Actions by DHHL Aren't Exempt From EIS Law, Supreme Court Finds

posted in: May 1998 | 0

The plan of an independent power producer to build a power plant on Department of Hawaiian Home Lands property at Kawaihae on the Big Island has been vigorously opposed by several DHHL beneficiaries. Chief among their objections has been the claim of DHHL and the power plant’s developer, Kawaihae Cogeneration Partners and Waimana Enterprises, Inc. (one of the partners in KCP), that because the plant was to be built on DHHL property, the project was not subject to the requirements of the state EIS law, Chapter 343.

Three Hawaiians — Arthur F. Kepo`o, Lillian K. Dela Cruz, and Josephine (Jojo) Tanimoto — sued DHHL and KCP/Waimana in Third Circuit Court. They prevailed on the matter of the EIS requirement. KCP and Waimana then appealed to the state Supreme Court.

In an opinion issued January 28, the Supreme Court agreed with the lower court, finding that projects on DHHL land are subject to Chapter 343 in the same way as are all other projects proposed for state lands.

The Supreme Court acknowledges the special status of Hawaiian home lands, but denies that this special status creates an exemption to Chapter 343. “Although, in managing and disposing of the land, the state is bound by its fiduciary duty to the Native Hawaiian beneficiaries, the fact remains that both legal title and management responsibilities over the land are still in the hands of the state. Thus, it is not unreasonable to interpret the term ‘state lands’ in HRS § 343-5(1)(1) as including Hawaiian home lands. Hawaiian home lands are certainly unique ‘state lands,’ with special duties attached to them, but they are ‘state lands’ nevertheless,'” the court states in the opinion drafted by Justice Mario Ramil.

A second argument raised by KCP/Waimana was that the Hawaiian Homes Commission Act, as a federal statute, pre-empts any state law, including Chapter 343. “KCP/Waimana’s assumption is incorrect,” the Supreme Court opinion says bluntly. “While the HHCA was originally enacted by Congress as a federal statute, it was subsequently adopted as part of the Hawai`i Constitution…. Consequently, the HHCA is now part of the Hawai`i Constitution and any conflict between the HHCA and a state statute is a matter of state constitutional law…. [F]ederal pre-emption principles do not apply to this case because there is no relevant ‘federal law’ at issue.”

“Furthermore,” the opinion continues, “as a practical matter, it makes no difference whether the HHCA should be considered a matter of federal law or state constitutional law. Either way, the HHCA would supersede a state statute such as HRS Chapter 343. The real question is not the theoretical basis of the HHCA’s authority but, rather, whether the HHCA conflicts with HRS Chapter 343.”

Both KCP/Waimana and the Department of Hawaiian Home Lands argued to the Supreme Court that such a conflict exists. The court points to a past decision, in which it determined that the state’s police powers extend to Hawaiian home lands, as long as they “do not significantly affect the land.

“Subsequently, Attorney General’s Opinion No. 95-05 addressed the question whether state and federal endangered species laws, imposing civil and criminal penalties, apply to Hawaiian home lands. The opinion concluded, based on [the past Supreme Court decision], that these laws also apply to Hawaiian home lands.”

The state’s police power, the court writes, involves issues of public safety, health, and welfare. “Clearly, environmental regulations are enacted for the purpose of protecting the public safety, health, and welfare.” As such, “HRS Chapter 343, like the Hawai`i Penal Code, is a police power regulation.”

And, since Chapter 343 is at heart a statute that speaks to procedures to be followed in preparation of environmental disclosure statements, it does not “significantly affect the land” and thus is consistent with the HHCA: “The effect of HRS Chapter 343 on the land is merely incidental to the procedural and informational nature of the statute.”

Yet another argument raised by KCP/Waimana and the DHHL is that Chapter 343 conflicts with section 204 of the HCCA, which places “all available lands … under the control of the department [of Hawaiian home lands].” “However,” the justices found, “HRS Chapter 343 does not significantly interfere with DHHL’s control, use, or disposition of Hawaiian home lands because the statute’s effect on the land is merely incidental.”

The Supreme Court’s ruling does not end the case. Both DHHL and KCP/Waimana claim that regardless of any court ruling on the applicability of Chapter 343 to Hawaiian homelands, they have in fact already complied with it through preparation of an exhaustive environmental assessment. But the court will determine whether this is so; the case has been remanded to Third Circuit Court. A scheduling conference has been set for late May.

— Patricia Tummons

Volume 8, Number 11 May 1998

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