Save Kaiwa Ridge v. Department of Land and Natural Resources of the State of Hawaii

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-AUG-2025
08:12 AM
Dkt. 84 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

SAVE KAIWA RIDGE, a nonprofit corporation,
Plaintiff-Appellant,
v.
DEPARTMENT OF LAND AND NATURAL RESOURCES OF
THE STATE OF HAWAII, MDHE, LLC, Defendants-Appellees,
AND
DOE DEFENDANTS 1-50, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC181001702)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, and Hiraoka and Wadsworth, JJ.)

Plaintiff-Appellant Save Kaiwa Ridge (SKR) appeals
from the Final Judgment (Judgment), entered in favor of
Defendants-Appellees Department of Land and Natural Resources of
the State of Hawai#i (DLNR) and MDHE, LLC on March 24, 2022, in
the Circuit Court of the First Circuit (Environmental Court).1/
SKR also challenges the Environmental Court's: (A) February 11,
2022 Ruling; and (B) March 8, 2022 "Order Granting: (1) [MDHE's]
'Motion for Summary Judgment on All Counts of [SKR's] First
Amended Challenge/Appeal of 1711 Kanapu#u Drive Residence &
Stewardship - Final EA (FONSI) and Request for Declaratory &
Injunctive Relief, Filed August 9, 2019' Filed on January 10,
2022 [Dkt. 143], and (2) [DLNR's] 'Motion for Summary Judgment'
Filed on January 10, 2022 [Dkt. 154]" (Order Granting MSJs).

1/
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

For the reasons discussed below, we affirm.

I. Background

Through MDHE, Dawn and Matthew Horn sought the
necessary approvals from DLNR to build a single-family residence
and undertake a forest management project (collectively, the
Project) on roughly 37 acres of undeveloped land in Kailua
(Property). The Property comprised about 30.22 acres in the
General Subzone of the Conservation District and about 6.67 acres
in the Urban District. Because the Project would involve the use
of Conservation District land, it required a Conservation
District Use Permit (CDUP) from DLNR. See Hawaii Revised
Statutes (HRS) § 183C-6 (2011). Initially, MDHE was also
required by the Hawai#i Environmental Policy Act (HEPA), HRS
Chapter 343, to complete an Environmental Assessment (EA). See
HRS § 343-5(a) & (e) (2010 and Supp. 2016). Under HRS § 343-
5(e), once a final EA is accepted by the appropriate agency, the
agency determines whether an environmental impact statement (EIS)
is required. An EIS is required "if the agency finds that the
proposed action may have a significant effect on the
environment." HRS § 343-5(c)(4).
MDHE prepared a Final Environmental Assessment (FEA)
which states, among other things, that the Project includes
compliance with a Forest Stewardship Management Plan (FSMP)
approved by DLNRs Division of Forestry and Wildlife, and a
Conservation Plan (CP) approved by the Windward O#ahu Soil and
Water Conservation District. DLNR, through its Office of
Conservation and Coastal Lands (OCCL), reviewed the FEA and
determined that the Project would not have significant
environmental effects and therefore approved the issuance of a
Finding of No Significant Impact (FONSI). The Office of
Environmental Quality Control (OEQC) published the FEA and FONSI
in its environmental notice bulletin on September 23, 2018.
On October 23, 2018, SKR filed a document entitled
"Challenge/Appeal of 1711 Kanapu#u Drive Residence & Stewardship
-- Final EA (FONSI) and Request for Declaratory & Injunctive
Relief" (Complaint) in the Environmental Court. The Complaint

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

challenged DLNR's FONSI and sought declaratory and injunctive
relief under HRS § 343-7(b) (2010 and Supp. 2014). The Complaint
stated that "[i]f necessary, this Challenge-Appeal may be
construed as a Complaint for Declaratory, Injunctive and Other
Relief" under Hawai#i Rules of Civil Procedure Rule 57.
On October 26, 2018, the Board of Land and Natural
Resources (Board) went forward with its decision-making on MDHE's
application for a CDUP. The Board approved the CDUP with certain
conditions, including that the residence be located on the
Property at Site "C" rather than Site "A."
On August 9, 2019, SKR filed its "First Amended
Challenge/Appeal of 1711 Kanapu#u Drive Residence & Stewardship
-- Final EA (FONSI) and Request for Declaratory & Injunctive
Relief" (FAC), which became the operative complaint in the
underlying case.
On January 10, 2022, after discovery had closed, DLNR
and MDHE filed separate motions for summary judgment (MSJs) as to
all relief requested in the FAC. The MSJs were heard on
February 10, 2022. On February 11, 2022, the Environmental Court
entered its written Ruling granting the MSJs. The Ruling stated
in part:

13. Here, the FEA provided a detailed description of
the proposed action. The Project includes and the EA
discussed the house, view planes, the access road,
utilities, drainage, erosion, historic sites, the garden,
the Forest Stewardship Management Plan (FSMP), the
Conservation Plan, and mitigation measures. The
descriptions of these features are quite detailed. The EA
describes why no significant impact is expected.
14. Alternatives were also discussed and analyzed,
such as Site A versus Site C. The criteria for evaluation
of alternatives are "identification and summary of impacts
considered." [Hawai #i Administrative Rules (HAR)] § 11-200-
10(6). The FEA discussed the alternative sites to
["]evaluate impacts to soils, the site's structural
feasibility, minimize impacts to vegetation, and to minimize
and provide for health considerations of a disabled
occupant." Dkt. 157 at 77. [SKR] argues that to switch
from Site A to Site C requires a more exhaustive analysis of
Site C. The court respectfully disagrees. Site C was
considered as part of the EA. Nothing in the FEA indicates
that any difference between Site C and Site A would change
the finding of no significant impact. It must be remembered
that this is a huge site – 37 acres –- only a fraction of
which would be disturbed, and much of that "disturbance"
from a beneficial Forest Stewardship plan. It is evaluated
as a whole, as a Project, in context of the entire property.
Even if there are differences between putting the house at

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Site A and Site C, that does not mean the overall Project
analysis in the EA is defective, especially where Site C is
indisputably lower on the ridge, resulting in less visual
disturbance to the community.
15. The EA specifically addressed erosion and storm
run-off (and mitigation measures for same) that may result
from the project, and concluded that any additional erosion
and run-off from the site would likely be minimal,
especially with the mitigation measures planned.
16. The EA also included responses to public comments
that specifically addressed issues raised by SKR.

17. [SKR] presented no relevant, admissible evidence
of a significant negative effect attributable to the Project
itself, or that the statutory requirements for an EA were
not met.
18. On the issue of HRS 6E and historic properties or
features, the court is not convinced a 6E-42 review was
necessary, but even if it was, [DLNR's State Historic
Preservation Division] was given an opportunity to respond
and did not. The FEA concluded that based on prior surveys,
no archaeological sites or features were present, and no
cultural practices would be affected. No contrary
admissible evidence was received.
19. Bottom line: the court concludes the EA/FEA
included the contents required by law. There is no sign the
FEA was not compiled in good faith. It provides more than
sufficient information to "evaluate the possible
environmental effects" of the Project. Kilakila[ #O
Haleakala v. Univ. of Hawai#i], 138 Hawai #i [364, 370, 382
P.3d 176, 182 (2016)]. The court is not allowed to
substitute its own opinions or judgment on whether the
Project is environmentally appropriate, even if the court in
the first instance may have decided differently. For these
reasons, the court concludes the agency did not abuse its
discretion, the rule of reason is met, and summary judgment
is appropriate as a matter of law. Price[ v. Obayashi
Hawaii Corp.], 81 Hawai #i [171, 185, 914 P.2d 1364, 1378
(1996)].

20. The CDUP. [SKR] challenges the CDUP in its MIO.
This is a separate issue from the EA/FEA and the FONSI. The
court is not aware of any authority that prohibits issuing a
CDUP just by filing a legal challenge to the EA/FONSI.

The Environmental Court entered the Order Granting MSJs
on March 8, 2022, and the Judgment on March 24, 2022.

II. Discussion

It is difficult to discern exactly what SKR's points of
error are. The opening brief comprises 101 separately numbered
paragraphs, with the points-of-error section spanning paragraphs
36 through 48. The latter paragraphs mix lengthy, overlapping
assertions of error with substantial legal argument, including
citations to multiple constitutional provisions, statutes, rules,

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

and cases, in an apparent effort to touch upon any and every
authority that could possibly, even remotely relate to SKR's
appeal. It is near-impossible to distinguish the numbered points
of error from the numbered arguments. This kitchen-sink approach
violates Hawai#i Rules of Appellate Procedure Rule 28(b)(4) which
requires "[a] concise statement of the points of error set forth
in separately numbered paragraphs." (Emphasis added.)
Gleaned from SKR's argument section, SKR appears to
contend, as best we can tell, that the Environmental Court erred
in granting the MSJs because: (1) the FEA failed in several
respects to fully disclose and assess all of the information
required by HRS Chapter 343 and HAR Chapter 11-200, which
information was necessary for DLNR and the Board to properly
evaluate the possible environmental effects of the Project; and
(2) DNLR violated various constitutional and statutory provisions
when it accepted the non-compliant FEA, made the FONSI finding,
approved the deficient FEA and conservation district use
application, and granted MDHE a "premature CDUP."

A. Sufficiency of the FEA

"For agency determinations under HEPA, 'the appropriate
standard of review depends on the specific question under
consideration.'" Kilakila #O Haleakala, 138 Hawai#i at 375-76,
382 P.3d at 187-88 (quoting Sierra Club v. Dep't of Transp., 115
Hawai#i 299, 315, 167 P.3d 292, 308 (2007)). Whether the FEA
contained sufficient information to comply with HRS Chapter 343
is a question of law. See Price v. Obayashi Hawaii Corp., 81
Hawai#i 171, 182, 914 P.2d 1364, 1375 (1996).
We apply the "rule of reason" standard to determine
whether the FEA was legally sufficient in adequately disclosing
facts to enable DLNR to render an informed decision. See Unite
Here! Local 5 v. PACREP LLC, ___ Hawai#i ___, ___, ___ P.3d ___,
___, No. SCAP-XX-XXXXXXX, 2025 WL 573299, at *14 (Haw. Feb. 21,
2025) ("[A]lthough this case presents the question of the
sufficiency of the State's compliance with regulations regarding
an EA rather than an EIS, we recognize the same latitude in the
HAR given to the accepting agency over EISs for EAs, and apply

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the same standard in evaluating EAs." (quoting Ho#opakele v.
Dep't of Acct. & Gen. Servs., No. CAAP-XX-XXXXXXX, 2016 WL
197012, at *3 (App. Jan. 12, 2016) (mem. op.))). Under this
standard,

an EIS [or EA] need not be exhaustive to the point of
discussing all possible details bearing on the proposed
action but will be upheld as adequate if it has been
compiled in good faith and sets forth sufficient information
to enable the decision-maker to consider fully the
environmental factors involved and to make a reasoned
decision after balancing the risks of harm to the
environment against the benefits to be derived from the
proposed action, as well as to make a reasoned choice
between alternatives.

Unite Here! Local 5, 2025 WL 573299, at *14 (quoting Price, 81
Hawai#i at 182, 914 P.2d at 1375).
We conclude that the FEA satisfied the rule of reason
standard. The FEA includes "a detailed description" of the
Project, an evaluation of the "direct, indirect, and cumulative
impacts" of the Project, "a discussion of alternatives" to the
Project, and a description of "measures proposed to minimize
potential impacts" of the Project. Kilakila, 138 Hawai#i at 370,
382 P.3d at 182. Specifically, Section 2.0 of the FEA contains a
detailed description of the Project. Potential impacts and
mitigation measures are discussed in Section 3.0 of the FEA.
After evaluating various factors, reports, and assessments, the
FEA concludes, for example, that "[n]o significant storm drainage
impacts are anticipated"; "[n]o significant impacts to scenic
vistas or existing open preservation landscapes are anticipated";
"it is not expected that any archaeological sites or features
will be found in the project area";2/ "the exercise of native
Hawaiian rights . . . related to gathering, access or other
customary activities will not be affected by the activities of
the proposed home"; and "[t]he proposed project is not
anticipated to adversely impact any natural or cultural

2/
Contrary to SKR's argument, HRS § 6E-42(a) (Supp. 2015) was not
applicable in these circumstances, where there was no factual basis to know
that the Project "may affect" historic property, aviation artifacts or a
burial site. See Hui Malama I Na Kupuna O Nei v. Wal-Mart, 122 Hawai #i
171, 180, 223 P.3d 236, 245 (App. 2009). The FEA includes an Archaeological
Literature Review and a Cultural Impact Assessment, both of which are
summarized in the FEA.

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

resources[.]" Section 3 also discusses mitigation measures,
including measures to address potential impacts of soil erosion
during grading and excavation. The FEA included discussion of
alternatives to the Project, including the alternative of doing
nothing, and the option of locating the house on Site "C" (an
eventual condition of the CDUP).
SKR argues that the FEA "did not fully disclose and
assess all the likely significant impacts of MDHE's Project at
all of its alternative sites in equal detail." However, to
satisfy the rule of reason, an EA "need not be exhaustive to the
point of discussing all possible details bearing on the proposed
action . . . ." Unite Here! Local 5, 2025 WL 573299, at *14
(quoting Price, 81 Hawai#i at 182, 914 P.2d at 1375). The
Environmental Court correctly concluded that: "Nothing in the FEA
indicates that any differences between Site C and Site A would
change the finding of no significant impact. . . . Even if there
are differences between putting the house at Site A and Site C,
that does not mean the overall Project analysis in the EA is
defective, especially where Site C is indisputably lower on the
ridge, resulting in less visual disturbance to the community."
We likewise conclude that the FEA "sets forth sufficient
information to enable [DLNR] to consider fully the environmental
factors involved and to make a reasoned decision" regarding the
alternative sites for the house. Id.
SKR argues that the FEA failed to disclose the
following impacts: (1) the impacts of the Project to erosion,
sedimentation, and runoff; (2) the impacts of the Project to
historical and cultural resources; (3) the impact of
"converting" a 6.6 acre parcel to agricultural use; and (4) the
cumulative impact of the Project on the loss of open space and
view planes. The Environmental Court addressed these issues and
concluded that the EA included "quite detailed" discussions of
"the house, view planes, the access road, utilities, drainage,
erosion, historic sites, the garden, the Forest Stewardship
Management Plan (FSMP), the Conservation Plan, and mitigation
measures." Based on our review of the FEA, we reach the same
conclusion: the FEA's discussion of these impacts meets the

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

rule-of-reason standard.3/
SKR asserts that the FEA "illegally segmented" the
Project. Improper segmentation of a project occurs when,
pursuant to HAR § 11-200-7,4/ "[a] group of actions . . . [that]
shall be treated as a single action" are improperly "segmented"
into component parts. See Unite Here! Local 5, 2025 WL 573299,
at *17; see also Sierra Club, 115 Hawai#i at 338, 167 P.3d at 331
(stating that rules like HAR § 11-200-7 "are meant to keep
applicants or agencies from escaping full environmental review by
pursuing projects in a piecemeal fashion"). That is not what
happened here, where the house, the FSMP, the CP, and the garden
were all considered part of the Project and analyzed as part of
the same FEA.
In sum, the FEA appears to have been compiled in good
faith, and SKR points to nothing to suggest otherwise. Based on
our review of the FEA, we conclude that it "sets forth sufficient
information to enable the [DLNR and the Board] to consider fully
the environmental factors involved and to make a reasoned
decision" regarding the Project and "a reasoned choice between
alternatives." Unite Here! Local 5, 2025 WL 573299, at *14
(quoting Price, 81 Hawai#i at 182, 914 P.2d at 1375). The
Environmental Court did not err in ruling that the FEA was
legally sufficient under the rule-of-reason standard.

B. Issuance of the FONSI

DLNR's finding of no significant environmental impact
is a mixed determination of fact and law that we review under the
clearly erroneous standard. See Kilakila, 138 Hawai#i at 376,
336 P.3d at 188. Such a determination is clearly erroneous if
"the record lacks substantial evidence to support the . . .
determination" or, "despite substantial evidence to support the

3/
We note that SKR's contention that the Property will be
"converted" to agricultural use is unfounded. See HAR § 13-5-23. Similarly
unfounded is SKR's assertion that MDHE failed to consult with owners of nearby
properties. Section 7 of the FEA contains written comments received regarding
the draft EA, including those of nearby property owners.
4/
Although not applicable to the present case, HAR § 11-200-7 was
non-substantively amended, effective August 9, 2019. See HAR § 11-200.1-10
(2019).

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

. . . determination, the appellate court is left with the
definite and firm conviction that a mistake has been made."
Unite Here! Local 5, 2025 WL 573299, at *14 (quoting Kia#i Wai v.
Dep't of Water, 151 Hawai#i 442, 454, 516 P.3d 725, 737 (2022)).
"Substantial evidence" is "credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion." Id. (quoting Kia#i
Wai, 151 Hawai#i at 454, 516 P.3d at 737 ).
The supreme court has also recognized:

[C]ourts generally grant significant weight to an agency's
determinations based on technical or scientific facts. This
deference arises from the fact that agencies possess and
exercise subject-matter expertise and experience the courts
generally lack. These qualities place agencies in a better
position than the courts to evaluate scientific
investigations and research. 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.

Keep the N. Shore Country v. Bd. of Land & Nat. Res., 150 Hawai#i
486, 504, 506 P.3d 150, 168 (2022) (citations, brackets, and
quotation marks omitted).
DLNR's acceptance of the FEA and issuance of the FONSI
were supported by substantial evidence in the record. As
discussed above, the FEA was legally sufficient in adequately
disclosing facts to enable DLNR to render an informed decision
regarding the environmental effects of the Project. In
particular, Section 6.0 of the FEA fully explained why none of
the criteria set forth in HAR § 11-200-125/ supported a finding of
significant impact. DLNR's mixed finding and conclusion that the
Project will not have significant environmental effects and will
not require preparation of an EIS was not clearly erroneous.
The Environmental Court did not err by granting the MSJs on that
basis.

5/
Under former HAR § 11-200-12 (2007), agencies were required to
consider thirteen criteria to determine whether a proposed action would have a
significant effect on the environment. Although not applicable to the present
case, HAR § 11-200-12 was amended, effective August 9, 2019, and includes a
revised version of these same thirteen criteria. See HAR § 11-200.1-13
(2019).

9
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

3. Issuance of the CDUP

SKR conceded below that it was not substantively
challenging the issuance of the CDUP. Rather, it was arguing
only that the CDUP could not be properly issued while this
litigation was pending and before the court resolved the FONSI
challenge. SKR appears to make a similar argument on appeal.
Once a FONSI has been issued, HRS § 343-7(b) gives a
party thirty days to file a lawsuit challenging the determination
that an EIS was not required. Nothing in HRS § 343-7 or in
Chapter 343 more generally stays the effectiveness of a duly
published FONSI, or prevents the issuance of a related CDUP,
while a lawsuit is pending. If SKR had wanted to prevent the
Project from moving forward until the trial court had ruled, it
could have moved for a preliminary injunction. It did not do so
prior to the issuance of the CDUP. The Environmental Court did
not err in concluding that no authority "prohibits issuing a CDUP
just by filing a legal challenge to the EA/FONSI."

III. Conclusion

For the reasons discussed above, the Final Judgment
entered on March 24, 2022, in the Environmental Court of the
First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, August 25, 2025.

On the briefs:
/s/ Karen T. Nakasone
Linda M.B. Paul, Chief Judge
for Plaintiff-Appellant.

Linda L.W. Chow and /s/ Keith K. Hiraoka
Lauren K. Chun, Associate Judge
Deputy Attorneys General,
for Defendant-Appellee
Department of Land and Natural /s/ Clyde J. Wadsworth
Resources of the State of Associate Judge
Hawai#i.

Scott C. Arakaki
for Defendant-Appellee MDHE
LLC

10