Ke Kauhulu O Mānā v. Board of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2024
07:56 AM
Dkt. 150 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

KE KAUHULU O MĀNĀ, AN UNINCORPORATED ASSOCIATION,
HAWAI‘I ALLIANCE FOR PROGRESSIVE ACTION, A NON-PROFIT
CORPORATION, SURFRIDER FOUNDATION, A NON-PROFIT CORPORATION,
KOHOLĀ LEO, A NON-PROFIT CORPORATION, PUNOHU KEKAUALUA III,
Plaintiffs-Appellants/Cross-Appellees,
v.
BOARD OF LAND AND NATURAL RESOURCES, OF THE STATE OF HAWAI‘I,
Defendant-Appellee/Cross-Appellee,
and
SYNGENTA SEEDS, LLC, A LIMITED LIABILITY COMPANY,
SYNGENTA HAWAII, LLC, A LIMITED LIABILITY COMPANY,
Defendants-Appellees/Cross-Appellants,
and
DOES 1-27, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 17-1—0094)

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

Plaintiffs-Appellants/Cross-Appellees Ke Kauhulu O
Mānā, Hawai‘i Alliance for Progressive Action, Surfrider
Foundation, Koholā Leo, and Punohu Kekaualua III (collectively,
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Appellants) appeal from the (1) December 20, 2017 "Order
Granting [Defendants-Appellees/Cross-Appellants] Syngenta Seeds,
LLC [(Syngenta Seeds)] and Syngenta Hawaii, LLC's [(Syngenta
Hawaii)] [(collectively, Syngenta)] Motion to Dismiss Complaint
or, in the Alternative, for Summary Judgment Filed on August 3,
2017; Order Denying [Appellants]' Motion for Summary Judgment
Filed August 9, 2017" (Order Granting Syngenta's MSJ); and (2)
January 10, 2018 Final Judgment entered in favor of Syngenta and
Defendant-Appellee/Cross-Appellees Board of Land and Natural
Resources, State of Hawai‘i (BLNR), both filed and entered by the

Environmental Court of the Fifth Circuit (Environmental Court). 1
Syngenta cross-appealed the Order Granting Syngenta's MSJ.
These appeals arise out of BLNR's cancellation of
Syngenta Seeds' revocable permit (RP) and issuance of a new RP
to Syngenta Hawaii in 2017 pursuant to Hawaii Revised Statutes
(HRS) § 171-55 2 for use of state land located in Kekaha, Kaua‘i

(Property); and whether BLNR properly exempted Syngenta Hawaii
from having to prepare an environmental assessment (EA) under
HRS Chapter 343, the Hawai‘i Environmental Policy Act (HEPA).

While both Appellants and Syngenta raise a number of points of

1 The Honorable Randal G.B. Valenciano presided.

2 HRS § 171-55 authorizes BLNR to issue annual renewable permits
for the temporary occupancy of state lands. HRS § 171-55 (2011), entitled
"Permits," states in pertinent part:

Notwithstanding any other law to the contrary, the
board of land and natural resources may issue permits
for the temporary occupancy of state lands or an
interest therein on a month-to-month basis by direct
negotiation without public auction, under conditions
and rent which will serve the best interests of the
State, subject, however, to those restrictions as may
from time to time be expressly imposed by the board. A
permit on a month-to-month basis may continue for a
period not to exceed one year from the date of its
issuance; provided that the board may allow the permit
to continue on a month-to-month basis for additional
one year periods.

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error (POEs), 3 the dispositive issues are whether the
Environmental Court correctly concluded that (1) the
cancellation of Syngenta Seeds' RP and issuance of Syngenta
Hawaii's RP was an "action" triggering HEPA review, (2) the RP
was not a "proposed" use subject to HEPA review, and (3) an
exemption from HEPA review applied.
We hold that summary judgment 4 on all claims in
Appellants' Complaint was erroneously granted, where Syngenta
Hawaii was a new applicant proposing an "action" subject to HEPA
review involving the use of state lands under a new RP, and
because there were genuine issues of material fact on whether
Syngenta Hawaii's proposed activity was exempt from the

3 Appellants contend the Environmental Court erred by: (1) ruling
that the RP was for "existing uses" and not "'proposed' uses" triggering HEPA
review; (2) affirming BLNR's approval of an exemption from HEPA for its
reissuance of Syngenta's RP; (3) "failing to address whether the [Department
of Land and Natural Resources (DLNR)]'s recommended subdivision of land
constituted an 'action' under HRS Chapter 343" triggering HEPA review; (4)
"failing to address whether the 1982 conservation district use permit
[(CDUP)]" was valid for the proposed uses permitted in 2017; and (5) "failing
to address" whether BLNR's "failure to assess the environmental impacts" of
Syngenta's land use "violated the public trust provisions" of the Hawai‘i
Constitution.

On cross-appeal, Syngenta contends that the Environmental Court
erred by: (1) "finding that HEPA applies to decisions under HRS §171-55[,]"
and (2) "expanding the definition of 'action' under HEPA to include a
decision that did not initiate any program or project but merely maintained
the status quo." Syngenta's POE 1 lacks merit because the supreme court held
in Carmichael v. Bd. of Land & Nat. Res., that "HRS § 171-55's
'notwithstanding' clause does not nullify HEPA's EA requirement[,]" and that
HEPA may apply to decisions under HRS § 171-55. 150 Hawai‘i 547, 567-68, 506
P.3d 211, 231-32 (2022).

In light of our disposition of Appellants' POEs 1, 2, and
Syngenta's POE 2, vacating and remanding for further proceedings, we need not
address the remaining POEs.

4 "[A] motion seeking dismissal of a complaint is transformed into
a Hawai‘i Rules of Civil Procedure [(HRCP)] Rule 56 motion for summary
judgment when the circuit court considers matters outside the
pleadings." Goran Pleho, LLC v. Lacy, 144 Hawai‘i 224, 236, 439 p.3d 176, 188
(2019) (citation omitted). Because the Environmental Court "reviewed and
considered" the declarations and exhibits submitted with the motions, we
apply the summary judgment standard of review under HRCP Rule 56. See id.

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preparation of an EA under HRS § 343-6(a)(2) 5 and related
administrative rules.
I. BACKGROUND
On June 13, 2017, Appellants filed a Complaint that
set forth claims for declaratory and injunctive relief: Count
1, Violation of HRS Chapter 343; Count 2, Exemption from HRS
Chapter 343 was Invalid; Count 3, Failure to Enforce
Conservation District Laws; Count 4, Violation of the Public
Trust; and Count 5, Injunction.
Syngenta's Motion for Summary Judgment
On August 3, 2017, Syngenta filed a "Motion to Dismiss
Complaint or, in the Alternative, for Summary Judgment"
(Syngenta's MSJ), joined in part by BLNR. 6 Syngenta's MSJ
argued, inter alia, that "HEPA is not implicated" because
Syngenta Hawaii's RP "is not an 'action' or the type of
'proposed use' subject to HEPA review[,]" as it maintains the
"existing use" of the Property. Alternatively, Syngenta argued
that even if HEPA was implicated, Syngenta Hawaii's RP was
exempt from HEPA because the RP would maintain the existing use
and "fits squarely within [an] exemption class . . . and its
issuance w[ould] have no significant environmental effect,
either individually or cumulatively." Syngenta's MSJ attached
the following exhibits: 7 (1) a February 24, 2017 DLNR staff

5 HRS § 343-6(a)(2) is quoted infra.

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

7 We deny Syngenta's requests filed June 13, 2018 and September 17,
2018, for this court to take judicial notice of the following exhibits: an
April 2014 report by the Government Accountability Office; and December 2014
and December 2015 BLNR Staff Submittals for annual renewal of RPs on various
islands. These documents were not presented below or considered by the
Environmental Court, and they do not establish "adjudicative facts." See
Hawai‘i Rules of Evidence Rule 201; State v. Kwong, 149 Hawai‘i 106, 117,
482 P.3d 1067, 1078 (2021) (appellate courts "rarely take judicial notice of

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submittal recommending the approval of the cancellation of
Syngenta Seeds' RP and issuance of a new RP to Syngenta Hawaii
(2017 RP Staff Submittal), which included an April 8, 1982 staff
submittal recommending the approval of a Conservation District
Use Application (1982 CDUA Staff Submittal) and a May 11, 1982
letter by BLNR approving the 1982 CDUA (1982 CDUA Approval
Letter); and (2) the February 24, 2017 BLNR meeting minutes
reflecting approval of the 2017 RP Staff Submittal's
recommendation (2017 RP Minutes).
Appellants' October 31, 2017 Memorandum in Opposition
to Syngenta's MSJ (Opposition) argued, inter alia, that the
"BLNR's approval of the RP constituted an 'action' subject to
[HEPA]"; "[p]roposals for uses are not required for [HEPA]
environmental review"; and the RP was not exempt from HEPA
because BLNR did not take a "hard look" at the environmental
consequences of the RP, did not consider the "cumulative
impacts" of the RP, and relied on "facial compliance of the
described land use . . . ."
Appellants' Motion for Summary Judgment
On August 9, 2017, six days after Syngenta's MSJ was
filed, Appellants also filed a Motion for Summary Judgment
(Appellants' MSJ). Appellants' MSJ argued that "BLNR violated
[HEPA] by failing to prepare an EA for Syngenta's proposed use
of public trust lands"; BLNR's grant of a HEPA "exemption for
its issuance of the new RP to Syngenta was invalid and in
violation of [HEPA]" because it did not follow the proper
exemption procedures, did not take a "hard look" at the
environmental impacts of the RP, and relied on an "outdated
CDUP"; and BLNR thus "violated its duties as a trustee of public

facts presented for the first time on appeal" (cleaned up)); Weinberg v.
Dickson-Weinberg, 123 Hawai‘i 68, 79 n.8, 229 P.3d 1133, 1144 n.8 (2010)
("Every appeal shall be taken on the record, and no new evidence shall be
introduced in the appellate court." (cleaned up)).

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trust resources." Appellants' MSJ attached the following
pertinent exhibits: a 1981 CDUA for the 1982 CDUP; 8 the
transcript of a December 3, 1981 public hearing on the 1981
CDUA; a January 8, 1982 published "Negative Declaration" (1982
Negative Declaration) regarding the 1981 CDUA; two separate RPs
issued pursuant to the 1982 CDUP; a December 20, 1985 request to
amend the 1982 CDUP to permit the subdivision of the Property to
facilitate the sale of a lease to one of the permittees; and the
transcript of a November 6, 1986 public hearing on the requested
amendment.
On November 1, 2017, Syngenta's Opposition and BLNR's
Opposition were filed. Syngenta argued, inter alia, that "HEPA
does not apply to BLNR's authorization of a month-to-month [RP]"
because the RP "maintained the status quo" and the "exemption
complied with HEPA." BLNR did not argue that the RP was not a
HEPA "action" or a "proposed use," but argued that the RP was
exempt from the preparation of an EA; the 1982 CDUP concerned
the "proposed use of land," which was not at issue; the 1982
CDUP was not "outdated"; and the RP simply granted "possession
of [the] [P]roperty." BLNR's Opposition attached, inter alia, a
November 7, 1986 DLNR Staff Submittal recommending the 1982 CDUP
be amended, and a December 11, 1986 letter by BLNR approving the
1986 CDUA.
1982 Conservation District Use Permit
The exhibits attached to the cross-MSJs reflect the
following pertinent history. In 1981, Kekaha Sugar Company,
Ltd. (Kekaha) submitted a CDUA to use 62 acres of state
conservation land located in Kekaha, Kaua‘i for "[f]arming
operation[s] necessary to raise sugar cane."

8 It appears the parties rely on the 1982 CDUA Approval Letter as
constituting the 1982 CDUP.
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On December 3, 1981, a public hearing was held on
Kekaha's 1981 CDUA. At the hearing, Kekaha testified that
Kekaha proposed to use the Property to "raise cane" and for
"sugar cane cultivation . . . ." Kekaha additionally requested
that Pride Company, Inc. (Pride) join Kekaha in the use of a
portion of the Property for a "seed operation for research
purposes" (seed research operation). BLNR's chairperson stated
that the additional request regarding Pride would be "a major
amendment" to the CDUA and questioned "whether it would be
proper to modify" the CDUA to include more than one applicant.
The case was left "open for another 15 days for written
testimony," and the chairperson requested that Kekaha submit
"something . . . in writing" "indicating that there [was] this
possibility of a joint use" and that Pride submit "[s]omething
indicating that they [were] interested in using part of" the
Property. 9
The 1982 Negative Declaration was published in the
January 8, 1982 Environmental Quality Commission Bulletin. As
indicated below, the Bulletin explained what a Negative
Declaration was, how the public could submit comments, and
contained a deadline for challenging the Negative Declaration.
The 1982 Negative Declaration for Kekaha's 1981 CDUA appeared as
follows:
NEGATIVE DECLARATIONS

The following are Negative Declarations or determinations
made by proposing or approving agencies that certain
proposed actions will not have significant effects on the
environment 10 and therefore do not require [Environmental

9 The record does not reflect whether there were any submissions by
Kekaha or Pride regarding the new request for joint use of the Property with
Pride.

10 The 1982 Negative Declaration contained a finding of no
significant impact (FONSI). "If the agency determines that there will be no
significant environmental impact, it issues a finding of no significant
impact (FONSI), allowing the project to proceed without further study,
although a FONSI determination may be challenged." Sierra Club v. Dep't of
Transp., 115 Hawaiʻi 299, 308, 167 P.3d 292, 301 (2007); see Kilakila ‘O
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Impact Statement (EIS)]'s (EIS Reg. 1:4p). Publication in
the Bulletin of a Negative Declaration initiates a 60-day
period during which litigation measures may be instituted.
Copies are available upon request to the Commission.
Written comments should be submitted to the agency
responsible for the determination (indicated in project
title). The Commission would appreciate a copy of your
comments.

KAUAI

CONSERVATION DISTRICT USE APPLICATION FOR COMMERCIAL
AGRICULTURAL USE, KEKAHA, KAUAI,
Kekaha Sugar Company, Ltd./Dept. of Land and Natural
Resources

The applicant proposes to clear brush from the land and
improve the sandy soil for the purpose of raising sugar
cane. This would be done by incorporating mud press,
settling basin mud and cane trash. The area, when planted
with cane, will be irrigated by either an overhead or a
drip irrigation system and will be incorporated into the
adjacent cane field system. The entire parcel consists of
132.5 acres, of which 62 acres are proposed for use. The
parcel is located between a racing drag strip and cane and
corn farming operations, TMK:4-1-02:40.

(Bolding and footnote added, underscoring and italics in
original.) The 1982 Negative Declaration did not include Pride
or mention Pride's proposed use for a seed research operation,
and only mentioned Kekaha's proposed "commercial agricultural
use" of "raising sugar cane."
The April 8, 1982 CDUA Staff Submittal recommended
that BLNR approve the 1981 CDUA, and expressly noted Kekaha's
request from the December 3, 1981 public hearing for Pride to be
included as a co-applicant. The 1982 CDUA Staff Submittal
stated that Pride proposed to use 43.6 acres of the Property for
"growing of research seed stock fields, primarily corn,
sunflowers, and soybeans"; and that Kekaha proposed to use 17.6

Haleakala v. Univ. of Haw. & David Lassner, 138 Hawai‘i 364, 371, 382 P.3d
176, 183 (2016) (explaining that if an "agency determines that the proposed
action will not result in a significant environmental impact, then the agency
must issue and publish a finding of no significant impact [(FONSI)] (i.e., a
negative declaration) . . . prior to implementing or approving the action."
(citations omitted)).
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acres of the Property for "growing seed cane for use in more
productive sugar cane growing areas."
On May 11, 1982, BLNR sent the 1982 CDUA Approval
Letter to Kekaha, noting that Pride was copied as a "co-
applicant." The 1982 CDUA Approval Letter addressed to Kekaha
stated that the CDUA for "commercial agriculture use" was
approved and subject to conditions, including the requirement to
"obtain appropriate authorization" from DLNR "for the occupancy
of State lands[.]"
1983 Revocable Permits
In 1983, pursuant to HRS § 171-55, two RPs were issued
to Kekaha and Pride. Pride received an RP to "[o]ccupy and use"
43.6 acres of the Property "for the following specified purposes
only: AGRICULTURAL (corn seed cultivation)." Pride later
assigned its RP to a company that later became known as Syngenta
Seeds.
Kekaha received an RP for 17.6 acres of the Property
for "[a]gricultural purposes (cane seed cultivation)." In 2001,
Kekaha surrendered its RP. Thereafter, the Agribusiness
Development Corporation (ADC), which mistakenly thought it had
control over the 17.6 acres of the Property (the portion of
Kekaha's RP), entered into a license with Syngenta Seeds for the
17.6 acres of the Property "for agricultural purposes" from 2007
to 2017.
Syngenta Hawaii's 2017 Revocable Permit
On February 24, 2017, DLNR submitted its 2017 RP Staff
Submittal, recommending that BLNR "[a]uthorize the cancellation
of Revocable Permit No. S-5983 to Syngenta Seeds, LLC and the
issuance of a new revocable permit to Syngenta Hawaii, LLC,"
covering the "entire 61.2 acres because [Syngenta Seeds] has
been using the entire area since December 2007 and the CDUP
allowed for cultivation of the larger area." The 2017 RP Staff
Submittal explained that Syngenta Seeds had formed Syngenta
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Hawaii as a "wholly-owned subsidiary" of Syngenta Seeds to
"consolidate[e] its Hawaii operations and assets in a Hawaii
limited liability company[,]" allowing Syngenta Hawaii and
Syngenta Seeds "to facilitate various management, tax and other
business objectives." The 2017 RP Staff Submittal noted that
"[t]here will be no change in operations, use, or personnel
following the cancellation and reissuance" of the RP, and that
"[u]nder the [BLNR]'s current practice, revocable permits are
not assignable by the permittee."
The 2017 RP Staff Submittal's HRS Chapter 343 HEPA
analysis stated as follows:

CHAPTER 343 – ENVIRONMENTAL ASSESSMENT:

In accordance with Hawaii Administrative Rule [(HAR)]
Section 11-200-8 and the Exemption List for the
[DLNR] concurred with by the Environmental Council
and dated June 5, 2015, the subject request is exempt
from the preparation of an [EA] pursuant to Exemption
Class No. 1. See Exemption Declaration [(Exemption
Notification)] attached as Exhibit B.

Additionally, [CDUA] No. KA-11/9/81-1380 to Kekaha
Sugar Company, Ltd. and Pride Company, Inc. was
approved by [BLNR] at its meeting on April 8, 1982,
Item H-4.

(Emphases added.) The 2017 RP Staff Submittal's HEPA
recommendation for an EA exemption stated:

RECOMMENDATION: That the [BLNR]:

1. Declare that, after considering the potential effects of
the proposed disposition as provided by Chapter 343,
HRS, and Chapter 11-200, HAR, this project will probably
have minimal or no significant effect on the environment
and is therefore exempt from the preparation of an [EA].

The Exemption Notification attached to the 2017 RP
Staff Submittal pertinently stated the following "[r]egarding
the preparation of an [EA] pursuant to Chapter 343, HRS and
Chapter 11-200, HAR":

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Exemption Class No.: In accordance with [HAR] Section 11-
200-8 and the Exemption List for
[DLNR] concurred with by the
Environmental Council and dated June
5, 2015, the subject request is
exempt from the preparation of an
[EA] pursuant to Exemption Class No.
1, Item 51, which states the
"Permits, licenses, registrations,
and rights-of-entry issued by the
[DLNR] that are routine in nature,
involving negligible impacts beyond
that previously existing". [sic]

The subject lands have been in
agricultural use for many decades,
which has resulted in no known
significant impacts to the natural
and environmental resources in the
area. As such staff believes that
the proposed issuance of a [RP] for
the same use to a new entity would
involve negligible or no expansion
or change in use of the subject area
beyond that previously existing.

. . . .

Recommendation: It is recommended that [BLNR] find
that this disposition will probably
have minimal or no significant
effect on the environment and is
presumed to be exempt from the
preparation of an [EA].

(Emphases added.)
The 2017 RP Minutes reflect BLNR approved the issuance
of the new RP to Syngenta Hawaii, but the new RP itself is not
part of the record.
Environmental Court's MSJ Ruling
On November 9, 2017, a hearing was held on the
parties' MSJs. The Environmental Court heard argument regarding
the three conditions described in Umberger v. Dep't of Land &
Nat. Res. that necessitate preparation of an EA. 11 As to
Condition No. 1, the Environmental Court held that Syngenta

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

An [EA] under HEPA is required if three conditions are
satisfied: (1) the proposed activity is an "action" under
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Hawaii's RP "is an action under the [Umberger] analysis." As to
Condition Nos. 2 and 3, the Environmental Court ruled as
follows:

THE COURT: . . . . So when you look at 343-5(a)(1),
all of the actions, all of the nine actions, do start off
with "proposed." So when they talk about proposed, the
Court believes they are talking about future action, action
that is going to occur, not existing action.

In this situation, we had a permit that involved
existing action and there's been no evidence that the
action has changed before the issuance of the permit or
after the issuance of the permit, so the second factor the
[Appellants] cannot satisfy.

The third factor -- when you look at the exemption
section, whether it's 11-200-8 – if you look at the first
one and even the exemption cited by Syngenta, it refers to
existing use, and so those are exempt activities, existing
use. So because of that, what the Court is doing is the
Court is granting the motion to dismiss, [Syngenta's]
motion to dismiss, and denying [Appellants]' [MSJ].

(Emphases added.)
On December 20, 2017, the Environmental Court filed
its Order Granting Syngenta's MSJ, followed by the January 10,
2018 Final Judgment in favor of BLNR and Syngenta on all claims
in Appellants' Complaint. These appeals followed.
II. STANDARD OF REVIEW
Motion for Summary Judgment
A grant or denial of summary judgment is reviewed de
novo on appeal. Carmichael, 150 Hawai‘i at 560, 506 P.3d at 224.
"Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together

HRS § 343-2 (2010) [(Condition No. 1)]; (2) the action
proposes one or more of the nine categories of land uses or
administrative acts enumerated in HRS § 343-5(a) (2010)
[(Condition No. 2)]; and (3) the action is not declared
exempt pursuant to HRS § 343-6(a)(2) (2010) [(Condition No.
3)].

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

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with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law." Id. (citation omitted). "This
court must review the evidence and inferences in the light most
favorable to the non-moving party[,]" and "[t]he moving party
bears the burden of demonstrating that there is no genuine issue
as to any material fact with respect to the essential elements
of the claim or defense and must prove that the moving party is
entitled to judgment as a matter of law." Kilakila ‘O Haleakala,

138 Hawai‘i at 375, 382 P.3d at 187 (citations omitted).
"In cases of public importance, 12 a circuit court
should grant a motion for summary judgment 'sparingly, and never
on limited and indefinite factual foundations.'" Id. (footnote
added) (quoting Molokai Homesteaders Coop. Ass'n v. Cobb, 63
Haw. 453, 458, 629 P.2d 1134, 1139 (1981)).
"When both sides move for summary judgment and the
trial court grants one motion and denies the other, the
reviewing court should review both sides' summary judgment
evidence and determine all questions presented." FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)
(citation omitted); see Unite Here! Local 5 v. City & Cnty. of

12 This case is one of "public importance" because Appellants allege
a violation of HEPA and the public trust doctrine involving BLNR's approval
of the use of state land. See Kia‘i Wai v. Dep't of Water, 151 Hawai‘i 442,
447, 454, 517 P.3d 725, 730, 737 (2022) (applying "public importance" summary
judgment standard to challenge of EA for proposed 18-inch-diameter water-
transmission relief line); Kilakila ‘O Haleakala, 138 Hawai‘i at 367-68, 375,
382 P.3d at 179-80, 187 (applying "public importance" summary judgment
standard to challenge of BLNR's determination that EIS not required for
construction of telescope at Haleakala observatory site); Molokai
Homesteaders Co-op. Ass'n v. Cobb, 63 Haw. 453, 455, 458, 629 P.2d 1134,
1137, 1139 (1981) (applying "public importance" summary judgment standard to
challenge of agreement between BLNR and corporation for use of Molokai
Irrigation System transmission facilities to transport water to resort
complex); Ho‘opakele v. Dep't of Acct. & Gen. Servs., No. CAAP-XX-XXXXXXX,
2016 WL 197012, at *1-3 (Haw. App. Jan. 12, 2016) (mem. op.) (applying
"public importance" summary judgment standard to challenge of EA for Mauna
Kea correctional facility).
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Honolulu, 123 Hawai‘i 150, 161-66, 178-81, 231 P.3d 423, 434-39,
451-54 (2010) (looking to the evidence attached to both
defendants' and plaintiffs' cross-motions for summary judgment
in determining whether the defendants' summary judgment was
appropriately granted).
III. DISCUSSION
The Environmental Court's summary judgment ruling
turned on its analysis of the three conditions triggering HEPA
review set forth in Umberger, 140 Hawai‘i at 512, 403 P.3d at
289. We conclude that the Environmental Court erred in its
analysis of Umberger Condition Nos. 2 and 3 and in granting
Syngenta's MSJ.
A. Umberger Condition No. 1: Syngenta Hawaii's
proposed activity under the new RP was an
"action" under HRS § 343-2 subject to HEPA
review.
As to Condition No. 1, an EA is required if "the
proposed activity is an 'action' under HRS § 343-2 (2010)[.]"
Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 (citation omitted).
The Environmental Court concluded in its oral ruling that
Syngenta's new RP was an "action" under Umberger. We initially
note that the parties and the Environmental Court did not
differentiate between BLNR's issuance of an HRS § 171-55
revocable permit, and the permittee's proposed activity under a
permit. Here, BLNR's issuance of a revocable permit was not an
"action" for purposes of HEPA. It was the permittee's activity
under the permit that potentially constitutes an "action."
Carmichael, 150 Hawai‘i at 569, 506 P.3d at 233 (explaining that
the revocable permits themselves were not HEPA "actions," but
rather it was the applicant's permitted activity that
constituted HEPA "actions"); Umberger, 140 Hawai‘i at 504, 514-
15, 403 P.3d at 281, 291-92.

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Syngenta argues that the issuance of the RP was not an
"action" because it was not a "project" or "program," as it
"merely maintained the status quo" or "existing conditions on a
temporary basis with no new actions/plans contemplated or
authorized." 13 Appellants argue that "[p]rograms or projects
subject to [HEPA] may be ongoing" and that BLNR made "no
specific finding" that Syngenta's RP would "maintain the status
quo."
"Action" is defined as "any program or project to be
initiated by any agency or applicant." HRS § 343-2 (2010). In
Umberger, the supreme court defined "project" as "a specific
plan or design" or "a planned undertaking[,]" and a "program" as
"a plan or system under which action may be taken toward a
goal." 140 Hawai‘i at 513, 403 P.3d at 290. In both Umberger
and Carmichael, the supreme court held that the continuation of
permitted activity may constitute an "action" for HEPA purposes.
See Carmichael, 150 Hawai‘i at 553, 569, 506 P.3d at 217, 233
(holding that the continuation of water permits "during the past
decade to divert more than 100 million gallons of water per day
from east Maui streams required an [EA]" pursuant to HEPA);
Umberger, 140 Hawai‘i at 504, 514-15, 403 P.3d at 281, 291-92

(holding that the continuation of one-year aquarium collection
permits, which "authorize[d] the collection of fish or other
aquatic life for aquarium purposes" "per year" was a "program"
or "project" and a HEPA "action"). The Carmichael court
explained that while neither the "continuation decision nor the
[RPs] themselves are HEPA 'actions,' . . . it is applicant's
permitted activity -- i.e., the activity for which the
[applicants] initially sought permit approval -- that

13 BLNR "assumes, without conceding, that the cancellation and re-
issuance of [the RP] was an 'action' under HRS § 343-2 . . . ."

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constitutes 'action' within the meaning of HEPA." Id. at 569,
506 P.3d at 233 (citation omitted). The Carmichael permittees'
activity constituted a "project" because "the permits
facilitated a deliberate and coordinated effort by the . . .
Defendants to use their water system to deliver water and manage
water use for the permitted areas." Id. (citation omitted).
The permitted activity was also a "program" because it involved
a "'plan or system'" with the purpose of "meet[ing] . . .
Defendants' (and their customers') water needs." Id. (citation
omitted).
Here, BLNR's cancellation of Syngenta Seeds' RP and
issuance of the new RP to Syngenta Hawaii were not HEPA
"actions." The commercial agricultural activity proposed by
Syngenta Hawaii under the new RP, however, constituted an
"action" within the meaning of HEPA. See id. The new RP
permitted a new entity, Syngenta Hawaii, to occupy the Property
to engage in a "project" or "program" of commercial agriculture
in order to earn profit. See HRS § 343-2. Syngenta Hawaii's
permitted activity is a "project" because it "facilitated a
deliberate and coordinated effort" to use the property for
commercial agricultural purposes. See Carmichael, 150 Hawaiʻi at
569, 506 P.3d at 233; Umberger, 140 Hawai‘i at 514, 403 P.3d at
291. The permitted activity is also a "program" because it
involves a "'plan or system'" to use the Property for commercial
agricultural purposes with a "'goal'" to earn profit. See
Carmichael, 150 Hawai‘i at 569, 506 P.3d at 233 (citation

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

Environmental Court correctly concluded that Syngenta Hawaii's
proposed activity under the new RP was an "action" subject to
HEPA review, and that Condition No. 1 was met. See id. at 560,
506 P.3d at 224; Kilakila ʻO Haleakala, 138 Hawaiʻi at 375, 382
P.3d at 187.
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B. Umberger Condition No. 2: Syngenta Hawaii
was a new applicant proposing an "action"
under a new RP for the use of state lands
under HRS § 343-5(a)(1).
As to Condition No. 2, an EA is required if "the
action proposes one or more of the nine categories of land uses
or administrative acts enumerated in HRS § 343-5(a) (2010)." 14
Umberger, 140 Hawai‘i at 512, 403 P.3d at 289 (citation omitted).
HRS § 343-5(a)(1) provides that an EA is required for actions
that "[p]ropose the use of state . . . lands . . . ." While
Syngenta Hawaii's proposed activity under the new RP involved
the use of state lands, the Environmental Court concluded that
HRS § 343-5(a)(1) applies to actions that are "proposed," which
the court construed to mean "future action" and excluding
"existing action[,]" and thus, the second condition triggering
HEPA review was not met on this basis.
Relying on Umberger and Carmichael, Appellants argue
that the Environmental Court erroneously ruled that BLNR's
issuance of the RP to Syngenta Hawaii was for "existing uses"
and not "'proposed' uses" subject to HEPA review. BLNR
"assumes, without conceding, that the cancellation and re-
issuance of [the RP] . . . met one of the 'triggers' under HRS
§ 343-5(a)." Syngenta argues, inter alia, that unlike the RP in
Carmichael, its RP did not grant Syngenta Hawaii the "permission

14 HRS § 343-5(a) (2010), entitled "Applicability and requirements,"
mandates an EA for various categories of land use set forth in subsections
(1) through (9), of which subsection (1) pertaining to use of state land, is
relevant here. This subsection states:
(a) Except as otherwise provided, an [EA] shall be required
for actions that:
(1) Propose the use of state or county lands . . .;
provided that the agency shall consider environmental
factors and available alternatives in its feasibility
or planning studies; . . . .

(Emphases added.)
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to use any resources," but rather sought a "corporate name
change to an existing [RP]."
Here, the record reflects that Syngenta Hawaii was a
new applicant for a new RP. Syngenta Seeds and Syngenta Hawaii
are separate legal entities. The 2017 Exemption Notification
noted the RP would be issued "to a new entity . . . ." BLNR
adopted the 2017 RP Staff Submittal's recommendation to cancel
Syngenta Seeds' RP and to issue "a new [RP] to Syngenta Hawaii
. . . ." Thus, Syngenta Hawaii was a new applicant proposing an
"action" under a new RP for the use of state lands under HRS
§ 343-5(a)(1), and the Environmental Court erred by concluding
that Condition No. 2 was not met. See Carmichael, 150 Hawai‘i at

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

382 P.3d at 187.
C. Umberger Condition No. 3: There were
genuine issues of material fact about
whether Syngenta Hawaii's proposed activity
was exempt from HEPA review.
As to Condition No. 3, an EA is required if "the
action is not declared exempt pursuant to HRS § 343-6(a)(2)
(2010)." 15 Umberger, 140 Hawai‘i at 512, 403 P.3d at 289
(citation omitted). Pursuant to HRS § 343-6(a)(2), HAR § 11-

15 HRS § 343-6(a)(2) (2010), entitled "Rules," provides for agencies
to adopt rules and establish procedures to exempt actions from environmental
review. This subsection states:

(a) After consultation with the affected agencies,
the council shall adopt, amend, or repeal necessary
rules for the purposes of this chapter in accordance
with chapter 91 including, but not limited to, rules
that shall:

. . . .

(2) Establish procedures whereby specific types of
actions, because they will probably have minimal or
no significant effects on the environment, are
declared exempt from the preparation of an [EA][.]

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

(a) Chapter 343, HRS, states that a list of classes of
actions shall be drawn up which, because they will probably
have minimal or no significant effect on the environment,
may be declared exempt by the proposing agency or approving
agency from the preparation of an [EA] provided that
agencies declaring an action exempt under this section
shall obtain the advice of other outside agencies or
individuals having jurisdiction or expertise as to the
propriety of the exemption. Actions declared exempt from
the preparation of an [EA] under this section are not
exempt from complying with any other applicable statute or
rule. . . .

(Emphasis added.) DLNR's exemption list under HAR § 11-200-8(a)
included Exemption Class No. 1, Item 51, which exempted:
"Permits, licenses, registrations, and rights-of-entry issued by
the [DLNR] that are routine in nature, involving negligible
impacts beyond that previously existing." (Emphasis added.) The
Environmental Court concluded that because the exemption at
issue here "refers to existing use," it applied to Syngenta
Hawaii.
Appellants argue, inter alia, that BLNR improperly
relied on the 1982 CDUP for HEPA compliance because "Syngenta's
proposed uses of the [Property] were not covered under its
terms[,]" and that the 1982 CDUP was "issued to a different
applicant and for different uses . . . ." Appellants argue that
the 1982 Negative Declaration was for Kekaha's "soil
improvements, clearing brush, [and] 'raising sugar cane,'" and
that the "CDUP processes did not entail examination of
Syngenta's agribusiness practices, which include restricted use
pesticide use and GMO cultivation." Appellants argue that
because of the "[l]acking . . . environmental disclosure
documents, [BLNR] was not informed of the amount and types of
pesticides that would be used" in conjunction with the seed
research operation.

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BLNR argues, inter alia, that Syngenta's RP would
"change the name on the permit and amend the acreage of land it
covered, while not changing anything that Syngenta was already
permitted to do on the [Property]." BLNR argues that the 1982
CDUP authorized the use of the Property for "commercial
agricultural use"; Syngenta's RP would "only authorize the
occupancy of the [state] land on a temporary basis"; and the RP
does "not authorize any specific type of land use . . . ."
Additionally, BLNR "noted that there were no known environmental
consequences from the past agricultural use of the [Property] by
Syngenta . . . ." Syngenta argues, inter alia, that the new RP
"did not change Syngenta's existing seed farm operations,
facilities and personnel in any manner."
In determining whether an "action" is exempt from
HEPA, "the agency must conduct a four-step analysis:"

an action is exempt from HEPA if (1) it is within an exempt
class promulgated by the Environmental Council in HAR § 11-
200-8(a) or within an exemption category created by the
agency itself pursuant to its authority under HAR § 11-200-
8(d); (2) the relevant exemption category can be applied
because the activity does not have a significant cumulative
impact and it does not have a significant impact on a
particularly sensitive environment, see HAR § 11-200-8(b);
(3) the agency obtained the advice of other agencies or
individuals having jurisdiction or expertise as to the
propriety of the exemption, HAR § 11-200-8(a); and (4) the
action will probably have minimal or no significant effects
on the environment, HRS § 343-6(a)(2); see also HAR § 11-
200-8(d); Sierra Club, 115 Hawai‘i at 315-16, 167 P.3d at
308-09.

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

"If the action fails to satisfy any of the four requirements
discussed, it is not exempt from HEPA." Id. (citation omitted).
Here, the Environmental Court's analysis was
incomplete because it stopped at step (1) of the above analysis
(i.e. the exemption class determination), and it did not
consider steps (2), (3), and (4). See id. We conclude that

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there was a material factual dispute as to step (1), whether the
exemption was properly applied as a matter of law, given HAR
§ 11-200-8(a)'s requirement that the action be one that "will
probably have minimal or no significant effect on the
environment" for inclusion in the exemption class.
The 2017 Exemption Notification explained that the
Property had "been in agricultural use for many decades, which
has resulted in no known significant impacts to the natural and
environmental resources in the area." To support this finding,
the 2017 RP Staff Submittal relied on the 1982 CDUP, and
attached the 1982 CDUA Staff Submittal and 1982 CDUA Approval
Letter. The record reflects, however, that the 1981 CDUA was
initiated by Kekaha for raising sugar cane; Pride was later
added as a co-applicant for its seed research operation; the
FONSI in the 1982 Negative Declaration only applied to Kekaha
and not Pride; and the FONSI determined that Kekaha's proposed
activity of "raising sugar cane" would "not have significant
effects on the environment" and did "not require [an] EIS
. . . ." The record of the 1982 CDUP presented here does not
reflect that the environmental impact of Pride's proposed seed
research operation activity was considered or reviewed with
Kekaha's 1981 CDUA.
In addition, the record is insufficient to support the
2017 Exemption Notification's determination that there was "no
expansion or change in use of the subject area beyond that
previously existing." The record does not contain a detailed
description of Syngenta Hawaii's activity under the new RP vis-
à-vis the previously existing permitted activity to support the
conclusion of "no expansion or change in use . . . ." Nor does
the record establish whether Syngenta Seeds' permitted activity
was similar to the "raising sugar cane" activity included in the
1982 FONSI, or similar to the seed research operation activity

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that was not included in the 1982 FONSI. Appellants presented
evidence of what they claimed were environmental impacts from
Syngenta's seed research operation, which included, inter alia,
harm to marine life, insects and native plants, soil, and an
increase in certain types of illnesses from Syngenta's use of
pesticides. That evidence created genuine issues of material
fact which should have precluded summary judgment.
On this record, we conclude there are genuine issues
of material fact as to whether BLNR could properly rely on the
1982 CDUP in determining that there were "no known significant
impacts" on the environment from Syngenta Hawaii's proposed
activity, and whether Syngenta Hawaii's proposed activity under
the new RP "will probably have minimal or no significant effect
on the environment" for an HAR § 11-200-8(a) exemption. Thus,
as to Condition No. 3, the Environmental Court erred in
concluding as a matter of law that Syngenta Hawaii's proposed
activity was exempt from HEPA review because it qualified for
inclusion in "Exemption Class No. 1, Item 51[.]" See HRCP Rule
56; Carmichael, 150 Hawai‘i at 560, 506 P.3d at 224; Kilakila ‘O

Haleakala, 138 Hawai‘i at 375, 382 P.3d at 187.
IV. CONCLUSION
For the foregoing reasons, we vacate the (1) December
20, 2017 "Order Granting Syngenta Seeds, LLC and Syngenta
Hawaii, LLC's Motion to Dismiss Complaint or, in the
Alternative, for Summary Judgment Filed on August 3, 2017; Order
Denying Plaintiffs' Motion for Summary Judgment Filed August 9,
2017"; and (2) January 10, 2018 Final Judgment, both filed and
entered by the Environmental Court of the Fifth Circuit. We

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remand for further proceedings in accordance with this
Memorandum Opinion.
DATED: Honolulu, Hawai‘i, April 30, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Lance D. Collins
Presiding Judge
for Plaintiffs-Appellants/
Cross-Appellees.
/s/ Karen T. Nakasone
Associate Judge
Timothy H. Irons
for Defendants-Appellees/
/s/ Sonja M.P. McCullen
Cross-Appellants.
Associate Judge
Ewan C. Rayner
Deputy Solicitor General
for Defendant-Appellee/
Cross-Appellee.

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