Opponents in Coco Palms Case To Argue Competing Motions for Summary Judgement
On June 7, opponents of the proposed redevelopment of the old Coco Palms resort on Kauaʻi will face off against the state before 1st Circuit Judge Lisa Cataldo.
Judge Cataldo will hear arguments on their motions for summary judgement regarding a complaint filed last November by I Ola Wailuanui. The nonprofit group, which seeks to pursue its own vision for the 32-acre site, has fought and is fighting county, state, and federal agencies over their decisions facilitating resort development there.
The Circuit Court case involves the state Board of Land and Natural Resources’ October 2022 decision to renew revocable permits (RPs) for three parcels of state land that are part of the developer’s larger plans to revive the dilapidated resort.
I Ola Wailuanui has argued that the Land Board improperly exempted the permit approvals from environmental review under Chapter 343 of Hawaiʻi Revised Statutes, noting that the permit areas are included in county building permits for the larger project.
The group has asked the court to enjoin any further activity “on the basis of the Coco Palms RPs” until that chapter — as well as other state laws and the Hawaiʻi constitution — are complied with.
In exempting the permits for the three state parcels from environmental review, the group has argued that the Land Board improperly segmented them from the rest of the redevelopment, most of which will occur on private lands.
In the state’s motion for summary judgment, filed on May 19, state deputy attorneys general Julie China, Daniel Morris, and Danica Swenson defended the Land Board’s decision to exempt the permits.
One of the permits would allow for vehicular access. Another would be for parking and landscaping. The third permit would allow for a restaurant, landscaping, and related purposes.
The state attorneys argued that none of the permits cover “particularly sensitive environments.” And because the board had renewed them for years, with no change in use, the attorneys argued that the permits were covered under the Department of Land and Natural Resources’ list of exempt actions. Specifically, “permits … that are routine in nature, involving negligible impacts beyond that previously existing.”
With regard to the plaintiffs’ accusation of improper segmentation, the state’s attorneys counter that the permit conditions only apply to the three state parcels and that the permits “have independent utility from any development.” Therefore, they argue, the permits and the development on other lands do not constitute a “single action,” as defined by administrative rules governing environmental assessments and impact statements.
“The Board has no authority to require an EA for the entire private development because (1) the Board is not the permitting entity and (2) the land use is not on state land. … Plaintiff conflates the action of the Board re-issuing the subject RPs with the permittees’ development of their adjacent parcels,” they wrote.
They added that the Land Board may be asked to approve permits for uses on adjacent lands in the Conservation District or along the shoreline. “However, that is speculative, has not yet occurred and, therefore, is not ripe for review,” they wrote.
Also, they argued it would be more appropriate for I Ola Wailuanui to challenge the permits issued by the county or other agencies for construction activities on the private lands.
They asked that the court reject the complaint on procedural grounds, noting the group should have filed a petition for a contested case hearing following the Land Board’s decision to renew the permits.
The group’s allegations that the Land Board violated its constitutional duties to protect native Hawaiian traditional and customary rights could have been addressed in a contested case. However, “Plaintiff’s failure to exhaust its administrative remedies divests this court of jurisdiction,” they wrote.
Finally, they argued that the Land Board properly determined that the permit renewals were in the best interest of the state. In addition to raising the rent to be consistent with market values, the board’s decision kept the land encumbered “so as to keep it in good condition,” they wrote.
“Current photographs of the subject RP parcels show that the parcels are in fact in good condition, protected from unlawful entry, and not accumulating debris,” they stated.
In October, and during an April briefing on the permits, the Land Board addressed the fact that the permittee, Coco Palms Ventures, LLC, no longer existed and that Reef Capital Partners and its subsidiaries were the ones that would be using the state lands and redeveloping the former resort properties.
The state’s attorneys argued that was not a breach of the board’s fiduciary responsibilities.
“The Board re-reviewed the subject RPs on April 14, 2023, under harsh scrutiny from the public, including Plaintiff, at an informational briefing. … [T]he Board Chairperson indicated she … ‘anticipate(s) that this matter will be brought back for action[…].’ Therefore, the Board has fulfilled its fiduciary duties by monitoring the condition of the parcels, ensuring compliance with the RP terms intended to protect and preserve trust property, collecting market-value rent for the RPs, and continuing to conduct public sunshine meetings relating to the status of the subject RPs and the permittees,” the state’s attorneys wrote.
Should the judge fail to grant either motion for summary judgement, a settlement conference has been scheduled for next February. Should settlement talks also fail, a jury-waived trial would start in April.
(For background on this, see our May 2023 cover story, “Developers of Coco Palms Site Face Violation Allegations, Injunction Lawsuit.”)
Opponent of Mosquito Release Loses Case in Federal Court
On August 3, a scheduling conference will be held in the case Tina Lia and the nonprofit she founded, Hawaiʻi Unites, filed against the state Board of Land and Natural Resources over its acceptance on March 24 of an environmental assessment for the release of mosquitoes in East Maui to control avian malaria and protect critically endangered native honeycreepers.
While that case still has legs, a case brought by another opponent of the mosquito release project died in U.S. District Court on May 19, just days after he filed it.
On May 15, Jeffrey-Steven of the House of Jarret, a Utah resident with a Kula, Maui, post office box, filed an ex-parte motion for a temporary restraining order to halt the project.
“I do have the right to due process and to reject non-consensual medical experimentation. Being bit by a female mosquito infected with bacteria and/or other pathogens is exposure to experimentation and could be a crime against humanity,” he wrote.
The house mosquitoes to be released in East Maui are intended to be non-biting males, although there may also be a small percentage of females. The males will carry a strain of the naturally occurring Wolbachia bacteria that will prohibit successful procreation with female mosquitoes already in the environment, thereby suppressing the overall biting-mosquito population in the area.
Steven’s memo suggests that the mosquitoes to be released may be infected with harmful pathogens. He included as attachments screen shots taken from the Substack page of Pfizer COVID vaccine critic Karen Kingston that show a type of drone that can house and release “toxic” mosquitoes.
U.S. District Judge Jill Otake noted in her order denying Steven’s motion that he failed to provide notice to the defendants, which include the state Department of Land and Natural Resources; its director and Land Board chair Dawn Chang; the state Department of Agriculture and its director, Sharon Hurd; the National Park Service and manager Natalie Gates.
Otake noted that Rule 65(b), the federal law governing injunctions and restraining orders, allows TROs to be granted without notice only if it clearly appears that “immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition,” and that “the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.”
She found that Steven did not identify what immediate and irreparable injury, loss, or damage he would suffer before the defendants could be heard.
She also noted that it appeared that Steven did plan to serve notices on the defendants. However, no new filings had been entered in the case by the end of May.
Judge: Board Should Have Granted Contested Case on Kauaʻi Permits
On May 8, 1st Circuit Judge John Tonaki issued his final judgment in a case filed by Kiaʻi Wai O Waiʻaleʻale and Friends of Mahaʻulepu against the Land Board and the Kauaʻi Island Utility Cooperative.
He found that the board’s denial of the groups’ requests for a contested case in 2021 and 2022 on revocable permits issued to KIUC for the continued diversion of Waiʻaleʻale and Waikoko streams for its hydropower plant violated the groups’ due process rights, as well as the state law on public procedures.
The judge found that the board’s failure to enter findings of fact or conclusions of law “resulted in an inability to determine whether the board properly exercised the discretion vested in it by the constitution and statues in approving the permits.”
He vacated and reversed the 2021 and 2022 permit approvals.
Even though the KIUC did not seek a renewal for 2023, the court found that the board’s consideration of a new revocable permit for the same diversion “is capable of repetition should the ditch system be repaired,” he wrote. He added, “This appeal presents a highly public issue of whether judicial review is available for the board’s denial of contested case requests on KIUC’s diversions of the waters of Wai‘ale‘ale and Waikoko, environmental review for the same, and the Board’s public trustee obligations attending its decision.”
— Teresa Dawson
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