Motion for Summary Judgement

NO. 23080

IN THE SUPREME COURT OF THE STATE OF HAWAII

SIERRA CLUB, a California non-profit ) ORIGINAL PROCEEDING

CORPORATION, )

)

Petitioner, )

)

vs. )

)

HAWAII TOURISM AUTHORITY, et al., )

)

Respondent. )

)

PETITIONER’S MEMORANDUM IN SUPPORT

OF MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

A state agency will spend $114 million dollars in state funds on a state program which will cause significant adverse environmental impacts on all of our major islands. HRS Chapter 343 was intended to require the preparation of at least an Environmental Assessment (“EA”) prior to the implementation of such an action.

The major issues here are (a) whether this requirement applies to all state agencies, including the Hawaii Tourism Authority (“HTA”) and (b) whether this requirement applies to all state programs, including a program to substantially increase the number of visitors in Hawaii in five years.

The law is clear and unambiguous. The answer to both questions is plainly yes, as a matter of law and fact.

This makes good sense as a matter of policy as well. Tourism indisputably results in economic benefits to Hawaii. But it also results in significant adverse impacts, primarily through the overburdening of the public infrastructure and the overuse of Hawaii’s unique and limited resources. Put simply, our islands do not have the “carrying capacity” to accommodate the increased numbers of visitors proposed by HTA. Before a program is launched to bring more visitors to Hawaii, these environmental impacts, among others, must be addressed in an EA or else the important purposes of Chapter 343 will be frustrated.

II. JURISDICTION / LITIGATION HISTORY

Chapter 343 HRS (commonly known as “HEPA”) is this State’s Environmental Impact Statement law. It requires the disclosure of the environmental impacts of certain projects at the earliest practicable time to alert decision-makers and other interested members of the public to project impacts at a time when modifications can most easily be made and mitigation measures incorporated. Citizens for the Protection of the North Kohala Coast-line v. County of Hawaii, 91 Haw. 94, 105, 979 P2d 1120 (1999) (“Citizens”). A private right of action exists to enforce Chapter 343 through the filing of an original action. HRS §343-7. Because the HTA is a party to this action and it is alleged that HTA violated Chapter 343, this action was required to be filed as an original proceeding in the Hawaii Supreme Court. HRS §201B-15.

This judicial proceeding has been initiated within 120 days of HTA’s decision to carry out or approve the implementation of the State Tourism Plan on September 15, 1999. HRS §343-7(a). Because the proposed action is being undertaken without a formal determination by the HTA that a statement is or is not required, the judicial challenge must be filed, as here, within 120 days after the proposed action is started. HRS §343-7(a).

The Supreme Court issued an “Order” on January 27, 2000 directing Respondent HTA to file an Answer to the Petition. The Court further ordered the parties to either file a statement of agreed facts in the manner provided by Rule 18(a) of the Hawaii Rules of Appellate Procedure (“HRAP”) or to submit motions pursuant to Rules 12 and 56 HRCP and Rule 27 HRAP. Based upon this Order, Petitioner hereby files its Motion for Summary Judgment pursuant to Rule 56 HRCP.[1] Petitioner requests that this Court schedule oral argument on this Motion.

III. STANDARD OF REVIEW

Summary judgment is properly granted "where, from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they would prevail as a matter of law." Hulsman v. Hemeter Development Corp., 65 Haw. 58, 61; 647 P. 2d 713, 716 (1982). See, Rule 56(c), HRCP (1981); Wong v. Panis, 7 Haw. App. 414, 772 P. 2d 695 (1989).

The movant has the initial burden of establishing the absence of a genuine issue of material fact or that no competent evidence is available to support a judgment in favor of the non-movant. Waimea Falls Park v. Brown, 6 Haw. App. 83; 712 P 2d 1136 (1985). The movant need not support his motion with affidavits or similar materials that negate his opponents claims but need only point out to the court there is an absence of evidence to support the opponent's claims. First Hawaiian Bank v. Weeks, 70 Haw. 392, 396; 772 P. 2d 1187, 1190 (1989).

Because there is no dispute as to the facts and Petitioner is entitled to prevail as a matter of law, Petitioner requests that the Court grant summary judgment in its favor and enter a final judgment on the claims presented here.

IV. THE MATERIAL FACTS ARE NOT IN DISPUTE

A. The Goal of Respondent HTA’s State Tourism Marketing Plan Is to

Substantially Increase the Number of Visitors and/or Visitor Days to this State Within the Next Five Years

HTA is responsible, by statute, for developing a “Strategic Tourism Marketing Plan” which must cover distinct subject matters. HRS §201B-6. HTA prepared this document, entitled “Ke Kumu: Strategic Directions for Hawaii’s Visitor Industry,” dated June 29, 1999, which is attached as Exhibit “1”. The Executive Summary identifies the document as “The Tourism Strategic Plan (“TSP”)” and states that it fulfills one of the primary responsibilities of HTA. The goal of the TSP is stated on page 2:

The HTA seeks to manage the growth of tourism’s contribution to Hawaii’s economy by targeting an average annual uninflated growth of 4.6 percent in visitor expenditures through 2005. Visitor expenditures are a product of three variables: (1) visitor expenditures per person per day; (2) length of stay and (3) the number of visitor arrivals. (Emphasis added.)

The manner in which the increase in “total visitor expenditures” is to be calculated in stated on p. 8:

Total Visitor Expenditures = Expenditures Per Person Per Day x Length of Stay x Visitor Arrivals.

Increasing the number of visitor arrivals and increasing the length of stay of visitors are two important manners in which visitor expenditures are increased. This is demonstrated graphically in Tables attached to Appendix “A” of the TSP entitled “Targets for Managed Economic Growth by State and County.” See Tables 1, 1-a., 2 and 3 attached to Appendix “A” of Exhibit “1”.

The goal of the Tourism Marketing Plan is to increase the annual number of visitors to Hawaii by 13% between the years 2000 and 2005. Chart 1 below extracts relevant figures from Table 1:

Chart 1

Increase in Annual Number of Visitors

2000 2005 Increase % Increase

Total 6,967,513 8,059,787 +1,092,274 13%

The TSP is also to increase the average length of stay for each visitor. Between the years 2000 and 2005 the length of stay is to be increased on Oahu, Kauai and Hawaii. Chart 2 below contains figures extracted from Table 2 showing the increase in average length of stay per county in terms of days:

Chart 2

Increase in Average Length of Stay

County 2000 2005

Oahu 5.79 5.90

Maui 6.7 6.7

Kauai 6.16 6.26

Hawaii 6.82 6.93

With an increase in the number of visitors as well as their length of stay this clearly increases the number of visitors who are on each island, each day. Chart 3 below extracts the “Average Daily Visitor Census,” in numbers of persons, from Table 2, for the years 2000 and 2005:

Chart 3

Average Daily Visitor Census

County 2000 2005 Increase % Increase

Oahu 75,867 83,750 7,883 +9%

Maui 44,851 53,897 9,046 +17%

Kauai 18,941 24,471 5,530 +22%

Hawaii 25,696 32,465 6,769 +21%

TOTAL 165,354 194,582 29,228 +15%

These figures show dramatic increases in the number of visitors. Statewide this is a 15% increase of visitors present on any given day. Maui is targeted for a 17% increase. Hawaii is targeted for a 21% increase and Kauai is targeted for a 22% increase. On any given day there will be almost 30,000 more tourists on our islands in the year 2005 than there were in the year 2000.[2]

The TSP identifies, on p. 2, “seven strategic initiatives, which are contemplated for immediate implementation.” These are identified generally as:

(1) Communication and Community Relations,

(2) Marketing (by major marketing area),

(3) Events,

(4) Product Development,

(5) Air lift (facilitate growth in air lift to Hawaii)

(6) Infrastructure and Support Services, and

(7) Regulations and Investment Incentives.

B. Respondent HTA Is Required by Chapter 201B to Review the

Environmental Impacts of its Tourism Marketing Plan

One of HTA’s statutory responsibilities, set out in HRS §201B-3(15), is to:

... develop, coordinate, and implement state policies and directions for tourism and related activities taking into account the economic, social and physical impacts of tourism on the state. (Emphasis added.)

HTA’s mission statement, found on p. 6 of Exhibit “1”, is:

To manage the strategic growth of Hawaii’s visitor industry in a manner consistent with the economic goals, cultural values, preservation of natural resources, and community interests of the people of Hawaii. (Emphasis added.)

One of the “values” and “principles” which “forms the basis of the TSP” is “Aloha ‘aina” which is described as follows:

In caring for the land and ocean, the Hawaiians of old viewed themselves as stewards of the land and ocean which sustained all life. Therefore, the HTA today recognizes the importance of preserving Hawaii’s fragile natural environment and natural resources to sustain future generations of residents and visitors. (Emphasis added.)

It is therefore HTA’s own admitted mission to take into consideration the environmental impacts of its Plan.

C. One of HTA’s Seven Strategic Initiatives Is to Cure Infrastructural

Deficits

The sixth of the “seven strategic initiatives” adopted by HTA in its Plan is to deal with the infrastructure “to strengthen tourism and enhance resident quality of life.” Exhibit “1”, p. 2. This is described in more detail on p. 17 of Exhibit “1” where it is stated:

Hawaii’s parks, beaches, and other facilities are key visitor and resident resources, which are inadequately funded, developed and maintained. The Authority will be aggressive in seeking federal funds for preservation of specific natural attraction sites as well as for initiates such as highway beautification and trail systems. This funding could help resolve some of the debate over funding for tourism development “vs.” preservation of natural resources. (Emphasis added.)

The sixth of HTA’s “seven strategic initiatives” is the infrastructure, deficits in which are also of concern to Petitioner and its members.

D. Petitioner The Sierra Club’s Comments on the TSP Objecting

to the Lack of Environmental Analysis

The Sierra Club submitted comments on the TSP dated July 19, 1999, which are attached as Exhibit “2”. The primary thrust of these objections is that the TSP has focused almost entirely on economic goals and benefits without taking into consideration the significant adverse environmental impacts which would be caused through the implementation of the Plan. HTA has never responded to these comments. Respondent HTA has never considered the environmental impacts of this Plan through an Environmental Assessment or otherwise. See Affidavit of David Kimo Frankel.

E. The Implementation By HTA of the Tourism Marketing Plan

1. HTA Is Implementing the Second of the Seven Initiatives

HTA next prepared a Request for Proposals (“RFP”) to implement the Tourism Plan. See Exhibit “3” attached hereto. In Section 2, entitled “Scope of Work” HTA restates the “seven strategic initiatives.” The RFP is to implement the marketing program or project which is the second of the “seven strategic initiatives.”[3] The RFP states that a key responsibility of the HTA is to oversee the marketing and promotion of Hawaii to the world. One priority in the RFP is to increase visitor arrivals. See p. 4.

The Scope of Work states, on p. 5:

Relative to Strategic Initiative (Two)-Marketing -- the HTA is seeking a vendor to provide management of global tourism integrated marketing services for the State of Hawaii that contribute to the goal of an average annual growth rate of approximately 4.6% in visitor expenditures through the year 2005 (see attachment - Draft Tourism Strategic Plan). (Emphasis added.)

A “Statement of Work” is included which calls for marketing Hawaii throughout the world with an “increased emphasis” on the US West, US East and Japan; a “sustained emphasis” on Europe and Canada and a “developing emphasis” on other Asia, Oceania and Latin America. Then “Overall Project Objectives” are set out.[4]

2. HTA Adopted and Funded the Plan on September 15, 1999

The HTA met on September 15, 1999 to choose a contractor to implement this portion of the State Tourism Plan. The “Minutes” of this meeting are attached as Exhibit “4”. Three proposals had been received. A motion to hire Hawaii Visitors and Convention Bureau as HTA’s tourism marketing contractor carried unanimously. HTA thereby awarded $114 million in state funds over a three-year period between January 1, 2000 - December 31, 2002 to the Hawaii Visitors and Convention Bureau (“HBV”) to implement this Plan. See Affidavit of Terry Lynne Hee attached to Motion to Intervene filed in these proceedings on January 20, 2000 and attached here as Exhibit “6”. A letter confirming this award was sent by HTA on October 4, 1999 to HVCB. See Exhibit “5” attached hereto.[5]

F. Respondent HTA Did Not Prepare an Environmental Assessment

Prior to Adopting and Implementing This Program

No Environmental Assessment was prepared on the State Tourism Plan on or before September 15, 1999. No “Exemption Notice” was ever entered by the HTA on the State Tourism Plan on or before September 15, 1999. See Affidavit of David Kimo Frankel. The Minutes for the HTA meeting conducted on September 15, 1999 do not indicate that compliance with Chapter 343 was even considered during the decision-making. See Exhibit “4”.

G. The Implementation of this Program Will or May Cause Significant

Adverse Impacts

The implementation of the State Tourism Plan will increase, within five years, the average number of visitors, on any given day by 15% statewide, by 17% on Maui, by 22% on Kauai and by 21% on Hawaii. On any given day there will be approximately 30,000 more visitors within our state. These are significant increases. These increases may or will cause significant adverse impacts on each of these four islands.

To bring this point home in a solid, individual and concrete evidentiary manner, Petitioner attaches the Affidavits of persons in their individual capacities as well as members of The Sierra Club, namely Blake K. Oshiro (on Oahu impacts), Roberta Lynn Brashear (on Hawaii or Big Island impacts), Margaret H. Freeman (on Kauai impacts), Robert Parsons (on Maui impacts) and David Kimo Frankel (on Oahu, Hawaii or Big Island and organizational impacts). These Affidavits must be read for their individual accountings of the harm caused through the implementation of the State Tourism Plan.

These Affidavits demonstrate how each of the Affiants is or will be among those injured by this implementation of the State Tourism Plan on each of the islands affected by the five-year significant increase in the number of visitors. Each of the Affiants is or may be injured because of the public infrastructural deficits that will be exacerbated. Traffic congestion, particularly moving along roadways well-traveled by visitors, will increase unabated. There has been no demonstration that these islands have the “carrying capacity” to accommodate the increased numbers of visitors proposed by HTA.

Competition to enjoy Hawaii’s precious resources, particularly beaches, will only increase harming recreational interests and causing adverse social impacts. The increase in the number of visitors will increase alien species introductions to Hawaii through its airports causing increased harm to agriculture, agricultural exports, watersheds relied upon for public drinking purposes, eco-systems, parklands, public health and tourism, itself. See also Exhibits “9” and “10” attached hereto.

V. PETITIONER IS ENTITLED TO PREVAIL AS A MATTER OF LAW

A. The Failure to Comply with HRS 343 Is an Error of Law

The primary issue in a case such as this one is whether the agency has complied with the applicable statutory and regulatory mandates, such as HRS Chapter 343 and the EIS Rules, HAR §11-200-1 et seq.[6] These are legal issues, freely reviewed based upon the right/wrong standard by this Court. Price v. Obayashi Hawaii Corp., 81 Haw. 171, 914 P.2d 1364 (1996). Hawaii’s Thousand Friends v. City and County of Honolulu, 75 Haw. 237, 858 P.2d 726 (1993). Here it is self-evident that HTA has not complied with Chapter 343 and the underlying regulations.

B. Respondent HTA, as a State Agency, Proposing the Use of

State Funds for an Action or Project Which the Agency Has

Approved, Adopted and Funded, was Required, as a Matter of

Law, to First Prepare an Environmental Assessment

The legislative directive to state agencies to prepare Environmental Assessments is stated, in HRS §343-5(b), as follows:

Whenever an agency proposes an action in subsection (a), other than feasibility or planning studies for possible future programs or projects which the agency has not approved, adopted or funded, or other than the use of state or county funds for the acquisition or unimproved real property, which is not a specific type of action declared exempt under §343-6, that agency shall prepare an Environmental Assessment for such action at the earliest practicable time to determine whether an Environmental Impact Statement shall be required. (Emphasis added.)

The “elements” which must be proven to establish that an Environmental Assessment is required are, therefore, as follows:

1. HTA is an agency,

2. HTA is proposing an agency action,

3. A “triggering event,” described in HRS §343-5(a), exists,

4. HTA has approved, adopted or funded the action (and the

action is not a feasibility or planning study or the

acquisition of unimproved real property,

5. The action is not a specific type of action declared exempt

under HRS §343-6.

These “elements” have all been proven here and HTA had a legal duty to prepare an Environmental Assessment “at the earliest practicable time” to determine whether an Environmental Impact Statement shall be required.

1. HTA Is a State Agency

It cannot be disputed that HTA is a state agency to which the requirements of Chapter 343 are applicable and binding. An “agency” is defined in HRS §343-2 as

... any department, office, board, or commission of the state or county government which is a part of the Executive Branch of that government.

The HTA was established as a state agency by the Legislature in 1998. Exhibit “1”, p. 1, Executive Summary. The HTA is “a public instrumentality of the state” placed within another state agency, the Department of Business, Economic Development and Tourism. HRS §201B-2. HTA is headed by a Board of Directors which can sue and be sued. HRS §201B-2(b) and §201B-3(1). This Board is a “cabinet level executive board.” Ex. “1”, p. 5. The powers and functions granted to HTA are “public and governmental functions, exercised for a public purpose.” HRS §201B-14.

2. The Plan to Increase the Number of Visitors to the State of

Hawaii Within the Next Five Years is an Action or Program

Pursuant to Chapter 343

An “action” is defined in HRS Chapter 343-2 as “any program or project to be initiated by any agency or applicant.” The EC regulations define “action” in the same way. HAR §11-200-2. The State Tourism Plan is assuredly a “program or project to be initiated by” a state agency, HTA. Both the statute and regulations make it clear that “any” project or program qualifies as an agency action.

The action need not be a “physical” one. Two non-physical, administrative “actions” trigger HEPA: amendments to a General Plan and the use of state funds. HAR §§11-200-6(b)3(A) and (B). This Court has held that the non-physical administrative action of reclassifying conservation lands also requires an EA. Pearl Ridge Estates Comm. Ass’n v. Lear Siegler, Inc., 65 Haw. 133, 648 P.2d 702 (1982).

Case precedent exists for treating heavily economic programs as actions requiring environmental analysis under NEPA, the federal equivalent to HEPA. Public Citizen, The Sierra Club and Friends of the Earth brought a number of lawsuits against the Office of the United States Trade Representative over the implementation of the North American Free Trade Agreement (“NAFTA”), and other economic programs, for the failure to prepare an Environmental Impact Statement. Most of these cases were decided on technical grounds not present here.[7] In one case, however, the Court did reach the merits and held that an EIS was required even for this national and international economic program. Public Citizen v. U.S. Trade Representative, 822 F. Supp. 21 (D.D.C. 1993). Sufficient evidence was present enabling the Court to find that NAFTA is likely to harm plaintiffs, thus establishing standing under NEPA. See Public Citizen, supra, at p. 27, 28.[8]

A state action to transfer water from one area to another where it will have significant effects triggers Chapter 343. Molokai Homesteaders Co-op Ass’n v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981). Similarly, a state program to cause “de facto” population changes and increases on our major islands is also within the purview of Chapter 343. The “significance criteria” found in HAR §11-200-12(b)(6) expressly recognize that one type of action that has a significant effect on the environment is one which:

... involves substantial secondary impacts, such as population changes or effects on public facilities. (Emphasis added.)

This is clearly such an action.

3. A “Triggering Event” Exists

HRS §343-5(a)(1)-(8) establishes “triggering events” for which “an Environmental Assessment shall be required.” The “event” which is applicable here is the use of state funds. See HRS §343-5(a)(1). The EC rules provide that the use of state funds shall include “any form of funding assistance flowing from the state.” See HAR §11-200-5(c). The $114 million which HTA decided to spend on September 15, 1999 for the implementation of the State Tourism Plan is a proposed expenditure of state funds. These funds come from the State Treasury in the Tourism Special Fund which exists there and derive from state taxes as well as from state legislative appropriations.[9]

4. HTA Has Approved, Adopted or Funded This Project

HTA has approved and adopted the implementation of the second of the seven initiatives in the State Tourism Plan. On September 15, 1999, HTA decided to fund, with $114 million in state money, the second initiative.[10]

5. Respondent HTA’s Action or Program is Not Exempt from

Chapter 343

Chapter 343 provides for exemptions from the requirement that environmental documents be prepared. HRS §343-5(b)(c). The EC is delegated the responsibility to adopt rules, in HRS §343-6(a)(7), to:

... 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 Assessment.

The EC has done so in its regulations. See HAR §11-200-8.

Through these Rules, “exempt classes of action” are established. HAR §11-200-8(a)(1)-(10). All state agencies are provided the opportunity to request that a new exemption class be added. See HAR §11-200-8(c). All agencies also have the right to develop their own list of specific types of actions which fall within the exempt classes, subject to EC review and concurrence. See HAR §11-200-8(d).

HTA, as a state agency, has not filed any exemption lists with the OEQC. See Exhibit “7”. Neither has the Department of Business, Economic Development and Tourism (“DBEDT”), the state agency within which the HTA is placed. See Exhibit “7”. In short, Respondent HTA has not availed itself of the opportunities permitted pursuant to HEPA to either claim new exemption classes or new specific types of actions which fall within the exempt classes.

HTA could have attempted to be excused from the obligation to prepare an EA had it determined on or before September 15, 1999 that the proposed action “is not a specific type of action declared exempt under §343-6....” See HRS §343-5(b). In making such a determination that the proposed project is exempt, an “Exemption Notice” must be made in writing and kept on file by the proposing agency. See HAR §11-200-2.[11] Each agency is required to maintain records of actions which it has found to be exempt. HAR §11-200-8(e).[12] The Minutes of the September 15, 1999 meeting demonstrate that no exemption determination was made prior to implementing the project. There is no record on file at HTA showing that any exemption determination was ever made for this project. This is admitted by HTA. See Answer to paragraph 51.

The exemption determination must be made at the time when the duty arose to prepare the EA. See KSOA v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997). A post hoc invocation of a categorical exclusion [or exemption] during litigation cannot justify a failure to prepare an EA or EIS. Edmonds Institute v. Babbitt, 42 F. Supp. 2d 1 (D.D.C. 1999).

In summary, (a) HTA never made an exemption determination, (b) there is no “exemption notice” in the records of HTA, (c) neither HTA nor DBEDT have submitted exemption lists for the approval of the EC, (d) HTA has never claimed that any exemption is available and (e) post hoc exemption claims asserted for the first time during litigation cannot justify the failure to prepare an EA.[13]

C. The EA Was Required at the Earliest Practicable Time, Before

September 15, 1999

Environmental Assessments are to be prepared “at the earliest practicable time.”[14] HRS 343-5(b). HAR §11-200-5(a) provides for non-exempt agency actions that:

... the agency shall assess at the earliest practicable time the significance of potential impacts of its actions, including the overall, cumulative impact in light of related actions in the region and further actions contemplated. (Emphasis added.)

A proposing agency, such as HTA here, is directed in HAR §11-200-9(a)(1) to:

... seek, at the earliest practicable time, the advice and input of the county agency responsible for implementing the county’s General Plan for each county in which the proposed action is to occur, and consult with other agencies having jurisdiction or expertise as well as those citizens groups and individuals which the proposing agency reasonably believes to be affected. (Emphasis added.)

The legislative mandate to prepare an EA at the “earliest practicable time” could not be met unless the EA was prepared on or by September 15, 1999 when decision-making by the Board on implementing the second initiative in the Plan took place. Waiting until the contract is executed or the money is actually transferred to HVCB would be too late to satisfy this legislative requirement.

One important legislative purpose of HEPA, in HRS §343-1, is to:

... alert decision-makers to significant environmental effects which may result from the implementation of certain actions.

Without an EA and without any other environmental documentation required by Chapter 343, HTA’s Board of Directors was not alerted on September 15, 1999 to the significant environmental effects of the action which it was implementing. See Citizens, supra, at p. 105.

It is another of the essential purposes of HEPA, in HRS §343-1:

... to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations.

The “environmental review process” which is established is, in HRS §343-1, to:

... integrate the review of environmental concerns with existing planning processes of the state and counties ....

This purpose has also been thwarted because HTA has not even begun to integrate this environmental review process into its current planning process. The decision-making here only took into consideration “economic and technical considerations” and ignored the “environmental concerns” which must be given appropriate consideration, according to the Legislature.

A final legislative purpose of HEPA, also stated in HRS §343-1, is that:

... the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole.

The process of preparing an EA now assures public participation by allowing a period of thirty days for public review and comment. HRS §343-5(b). Through this, public participation would have been assured, environmental consciousness enhanced and cooperation between those with environmental and economic interests encouraged. The failure to prepare an EA has therefore also violated this important purpose of HEPA. The September 15, 1999 meeting was a time when members of the public could have participated in the decision-making to ensure that the environmental effects of the decision were taken into consideration.

Most importantly, it was on or before September 15, 1999 that Board members, as decision-makers, had the greatest flexibility to fashion their implementation of the Plan in a way which was sensitive to the environment by incorporating mitigation measures and by addressing the infrastructural deficits in the Plan, the RFP and any contract. The Board could have adjusted the numbers of visitors it sought to bring to these islands or it could have delayed these increases until the infrastructure had the “carrying capacity” to receive these visitors. HTA has the ability to decide which, or which combination of, strategic initiatives to pursue. HTA, if it had acted responsibly, could have forwarded the marketing and infrastructure initiatives at the same time. An EA would probably have indicated that this was necessary. Instead, HTA elected to pursue the marketing initiative alone without any consideration at all of the necessary infrastructural initiative. See Affidavit of David Kimo Frankel.

Given HEPA’s important purposes as well as HTA’s own mission statement it was imperative that an EA be prepared on or before September 15, 1999. Citizens, supra.[15]

D. Petitioner and Its Members Have Standing to Prosecute this Action

1. Petitioner and Its Members Are Among the Injured in Fact

HEPA does not require proof that a proposed action may or will have a significant effect on the environment before an EA is required. That is, in fact, the purpose of preparing an EA.[16] Nevertheless, this Court has consistently required a party challenging environmental documentation pursuant to HEPA to demonstrate standing. Members of the public have standing to enforce the rights of the public so long as it can be demonstrated that an “injury in fact” will or may be suffered. Akau v. Olohana Corp., 65 Haw. 383, 652 P.2d 1130 (1982). The necessary elements of an “injury in fact” include (1) an actual or threatened injury which, (2) is traceable to the challenged action, and (3) is likely to be remedied by favorable judicial action. PASH v. Hawaii County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995). Petitioners are plainly among the injured here and have standing to bring this lawsuit.[17]

2. Petitioner Has Suffered Informational Injury in Fact

Petitioner has also established an “informational injury” which further buttresses its standing. This is an injury directly to the organization’s interest in obtaining information from the government for the purposes of public education and advocacy.[18] The failure of HTA to prepare an EA has injured Petitioner’s ability to educate its members and the public about the environmental harms which may result from this particular project.

3. Injury from Increased Likelihood of an Erroneous Decision

Finally, injury has occurred because without an EA the likelihood of environmental harm being caused by the project has been unreasonably increased.[19] The federal First Circuit Court ruled that if, due to procedural violations of NEPA, agency decision-makers are not adequately informed as to the nature and extent of environmental impacts, "real environmental harm will occur through inadequate foresight and deliberation." Sierra Club v. Marsh, 872 F.2d 497, 504 (1st Cir. 1989).

Like NEPA, HEPA is largely a procedural statute which requires disclosure of environmental impacts prior to the undertaking of a project. HEPA "simply ensures agency consideration of environmental concerns before a decision is rendered." (Emphasis added.) Pearl Ridge, supra.

VI. CONCLUSION/RELIEF REQUESTED

A. Declaratory Relief

Declaratory relief from the Supreme Court is a remedy specifically afforded in original proceedings involving HTA. HRS §201B-15. Based upon the foregoing, Petitioner is entitled to the entry of a declaratory order that HTA was required to prepare an EA on or before September 15, 1999. See KSOA, supra. This Motion should be granted and such a judgment entered.

B. Injunctive Relief

Injunctive relief preventing HTA from implementing this particular project and from expending any state funds on this project should now be granted, even though the Court had earlier declined to grant preliminary injunctive relief. Agencies are forbidden from implementing a proposed action until and unless environmental documents required pursuant to Chapter 343 are prepared, submitted for public review and acted upon. HRS §343-5(b) provides, in part, that:

Acceptance of a required final statement shall be a condition precedent to implementation of the proposed action.

This statutory requirement is further refined in the Rules which, in HAR §11-200-23(c), provide:

Acceptance of a required statement shall be a condition precedent to the use of state or county lands or funds in implementing the proposed action. (Emphasis added.)

It would therefore be illegal for any of the $114 million allocated to this project to be expended before an EA is prepared and a determination made on whether an EIS is necessary.[20]

After Plaintiffs had proven their case on the merits (to compel preparation of a federal EIS for the Hawaii Geothermal Project), Federal Judge David Ezra ruled, with respect to injunctive relief, in the case of Blue Ocean Preservation Society v. Watkins, 767 F. Supp. 1518 (D. Haw. 1991), that:

The court finds that because plaintiffs have already prevailed in their action, there is no point in engaging in the typical "preliminary injunction" analysis. See, e.g., United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987). The "likelihood of success on the merits" and the "balance of hardships" are not meaningful concepts given the summary judgment decision already rendered.

The policies embodied in NEPA will tolerate nothing short of an absolute bar on further federal participation, as defined herein, in the Project until NEPA is complied with.

If summary judgment is granted, similar injunctive relief should be issued here.[21]

DATED: Wailuku, Maui, Hawaii

Isaac Hall

Attorney for Petitioner

The Sierra Club, Inc.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document(s) was duly served upon the party listed below by:

METHOD DATE

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[] Hand

[] Facsimile

[] Delivery in Open Court

[] Mailing through the United States

Postal Service, postage prepaid

Deborah Day Emerson

Ann M. Ogata-Deal

Winfred K. T. Pong

Deputy Attorneys General

Department of the Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

DATED: Wailuku, Maui, Hawaii .

Isaac Hall

Attorney for Petitioner

The Sierra Club, Inc.

[1] Respondent filed an Answer denying a number of factual allegations in the Petition. Petitioner and Respondents thereafter made an effort to determine if the parties could nevertheless agree upon the material facts. Although pursued in good faith by both parties, this effort was ultimately unsuccessful and the parties are not able to submit a statement of agreed facts to this Court.

[2] These increases may in fact achieve the goal of the TSP to increase visitor expenditures by 4.6%, each year through 2005. But what kinds of environmental, social and cultural impacts will all of these increases have on our residents and visitors?

[3] The RFP states, on p. 4: “A key responsibility of the HTA is to oversee the marketing and promotion of Hawaii to the world -- Strategic Initiative Two. The overriding priority is to allocate marketing resources to increase the total expenditures made by visitors in Hawaii, thus creating jobs and generating tax revenues. Hawaii has not been able to apply sufficient marketing resources to maintain its fair market share. With the creation of the dedicated tourism special fund, Hawaii will be able to deliver a more globally competitive marketing and promotional effort.”

[4] A “Statement of Work” follows on pp. 5-6. HTA has segmented the world into ten major market areas (“MMA’s”). Seven “Overall Project Objectives” are then set out on pp. 5-6, as follows:

1. Increase promotional presence and brand identity to more globally competitive levels to optimize performance in each MMA.

2. Structure marketing efforts to stimulate demand during shoulder periods (spring and fall).

3. Develop and execute cooperative programs with travel partners to optimize use of HTA resources for brand marketing.

4. Support TV and film initiatives that provide cost-effective, high profile exposure through liaison with state and county film offices.

5. Place increased emphasis on U.S. West, U.S. East and Japan.

6. Place sustained emphasis on Europe and Canada.

7. Place developing emphasis on other Asia, Oceania and Latin America. (Emphasis added.)

[5] Longwoods International prepared an independent study for HCVB establishing that $10 million spent on emergency advertising in 1997 brought to Hawaii an additional 890,000 visitors in 1998 and 1999. See Exhibit “7”.

[6] The pertinent EIS Rules duly adopted by the Environmental Council (“EC”) are attached in the Appendix.

[7] The actual holdings in the Public Citizen cases are influenced by the peculiar process involved: (a) the U.S. Trade Representative negotiates an agreement, (b) the President of the United States elects whether or not to send that agreement on to Congress and (c) Congress either enacts the agreement or not. In four of the five Public Citizen cases the Courts never reached the merits holding either that the actions of the U.S. Trade representative were not final and thus not reviewable under the Federal Administrative Procedures Act or the President is exempt from such a suit. See Public Citizen v. Office of the U.S. Trade Representative, 782 Supp. 139, 143 (D.D.C. 1992); affirmed on other grounds 970 F. 2d 916, 923 (D.C. Cir. 1992); Public Citizen v. U.S. Trade Representative, 5 F.3d 549, F. 551-52 (B.C. Cir. 1993) and Public Citizen v. Kantor, 864 F. Supp. 208, 211-212 (D.D.C. 1994). None of these problems are present in this case.

[8] The Court reviewed the Affidavits presented and found that they demonstrated that there was a reasonable risk that environmental injury may occur. Public Citizen II at p. 27. The Court further found that changes in federal and state law to conform with the NAFTA may very likely result in environmental injuries to certain members of the plaintiff organizations, particularly those in California and Wisconsin. Public Citizen II at p. 28. The Court also found that possible environmental harm as a result of the NAFTA to members of the plaintiff organizations who live in the United States-Mexico border region are sufficiently concrete as to establish standing. Public Citizen II, at p. 28. The Court found that plaintiff’s environmental concerns were not speculative and were concrete enough to establish standing. Public Citizen II at p. 28.

[9] HTA is supported through a “Tourism Special Fund” in the State Treasury. HRS §201B-11(a)(b) and (c). State taxes, from the Transient Accommodations Tax, and appropriations by the Legislature, are deposited into the State Treasury and segregated into the Tourism Special Fund for use by HTA. HRS §201B-11(a)(1), (2).

[10] See §IV.E.2 above. The acquisition of real property is not part of the project or plan. Funds expended on feasibility or planning studies for possible future programs or projects which the agency has not approved, adopted or funded do not trigger the EA requirement. This case is not about a feasibility or planning study for a possible future program or project.

[11] Exemption Notice is defined as “a brief notice kept on file by the proposing agency, in the case of a public action, or the agency with the power of approval, in the case of a private action, when it has determined that the proposed project is an exempt emergency or emergency project.”

[12] HAR §11-200-8(e) provides that “each agency shall maintain records of actions which it has found to be exempt from the requirements for preparation of an Environmental Assessment in Chapter 343, HRS, and each agency shall produce the records for review upon request.”

[13] Avenues are available in HEPA and the underlying regulations for HTA to claim exemptions for projects which “will probably have minimal or no significant effects on the environment.” See HRS 343-6 and HAR §11-200-8(a), (c) and (d). HTA has not availed itself of these remedies. In this instance because this project will (or at least may) have significant effects on the environment, HRS §343-6(a)(7) or is the sort of action for which all of the exemptions are inapplicable (HAR §11-200-8(b), there would be no support for such a claim. At the time of the commencement of these proceedings, no exemption was available to this HTA program.

[14] These rules also address the point at which an EA must be prepared when the triggering event is the use of state funds. HAR §11-200-5(b) states, in pertinent part: “When an agency proposes to implement an action to use state or county lands or funds, it shall be subject to the provisions of Chapter 343, HRS, and this chapter.” (Emphasis added.) It is the “proposed” action using state funds which triggers the EA requirement, not the actual implementation of the project. HTA’s Plan and RFP in July and August, 1999 were just that.

[15] One of the missions of HTA is to manage the growth of the visitor industry consistent with “the economic goals, cultural values, preservation or natural resources, and community interests of the people of Hawaii.” Exhibit “1”, p. 6; HRS §201B-3(15), and to preserve “Hawaii’s fragile natural environment and natural resources to sustain future generations of residents and visitors,” Exhibit “1”, p. 6. These missions cannot be accomplished without an Environmental Assessment.

Sierra Club Motion for Summary Judgement