Maui Tomorrow Foundation v. Maui Planning Commission

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 22-JUL-2026 09:10 AM Dkt. 25 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

MAUI TOMORROW FOUNDATION, Plaintiff-Appellee,

vs.

MAUI PLANNING COMMISSION, COUNTY OF MAUI; and COUNTY OF MAUI, Defendants-Appellants.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CAAP-XX-XXXXXXX; CIVIL NO. 2CCV-XX-XXXXXXX)

JULY 22, 2026

DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY EDDINS, J.

I.

Efficiency is important in government. But it cannot come

at the cost of bedrock duties. And it certainly cannot override

the commitments the State and counties share to conserve and *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

protect Hawaiʻi’s natural resources, in trust, for present and

future generations.

The Coastal Zone Management Act (CZMA) carries that promise

into law. The Maui County Planning Commission (MPC) violated

the CZMA when it recently promulgated amended rules to govern

Maui’s Special Management Area (SMA). It placed administrative

convenience ahead of the public trust.

Hawaiʻi’s shoreline is among the State’s most sensitive

natural resources. The CZMA protects it through the SMA, a

statutory zone extending inland from the coast in every

county. The CZMA directs the counties to administer that

zone. They stand between the shore and harmful development.

This obligation is non-delegable, grounded in statute and

the Hawaiʻi Constitution. It safeguards what cannot be replaced.

MPC’s amended rules, however, stripped oversight and

procedural safeguards from SMA permitting review. In the name

of reducing workload, MPC delegated its duty to assess potential

environmental harm to the regulated parties themselves. Yet the

assessment duty is not MPC’s to give away. Maui County holds

coastal resources in trust under article XI, section 1 of the

Hawaiʻi Constitution, and cannot delegate its trust

responsibilities by rule.

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Circuit Court of the Second Circuit Judge Kirstin Hamman

invalidated key portions of MPC’s amended rules to restore the

assessment process MPC had dismantled.

We affirm.

II.

The Coastal Zone Management Act, Hawaiʻi Revised Statutes

(HRS) chapter 205A, established Special Management Areas along

the coastlines of Hawaiʻi’s counties. Maui County’s SMA is the

one at issue here.

The CZMA created SMAs to protect, preserve, and restore

coastal ecosystems and historic resources. See HRS § 205A-2

(2017 & Supp. 2021).

No “development” in the SMA may proceed without a permit.

HRS § 205A-28 (2017). The CZMA defines “development” as any of

the following “uses, activities, or operations on land or in or

under water within a special management area”:

(A) Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste;

(B) Grading, removing, dredging, mining, or extraction of any materials;

(C) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land;

(D) Change in the intensity of use of water, ecology related thereto, or of access thereto; and

(E) Construction, reconstruction, or alteration of the size of any structure[.]

HRS § 205A-22 (2017 & Supp. 2023).

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Recent amendments preserve these five “development”

categories for Maui County. See An Act Relating to the Coastal

Zone Management Act, 2026 Haw. Sess. Laws Act 70 (retaining the

categories for “counties with a population between one hundred

fifty thousand and two hundred thousand”).

This definition excludes certain subcategories of

activities (for example, road maintenance and trash removal),

unless the authority finds that an excluded activity may have a

“cumulative impact, or a significant environmental or ecological

effect” on the SMA. Id.; see Act 70 (adding an exclusion for

federal, state, and county-funded projects “exempt from an

environmental assessment or for which a finding of no

significant impact has been issued under [HRS] chapter 343”).

MPC administers the permit application process within Maui

County’s SMA, “consistent with the objectives, policies, and

special management area guidelines” provided in HRS chapter

205A. HRS § 205A-29 (2017 & Supp. 2021).

In August 2024, MPC enacted amended SMA rules in Maui

County (the amended rules).

Three sections of the amended rules matter here.

First, the amended rules created a list of fifteen

activities categorically exempt from the definition of

“development” in the CZMA. Maui County Code (MCC) § 12-202-11.1

(as amended Aug. 25, 2024). These exclusions have some

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similarities to those in the CZMA, though not all categories of

excluded activities overlap (for example, scientific testing

involving excavation is excluded in the amended rules, but not

the CZMA). The amended rules also tag dollar figures to several

exemptions (for example, nonstructural exterior renovation is

exempt if the cost stays under $500,000). MCC § 12-202-11.1(k).

The CZMA contains no such thresholds.

The CZMA’s exemptions all remain conditional on

environmental review. HRS § 205A-22. The legislature kept its

exclusions conditional. The County reversed course. Its

amended rules declared the listed uses to have no “significant

environmental or ecological effect on the special management

area.” MCC § 12-202-11.1. They are definitionally exempt from

any SMA permit requirement. Id.

For some of the fifteen exempt activities, the landowner

must submit a publicly accessible declaration establishing

appropriate use restrictions. Id. (exemptions k, l, and m).

MPC does not review or respond to any filed declarations. Id.

And for any uses outside those carve-outs, no submission is

required. Id.

Second, the amended rules excluded the continuation,

repair, or renovation of any development that fell within “the

same scope” of an already-approved development. MCC § 12-202-

11.2 (as amended Aug. 25, 2024). The rules do not define “same

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scope.” Nor do they say who decides that definition. Thus, one

approval exempts everything that follows from it. No further

assessment. Just the landowner’s say-so.

And third, the amended rules eliminated the requirement

that a development application include a final environmental

assessment (EA). MCC § 12-202-12 (as amended Aug. 25, 2024).

III.

After the amended rules took effect, Maui Tomorrow, a

nonprofit environmental advocacy organization, filed a complaint

in the Circuit Court of the Second Circuit challenging the

rules. Maui Tomorrow soon moved for summary judgment.

Maui Tomorrow’s argument turned on a distinction between

the CZMA’s “assessment” and “permitting” processes.

The CZMA mandates a three-step assessment established in

Leslie v. Bd. of Appeals of Cnty. of Hawaiʻi, 109 Hawaiʻi 384,

126 P.3d 1071 (2006), to determine whether a proposed SMA use

qualifies as a “development” requiring a permit. The third step

requires evaluating environmental impact. HRS § 205A-22.

The CZMA authorizes counties to streamline permitting

procedures. See HRS § 205A-29. But nothing in the CZMA allows

them to bypass the assessment that determines whether permitting

is needed in the first place.

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The amended rules, Maui Tomorrow maintained, do not just

streamline permitting. They eliminate MPC’s role in assessment.

And they hand that role to the very parties under review.

MPC countered that the exempted activities were not

“developments” in the first place. Thus, they fall outside the

three-step process entirely. MPC insisted the amended rules

reflected a legitimate exercise of its rulemaking authority.

The legislature intended to give the counties the ability to

create these exemptions, it said. It warned that Maui

Tomorrow’s reading of the CZMA would require the Commission to

assess every activity in the SMA, down to a child’s sandcastle.

The circuit court sided with Maui Tomorrow, granting

summary judgment. It took judicial notice of the SMA rules for

the counties of Honolulu, Kauaʻi, and Hawaiʻi, noting that none

have interpreted the CZMA to allow categorical exemptions from

CZMA assessment, as Maui County’s amended rules do.

The circuit court’s original order invalidated the amended

rules in their entirety. After a motion for clarification from

MPC, the circuit court narrowed its ruling, striking the

categorical exemptions (deleting MCC §§ 12-202-11.1 and 11.2)

and restoring the final EA requirement (revising MCC § 12-202-

12(c)).

MPC and Maui County appealed to the Intermediate Court of

Appeals. Then they applied for transfer to this court.

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We granted transfer.

IV.

The circuit court was right.

A. MCC § 12-202-11.1’s Categorical Exemptions

MCC § 12-202-11.1 created fifteen categorical exemptions

from the three-step assessment. These exemptions exceeded MPC’s

statutory authority under the CZMA.

“Administrative rules and regulations which exceed the

scope of the statutory enactment they were devised to implement

are invalid and must be struck down.” Asato v. Procurement

Policy Bd., 132 Hawaiʻi 333, 346, 322 P.3d 228, 241 (2014)

(internal citations omitted); see HRS § 91-7(b) (2012 & Supp.

2015) (“The court shall declare the rule invalid if it finds

that it . . . exceeds the statutory authority of the

agency[.]”). Agencies may exercise implied powers, but only so

long as they are “reasonably necessary to carry out the powers

expressly granted.” Asato, 132 Hawaiʻi at 347, 322 P.3d at 242

(internal citation omitted). An administrative rule cannot

contradict or conflict with the statute it implements. Id.

(quoting Agsalud v. Blalack, 67 Haw. 588, 591, 699 P.2d 17, 19

(1985)).

MCC § 12-202-11.1 contradicts the CZMA. It exempts whole

categories of activity from the three-step assessment. That

process is how the CZMA determines whether an activity needs a

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permit. Taking it away erases the test the CZMA uses to

identify “development.” The rule also shifts the assessment to

private parties. This clashes with the statutory requirement

that the “authority” conduct the review. Either failure alone

would exceed Maui County’s rulemaking power. Together, they

doom the exemptions.

The delegation defect also violates the Hawaiʻi

Constitution. It collides with Maui County’s non-delegable

obligation to protect and conserve Hawaiʻi’s natural resources.

See Haw. Const. art. XI, § 1; Ka Paʻakai O Ka ʻAina v. Land Use

Comm’n, State of Hawaiʻi, 94 Hawaiʻi 31, 52, 7 P.3d 1068, 1089

(2000).

1. MCC § 12-202-11.1 Contradicts the CZMA and Leslie

The CZMA’s purpose includes protecting, preserving, and

restoring natural and manmade historic and prehistoric

resources, valuable coastal ecosystems, coastal scenic and open

space resources, and beaches and coastal dunes. HRS § 205A-2.

Planning commissions must find that any proposed SMA

development is consistent with the CZMA’s policies and

objectives before permitting it. HRS § 205A-26(2)(B) (Supp.

2021); Alaloa v. Planning Comm’n of Maui Cnty., 68 Haw. 135,

136, 705 P.2d 1042, 1043 (1985).

This requirement carries a strict prohibition. No

development in the SMA without a permit. HRS § 205A-28. Nor

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may any agency authorize SMA development until proper procedures

have been followed and approval has been granted. HRS § 205A-

29.

The CZMA designates the “special management area authority”

as responsible for establishing the permit application process

“consistent with the objectives, policies, and special

management area guidelines” of HRS chapter 205A. HRS §§ 205A-

22, 205A-29. For Maui County, that authority is the Maui

Planning Commission. So MPC’s role includes establishing rules

for permit application procedures, hearing conditions, and

adequate notice. HRS § 205A-29.

MPC’s authority is to administer permitting, not to lift

activities from the CZMA’s coverage.

In other words, streamlining permitting doesn’t include

sidestepping the assessment function. Assessment determines

whether an activity is a “development.” Permitting governs how

an approved development may proceed. Counties may adopt

procedures for permitting. HRS § 205A-29. They may not skip

the assessment that determines whether permitting is required in

the first place.

Under Leslie, the assessment inquiry proceeds in three

steps: (1) determine whether the activity is included in the

statutory definition of “development”; (2) if it is, determine

whether the activity falls into one of the specifically excluded

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categories of activities; and (3) if it is an excluded use,

determine whether it may still have a “cumulative impact or

significant environmental or ecological effect on a special

management area” – and if so, the activity is a “development”

all the same. 109 Hawaiʻi at 396-97, 126 P.3d at 1083-84.

MPC insists that its excluded uses are not “developments”

and therefore fall outside the three-step assessment. MPC is

wrong.

The CZMA defines “development” broadly. HRS § 205A-22 (set

out above). All but one of the fifteen activities included in

§ 12-202-11.1 of the amended rules fall into at least one of the

five enumerated categories — placement of material, grading and

extraction, changes in land use, changes in water use, or

alteration of any structure. (We address the single outlier,

exemption (j), later on.)

These categories cover wide ground. The legislature

designed them to capture most uses in the SMA. MCC § 12-202-

11.1 exempts activities the CZMA never meant to exclude.

Because the CZMA aims to prevent “substantial adverse

environmental or ecological effects” on the SMA, the impact

analysis drives every assessment. See Sandy Beach Def. Fund v.

City Council of City & Cnty. of Honolulu, 70 Haw. 361, 365–66,

773 P.2d 250, 254 (1989). Under the CZMA’s definition of

“development,” most SMA uses run through the three-step

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assessment. Step 3 evaluates environmental impact. Unless the

authority finds no environmental harm, a permit is required.

See id.

MPC protests that requiring assessment of these activities

leads to absurd results. It imagines a world where the

Commission would have to screen every beachgoer, every

sandcastle builder, every tourist on Hawaiʻi’s beaches.

This argument conflates assessment with permitting, and

breadth of coverage with breadth of burden.

Step 1 of the Leslie framework already sifts out the

activities Maui County claims would be swept in. Building a

sandcastle does not involve “[g]rading, removing, dredging,

mining, or extraction of any materials.” HRS § 205A-22. A

beach cleanup is not “[c]onstruction, reconstruction, or

alteration of the size of any structure.” Id. These activities

fail Step 1 on their face. They are non-developments. The

inquiry ends there.

Consider what MPC actually exempted. Agricultural grading,

utility infrastructure installation, exterior building

modifications, site improvements to previously developed land.

See MCC § 12-202-11.1. These activities do fall within the

statutory definition of “development.” They involve the

placement of solid materials, the extraction of materials, or

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the construction and alteration of structures. That’s why they

require assessment.

The Leslie framework does that sorting. Not to subject

sandcastles to permitting, but to ensure that activities with

real environmental consequences do not escape review.

Take two examples. Under the three-step process, a child

building a sandcastle would be screened out at Step 1. A

developer grading a coastal parcel for agriculture would reach

Steps 2 and 3. And properly so.

MPC cannot rewrite the environmental protections the

legislature built into the CZMA. It cannot redefine

“development” in a way that contradicts the statute.

The legislature codified narrow exclusions “to ease the

burden of permit processing without compromising the intent of

the coastal zone management program.” S. Stand. Comm. Rep. No.

174-84, in 1984 Senate Journal, at 1057-58 (emphasis added).

The legislature already did the balancing work. The exclusions

are narrow. The environmental impact override catches what

slips through.

Maui County claims power to create exceptions. It cites

the legislature’s recognition that its own list of exemptions

might prove incomplete. The County noted the legislature said,

“[i]f the exemptions . . . prove to be inadequate, the

Legislature can make the necessary adjustments.” S. Stand. Comm

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Rep. No. 936, in 1979 Senate Journal, at 1435. But Maui County

disregards the operative word. The legislature said the

legislature could make changes. Not the counties.

MPC also overlooks Step 3. Every legislative exemption

remains subject to the CZMA’s cumulative impact review. HRS

§ 205A-22. The CZMA says all excluded activities are

conditional on doing no harm. MPC removed that buffer.

MPC overstates its authority. It may streamline

permitting. It may not rewrite the definition of “development”

that controls permitting.

One exclusion stands apart.

Exemption (j) covers: “[t]raditional native Hawaiian

cultural practices that are conducted or led by native Hawaiian

cultural practitioners and that do not have a detrimental

environmental or ecological effect on the [SMA].” MCC § 12-202-

11.1(j) (as amended Aug. 25, 2024).

Unlike the other fourteen exemptions, (j) preserves the

environmental safeguard. The activity must not have a

detrimental ecological effect on the SMA. Read in isolation,

that language would not contradict the CZMA. But the right

standard in the wrong hands fails. As discussed in section A.2

below, this exemption is invalid because it lets private parties

apply the standard. A standard that no agency verifies is no

standard at all.

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Fourteen of the MCC § 12-202-11.1 exemptions are invalid on

the contradiction ground. The fifteenth – exemption (j) – gets

the standard right but the reviewer wrong.

2. MCC § 12-202-11.1 Unlawfully Delegates its Assessment Role to Private Parties

MCC § 12-202-11.1 also fails on a second ground. It shifts

MPC’s assessment obligations to private parties.

The duty to protect Hawaiʻi’s natural resources does not

bend to administrative convenience. These resources are held in

trust for present and future generations. The trustee cannot

hand the keys to the regulated.

The CZMA puts the “development” assessment on the county

planning commissions. The “authority” must find that a proposed

development (a) will not have any substantial adverse

environmental or ecological effects; (b) is consistent with the

objectives, policies, and guidelines of chapter 205A and (c) is

consistent with the county general plan and zoning. Sandy Beach

Def. Fund, 70 Haw. at 365–66, 773 P.2d at 254 (citing HRS

§ 205A–26(2)). And whenever the authority finds an excluded use

may have cumulative impact, the statute requires that use to be

treated as “development.” HRS § 205A-22.

The CZMA defines “[a]uthority” as the county planning

commission. That commission “may, as appropriate, delegate the

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responsibility for administering this chapter.” HRS § 205A-1

But this delegation power has limits.

Alaloa is instructive. The CZMA allows delegation to state

or county agencies. It does not allow delegation to the

regulated parties themselves. See Alaloa, 68 Haw. at 137, 705

P.2d at 1044. MPC may not delegate “its authority to determine

whether a development complie[s] with the policies and

objectives of the CZMA to the applicants for a special

management area permit.” Ka Paʻakai, 94 Hawaiʻi at 50, 7 P.3d at

1087.

In Alaloa, a developer applied for an SMA permit to build a

condo project on Molokaʻi. 68 Haw. at 136, 705 P.2d at 1043.

MPC granted a permit conditioned on the developer completing

further surveys and avoiding impact to significant

archaeological sites. Id. at 136-37, 705 P.2d at 1044.

This court vacated that permit. Id. at 137, 705 P.2d at

1045. The permit left the compliance determination to the

applicants themselves, contrary to the statutory command. Id.

at 137, 705 P.2d at 1044. The CZMA placed that determination

with the planning commission, not the applicant. Id.

The permit was unlawful because it delegated approval to an

interested party. Id.; Kaleikini v. Yoshioka, 128 Hawaiʻi 53,

85, 283 P.3d 60, 92 (2012) (“[R]esolution of [Alaloa] turned on

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the ‘unlawful delegation of duty’ to the developers.”). Alaloa

identified three problems with this delegation. First, the

applicant has a financial interest in the outcome. See Alaloa,

68 Haw. at 137, 705 P.2d at 1044. Second, the applicant lacks

the “expertise and objective criteria for granting or denying

approval of the plans and construction of the development.” Id.

Third, the applicant is not bound to abide by the CZMA’s

objectives and policies – removing what binds the planning

commission and other government decisionmakers. Id.

As in Alaloa, MPC here shifts its assessment to self-

interested applicants. The amended rules exempt categories of

uses, strip any review, and leave discretion to the regulated.

The amended rules go further than the permit in Alaloa. There,

MPC reviewed the permit and imposed conditions on the developer.

Here, there is no MPC involvement for exempted uses.

Beyond the statute, this abandonment of discretion offends

Maui County’s constitutional duty to conserve and protect

natural resources. Article XI, section 1 of the Hawaiʻi

Constitution sets out the commitment:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaiʻi’s natural beauty and all natural resources, . . . and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self- sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.

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Few principles in Hawaiʻi law are more central to our

constitutional inheritance than the public trust doctrine. See

Kelly v. 1250 Oceanside Partners, 111 Hawaiʻi 205, 222, 140 P.3d

985, 1002 (2006) (calling it a “fundamental principle of

constitutional law in Hawaiʻi”).

The public trust doctrine binds this generation to honor

what prior generations held, and to preserve Hawaiʻi’s beauty and

natural resources for generations yet to come. What article XI,

section 1 commands stands above statute and rule. Both must

yield to it. So must the legislature and the state and county

agencies that wield delegated power.

The doctrine requires the State act as a “trustee.” It

must “take the initiative in considering, protecting, and

advancing public rights in the resource at every stage of the

planning and decision-making process.” Id. at 231, 140 P.3d at

1011.

Maui County, as a political subdivision of the State of

Hawaiʻi, has that same duty. See id. at 226, 140 P.3d at 1006.

An agency acting as a trustee is “duty bound to demonstrate that

it has properly exercised the discretion vested in it by the

constitution and the statute.” Carmichael v. Bd. of Land & Nat.

Res., 150 Hawaiʻi 547, 566, 506 P.3d 211, 230 (2022) (internal

citations omitted).

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This duty cannot be farmed out. See Ka Paʻakai, 94 Hawaiʻi

at 52, 7 P.3d at 1089. Ka Paʻakai held the State to its public

trust duties in protecting traditional Native Hawaiian cultural

practices. The court warned of what happens when private

parties are left to police themselves. “After all, once a

project begins, the pre-project cultural resources and practices

become a thing of the past.” Id.

The same holds for preserving all natural resources. Once

a shoreline is gone, it’s gone.

By delegating that discretion to others, Maui County fails

its constitutional obligations. It leaves Maui’s most

vulnerable ecosystems subject to “possible arbitrary and self-

serving actions.” See id. As Ka Paʻakai reasoned “[t]he power

and responsibility” to determine environmental effects, and the

“means to protect” the SMA “may not validly be delegated . . .

to a private petitioner who, unlike a public body, is not

subject to public accountability.” Id.

Thus, MCC § 12-202-11.1 exceeds the statute. It also

violates the Hawaiʻi Constitution.

Exemption (j) relating to Native Hawaiian cultural

practices is no different. The standard is sound. The activity

must not have a detrimental environmental or ecological effect.

But the process breaks down. Under the amended rules, the

practitioner – not the Commission – decides whether the activity

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has a detrimental effect. This is the structural flaw that

dooms the other fourteen exemptions. The right question gets

asked. The wrong entity answers.

A standard nobody checks is an honor system applied to

environmental regulation. The CZMA requires more.

The delegation also gives shelter to bad faith developers.

Before the amended rules, an SMA landowner who sidestepped

assessment risked civil penalties. They might try to slip

through with an environmentally disruptive use. But if caught,

the consequence was clear. See MCC § 12-202-25.

The amended rules now provide cover. A landowner may claim

a good faith belief that their use falls into one of the

excluded categories. That discretion lets them wave through

environmentally destructive decisions.

Bad actors will always operate within an SMA. But MPC’s

amended rules make oversight and enforcement significantly

harder.

The circuit court properly invalidated MCC § 12-202-11.1 in

full.

B. MCC § 12-202-11.2 Contradicts the CZMA’s “Whenever” Mandate

The CZMA provides that “whenever the authority finds” an

excluded use may have a cumulative impact, that use shall be

defined as a “development.” HRS § 205A-22. “Whenever” signals

a continuing duty.

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But MCC § 12-202-11.2 of the amended rules provides that

any actions in the SMA “previously determined to be exempt”

could be “continued, renovated, or repaired in a manner that

falls within the same scope of the prior exemption or permit.”

Thus this section suffers from a distinct problem. It

eliminates the CZMA’s requirement that the “authority” assess

cumulative environmental impacts as they emerge.

Environmental conditions change. Cumulative effects build

over time. What was safe a decade ago may not be safe today.

MCC § 12-202-11.2 freezes the assessment in place. A

single prior approval becomes permanent permission. Renovations

and expansions count as continued use, so long as they fall

within the “scope” of the original approval. The applicant

decides what “scope” means. The applicant grades its own test.

No agency asks whether cumulative impacts have emerged in the

intervening years. No one verifies whether changed conditions

have altered the environmental picture.

The provision contradicts the CZMA’s “whenever” mandate.

For Maui County, the legislature recently amended this

mandate to “if the authority finds” a cumulative impact or

environmental effect. See Act 70 (emphasis added). The wording

shifted. The duty did not. The county’s public trust

obligations require the same finding.

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The delegation provision sets up an end-run. An interested

party can secure a limited approval, then expand under the rule

into more disruptive activity within the original’s “scope.”

Under the amended rules, the authority will not find cumulative

impact because it does not have to re-examine the existing

approval. That is the conflict, and it is dispositive.

MCC § 12-202-11.2 could not stand. The circuit court

struck it. We affirm.

C. MCC § 12-202-12(c) Substitutes Draft EAs for Final Ones

MCC § 12-202-12(c) sets out what an assessment application

must include. Subsection (11) requires an environmental

assessment. The amended rules ask for only a “draft” EA, not a

final EA. MCC § 12-202-12(c)(11) (as amended Aug. 25, 2024).

The circuit court struck the word “draft” from § 12-202-

12(c)(11). It restored the final EA requirement.

MPC’s amended EA rule raises a different concern from the

categorical exemptions. The question is not whether

environmental review occurs, but on what information it relies.

The EA is how MPC completes its environmental review. A draft

EA, by definition, is unfinished. The applicant can change it

at any time before completion. Maui County does not dispute

this.

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MPC would analyze environmental impact on a document the

applicant can redo. That is not assessment. That is hope and

guesswork.

The procedural changes erode environmental protections.

“[T]he procedural and informational requirements” are “at the

heart” of Hawaiʻi’s Environmental Policy Act (HEPA), HRS chapter

343. Kepoʻo v. Watson, 87 Hawaiʻi 91, 100, 952 P.2d 379, 388

(1998). These requirements also serve the CZMA’s objective to

“facilitate public participation in the planning and review

process[.]” HRS § 205A-2(c)(7)(C).

Final EAs require public review and comment periods, and

substantial agency oversight. HRS § 343-5 (2022). Draft EAs

require neither. Worse, the amended rules describe no process

for accepting, rejecting, or reviewing draft EAs. This renders

the requirement meaningless. And it unravels the procedural

safeguards the legislature established.

The HEPA rule does permit agencies to create exemptions

from EAs for “[r]outine activities and ordinary functions[.]”

Hawaiʻi Administrative Rules (HAR) § 11-200.1-16. But an agency

must make these exemptions case-by-case, after determining the

use “do[es] not have the potential to individually or

cumulatively adversely affect the environment more than

negligibly[.]” Id.

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In the amended rules, MPC accepted draft EAs in place of

final EAs for all SMA uses. MCC § 12-202-12(c)(2). HAR § 11-

200.1-16 prevents this change. What the HAR allows is narrower:

“ordinary use” exceptions made case-by-case.

The rule also states that “particularly sensitive

environments” may make an “exemption inapplicable.” HAR § 11-

200.1-17. If sensitivity makes an “exemption inapplicable”

anywhere, the SMA is the last place to invite blanket

exemptions.

The SMA is where procedural safeguards matter most. SMAs

contain some of Hawaiʻi’s most fragile ecosystems. Hollowing out

those safeguards undermines the CZMA where it should be

strongest.

Process is the heart of environmental review. The CZMA

does not let the SMA go without it.

The circuit court restored the final EA requirement. That

was the right call.

V.

Through the three-step process, the legislature balanced

efficiency against environmental protection. Counties may

streamline permitting. But they may not erase assessment. That

is the line.

MPC’s amended rules washed over it. They created

categorical exemptions that dismantle the mandatory

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environmental review and shift it to the regulated. This defies

the CZMA, the legislature’s design, and the constitutional duty

Maui County holds as trustee.

Maui County’s administrative burden is real. But the

solution is not to surrender. The assessment role is the SMA’s

protection. The legislature wrote that balance into the CZMA.

The circuit court got it right. We affirm.

Brian A. Bilberry /s/ Vladimir P. Devens for appellants /s/ Sabrina S. McKenna Lance D. Collins (Bianca Isaki on the briefs) /s/ Todd W. Eddins for appellee /s/ Lisa M. Ginoza

/s/ Paul B.K. Wong