JEFF MIKULINA, DIRECTOR
Sierra Club, Hawai`i Chapter
P.O. Box 2577
Honolulu, HI 96803
Telephone: (808) 538-6616

BEFORE THE LAND USE COMMISSION OF THE STATE OF HAWAI`I
IN THE MATTER OF ) Docket No. A00-734

Castle & Cooke Homes ) MOTION TO STAY HEARING
Hawai`i, Inc. & Pacific Health ) UNTIL PETITIONER COMPLIES
Community Inc. request to remove ) WITH HRS CHAPTER 343;
1,247.983 acres of land from the ) CERTIFICATE OF SERVICE
agricultural district. )

MOTION TO STAY PROCEEDINGS IN CASTLE & COOKE HOMES PETITION TO REMOVE OVER 1200 ACRES OF LAND FROM THE AGRICULTURAL DISTRICT UNTIL HRS CHAPTER 343 IS COMPLIED WITH.

Pursuant to HAR 15-15-70, Sierra Club moves that these hearings be stayed until Castle & Cooke Homes complies with HRS Chapter 343. The clear language of chapter 343 and two Hawai`i Supreme Court decisions directly on point demonstrate that the LUC is prohibited from acting on this petition until Castle & Cooke properly files a Finding of No Significant Impact or an Environmental Impact Statement, pursuant to chapter 343.

I. Castle and Cooke is Required to Comply with HRS Chapter 343 Now.

The Land Use Commission is required by law to follow the mandates of HRS Chapter 343. "HEPA is triggered whenever an agency or an applicant proposes an action which falls within one of eight categories set forth in HRS 343-5(a)." Kahana Sunset Owners Association v. County of Maui, 86 Hawai`i 66, 947 P.2d 378 (1997).

A. Chapter 343 Requires an Environmental Assessment When Petitioner Proposes Work on Public Land or Under Public Roads.

HRS 343 requires the preparation of an environmental assessment whenever an applicant proposes the use of state or county lands. HRS 343-5(a)(1).

Two recent Hawai`i Supreme Court cases have held unequivocally that an environmental assessment prepared pursuant to chapter 343 shall be required where a developer proposes construction work beneath a state or county road.

In Kahana Sunset Owners Association v. County of Maui, 86 Hawai`i 66, 947 P.2d 378 (1997), this court held that a proposed development to install a 36-inch drainage line beneath Napilihau Street, connecting to an existing 24-inch culvert beneath Lower Honoapi`ilani Highway indisputably "constitutes 'use of state or county lands,' which is within the class of actions that triggers HEPA. An environmental assessment is therefore mandatory, unless the project falls within an exemption." Id. at 71, 947 P.2d at 383. It is thus clear that construction of two underpasses under a state highway constitutes use of state lands for purposes of HRS 343-5(a)(1) (1993).

Citizens for the Protection of the North Kohala Coastline v. County of Hawai`i, 91 Haw 94, 979 P.2d 1120 (1999). Construction of an underpass (Citizens) or a drainage line (Kahana) under a public road is sufficient to mandate the requirements of HRS Chapter 343.

According to documents submitted by the petitioners, Castle & Cooke plans to use state land by constructing under public roads. The Infrastructure Report (Appendix B) reveals that "a 36-inch transmission main would be required to convey wastewater from the project site to the Waipahu WWPS. Refer to Figure 2-3 for the proposed offsite sewer layout." (page 2-7) Figure 2-3 declares that there will be microtunnelling under Kamehameha Highway, H-1 and Farrington Highway. [1]

The 36 inch transmission line is of the same size as the drainage line proposed in the Kahana case. It is proposed to be placed beneath state highways. There is no question that this project proposes to use state lands.

B. The Environmental Assessment Must Assess the Whole Project -- Not Just the Construction Work Beneath the Highway.

Moreover, the assessment of the impact of the project is not confined to the impacts of the construction underneath a state road. As the Hawai`i Supreme Court noted in the Kahana case:

HAR 11-200-7 provides that "[a] group of actions proposed by an agency or an applicant shall be treated as a single action when (1) The component actions are phases or increments of a larger total undertaking; [or] (2) An individual project is a necessary precedent for a larger project." In the instant case, the action proposed by JGL is the entire Napilihau development. The proposed drainage system is part of the larger project and is a "necessary precedent" for the development. The drainage system has no independent utility. It would not be constructed except as part of the larger development. Isolating only that particular component of the development for environmental assessment would be improper segmentation of the project.

86 Hawai`i 66 at 75.

C. The Environmental Assessment Must be Done Prior to Any Contested Case Hearing or Any Decisionmaking.

Nor is review to be delayed until the developer applies for approval from the Departments of Transportation or Land & Natural Resources for approval to do the work beneath the highway. As the Citizens case notes:

Chalon maintains, however, that even assuming that the underpasses constitute the use of state land, the issue is one of timing. It argues that, because the underpasses are a mere idea, "the earliest practicable time for such an EA would be at the time that Chalon submits detailed plans and applies for approval of the easement and underpass to the State Department of Transportation or Department of Land and Natural Resources . . . ." An EA prepared before that point, it submits, "would be devoid of meaningful information" and consist of "vague generalities." . . .

[T]he HPC is the agency receiving the requests for approval of the Mahukona project and is therefore the agency responsible for preparation of the environmental assessment.

Requiring early environmental assessment of the Mahukona project comports with HRS § 343-5(c)'s express mandate that environmental review be undertaken at the "earliest practicable time." This result also finds support in the spirit and intent of HEPA 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 . . . [and] alert decision makers to significant environmental effects which may result from the implementation of certain actions." HRS § 343-1 (1993).

Consonant with these policies, both federal and state courts have recognized that environmental review must occur early enough to function practically as an input into the decision making process. In construing the National Environmental Policy Act (NEPA), for example, the United States Court of Appeals for the Ninth Circuit cautioned that "[a]n assessment must be "prepared early enough so that it can serve practically as an important contribution to the decision making process and will not be used to rationalize or justify decisions already made." Save the Yaak Committee v. J.R. Block, 840 F.2d 714, 718 (9th Cir. 1987) (quoting 40 C.F.R. § 1502.5 (1987)). It further stated that federal agencies are required to "'integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values . . . .'" Id. (emphasis added) (citing Andrus v. Sierra Club, 442 U.S. 347, 351 (1979) (citations omitted), and California v. Block, 690 F.2d 753, 761 (9th Cir. 1982)). According to the J.R. Block Court, "[t]he rationale behind this rule is that inflexibility may occur if delay in preparing an EIS is allowed: 'After major investment of both time and money, it is likely that more environmental harm will be tolerated.'" Id. (quoting Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 471-72 (9th Cir. 1984) (citation omitted)). See also Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983) ("the EIS is a decision-making tool intended to 'insure that . . . environmental amenities and values may be given appropriate consideration in decisionmaking . . . .' Therefore, the appropriate time for preparing an EIS is prior to a decision, when the decisionmaker retains a maximum range of options.") (ellipsis points and emphasis in original) (citation omitted); Rodgers, Environmental Law § 9.7, at 921 (2d. ed. 1994) (NEPA's purpose is to require consideration of environmental factors "before project momentum becomes irresistible, before options are closed, and before agency commitments are set in concrete.").

Accordingly, decisions reflecting environmental considerations can most easily be made when other basic decisions are also being made, that is, during the early stages of project conceptualization and planning. Here, because the development and general dimensions of the project have been known to Chalon from the start, there should be no difficulty in providing "meaningful information" for HRS chapter 343 environmental review. Moreover, at this early stage, environmental review under HRS § 343-5 would be an integral part of the decision-making process. Indeed, to require the DOT or DLNR, rather than the County of Hawai`i, to conduct an EA at some point in the future "might call for a burdensome reconsideration of decisions already made and would risk becoming a 'post hoc rationalization[ ] to support action already taken.'" Citizens for Responsible Government v. City of Albany, 56 Cal. App. 4th 1199, 1221, 66 Cal. Rptr. 2d 102, 114 (1997) (brackets in original).

Similarly, the Kahana case holds:

HRS 343-5(c) provides that "acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of proposed action." . . .

The burden of preparing an environmental assessment is on the applicant. HRS 343-5(c). Allowing the participation in a contested case hearing to excuse lack of compliance with HEPA would effectively shift this burden to concerned members of the public. Additional studies and examination of alternatives, which were not undertaken, may be required pursuant to HAR 11-200-10. . . . Therefore the substantive rights of [intervener] were prejudiced by the improper shifting of the burden of evaluating environmental impacts in the absence of the required environmental assessment."

These proceedings may not proceed until Castle & Cooke has successfully obtained a Finding of No Significant Impact or a Final Environmental Impact Statement.

D. It is Irrelevant that Castle & Cooke has Submitted a Document to the LUC that it Calls an Environmental Assessment.

Castle & Cooke's Environmental Assessment is not an Environmental Assessment prepared pursuant to chapter 343. As the Kahana court ruled:

HEPA contains a fixed scheme of public notice that is required when an environmental assessment is prepared. If a negative declaration is anticipated, a draft environmental assessment must be made available for public review and comment for a period of thirty days. HRS 343-5(b) and (c). HRS 343-3 mandates that all environmental assessments be made available for inspection by the public during office hours. A bulletin is published by the Office of Environmental Quality Control containing notices of availability of environmental assessments, and any interested member of the public may view the document and comment.

HRS 343-5(c) provides that "acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of proposed action." Where the legislative mandate is clear, we will not excuse compliance with the plain language of the statute based on appellees' assertion that the information adduced in the contested case hearing was the functional equivalent of the required environmental assessment.

Similarly, in the Citizens case, the developer was found to have violated chapter 343 even though it had submitted a document to the county that it called a "Final Environmental Impact Report."

Castle & Cooke must comply with all the procedural requirements of HRS Chapter 343.

II. Relief Sought

Based upon the foregoing, Petitioners respectfully request that this Commission order that:

A. The proceedings be stayed until a Finding of No Significant Impact or a Final Environmental Impact Statement is accepted.

B. Castle & Cooke's petition was not properly filed because it has not complied with HRS Chapter 343 and that therefore the clock has not yet begun for the purposes of HAR 15-15-74.

II. Hearing

The Sierra Club is not requesting-but does not object to-a hearing on this motion.

Dated: Honolulu, Hawai`i 7 August 2001

____________________________

Jeff Mikulina

[1] Other aspects of the project will also use public land. The proposed Koa Ridge interchange with the H-2 Freeway will use public land. The proposed water system appears to require tunneling under the H-2 Freeway to connect the service zones-a use of public land. See attached exhibits A-D.