctly reviewed

the Board’s decisions under the clear error standard.

1. Courts review agency conclusions on mixed questions of law and fact under the clear error standard.

As a preliminary matter, courts separate their reviews

of agency decisions using three categories: (1) issues of law,

(2) issues of fact, and (3) mixed issues of law and fact. See

Poe v. Hawaiʻi Labor Rels. Bd., 87 Hawaiʻi 191, 195, 953 P.2d

569, 573 (1998). Issues of law are reviewed de novo. Id.

Meanwhile, issues of fact and mixed issues of law and fact are

reviewed for clear error. Id. A mixed question of law and fact

exists when the “conclusion is dependent upon the facts and

circumstances of the particular case.” Price v. Zoning Bd. of

Appeals of City and Cnty. of Honolulu, 77 Hawaiʻi 168, 172, 883

P.2d 629, 633 (1994) (citations omitted).

[A finding of fact] or a mixed determination of law and fact is clearly erroneous when (1) the record lacks

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substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made. See Leslie v. Estate of Tavares, 91 Hawaiʻi 394, 399, 984 P.2d 1220, 1225 (1999). “We have defined ‘substantial evidence’ as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Id. (quoting State v. Kotis, 91 Hawaiʻi 319, 328, 984 P.2d 78, 87 (1999)).

In re Water Use Permit Applications, 94 Hawaiʻi 97, 119, 9 P.3d

409, 431 (2000).

Furthermore, courts generally grant significant weight

to an agency’s determinations based on technical or scientific

facts. Charles H. Koch, Jr., Administrative Law & Practice 83-

88 (3d ed. 2010). This deference arises from the fact that

agencies possess and exercise subject-matter expertise and

experience the courts generally lack. Id. at 75-76. These

qualities place agencies “in a better position than the courts

to evaluate ‘scientific investigations and research[.]’” Koʻolau

Agric. Co. v. Comm’n on Water Res. Mgmt., 83 Hawaiʻi 484, 493,

927 P.2d 1367, 1376 (1996). Courts are therefore hesitant to

substitute their judgment for an agency’s when the agency uses

its expertise and experience to make a mixed determination of

law and fact. Pasco v. Bd. of Trustees of Emps.’ Ret. Sys., 142

Hawaiʻi 373, 379, 420 P.3d 304, 310 (2018); see also In re Water

Use Permit Applications, 94 Hawaiʻi at 154, 9 P.3d at 466; Camara

v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984).

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Moreover, we have recognized for issues within an

agency’s expertise “the principle that the agency’s decision

carries a presumption of validity and [the] appellant has the

heavy burden of making a convincing showing that the decision is

invalid . . . .” Korean Buddhist Dae Won Sa Temple, 87 Hawaiʻi

at 229, 953 P.2d at 1327.

2. The endangered species statute grants the Board and the Committee the authority to determine what constitutes the best scientific and other reliable data available.

On appeal and throughout the underlying proceedings,

KNSC argues the Board’s decision was flawed primarily because

the Board did not utilize the best scientific and other reliable

data available to make the three challenged conclusions. To

support this argument, KNSC implicitly proclaims that one study

constitutes the best scientific and other reliable data

available on the impact of LWSC rates on ‘ōpe‘ape‘a take. KNSC

similarly insists that data regarding the Kawailoa Wind Farm’s

‘ōpe‘ape‘a take forms part of the best scientific and other

reliable data available on the relationship between wind turbine

height and blade length and the quantity of ‘ōpe‘ape‘a take.

Contrary to KNSC’s implied argument that either KNSC

or the courts can and should identify the best scientific and

other reliable data available, the Legislature delegated that

responsibility to the Board and the Committee. As previously

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mentioned, HRS chapter 195D lays out multiple requirements with

which an applicant, a habitat conservation plan, the Committee,

and the Board must comply before the Board may approve the

habitat conservation plan. As relevant here, the Committee

reviews any proposed habitat conservation plan first, using “the

best available scientific and other reliable data and at least

one site visit . . . .” HRS § 195D-25(b)(1). Once the

Committee finishes its review, it may then recommend that the

Board either approve, amend, or reject the proposed plan. Id.

Next, the Board must determine whether the proposed

plan, inter alia, “will increase the likelihood of recovery of

the endangered or threatened species that are the focus of the

plan” and “satisfies all the requirements of [HRS chapter

195D].” HRS § 195D-21(b)(1). Pursuant to HRS § 195D-21(c), the

Board must make this determination using the “best scientific

and other reliable data available at the time its determination

is made.” If the “best scientific and other reliable data

available at the time [the Board’s] determination is made”

indicates the habitat conservation plan “fails to meet the

criteria of [HRS § 195D-21(a)-(b)]” or “fails to meet the

criteria of [HRS § 195D-4(g)],” the Board must disapprove of the

plan. HRS § 195D-21(c).

Considering the Board and the Committee’s statutory

obligations, the two necessarily must determine what constitutes

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the best scientific and other reliable data available as part of

their decision-making processes.

3. Whether an agency utilizes the best scientific and other reliable data available is a mixed question of law and fact.

Although KNSC labels the issue of whether the Board

utilized the best scientific and other reliable data as a purely

legal or procedural error, KNSC does not dispute that the issue

presents a mixed question of law and fact. In fact, KNSC

tacitly acknowledges this truth by raising factual arguments

regarding which studies and data the Board should consider.

In requiring the Board to consider the “best

scientific and other reliable data available at the time of its

determination,” the Legislature established three criteria to be

met before the Board must consider a particular piece of

information. First, the information must be “available at the

time of its determination.” In other words, the Board need not

consider information that is unavailable when the Board makes

its determination. See Ctr. for Biological Diversity v. U.S.

Fish & Wildlife Serv., 807 F.3d 1031, 1047 (9th Cir. 2015)

(explaining “the best scientific and commercial data available”

standard “does not require the agency to ‘conduct new tests or

make decisions on data that does not yet exist.’”) (quoting San

Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 996

(9th Cir. 2014)). Moreover, if little research has been done on

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a subject, the Board need not develop its own research before it

may act. See id.; Sw. Ctr. for Biological Diversity v. Babbitt,

215 F.3d 58, 60 (D.C. Cir. 2000) (“The ‘best available data’

requirement makes it clear that the Secretary has no obligation

to conduct independent studies.”).

Second, the information must be “scientific data” or

“other reliable data.” This factor allows the Board to consider

a range of information from anecdotal evidence to controlled,

repeatable studies. See, e.g., Nw. Ecosystem All. v. U.S. Fish

and Wildlife Serv., 475 F.3d 1136, 1147 (9th Cir. 2007) (“Of

course a rigorous, large-scale study of Washington gray

squirrels’ behavior and morphology would be preferable, but in

the absence of such a study, credible anecdotal evidence

represents the ‘best scientific . . . data available’ and cannot

be ignored.”) (underscored emphasis added).

Third, the information must be the “best.” This

factor requires the Board to evaluate factors such as the

applicability and quality of the information. See Gen. Category

Scallop Fishermen v. Sec’y, U.S. Dep’t of Commerce, 635 F.3d

106, 115 (3d Cir. 2011) (“In deciding whether scientific

information is the ‘best available,’ substantial deference is

accorded to the Secretary’s assessment of the quality of what is

available.”) (citing Washington Crab Producers, Inc. v.

Mosbacher, 924 F.2d 1438, 1448-49 (9th Cir. 1990)) (emphasis

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added). The Board may therefore weigh the information before

it, identify some information as inapplicable, and exclude that

information from its calculations if it does not constitute the

best scientific and other reliable data available. Locke, 776

F.3d at 995 (“An agency complies with the best available science

standard so long as it does not ignore available studies, even

if it . . . discredits them.”) (emphasis added).

The determination of whether a piece of information

constitutes the “best scientific and other reliable data

available at the time of [the Board’s] determination” raises a

mixed question of law and fact. Again, a mixed question of law

and fact exists when the “conclusion is dependent upon the facts

and circumstances of the particular case.” Price, 77 Hawaiʻi at

172, 883 P.2d at 633. The evaluation of whether a piece of

information satisfies all three of these criteria is necessarily

fact- and circumstance-dependent. For instance, if a person is

asked what the boiling point of water is, the response might be

“100 degrees Celsius.” See, e.g., Does water’s boiling point

change with altitude? Americans aren’t sure, Pew Research Ctr.,

https://www.pewresearch.org/fact-tank/2015/09/14/does-waters-

boiling-point-change-with-altitude-americans-arent-sure/ (“It

seems like one of those basic science facts: Water boils at 212

degrees Fahrenheit (100 degrees Celsius), right?”). However,

this information is neither “reliable data” nor the “best” for a

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person who is attempting to boil water at the peak of Mauna Kea,

where the reduced air pressure lowers the boiling point of

water. See id. (“The boiling point of water . . . varies

according to the surrounding atmospheric pressure. . . . . But

pressure drops as you gain elevation”).

Under these circumstances, we note that the Committee

and the Board are in the best position to determine what

available. It bears repeating that agencies and their heads,

such as the Board, are “in a better position than the courts to

evaluate ‘scientific investigations and research[.]’” Koʻolau

Agric. Co., 83 Hawaiʻi at 493, 927 P.2d at 1376. This is because

agencies possess subject-matter expertise and experience the

courts lack. Administrative Law & Practice 83-88.

In sum, what constitutes the best scientific and other

reliable data available is fact- and circumstance-dependent.

The determination of the best scientific and other reliable data

available therefore raises a mixed question of law and fact.

Price, 77 Hawaiʻi at 172, 883 P.2d at 633. Thus, the circuit

court correctly evaluated KNSC’s challenges to the Board’s

conclusions under the clear error standard. Poe, 87 Hawaiʻi at

195, 953 P.2d at 573.

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B. Substantial evidence supports the conclusion that the Board utilized the best scientific and other reliable data available to approve the Finalized Plan.

We now turn to KNSC’s contention that the Board’s

decision must be vacated because substantial evidence does not

support three of the Board’s conclusions. To reiterate briefly,

KNSC claims (1) there is no evidence that a 6.5 m/s LWSC rate

would not decrease ‘ōpe‘ape‘a take more than a 5.0 m/s LWSC rate;

(2) there is no evidence that forest restoration efforts will

restore Oʻahu’s ‘ōpe‘ape‘a population; and (3) the Board could not

assess the impact of the Wind Farm because it improperly

disregarded data. However, a review of the record shows that

Applicant and KNSC presented the Committee and the Board with

conflicting information on these matters. KNSC’s concerns

therefore appear to arise from the Board’s treatment of certain

studies and data as opposed to an actual absence thereof.

KNSC’s contentions are devoid of merit. As detailed

below, substantial evidence supports the Board’s findings.

Substantial evidence consequently also supports the Board’s

challenged conclusions and this court is not left with the

definite and firm conviction that a mistake has been made.

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1. Substantial evidence supports the Board’s conclusion that the Finalized Plan will minimize and mitigate the impacts of the take of ‘ōpe‘ape‘a to the maximum extent practicable.

According to KNSC, “[t]he Board pointed to no evidence

that increasing [the LWSC rate] to a cut-in speed of 6.5 m/s

would not decrease take of ‘ōpe‘ape‘a.” Instead, KNSC claims the

Board ignored evidence that a 6.5 m/s LWSC rate would reduce

‘ōpe‘ape‘a mortality.

Contrary to KNSC’s claims, the Board cited two studies

for the proposition that a LWSC rate of 6.5 m/s would not result

in less take than an LWSC rate of 5.0 m/s. First, the Board

pointed to the Bats and Wind Energy Cooperative’s 2008 annual

report, which “indicated no significant difference in fatalities

between these two changes in cut-in speed (5.0 m/s and 6.5

m/s).” Second, the Board found that “[a] study reported in

Frontiers in Ecology and the Environment noted . . . there was

no difference in bat fatalities between the 5.0 and 6.5 m/s

treatments[.]”

Furthermore, the Board actually considered the very

data KNSC alleges the Board ignored. Among its findings of

fact, the Board acknowledged

The Fowler Ridge Wind Energy Facility (Indiana) study is the first to demonstrate that bat casualty rates were not only significantly different between control and treatment turbines, but that bat casualty rates were significantly different between cut-in speeds raised to 5.0 m/s (50% reduction in overall bat mortality) versus turbines with

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cut-in speeds raised to 6.5 m/s (78% reduction in overall bat mortality).

However, the Board dismissed this study because

The best data in the record correlating bat activity with wind speed in Hawaiʻi is the study in the northern Koʻolau area. According to this study, at Kawailoa, where the researchers obtained extensive data from thermal imaging, “bats were more likely to be present when mean wind speeds were < 4.6 m/s.” The study also says that “bats were more likely to be present when maximum wind speeds were <8.2 m/s.” The difference between the two statements is due to the first referring to mean wind speeds, the second to maximum speeds, i.e. gusts, in ten-minute intervals. According to [the study], about 80% of bat observations occurred when mean wind speeds were < 5 m/s.

(Citations omitted.)

Given the inconsistent nature of the information

before the Board, the Board was best positioned to determine

which study or studies represented the best scientific and other

reliable data available at the time of its determination.

Koʻolau Agric. Co. 83 Hawaiʻi at 493, 927 P.2d at 1376. The

Board’s decision to dismiss the study on which KNSC relies

therefore “lies within the [Board’s] designated expertise and

sound discretion.” In re Water Use Permit Applications, 94

Hawaiʻi at 154, 9 P.3d at 466 (citations omitted). Rather than

present any evidence that the three studies on which the Board

relied did not constitute the best scientific and other reliable

data, KNSC baldly accuses the Board of disregarding data.19 Such

conclusory allegations fall short of satisfying KNSC’s burden of

19 In so arguing, KNSC ironically does the very thing of which it accuses the Board — disregard evidence inconsistent with its position.

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showing that the decision is invalid. Korean Buddhist Dae Won

Sa Temple, 87 Hawaiʻi at 229, 953 P.2d at 1327.

In light of the Board’s articulated reason for

discounting the study on which KNSC relies and KNSC’s failure to

provide any evidence to controvert the Board’s reasoning,

substantial evidence supports the Board’s conclusion that the

5.0 m/s LWSC rate will minimize the take of ‘ōpe‘ape‘a to the

maximum extent practicable. In re Water Use Permit

Applications, 94 Hawaiʻi at 119, 9 P.3d at 431. In turn, there

was no need for the Board to establish that a higher LWSC rate

was impracticable.

2. Substantial evidence supports the Board’s conclusion that the Finalized Plan will increase the likelihood that ‘ōpe‘ape‘a will survive and recover.

KNSC also asserts that “[n]o actual studies or data

supported the Board’s acceptance of representations that

protecting forests at Poamoho will ‘increase the likelihood that

the species will survive and recover’ as required by HRS § 195D-

4(g)(4).” (Citation omitted.)

However, data in the record indicate that the

Finalized Plan’s forest restoration provisions will increase

‘ōpe‘ape‘a survival and recovery. Citing the Committee’s Hawaiian

Hoary Bat Guidance Document and the FWS’s Recovery Plan for the

Hawaiian Hoary Bat, the Board attributed the reduction of

‘ōpe‘ape‘a population to habitat loss, and identified the “main

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potential threats” as “reduction in tree cover, loss of roosting

habitat, [and] roost disturbance.” The Committee study showed

that “[t]he best available information to date indicates that

habitat restoration that enhances or increases forested and

foraging areas for bats is an optimum mitigation approach as

demonstrated in approved [habitat conservation plans] to date.”

The Board determined that although the Poamoho Ridge forest

already provided habitat for ‘ōpe‘ape‘a, the forest was “declining

because of feral pigs, which destroy vegetation, and invasive

weeds.” Given the data before the Board and its findings, it

stands to reason that actions that remove factors that

contribute to the decline of ‘ōpe‘ape‘a habitat will reduce, if

not reverse, habitat loss, and thereby prevent roost disturbance

and increase roosting habitat. This is precisely what the

Committee indicated that the best available information

prescribes to support ‘ōpe‘ape‘a recovery and survival.

Moreover, the Board found that the Wind Farm would

“eliminate about one million tons of [carbon dioxide] over

twenty years,” “[carbon dioxide] is the most important

greenhouse gas and contributor to global warming,” and “global

warming will be disastrous for wildlife.” The Board recognized

that “[w]hile the [Wind Farm] will have only a small effect in

the struggle against global warming . . . ‘[w]e cannot afford to

ignore even modest contributions to global warming.’” (Citation

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omitted.) In other words, while the Wind Farm would not

completely prevent the harms global warming would visit upon

‘ōpe‘ape‘a, it is one small step to reducing such harms.

As with its challenge to the Board’s determination

regarding the LWSC rate, KNSC does not point to any evidence

that the Board did not base its decision on the best scientific

and other reliable data available at the time of its

determination.

Based upon the Board’s uncontroverted findings,

substantial evidence supports the Board’s conclusion that the

Finalized Plan will increase the likelihood that ‘ōpe‘ape‘a will

survive and recover. In re Water Use Permit Applications, 94

Hawaiʻi at 119, 9 P.3d at 431. Absent any evidence to undermine

the Board’s data and findings, KNSC does not satisfy its burden

to show that the Board’s decision was invalid. Korean Buddhist

Dae Won Sa Temple, 87 Hawaiʻi at 229, 953 P.2d at 1327.

3. Substantial evidence supports the Board’s conclusion that it had sufficient information to adequately assess the cumulative impacts associated with the take of ‘ōpe‘ape‘a.

KNSC further argues the Board lacked sufficient

information to assess the cumulative impacts associated with the

take of ‘ōpe‘ape‘a “[b]ecause it [(1)] relied solely on Kahuku

Wind Project data, excluded consideration of other wind projects

in the State, and [(2)] failed to analyze the impact of the

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increased wind turbine generator [blade] length on ‘ōpe‘ape‘a.”

KNSC claims that in order for the Board to have sufficient data

to address both of these issues, the Board should have utilized

data from the Kawailoa Wind Project.20

a. The Board’s decision to exclude the Kawailoa Wind Project data on take quantity is not clearly erroneous.

During oral argument, KNSC insisted the Board

“disregard[ed] reliable data” from the Kawailoa Wind Farm

because it was inconsistent with approving the Finalized Plan.

KNSC added – for the first time – that consideration of the best

scientific and other reliable data available at the time of the

Board’s determination required the Board “to account for all of

the data that is collected scientifically” and “account for all

of the factors that are observable.”

KNSC mischaracterizes the Board’s decision-making

process. The Board went to great lengths to evaluate the data

before it. Out of the Board’s 349 findings of fact, 173

addressed issues KNSC raised about ‘ōpe‘ape‘a. Rather than

disregarding the Kawailoa Wind Farm data, fifty-five findings –

approximately a third of the Board’s ‘ōpe‘ape‘a-related findings –

contemplated the applicability of the Kawailoa Wind Farm data.

20 To the extent KNSC believes the Board should have utilized data from other Hawaiʻi wind farms, KNSC did not brief the issue before the Board and provides no argument on the issue before this court. KNSC has therefore waived any claims requiring data from other Hawaiʻi wind farms. Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4).

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Through these findings, the Board identified a concern

regarding the Kawailoa Wind Farm data: “Kawailoa has far more

bat activity than Kahuku.” For example, a study of the Kawailoa

Wind Farm and the Kahuku Wind Farm determined the bat activity

at the Kawailoa Wind Farm is anywhere between two to twenty

times higher than at the Wind Farm’s location. Similarly,

“[p]re-2011 data also showed bat activity at Kawailoa about ten

times that of Kahuku.” Moreover, the annual reports from Kahuku

and Kawailoa confirmed this distinction. The Board therefore

concluded, “[t]he actual history of a wind farm operating on the

adjacent land, with . . . similar levels of bat activity . . .

is the better predictor of future take.”

Considering the Board’s detailed rationale for

excluding the Kawailoa Wind Farm data, we cannot say that the

Board’s treatment of the data was unreasonable. In re Water Use

Permit Applications, 94 Hawaiʻi at 154, 9 P.3d at 466.

Substantial evidence therefore supports the Board’s exclusion of

the Kawailoa Wind Farm data. Id. at 119, 9 P.3d at 431.

KNSC’s new argument that the Board is obligated to

consider “all of the data that is collected scientifically” and

“account for all of the factors that are observable” does not

establish otherwise. Again, HRS chapter 195D requires the

Committee and the Board to utilize the “best scientific and

other reliable data available at the time of its determination.”

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HRS § 195D-21(c). As our previous discussion indicates, not all

scientifically collected information is necessarily reliable

data or the best data. To KNSC’s point that the best scientific

and other reliable data available must “account for all of the

factors that are observable,” it is that very accounting which

allows experts to rule out certain information. Returning to

our example of the boiling point of water, determining the

boiling point of water at the peak of Mauna Kea requires

accounting for atmospheric pressure. In turn, the fact that

water boils at 100 degrees Celsius at sea level does not

constitute the best data for determining the boiling point of

water atop Mauna Kea.

Based on the Board’s foregoing analysis, the Board

reasonably established that the Kawailoa Wind Farm data is not

the best available data because its higher levels of bat

activity are not comparable to the Wind Farm’s. In contrast,

KNSC effectively asserts the Board should disregard this

undisputed finding and consider the Kawailoa Wind Farm data

anyway.21

Under these circumstances, KNSC has not carried its

burden to show that the Board’s decision to exclude the Kawailoa

21 This flies in the face of KNSC’s own demand that the best scientific and other reliable data available “account for all of the factors that are observable.”

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Wind Farm data was invalid. Korean Buddhist Dae Won Sa Temple,

87 Hawaiʻi at 229, 953 P.2d at 1327.

b. The Board analyzed the impacts of increased wind turbine blade length and height.

Turning to KNSC’s complaint that the Board “failed to

analyze the impact of the increased wind turbine generator

length on ‘ōpe‘ape‘a,” the record shows that the Board explicitly

considered whether a wind turbine’s height or blade length would

affect take rates.

With regard to wind turbine height, the Board noted

that a 2016 Canadian study found “no relationship between bat

mortality and height of wind turbines.” Additionally, a 2009

Canadian study indicated that “[a]t sites with little bat

activity . . . tower height is inconsequential.” In contrast, a

2007 study “found a very strong association between height and

take, [but] had no data for towers between the height of

Kahuku’s and [Applicant’s].”

As for wind turbine blade length, the Board found that

“the two studies in the record which directly address this

[issue] came to contrary conclusions.” Specifically, the 2007

study that found a strong association between height and take

concluded that “[r]otor-swept area was not a significant factor

in [its] analysis.” On the other hand, a different study

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determined that “turbines with a bigger rotor-sweep area,

mounted at the same height, did cause more bat fatalities.”

Given the inconsistent data before it, the Board

concluded

The scientific evidence introduced at the contested case hearing does not establish that there is a direct correlation between either height or rotor-sweep area and bat mortality at the heights of [Applicant’s] turbines. Even if there is, the conservative assumptions made by the [Finalized Plan] would more than accommodate an adjustment based on the greater height and rotor sweep area of [Applicant’s] turbines vs. the Kahuku turbines.

Under these circumstances, the Board was entitled to

rely on its expertise and experience to determine how to factor

wind turbine height and blade length into its ‘ōpe‘ape‘a take

calculations. In re Water Use Permit Applications, 94 Hawaiʻi at

154, 9 P.3d at 466. KNSC does little more than disagree with

the Board’s conclusion that neither factor is relevant. Without

any argument that the Board’s determination was flawed,

substantial evidence supports the conclusion that a wind turbine

generator’s height and blade length will not affect ‘ōpe‘ape‘a

take rates. Id. at 119, 9 P.3d at 431. We therefore see no

reason to upset the Board’s determination. Korean Buddhist Dae

Won Sa Temple, 87 Hawaiʻi at 229, 953 P.2d at 1327.

C. The Board did not err in relying on the Committee’s recommendation.

KNSC next declares the Board’s decision should be

vacated because HRS chapter 195D prohibited the Board from

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relying on the Committee’s recommendation when the Committee did

not conduct “an analysis of the changed wind turbine [blade]

length.” Specifically, KNSC implies the Committee never

considered the impact of the increased wind turbine blade length

on potential take estimates because Applicant increased the

maximum wind turbine height to 200 meters during the Committee’s

review process.

However, the record shows the Committee was not only

informed of Applicant’s mid-review alterations to the Proposed

Plan, but also actively considered Applicant’s changes. Prior

to the Committee’s December 17, 2015 public meeting, Applicant

submitted materials regarding its amendments to the Proposed

Plan – including the maximum wind turbine height increase as

well as additional fence construction funding to protect birds -

to the Committee. At the start of the meeting, DOFAW staff

talked the Committee through the proposed changes. During the

meeting, Committee members requested more data on how the fence

construction would ensure reduced bird take. Members also

emphasized that continuous monitoring for ‘ōpe‘ape‘a take was

necessary to ensure the Applicant does not “miss a trigger.”

Moreover, the Committee had time to consider the

ramifications of the height increase. Again, Applicant

submitted its materials including the height increase before

December 17, 2015. The Committee subsequently recommended that

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the Board approve the Finalized Plan – including the increased

maximum wind turbine height – on February 25, 2016. Thus, the

Committee had over two months to review Applicant’s proposal as

well as the potential impacts of the wind turbine height

increase on ‘ōpe‘ape‘a take.

In light of the foregoing, the Committee was aware of

the proposed maximum wind turbine height increase and had the

opportunity to review the change. We therefore presume that the

Committee considered the amendment and determined that it would

not result in more ‘ōpe‘ape‘a take. See Korean Buddhist Dae Won

Sa Temple, 87 Hawaiʻi at 229, 953 P.2d at 1327. Given that KNSC

does not provide any evidence to the opposite effect, KNSC does

not meet its burden to show the Committee erred. Id. In turn,

there is no evidence that the Board erred in relying on the

Committee’s recommendation to approve the Finalized Plan. Id.

D. The Board correctly determined that Gon was not required to recuse himself from the Board proceedings.

KNSC also claims this court should vacate the Board’s

decision to approve the Finalized Plan because Gon tainted the

Board’s decision-making process by first evaluating the

Finalized Plan as a member of the Committee. Specifically, KNSC

asserts that Gon’s participation in the Board proceedings

violated KNSC’s constitutional right to due process because

(1) there is an appearance of impropriety when a Board member

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evaluates a habitat conservation plan application as a Committee

member and (2) Gon expressed a bias in favor of the Finalized

Plan. KNSC adds that Gon’s participation also violated

statutory prohibitions against Board members considering

information not contained in the record. For the reasons

discussed below, KNSC’s insistence upon Gon’s recusal is

unwarranted.

1. Gon’s participation in both the Committee and Board proceedings did not violate any statutory limitations.

Turning first to KNSC’s statutory argument, the

statutory scheme of HRS chapter 195D and HRS § 171-4 indicates

that a Board member may participate in both the Committee and

Board proceedings without violating a statute.

a. The Legislature intended for the chairperson of the Board to participate in both the Committee and Board proceedings.

As a preliminary matter, we note that the Legislature

explicitly authorized the chairperson of the Board to

participate in both the Committee and Board proceedings. Again,

The committee shall consist of two field biologists with expertise in conservation biology, the chairperson of the board or the chairperson’s designee, the ecoregion director of the United States Fish and Wildlife Service or the director’s designee, the director of the United States Geological Survey, Biological Resources Division or the director’s designee, the director of the University of Hawaii Environmental Center or the director’s designee, and a person possessing a background in native Hawaiian traditional and customary practices.

(Emphasis added.) As a member of the Committee, the chairperson

may evaluate proposed habitat conservation plans and make a

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recommendation on whether the Board should approve, amend, or

reject the proposal. HRS § 195D-25(b)(1). Next, as a member of

the Board, the chairperson must vote on whether to approve,

amend, or reject the same proposal. HRS §§ 171-4(e), 195D-4(g),

195D-21(b)(1). Thus, the Legislature explicitly authorized the

chairperson of the Board to (1) make a recommendation as a

member of the Committee on whether the Board should approve a

habitat conservation plan, and (2) vote as the chairperson of

the Board to approve or reject a habitat conservation plan. See

also Liberty Dialysis-Hawaii, 130 Hawaiʻi at 104-06, 306 P.3d at

149-51.

b. The legislative history and language of HRS §§ 195D-25(a) and 171-4 indicates that the Legislature intended to authorize other Board members to participate in both the Committee and Board proceedings as well.

Having established that the chairperson of the Board

may participate in both the Committee and Board proceedings, we

address whether the Legislature’s authorization extends to other

members of the Board. We conclude that it does.

First, the legislative history of HRS § 195D-25(a)

indicates the Legislature intended for a member of the Board to

participate in the Committee’s proceedings. As initially

designed, the Committee was a completely separate entity from

the Board. The Legislature proposed the Committee consist of

three private landowners, three field biologists, the administrator of the division of forestry and wildlife or

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the administrator’s designee, the ecoregion director of the United States Fish and Wildlife Service or the director’s designee, the director of the United States Geological Survey (“USGS”), Biological Inventory and Research Division or the director’s designee, one representative from a local private conservation organization, one representative from the University of Hawaii Environmental Center, three academic experts in conservation biology, and three representatives from non-landowning environmental or Hawaiian organizations.

S.B. 1089, S.D. 1, 19th Leg., Reg. Sess. (1997).22

However, the Legislature received testimony that the

“provision . . . gives far too much power to the head of the

Division of Forestry and Wildlife with too little Board . . .

oversight.” Hawaii Audubon Society, Testimony to the Senate

Committee on Ways and Means on S.B. No. 1089, 19th Leg. Reg.

Sess. (Feb. 21, 1997) (emphasis added). Another commenter

suggested, instead, that “[t]he duties of the recovery committee

are properly performed by the Board of Land and Natural

Resources.” Kamehameha Schools Bernice Pauahi Bishop Estate,

Testimony to the Senate Committee on Ways and Means on S.B. No.

1089, 19th Leg., Reg. Sess. (Feb. 21, 1997). The Board’s

chairperson suggested, as an alternative, that the Legislature

“designate the chairperson of the board of land and natural

resources or his designee as the recovery committee member

22 The legislature ultimately enacted the endangered species statute using H.B. 1292, H.D. 1, S.D. 1, C.D. 1, 19th Leg., Reg. Sess. (1997) as the legislative vehicle. See 1997 Haw. Sess. Laws Act 380, at 1193-206. However, this only occurred after the senate replaced the text of H.B. 1282, H.D. 1, 19th Leg., Reg. Sess. (1997) with the text of S.B. 1089, S.D. 2, 19th Leg., Reg. Sess. (1997). S. Stand. Comm. Rep. No. 1183, in 1997 Senate Journal, at 1343.

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rather than the administrator of the division of forestry and

wildlife.” Board of Land and Natural Resources, Testimony to

the Senate Committee on Ways and Means on S.B. No. 1089, 19th

Leg., Reg. Sess. (Feb. 21, 1997).

The Legislature subsequently amended the bill to,

inter alia, “[s]ubstitut[e] the Chair of the Board for the

Administrator of the Division of Forestry and Wildlife on the

Committee.” S. Stand. Comm. Rep. 827, in 1997 Senate Journal at

1220. However, the Legislature retained the provision allowing

the chairperson to designate someone else to represent her on

the Committee. S.B. 1089, S.D. 2, 19th Leg., Reg. Sess. (1997).

It therefore appears the Legislature amended the bill to allow

the Board to play a role in the Committee’s proceedings and to

oversee directly the Committee’s work.

Second, reading HRS § 195D-25(a) in conjunction with

HRS § 171-4 indicates the Legislature did not intend to restrict

its authorization for a person to participate in both the

Committee and Board proceedings to the Board’s chairperson.

Again, HRS § 195D-25(a) authorizes the chairperson of the Board

to have a designee take her place on the Committee. However, it

does not place any restrictions on who can be a designee. The

statute therefore does not prohibit the chairperson of the Board

from designating another Board member to serve on the Committee.

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Moreover, the fungible nature of the chairperson

position indicates the Legislature recognized that any of the

Board’s members may be called upon to serve on both the

Committee as well as the Board. Under HRS § 171-4(a),

The board of land and natural resources shall be composed of seven members, one from each land district and three at large, to be nominated and, by and with the advice and consent of the senate, appointed by the governor as provided in section 26-34. The term and removal of a member of the board and the filling of a vacancy on the board shall also be as provided in section 26-34. There shall be not more than three members on the board from the same political party.

Additionally, according to HRS § 171-4(e),

The governor shall select a chairperson of the board from among its members. The chairperson shall call and preside at meetings and may appoint a member of the board as secretary. The members of the board shall choose one of their number to act as chairperson during the absence or disability of the chairperson.

In light of the foregoing, each of the Board’s members may be

called upon to serve as the chairperson at any given time. The

governor selects the chairperson from the pool of senate-

confirmed Board members and may replace the chairperson with a

different Board member. HRS § 171-4(e). However, if the

governor-selected Board member is unable to carry out the

chairperson’s duties, the Board’s members may designate any of

the remaining Board members to act as the chairperson. Id.

This fungibility is particularly important where, as

here, the Committee and the Board’s reviews of the habitat

conservation plans occurs sequentially. This creates a

situation where two or more Board members may serve as the

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chairperson throughout the relevant proceedings. For instance,

Board member A may serve as the chairperson during the

Committee’s review and be replaced by Board member B as the

chairperson during the Board’s review, but remain on the Board

during the Board’s review.23 In such a situation, restricting

the Legislature’s authorization to the chairperson of the Board

could preclude the Board from reviewing and/or approving any

habitat conservation plan. See HRS §§ 171-5 (2011) (providing

in relevant part that “Four members of the board shall

constitute a quorum to do business.”), 195D-21(b)(1) (requiring

“an affirmative vote of not less than two-thirds of [the

Board’s] authorized membership,” or five Board members, for

approval).

Accordingly, we read HRS §§ 195D-25(a) and 171-4(e) to

authorize other Board members to participate in both the

Committee and Board proceedings.

c. HRS §§ 91-9(g) and 91-13 do not prohibit Board members from considering information obtained during the Committee proceedings.

In light of the Legislature’s intention for Board

members to participate in the Committee proceedings, the

statutory prohibitions against considering extra-record

23 To further complicate matters, the governor may replace the chairperson during either of these review processes. Id. Alternatively, the Board’s members may select an acting chairperson due to “absence or disability.” Id.

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information do not preclude Board members from considering

information obtained from the Committee proceedings.

According to KNSC, HRS §§ 91-9(g) and 91-13 precluded

Gon from considering “extra-record” information he obtained

during the Committee proceedings. However, the requirements of

HRS chapter 195D and HRS § 171-4(e) conflict with those of HRS

§§ 91-9(g) and 91-13.

Pursuant to HRS § 91-9(g) (2012), “[n]o matters

outside the record shall be considered by the agency in making

its decision except as provided herein.” Additionally, HRS

§ 91-13 (2012) provides that “[n]o official of an agency who

renders a decision in a contested case shall consult any person

on any issue of fact except upon notice and opportunity for all

parties to participate, save to the extent required for the

disposition of ex parte matters authorized by law.” However, if

a Board member’s exposure to information obtained during the

Committee proceedings requires disqualification from the Board

proceedings, the chairperson of the Board would have to recuse

herself from the Board proceedings despite HRS chapter 195D’s

express authorization for the chairperson to participate in both

proceedings. See HRS §§ 195D-4(g), 195D-21(b), 195D-25(a).

Thus, the text of HRS §§ 91-9(g) and 91-13 conflicts with that

of HRS § 195D-25(a).

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The requirement of HRS chapter 195D and HRS § 171-4(e)

that a Board member participate in both proceedings overrides

the prohibitions of HRS §§ 91-9(g) and 91-13. “[W]here there is

a ‘plainly irreconcilable’ conflict between a general and a

specific statute concerning the same subject matter, the

specific will be favored.” Mahiai v. Suwa, 69 Haw. 349, 356,

742 P.2d 359, 366 (1987) (citations omitted). In this case, HRS

§§ 195D-25(a) and 171-4(e) provide the more specific language

because the statutes apply to Committee and Board proceedings in

particular, whereas HRS §§ 91-9(g) and 91-13 apply to all

contested case hearings. Under such circumstances, HRS §§ 91-

9(g) and 91-13 do not preclude Board members who participated in

the Committee proceedings from using information obtained during

the Committee proceedings in the Board proceedings. See id.

In turn, KNSC does not identify any statutory basis

for Gon’s recusal.

2. Gon’s participation in both the Committee and Board proceedings did not raise any due process issues.

Turning to KNSC’s due process claims, KNSC argues that

because Gon served on the Committee, he improperly prejudged

whether the Board should approve the Finalized Plan. KNSC

intimates such prejudgment created an appearance of impropriety,

and due process therefore required Gon’s recusal. KNSC

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additionally avers that Gon was biased in favor of approving the

Finalized Plan.

Under the Hawaiʻi Constitution, “[n]o person shall be

deprived of life, liberty or property without due process of law

. . . .” Haw. Const. art. I, § 5. However, “due process is

flexible and calls for such procedural protections as the

particular situation demands.” Morrissey v. Brewer, 408 U.S.

471, 481 (1972); see also Mauna Kea Anaina Hou v. Bd. of Land

and Natural Res., 136 Hawaiʻi 376, 389, 363 P.3d 224, 237 (2015).

We hold that when the Legislature structures an administrative

agency to perform multiple roles, due process does not require

the agency or its members to sacrifice one function to

accomplish another. Gon’s participation in the Committee

therefore did not disqualify him from the Board’s proceedings.

Furthermore, where a challenger asserts an agency

adjudicator is disqualified by bias, the challenger must

overcome a “presumption of honesty and integrity.” Sifagaloa v.

Bd. of Trustees of Emps.’ Ret. Sys., 74 Haw. 181, 192-93, 840

P.2d 367, 372-73 (1992) (quoting Wolkenstein v. Reville, 694

F.2d 35, 42 (2d Cir. 1982)). KNSC does not meet this burden.

a. Agency adjudicators may participate in sequential proceedings without violating due process.

KNSC asserts that Gon’s recusal is warranted because

he “publicly expresse[d] a predisposition” when he recommended

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that the Board approve the Finalized Plan and because he

prejudged “disputed issued [sic] of adjudicative fact.”

However, the mere fact that Gon expressed a position on the

Finalized Plan as a function of his membership on the Committee

does not require his recusal.

As a preliminary matter, the fact that a decision-

maker previously adjudicated an issue does not mean that they

will improperly prejudge subsequent proceedings on the same

issue. For instance, when this court reverses a lower court’s

decision, we generally remand the matter to the same judge or

panel for further proceedings. See State v. Ortiz, 91 Hawaiʻi

181, 196, 981 P.2d 1127, 1142 (1999) (“Absent ‘unusual

circumstances’—such as those presented by a judge’s failure to

grant a defendant his or her presentence right of allocution—or

‘personal bias,’ remand to a different trial judge is uncalled

for.”) (citation omitted). This court also regularly remands

agency decisions with instructions for the agency to reconsider

issues they already passed upon. See, e.g., Mauna Kea Anaina

Hou, 136 Hawaiʻi at 399, 363 P.3d at 247 (remanding for Board to

reconsider issuing a land use permit); Kilakila ʻO Haleakala v.

Bd. of Land & Natural Res., 131 Hawaiʻi 193, 196, 317 P.3d 27, 30

(2013) (same). Notably, this is the precise relief KNSC demands

in this case: a remand to the Committee and Board to reconsider

the Finalized Plan. By KNSC’s reasoning, however, any Board

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member who voted on the Finalized Plan would be recused on the

requested remand.

Rather, when an agency decision-maker expresses a

position on an issue as a function of carrying out his statutory

obligations, due process does not require the decision-maker’s

recusal in a subsequent proceeding on the same issue. The

federal courts’ analysis on the matter is persuasive.

In 1948, the Cement Institute called for the United

States Supreme Court to disqualify the Federal Trade Commission

(FTC) from adjudicating unfair trade proceedings on a specific

trade practice because the FTC previously issued a

congressionally-mandated report concluding that the trade

practice was illegal. Federal Trade Comm’n v. Cement Institute,

333 U.S. 683, 700-03 (1948). However, the Court rejected Cement

Institute’s contention that the FTC’s prior findings constituted

improper prejudgment, reasoning that “the fact that the [FTC]

had entertained such views as the result of its prior ex parte

investigations did not necessarily mean that the minds of its

members were irrevocably closed on the subject of the

respondents’ [trade] practices.” Id. at 701 (emphasis added).

The Court pointed out that, instead, members of the cement

industry had the opportunity to “produce[] evidence—volumes of

it. They were free to point out to the [FTC] by testimony, by

cross-examination of witnesses, and by arguments, conditions of

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the trade practices under attack which they thought kept these

practices within the range of legally permissible business

activities.” Id.

The Court added that requiring disqualification simply

because the FTC had considered a similar issue previously flies

in the face of administrative law principles. Id. at 702.

Specifically,

If the [FTC’s] opinions expressed in congressionally required reports would bar its members from acting in unfair trade proceedings, it would appear that opinions expressed in the first . . . unfair trade proceeding would similarly disqualify them from ever passing on another. Thus experience acquired from [the adjudicators’] work as commissioners would be a handicap instead of an advantage. Such was not the intendment of Congress. For Congress acted on a committee report stating: “It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions . . . that comes from experience.”

Id. (citation omitted). The United States Supreme Court thereby

laid the foundation for the principle that a legislature’s

intent guides whether due process requires an agency

adjudicator’s recusal when the adjudicator previously made

related determinations.

Building upon the United States Supreme Court’s

analysis, the United States Court of Appeals for the First

Circuit articulated that there is no improper prejudgment or due

process violation when an agency carries out multiple related,

congressionally-required proceedings. Pangburn v. Civil

Aeronautics Bd., 311 F.2d 349, 358 (1st Cir. 1962). There,

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Sheldon Pangburn asserted the Civil Aeronautics Board’s (CAB)

determination that Pangburn’s “pilot error” caused a crash in a

statutorily-mandated Accident Investigation Report improperly

predetermined the results of the CAB’s investigation into

whether to affirm the Federal Aviation Agency (FAA)

Administrator’s order suspending Pangburn’s airline transport

pilot rating. Id. at 355. The court disagreed.

The court initially emphasized that both of the CAB’s

proceedings were congressionally authorized. On the one hand,

Congress required the CAB to “investigate accidents involving

civil aircraft and ‘report the facts, conditions, and

circumstances . . . and the probable cause thereof.’” Id. On

the other, a related statute allowed the CAB “to entertain and

decide appeals from revocation or suspension orders [of] the

[FAA] Administrator.” Id. at 356. The court thereby noted

that, “in both proceedings, the [CAB] is acting under a

Congressional mandate to perform the functions which were in

fact performed here.” Id.

The court further recognized that “[i]t is well

settled that a combination in investigative and judicial

functions within an agency does not violate due process.” Id.

Thus, the Court concluded that

we cannot say that the mere fact that a tribunal has had contact with a particular factual complex in a prior hearing, or indeed has taken a public position on the facts, is enough to place that tribunal under a

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constitutional inhibition to pass upon the facts in a subsequent hearing. We believe that more is required. Particularly is that so in the instant case where the [CAB’s] prior contact with the case resulted from following the Congressional mandate to investigate and report the probable cause of all civil air accidents. If we were to accept [Pangburn’s] argument, it would mean that because the [CAB] obeyed the mandate of [one statute], it was thereupon constitutionally precluded from carrying out its responsibilities under [another].

Id. at 358 (emphasis added). Thirteen years later, the United

States Supreme Court approvingly cited the United States Court

of Appeals for the First Circuit’s analysis in Withrow v.

Larkin, 421 U.S. 35, 50 n.16 (1975).

The federal courts’ analysis is applicable to the

present case. As in Pangburn, Gon acted under multiple

statutory obligations in evaluating the Finalized Plan – first

as a member of the Committee under HRS § 195D-25(b)(1), and

later as a member of the Board under HRS §§ 195D-4(g) and 195D-

21. See 311 F.2d at 355-56. Gon’s recommendation that the

Board approve the plan did not mean his mind was “irrevocably

closed” on the matter. See Cement Institute, 333 U.S. at 701.

Instead, like Cement Institute, KNSC was allowed to “produce[]

evidence—volumes of it. They were free to point out to the

[Board] by testimony, by cross-examination of witnesses, and by

arguments” why the Board should reject the Finalized Plan. Id.

Accepting KNSC’s argument would mean that because Gon obeyed the

mandate of HRS § 195D-25(b)(1), he was constitutionally

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precluded from carrying out his responsibilities under HRS

§§ 195D-4(g) and 195D-21. See Pangburn, 311 F.2d at 358.

When the Legislature calls upon an administrative

agency and its members to perform multiple roles, due process

does not require the agency or its members to sacrifice one

function to accomplish another. See id. Due process therefore

did not require Gon’s recusal.24

b. KNSC does not carry its burden to show that Gon acted without honesty or integrity.

Having fallen short of establishing that Gon’s work on

the Committee disqualified him from participating in the Board’s

proceedings, KNSC next claims that three of Gon’s statements

constitute evidence of bias in favor of the Finalized Plan.

Specifically, (1) prior to voting against a contested case

hearing, Gon stated that “[t]he suggestion that the habitat

conservation plan is fatally flawed or inadequate[ly] researched

[is] problematic in his mind”; (2) following the contested case

hearing, Gon commented that “turning this HCP back [to] the ESRC

at this stage, mere months after its issuance and approval, is

not going to result in any – in any significant change in the

24 In light of Gon’s statutory obligations, KNSC’s citation to American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966) in support of its demand for Gon’s recusal is inapposite. There, “one of the commissioners had previously served actively as counsel for a Senate subcommittee investigating many of the same facts and issues before the [FTC] for consideration.” Withrow, 421 U.S. at 50 n.16. Thus, unlike the present case, the commissioner’s prejudgment did not arise from a statutory obligation. See id.

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information that has already been considered by the ESRC and by

the state and federal agencies”; and (3) in responding to KNSC’s

motion to disqualify Gon, Gon made an allegedly inconsistent

disclosure regarding the extent of his work on the Committee.

However, not one of these statements indicates bias on

Gon’s part. First, the pre-contested case hearing statement

reflects a principle of review for agency decisions: “the

agency’s decision carries a presumption of validity and

appellant has the heavy burden of making a convincing showing

that the decision is invalid . . . .” Korean Buddhist Dae Won

Sa Temple, 87 Hawaiʻi at 229, 953 P.2d at 1327. Gon’s complete

observation was that

when a habitat conservation plan is put together it has to pass the [U.S.] Fish and Wildlife Service and the DLNR. The suggestion that the habitat conservation plan is fatally flawed or inadequate[ly] researched [is] problematic in his mind.

By prefacing his statement with an acknowledgement of the work

conducted by both FWS and DOFAW, Gon pointed out that the

Finalized Plan was the product of significant government agency

scrutiny. These proceedings and their resulting product carry a

presumption of validity. See id. Taken in context, this

statement does not indicate bias.25

25 Notably, KNSC appears to recognize that Gon’s statement does not require recusal. “Member Gomes said he agreed with Member Gon.” However, KNSC never moved to disqualify Member Gomes.

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Second, the post-contested case hearing statement

reflects the state of the evidence before the Committee and the

Board. The Committee unanimously recommended that the Board

approve the Finalized Plan on February 25, 2016. A review of

the record indicates KNSC submitted six studies published after

the Committee’s recommendation. However, none of these

submissions indisputably controverted the information the

Committee had already considered. Thus, it does not appear KNSC

identified any new evidence the Committee was required to

consider, much less evidence that constituted a “significant

change in the information that has already been considered by

the ESRC . . . .”

Third, Gon’s disclosures were not inconsistent and, in

any event, did not prejudice KNSC. To reiterate, Gon initially

disclosed on November 10, 2016 “that he was briefly on the

endangered species advisory committee that advises windfarm

projects. He is no longer on that committee and this particular

company and proposal was not one that he provided substantial

input to.” On February 21, 2018, Gon’s disclosure explained “I

was invited to serve on the ESRC of the DLNR, where, with other

experts and agency managers of endangered species, we considered

the impacts and mitigation recommendations for various projects

of relevance to the DLNR. While on the ESRC, I considered the

[habitat conservation plan] at issue currently.” These

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disclosures are consistent. The fact that Gon considered the

Finalized Plan and moved for the Committee to recommend that the

Board approve the Finalized Plan and voted accordingly does not

mean he provided substantial input on the Finalized Plan. By

contrast, other Committee members identified specific issues in

the Proposed Plan for Applicant to address in the Finalized

Furthermore, KNSC does not identify any prejudice

resulting from the alleged inconsistency. As our foregoing

discussion illustrates, KNSC’s concerns with Gon’s participation

in the Board proceedings arise from the fact that he also

participated in the Committee proceedings. Thus, to the extent

Gon’s February 2018 disclosure revealed any additional

information about his work on the Committee, Gon’s November 2016

disclosure already furnished KNSC with sufficient information to

identify the challenges it has raised throughout these

proceedings.

burden to overcome the presumption that Gon acted with honesty

and integrity. See Sifagaloa, 74 Haw. at 192-93.

E. KNSC waived its challenge to State Senator Inouye’s communications.

Lastly, KNSC asserts that State Senator Lorraine

Inouye’s letter to the BLNR constituted an improper ex parte

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communication and that BLNR’s failure to provide the letter to

KNSC rendered the Board’s approval of the Finalized Plan and

License void. However, KNSC did not timely object regarding the

letter, and has therefore waived any challenge thereon.

“[T]he general rule that an appellate court will

consider only such questions as were raised and reserved in the

lower court applies on review by courts of administrative

determinations so as to preclude from consideration questions or

issues which were not raised in administrative proceedings.”

Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu, 63 Haw.

222, 250, 624 P.2d 1353, 1372 (1981) (citing Petition of Village

Bd. of Wheatland, 42 N.W.2d 321 (N.D. 1950)). KNSC conceded

during oral argument that it did not raise any objection to

Senator Inouye’s letter during the BLNR proceedings. We

therefore do not resolve this assertion.

Nevertheless, we take this opportunity to reiterate

that “[i]n future contested case hearings, BLNR could certainly

do more to remove doubts of impropriety and build confidence in

its permit approval process.” Kilakila ʻO Haleakala, 138 Hawaiʻi

at 401, 382 P.3d at 213. KNSC contends the Board should have at

least retained a copy of the letter, even if it was prohibited

from considering the letter’s contents during the proceedings.

We agree.

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Pursuant to Hawaiʻi Administrative Rules (HAR) § 13-1-

16 (2009), “[a]ll documents filed with or presented to the board

may be retained in the files of the board.” The disclosure and

maintenance of potentially objectionable communications would

increase confidence in the Board’s proceedings. See Kilakila ʻO

Haleakala, 138 Hawaiʻi at 417, 382 P.3d at 229 (Pollack, J.,

dissenting). We therefore respectfully suggest that the Board

develop procedures to retain documents submitted to, but not

considered by, the Board during contested case hearings.26

IV. CONCLUSION

In summary, substantial evidence supported the Board’s

decision to approve the Finalized Plan because both the Board

and the Committee utilized the best scientific and other

reliable data available at the time of their respective

determinations. Furthermore, neither due process nor any

statutory provision disqualified Gon from complying with his

statutory obligations and sequentially participating in the

Committee and Board proceedings. Finally, we do not consider

the merits of KNSC’s ex parte communications argument because

KNSC did not raise a timely objection.

26 Although such documents may become a part of the contested case hearing record by virtue of being “on file with the [B]oard,” “any party may object, in the manner provided in [HAR] section 13-1-35, to any part of such record.” See HAR § 13-1-32.4 (2009).

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Accordingly, we affirm the circuit court’s May 23,

2019 Final Judgment, which affirmed the Board’s May 18, 2018

Findings of Fact, Conclusions of Law, and Decision and Order.

Lance D. Collins /s/ Mark E. Recktenwald and Bianca Isaki for Appellant-Appellant /s/ Paula A. Nakayama

Ewan C. Rayner (Kimberly T. /s/ Sabrina S. McKenna Guidry, William J. Wynhoff, Linda L.W. Chow, and Cindy Y. /s/ Michael D. Wilson Young on the briefs) for Appellees-Appellees Board of Land /s/ Matthew J. Viola and Natural Resources, Department of Land and Natural Resources, and Suzanne D. Case in her official capacity as Chairperson of the Board of Land and Natural Resources

John P. Manaut (Puananionaona P. Thoene with him on the briefs) for Appellee-Appellee Na Pua Makani Power Partners, LLC