Protect Waiehu Ahupua'a, Inc. v. Department of Housing and Human Concerns of the County of Maui

majority opinion

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Electronically Filed

Intermediate Court of Appeals

CAAP-XX-XXXXXXX

21-SEP-2026

08:27 AM

Dkt. 92 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

PROTECT WAIEHU AHUPUAʻA, INC., a non-profit corporation,

Plaintiff-Appellant,

DEPARTMENT OF HOUSING AND HUMAN CONCERNS of the COUNTY OF MAUI;

COUNTY OF MAUI; GENOVA CONSTRUCTION AND DEVELOPMENT,

a foreign stock corporation, Defendants-Appellees,

and DOES 1-27, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 2CCV-XX-XXXXXXX)

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)

Plaintiff-Appellant Protect Waiehu Ahupuaʻa, Inc.,

appeals from the Circuit Court of the Second Circuit's June 22,

2023 final judgment in favor of Defendants-Appellees Genova

Construction and Development (Genova), the County of Maui (the

County), and the Department of Housing and Human Concerns of the

County of Maui (DHHC), which was based on the circuit court's

June 16, 2023 order granting Genova's motions for summary

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judgment on all counts, granting DHHC and the County's crossmotion for summary judgment, and denying Protect Waiehu's motion

for summary judgment. 1

Protect Waiehu's Amended Complaint for Declaratory and

Injunctive Relief (Amended Complaint) 2 alleged Genova violated

the Hawaiʻi Environmental Policy Act (HEPA), Hawaiʻi Revised

Statutes (HRS) chapter 343, and HEPA's implementing rules,

Hawaiʻi Administrative Rules (HAR) § 11-200.1, by compiling an

inadequate draft environmental assessment (draft EA or DEA) and

final environmental assessment (final EA or FEA). Likewise,

Protect Waiehu alleged DHHC violated HEPA and HAR § 11-200.1, as

well as provisions in the Hawaiʻi Constitution, by accepting

Genova's inadequate draft EA and issuing an anticipated finding

of no significant impact (AFNSI), and by accepting Genova's

inadequate final EA and issuing a finding of no significant

impact (FONSI).

We vacate in part and affirm in part. An

environmental assessment (EA) "serves to provide sufficient

evidence and analysis to determine whether an action may have a

significant effect." HAR § 11-200.1-2. We hold that the final

1 The Honorable Peter T. Cahill presided.

2 Protect Waiehu filed its complaint on August 7, 2022, but subsequently amended it to reflect a change in its corporate status.

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EA in this case did not "provide sufficient evidence and

analysis" and could not support a FONSI.

I. BACKGROUND

A. Factual Background

At the center of this case is a now vacant, 238-acre

parcel of land, formerly used for sugar cane agriculture and

macadamia nut production, located in the ʻili of Waiehu in the

ahupuaʻa of Wailuku on Maui (the Parcel). 3

Throughout the past twenty years, various developers

have submitted project proposals to construct residential

subdivisions on the Parcel.

In 2005, for example, Hale Mua Properties LLC

submitted, and the State of Hawaiʻi Land Use Commission (LUC)

accepted, an FEA (the 2005 Hale Mua FEA) for the "Proposed Hale

Mua Affordable Housing Subdivision" (the Hale Mua Project).

The 2005 Hale Mua FEA included an Archaeological Inventory Study

and the State Historic Preservation Division's concurrence with

that study. The LUC issued a FONSI, which allowed the Hale Mua

Project to proceed without conducting further environmental

review, but it ultimately did not move forward.

Fifteen years later, Genova proposed to develop the

Waiehu Residential Community (the Project or Genova's Project)

3 The Tax Map Key (TMK) number for the Parcel is 2-3-3-002:031.

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on the Parcel, "a 100% affordable 752-unit residential community

along with associated infrastructure, roadways, amenities such

as park space, walking trails, and landscaping," as well as

retail space.

Genova prepared a draft EA for the Project in December

2021. 4 DHHC transmitted Genova's DEA to the State of Hawaiʻi,

Office of Planning and Sustainable Development's Environmental

Review Program for publication in the December 23, 2021 edition

of The Environmental Notice.

The thirty-day comment period commenced on

December 23, 2021, with comments due by January 24, 2022.

We must briefly mention that, regarding an unrelated

development on a neighboring parcel, the Environmental Review

Program published on June 8, 2022, an FEA and DHHC's FONSI for

the proposed Hale Mahaolu Ke Kahua Affordable Housing Community

(Hale Mahaolu). 5

4 Only excerpts of the DEA appear in the record; the entire DEA is incorporated by reference in various filings and is accessible online. Chris Hart & Partners, Inc., Waiehu Residential Community Draft Environmental Assessment (Dec. 16, 2021), https://files.hawaii.gov/dbedt/erp/Doc_Library/ 2021-12-23-MA-DEA-Waiehu-Residential-Community.pdf [https://perma.cc/3G88-DRUQ].

5 The record contains excerpts of the 2022 Hale Mahaolu FEA's front matter. The full FEA is accessible online. Munekiyo Hiraga, Hale Mahaolu Ke Kahua Affordable Housing Community Final Environmental Assessment (June 8, 2022), https://files.hawaii.gov/dbedt/erp/Doc_Library/2022-06-08-MA-FEA-HaleMahaolu-Ke-Kahua-Affordable-Housing-Community.pdf [https://perma.cc/N9UNEXHY]

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On July 8, 2022, the Environmental Review Program

published Genova's final EA and DHHC's FONSI in The

Environmental Notice for Genova's Project.

B. Procedural Background

1. Protect Waiehu's Amended Complaint

Protect Waiehu filed its seven-count Amended Complaint

on September 8, 2022, alleging that both the DEA and FEA did not

comport with HEPA, HAR § 11-200.1, or the relevant

constitutional provisions. As presented, the seven counts were:

Count I "Violation of Chapter 343, HRS — Improper

Assessment of Environmental Impacts" (or

Impacts Not Assessed)

Count II "Violation of Chapter 343, Failure to

Prepare Statement for Action That May Have

Significant Impacts" (or Possible

Significant Impacts)

Count III "Violation of Chapter 343, HRS — Scope of

Action Improperly Defined (or

Segmentation)"

Count IV "Violation of Chapter 343, HRS

Environmental Assessment Preparation

Procedures" (or Contents of EA)

Count V "Violation of Constitutional Duties" (or

Public Trust)

Count VI "Violation of Constitutional Duties Under

Article XII, Section 7 of the [Hawaiʻi]

State Constitution" (or Traditional &

Customary Rights)

Count VII "Injunction"

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In its prayer for relief, Protect Waiehu sought a

declaratory judgment invalidating the FEA and FONSI and an

injunction preventing Genova and DHHC from moving forward with

the Project until they fully complied with HEPA, HAR § 11-200.1,

and the Hawaiʻi Constitution.

2. Motions for Summary Judgment

On January 4, 2023, Protect Waiehu moved for summary

judgment on all seven counts.

On January 6, 2023, Genova filed two motions for

summary judgment. Genova first moved for summary judgment on

Counts I (Impacts Not Assessed), II (Possible Significant

Impacts), V (Public Trust) and VI (Traditional & Customary

Rights). Genova next moved for summary judgment on Counts III

(Segmentation) and IV (Contents of EA). Genova did not move for

summary judgment on Count VII (Injunction). DHHC and the County

filed a joinder to Genova's summary judgment motions.

DHHC and the County cross-moved for summary judgment

on all seven counts and opposed Protect Waiehu's summary

judgment motion.

The circuit court held a hearing with oral argument on

the motions for summary judgment.

On June 16, 2023, the circuit court entered its order

granting Genova, DHHC, and the County's motions for summary

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judgment and denying Protect Waiehu's motion for summary

judgment.

On June 22, 2023, the circuit court entered final

judgment against Protect Waiehu and in favor of Genova, DHHC,

and the County and dismissed with prejudice any unaddressed

claims. Protect Waiehu timely appealed.

3. Genova Conveys the Parcel to the Department of

Hawaiian Homelands (DHHL)

Sometime during the course of the litigation, Genova

cancelled the Project and entered discussions with DHHL

regarding the Parcel's disposition. DHHL proposed to site its

Waiehu Mauka Homestead Project (the DHHL Project), an "updated

configuration of" Genova's Project, on the Parcel.

On July 27, 2023, five days after Protect Waiehu

appealed, DHHC informed the Environmental Review Program of its

determination that DHHL was not required to complete an EA for

the DHHL Project. DHHC explained that, pursuant to HAR § 11-200.1-11 (eff. 2019), 6 the DHHL Project (1) was substantially

6 HAR § 11-200.1-11, which sets forth guidelines for when a proposed action may proceed without additional environmental review where, as here, a substantially similar action previously received a FONSI, provides in relevant part:

§11-200.1-11 Use of prior exemptions, findings of no

significant impact, or accepted environmental impact

statements [(EIS)] to satisfy chapter 343, HRS, for

proposed actions. (a) When an agency is considering

whether a prior exemption, FONSI, or an accepted EIS

satisfies chapter 343, HRS, for a proposed action, the

agency may determine that additional environmental review

is not required because:

(continued . . .)

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similar to Genova's Project for which a final EA was submitted

and accepted; (2) was "anticipated to have fewer direct,

indirect, and cumulative impacts than" Genova's Project; and

(3) "fit[] within the range of alternatives analyzed in the

Final EA because the [DHHL Project] is on the same site as

[Genova's Project] analyzed in the Final EA and has a smaller

footprint of development."

The Environmental Review Program published DHHC's

exemption determination in the August 8, 2023 edition of The

Environmental Notice.

On December 26, 2023, Genova conveyed the Parcel to

DHHL and recorded the deed with the State of Hawaiʻi, Bureau of

Conveyances on December 29, 2023.

II. DISCUSSION

On appeal, Protect Waiehu raises numerous points of

error (POE), contending the circuit court erred when it entered

(. . . continued)

(1) The proposed action was a component of, or is

substantially similar to, an action that received

an exemption, FONSI, or an accepted EIS (for

example, a project that was analyzed in a program

EIS);

(2) The proposed action is anticipated to have

direct, indirect, and cumulative effects similar

to those analyzed in a prior exemption, final EA,

or accepted EIS; and

(3) In the case of a final EA or an accepted EIS, the

proposed action was analyzed within the range of

alternatives.

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summary judgment against Protect Waiehu and in favor of Genova,

DHHC, and the County on each of the seven counts in Protect

Waiehu's Amended Complaint. 7 Genova moved to dismiss this appeal

as moot. We first address Genova's mootness argument.

7 Protect Waiehu's seven POE, excerpted below, contend the circuit court erred by:

(1) "Applying the incorrect standards of review, including an

arbitrary and capricious standard to DHHC's FONSI

determination, clear error review to the procedural

violations, and deferring to DHHC's FONSI determination

along with applying a clear error and arbitrary and

capricious standard to [Protect Waiehu]'s segmentation

claims";

(2) Denying Protect Waiehu's motion for summary judgment and

granting Genova, DHHC, and the County's motions for summary

judgment "despite [Genova, DHHC, and the County's]

violations of HEPA procedures, including failing to

consider the appropriate factors in making the FONSI

determination";

(3) Denying Protect Waiehu's motion for summary judgment and

granting Genova, DHHC, and the County's motions for summary

judgment "despite segmentation of the Project in violation

of HAR § 11-200.1-10";

(4) Denying Protect Waiehu's motion for summary judgment and

granting Genova, DHHC, and the County's motions for summary

judgment "where the FONSI determination was not supported

by substantial evidence";

(5) Denying Protect Waiehu's motion for summary judgment and

granting Genova, DHHC, and the County's motions for summary

judgment "where the record demonstrated at least one

significant impact was likely, rendering the FONSI

determination clearly erroneous and requiring preparation

of an EIS";

(6) Finding the record did not contain sufficient evidence to

determine DHHC breached its public trust duties; and

(7) Denying Protect Waiehu injunctive relief.

We do not reach POE 6 relating to Count V (Public Trust) of the Amended Complaint. See Kiaʻi Wai v. Dep't of Water, 151 Hawaiʻi 442, 466 n.48, 517 P.3d 725, 749 n.48 (2022) (quoting State v. Lo, 66 Haw. 653, 657, 675 P.2d 754, 757 (1983) ("If a case can be decided on either of two grounds, one

(continued . . .)

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A. Appeal Is Not Moot

Genova moved to dismiss this appeal as moot because

the "Project has been cancelled, the property underlying the

Project has been sold to a third party, DHHL, and DHHL intends

to use the property for a different project." Under these

circumstances, Genova contends DHHC, the County, Protect Waiehu,

and itself "no longer have an 'adverse interest'"; "there is no

effective relief that can be granted to" Protect Waiehu; and

none of the mootness exceptions apply.

"Under the mootness doctrine, this court will

generally refrain from deciding a case that has 'lost its

character as a present, live controversy,' and in which 'the

reviewing court can no longer grant effective relief.'"

Carmichael v. Bd. of Land & Nat. Res., 150 Hawaiʻi 547, 560, 506

P.3d 211, 224 (2022) (quoting In re Marn Fam., 141 Hawaiʻi 1, 7,

403 P.3d 621, 627 (2016)).

However, DHHC's approval of the FEA and issuance of

the FONSI remain in effect for other proposals to rely on. See

HAR § 11-200.1-11; Nat'l Parks & Conservation Ass'n v. U.S.

(. . . continued)

involving a constitutional question, the other a question of statutory construction or general law, this court will decide only the latter.").

And none of the POE address Count VI (Traditional & Customary Rights), so any challenge to the dismissal of that count is waived. See Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4) ("Points not presented in accordance with this section will be disregarded.").

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Dep't of Transp., 222 F.3d 677, 679 n.1 (9th Cir. 2000) ("The

[agency's] approval of the project, however, remains in effect.

Because the extension could still go forward based on the

Environmental Impact Statement at issue in this case, National

Parks' challenge continues to present a live controversy.");

Kiaʻi Wai v. Dep't of Water, 151 Hawaiʻi 442, 458 n.31, 517 P.3d

725, 741 n.31 (2022) ("Hawaiʻi courts consider case law on HEPA's

federal counterpart, the National Environmental Policy Act

("NEPA").").

HEPA's administrative rules allow an approving agency

(here, DHHC) to approve a proposed action (here, the DHHL

Project) without requiring further environmental review where it

has previously issued a FONSI for another project (here,

Genova's Project), and the proposed action is "substantially

similar to" and "is anticipated to have direct, indirect, and

cumulative effects similar to those" of that other project,

provided "the proposed action was analyzed within the range of

alternatives." HAR § 11-200.1-11(a). Once the approving agency

determines that a prior FONSI satisfies HEPA's requirements for

a proposed action and its determination is published in The

Environmental Notice, the proposed action may proceed. HAR

§ 11-200.1-11(b).

Less than one month after Protect Waiehu appealed, the

Environmental Review Program published DHHC's determination in

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the August 8, 2023 edition of The Environmental Notice. There,

DHHC determined that DHHL need not conduct additional

environmental review for the DHHL Project because it "is

substantially similar to [Genova's Project], whose Final EA

received a FONSI in 2022;" its effects "are anticipated to be

fewer than those analyzed in the 2022 EA;" and "the proposed

project fits within the range of alternatives analyzed in the

2022 EA." DHHC explained that the DHHL Project would develop

"343 single family lots and 55 half-acre rural lots along with

associated infrastructure, roadways, and amenities" on the same

238-acre parcel as Genova's Project.

Because Genova's FEA and DHHC's FONSI may be relied

upon, and because DHHL indicated it would do so, this appeal is

not moot. See HAR § 11-200.1-11(a); Nat'l Parks & Conservation

Ass'n, 222 F.3d at 679 n.1.

B. Regarding Summary Judgment, the Circuit Court Erred in Part

Protect Waiehu challenges the denial of its motion for

summary judgment and the granting of Genova and DHHC and the

County's motions for summary judgment, which resulted in the

dismissal of the seven counts raised in its Amended Complaint.

In its opening brief, Protect Waiehu raises seven points of

error (POE 1-7) and provides eight arguments (Arguments A-H) but

does not expressly identify the dismissed count to which each

POE and Argument refers. And Protect Waiehu's POE do not always

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directly correlate with the Arguments made. For example, the

challenge to the dismissal of Count I appears to be addressed in

POE 4 and Argument C, and we say "appears" because Protect

Waiehu does not expressly state so.

We generally note that poorly organized briefs

unnecessarily burden already-strained judicial resources. And

where there is non-compliance with the appellate rules, a point

may be disregarded and an argument may be deemed waived, or

alternatively, a party may be sanctioned, a brief may be struck,

or a case may be dismissed. Hawaiʻi Rules of Appellate Procedure

(HRAP) Rules 28(b), 30, and 51. Attorneys are deemed aware of,

and are required to comply with, the appellate rules. HRAP

Rule 1(d).

That said, we attempt to address Protect Waiehu's

challenge to the dismissal of the Amended Complaint to the

extent we can discern. And we address Protect Waiehu's

arguments only to the extent necessary to resolve this appeal.

We review the grant or denial of summary judgment de

novo. Villaver v. Sylva, 145 Hawaiʻi 29, 34, 445 P.3d 701, 706

(2019).

The party moving for summary judgment must carry its

burden of showing the "absence of any genuine issue as to all

material facts, which, under applicable principles of

substantive law, entitles the moving party to judgment as a

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matter of law." Umberger v. Dep't of Land & Nat. Res., 140

Hawaiʻi 500, 528, 403 P.3d 277, 305 (2017) (quoting French v.

Hawaii Pizza Hut, 105 Hawaiʻi 462, 470, 99 P.3d 1046, 1054

(2004)).

"This burden has two components" that the movant must

meet. Ralston v. Yim, 129 Hawaiʻi 46, 56-57, 292 P.3d 1276,

1286-87 (2013) (quoting French, 105 Hawaiʻi at 470, 99 P.3d at

1054). First, the movant must meet its "burden of production —

to show there is not a genuine issue of material fact as to the

essential elements of the claim and that it is entitled to

judgment as a matter of law." Frankel v. Bd. of Land & Nat.

Res., 155 Hawaiʻi 358, 378, 564 P.3d 1157, 1177 (App. 2025)

(citing Ralston, 129 Hawaiʻi at 56, 292 P.3d at 1286), cert.

denied, No. SCWC-XX-XXXXXXX, 2025 WL 1713026 (June 19, 2025).

Second, the movant must meet its "burden of persuasion — to

convince the court that there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law."

Id. (citing Ralston, 129 Hawaiʻi at 57, 292 P.3d at 1287).

"If the plaintiff, who has the burden of proof at

trial, is the movant, 'the plaintiff must establish, as a matter

of law, each element of its claim for relief by the proper

evidentiary standard applicable to that claim.'" Id. (quoting

Ocwen Fed. Bank, FSB v. Russell, 99 Hawaiʻi 173, 182-83, 53 P.3d

312, 321-22 (App. 2002)). If the plaintiff "movant satisfies

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this burden, the burden then shifts to the nonmoving party

defendant to 'demonstrate the existence of a triable, material

factual issue on the plaintiff's claims' or adduce 'evidence of

material facts which demonstrate the existence of affirmative

defenses that would defeat the plaintiff's claim." Id. (quoting

Ocwen Fed. Bank, FSB, 99 Hawaiʻi at 183, 53 P.3d at 322).

A defendant movant "may satisfy [its] initial burden

of production by either (1) presenting evidence negating an

element of the non-movant's claim, or (2) demonstrating that the

[non-movant] will be unable to carry [its] burden of proof at

trial." Ralston, 129 Hawaiʻi at 60, 292 P.3d at 1290.

"When both sides move for summary judgment and the

trial court grants one motion and denies the other, the

reviewing court should review both sides' summary judgment

evidence and determine all questions presented." Frankel, 155

Hawaiʻi at 367, 564 P.3d at 1166 (quoting Ke Kauhulu O Mānā v.

Bd. of Land & Nat. Res., 154 Hawaiʻi 158, 547 P.3d 1188,

No. CAAP-XX-XXXXXXX, 2024 WL 1886115, at *7 (App. Apr. 30, 2024)

(mem. op.), vacated on other ground by 156 Hawaiʻi 356, 575 P.3d

13 (2025)).

1. Count I (Impacts Not Assessed)

In Count I, Protect Waiehu claimed violation of HRS

chapter 343. Protect Waiehu claimed that Genova's "FEA did not

properly assess primary, secondary, and cumulative impacts of

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the Project," and "DHHC's acceptance of the insufficient FEA and

issuance of a FONSI for the Project violated Chapter 343, HRS

and the Hawaiʻi State Constitution." All parties moved for

summary judgment on Count I.

On appeal, in POE 4 and Argument C, Protect Waiehu

alleges the FEA did not adequately assess the Project's impacts

on population, public facilities, agriculture, water resources,

or offsite components.

Under HAR § 11-200.1-21(6) (eff. 2019), a final EA

must identify and analyze the proposed action's impacts. 8

8 HAR § 11-200.1-21 provides in full:

§11-200.1-21 Contents of a final environmental

assessment. A final EA shall contain, but not be limited

to, the following information:

(1) Identification of applicant or proposing

agency;

(2) For applicant actions, identification of the

approving agency;

(3) Identification of agencies, citizen groups, and

individuals consulted in preparing the EA;

(4) General description of the action's technical,

economic, social, cultural, historical, and

environmental characteristics;

(5) Summary description of the affected

environment, including suitable and adequate

regional, location, and site maps such as Flood

Insurance Rate Maps, Floodway Boundary Maps,

United States Geological Survey topographic

maps, or state sea level rise exposure area

maps;

(6) Identification and analysis of impacts and

alternatives considered;

(continued . . .)

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"Impacts," synonymous with "effects," 9 include ecological,

aesthetic, historic, cultural, economic, social, or health

effects, "whether primary,[ 10] secondary,[ 11] or cumulative,[ 12]

whether immediate or delayed." HAR § 11-200.1-2 (eff. 2019).

( . . . continued)

(7) Proposed mitigation measures;

(8) The agency determination and the findings and

reasons supporting the determination;

(9) List of all required permits and approvals

(state, federal, and county) and, for

applicants, identification of which approval

necessitates chapter 343, HRS, environmental

review; and

(10) Written comments, if any, and responses to the

comments received, if any, pursuant to the

early consultation provisions of section 11-200.l-18(a), and statutorily prescribed public

review periods in accordance with section 11-200.1-20.

(Emphases added and formatting altered.)

9 HAR § 11-200.1-2 defines "effects" or "impacts" as follows:

"Effects" or "impacts" as used in this chapter are

synonymous. Effects may include ecological effects (such

as the effects on natural resources and on the components,

structures, and functioning of affected ecosystems),

aesthetic effects, historic effects, cultural effects,

economic effects, social effects, or health effects,

whether primary, secondary, or cumulative, whether

immediate or delayed. Effects may also include those

effects resulting from actions that may have both

beneficial and detrimental effects, even if on balance the

agency believes that the effect will be beneficial.

10 "Primary" or "direct" impacts are "effects that are caused by the action and occur at the same time and place." HAR § 11-200.1-2.

11 "Secondary" or "indirect" impacts are effects "caused by the action and [are] later in time or father removed in distance, but [are] still reasonably foreseeable." HAR § 11-200.1-2.

12 "Cumulative" impacts are effects "on the environment that result[] from the incremental impact of the action when added to other past, present,

(continued . . .)

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Although Protect Waiehu challenges the FEA's impacts

analysis as to "population, public facilities, and agriculture,"

its argument on appeal focuses on population.

Changes in "population density or growth rate" may

produce secondary, "growth-inducing effect[s] and other

effects." HAR § 11-200.1-2.

Here, the FEA stated the Project was situated within

the Waiheʻe-Waiehu Census Designated Place with an April 2020

population of 9,234 residents. 13 It otherwise neglected to

analyze the Project's impact on population or attendant "growthinducing effect[s] and other effects" that may follow changes in

population density and growth rate. In turn, the FEA did not

explicitly address how population changes would impact the

already over-capacity intermediate and high schools servicing

the Project area.

Thus, Protect Waiehu met its burden of showing it was

entitled to a judgment as a matter of law on Count I.

(. . . continued)

and reasonably foreseeable future actions regardless of what agency or person undertakes the other actions." HAR § 11-200.1-2. "Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." HAR § 11-200.1-2.

13 The FEA further noted the Project was subject to the Maui County Code's (MCC) Residential Workforce Housing Policy and, thus, would exclusively serve existing, full-time Maui residents. However, MCC chapter 2.96 requires only that twenty-five percent (25%) of the total number of units developed be designated for residential workforce housing, meaning the remaining seventy-five percent of units need not be set aside for existing residents. MCC § 2.96.040(A) (2006).

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Accordingly, the burden shifted to Genova, DHHC, and the County

to "demonstrate specific facts, as opposed to general

allegations, that present a genuine issue worthy of trial." See

Umberger, 140 Hawaiʻi at 528, 403 P.3d at 305 (quoting French,

105 Hawaiʻi at 470, 99 P.3d at 1054).

Neither Genova nor DHHC and the County pointed to

which parts of the FEA or its appendices analyzed population

density or growth rate in the area surrounding and including the

Project. Instead, the portions of the FEA that Genova pointed

to addressed population changes on a countywide scale.

Because Protect Waiehu demonstrated, as a matter of

law, that the final EA did not contain a sufficient impacts

analysis regarding at least one reasonably foreseeable secondary

impact, the final EA could not support DHHC's FONSI. Thus, the

circuit court erred by granting Genova, DHHC, and the County's

motions for summary judgment and denying Protect Waiehu's motion

for summary judgment on Count I. We do not address Protect

Waiehu's remaining arguments as to this count.

2. Count II (Possible Significant Impacts)

In Count II, Protect Waiehu claimed the "Project may

have significant impacts on the environment, as defined by HAR

§ 11-200.1-2 and HAR § 11-200.1-13 [(eff. 2019)], requiring

preparation of an [environmental impact statement (EIS)]."

Protect Waiehu moved for summary judgment on Count II, alleging

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that the Project's likely significant impacts required an EIS,

citing to HAR § 11-200.1-13(b). Genova, DHHC, and the County

likewise moved for summary judgment.

On appeal, in POE 5 and perhaps Arguments E and F,

Protect Waiehu argues "the environmental court should have

invalidated the FEA-FONSI and required preparation of an EIS on

the basis that the Project is likely to have at least one

significant impact." (Footnote omitted.) In particular,

Protect Waiehu points to Genova having sought "an exemption from

compliance with the Maui Countywide Policy Plan"; the Project

being an "[im]permissible use in the State Agricultural

District"; the removal of "158-acres of highly-rated soil

[being] an irrevocable commitment of a natural resource"; the

Project having "adverse secondary impacts" on population and

public facilities and "significant cumulative and/or secondary

impacts on drinking water"; and the FONSI determination being

unsupported by substantial evidence.

To issue a FONSI, an approving agency must (1) require

the applicant to prepare an FEA, (2) review public and agency

comments, and (3) apply HAR § 11-200.1-13's significance

criteria. HAR § 11-200.1-22(a) (eff. 2019). "In determining

whether an action may have a significant effect on the

environment, the agency shall consider every phase of the

proposed action, the expected impacts, and the proposed

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mitigation measures." HAR § 11-200.1-13(b). "[T]he phrase 'may

have a significant effect' as used in HEPA means 'whether the

proposed action will "likely" have a significant effect on the

environment.'" Unite Here! Loc. 5 v. City & County of Honolulu,

123 Hawaiʻi 150, 178, 231 P.3d 423, 451 (2010) (citing Kepoʻo v.

Kane, 106 Hawaiʻi 270, 289, 103 P.3d 939, 958 (2005)).

To recap, effects and impacts are synonymous. HAR

§ 11-200.1-2. Impacts include "effects on natural resources

. . . whether primary, secondary, or cumulative, whether

immediate or delayed." Id. A cumulative impact is an

impact on the environment that results from the incremental

impact of the action when added to other past, present, and

reasonably foreseeable future actions regardless of what

agency or person undertakes the other actions. Cumulative

impacts can result from individually minor but collectively

significant actions taking place over a period of time.

Id. (emphasis added).

"'Environment' means humanity's surroundings,

inclusive of all the physical, economic, cultural, and social

conditions that exist within the area affected by a proposed

action, including land, human and animal communities, health,

air, water, minerals, flora, fauna, ambient noise, and objects

of historic, cultural, or aesthetic significance." Id.

"Plaintiffs need not show that significant effects

will in fact occur but instead need only raise substantial

questions whether a project may have a significant effect." See

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Unite Here! Loc. 5, 123 Hawaiʻi at 178, 231 P.3d at 451 (citation

modified). A "significant effect" is:

the sum of effects on the quality of the environment,

including actions that irrevocably commit a natural

resource, curtail the range of beneficial uses of the

environment, are contrary to the State's environmental

policies or long-term environmental goals as established by

law, or adversely affect the economic welfare, social

welfare, or cultural practices of the community and State.

HRS § 343-2 (2022); see also HAR § 11-200.1-2.

In Kia‘i Wai, the supreme court held that the FEA did

not properly analyze cumulative impacts because it only

considered cumulative impacts within the project site and "not

cumulative impacts on water resources." 151 Hawaiʻi at 461, 517

P.3d at 744. The supreme court looked to a Ninth Circuit case,

Center for Environmental Law & Policy v. U.S. Bureau of

Reclamation, 655 F.3d 1000 (9th Cir. 2011), for guidance in

analyzing cumulative impacts in a water diversion case. Kiaʻi

Wai, 151 Hawaiʻi at 461-62, 517 P.3d at 744-45.

There, as here, the applicant sought to draw water

from a source that "was already subject to numerous withdrawals

at the time." Kiaʻi Wai, 151 Hawaiʻi at 461, 517 P.3d at 744

(citing Ctr. for Env't L. & Pol'y, 655 F.3d at 1003). The Ninth

Circuit held the EA "properly analyzed cumulative impacts

because it examined 'both the existing condition of the area and

what the effects of the project would be.'" Id. (quoting Ctr.

for Env't L. & Pol'y, 655 F.3d at 1008).

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Applying that guidance in Kiaʻi Wai, the supreme court

determined that HEPA's cumulative impact rules required the FEA

to "discuss additional water withdrawals facilitated by the

relief line in relation to existing and anticipated

withdrawals." Id. at 462, 517 P.3d at 745. While the impacts

of diverting water from a source with no existing or anticipated

diversions may be minimal, "the same incremental withdrawal

leads to a dry streambed" if diversions already exist. Id.

Here, the evidence Protect Waiehu appended to its

motion for summary judgment demonstrated it was entitled to

judgment as a matter of law because the FEA did not adequately

consider the Project's water withdrawals in conjunction with the

anticipated withdrawals of other proposed projects in the area,

such as Hale Mahaolu. See id. at 461-62, 517 P.3d at 744-45.

Rather, the FEA stated, "It is anticipated that the

proposed action will generate demand that will cause a less than

significant impact on the Maui County water system." The FEA

then indicated that mitigation of the Project's impact on water

resources would include construction of a new 1-million-gallon

water storage tank that would "be filled primarily from the

[Maui County Department of Water Supply's (DWS)] Central Maui

Water Transmission System, or alternatively from the DWS' Waiehu

wells" and that "[e]ach of the residential areas comprising the

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proposed Waiehu Community [would], in turn, draw water for

domestic use and fire protection."

The FEA also stated that the Project's anticipated

water consumption would "be between 367,000 and 490,000 gallons

of potable water per day"; the Project would "have to depend on

the Maui County DWS for potable water"; and there was an

"[in]sufficient quantity of water at the outset to build out the

entire development," resulting in a phased build-out instead:

While there are strategies that [the County] has identified

to develop new source capacity or free existing capacity

for the other uses, such strategies will take time to

pursue - so, there may not be a sufficient quantity of

water at the outset to build out the entire development.

Consequently, development of the proposed project has to be

phased and the build-out has to be timed to reflect the

availability of water source capacity.

Moreover, the FEA stated that several other projects

were planned for the area over the next decade, "some of which

[were] in close proximity of the proposed project." And the

Project, "together with other area projects, [would] increase

the demand for drinking water."

The FEA contained no information as to the anticipated

amounts of water the other planned projects would draw. The FEA

nonetheless concluded, "With the recent increase in water

allocation from the [ʻĪao] Aquifer to the County of Maui,

significant cumulative and/or secondary impacts are not

anticipated to threaten the long-term sustainability of the

County's water resources."

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DHHC and the County's cross-motion for summary

judgment and opposition to Protect Waiehu's motion for summary

judgment did not present any evidence regarding the anticipated

water demands of the other proposed projects in the area. See

Umberger, 140 Hawaiʻi at 528, 403 P.3d at 305 (shifting burden to

nonmoving party to demonstrate specific facts presenting a

genuine, trial-worthy issue). Rather, DHHC argued it could not

"fairly be said to be liable" under Counts I (Impacts Not

Assessed), II (Possible Significant Impacts), and III

(Segmentation), because it — as the approving agency and not the

applicant — was not "responsible for defining the scope of the

project or the content of the disclosures made in the EA

document." (Formatting altered.)

Genova, in its opposition, countered that "DHHC

properly concluded the Project would likely not have a

significant impact on the environment" in part because the

Project would not "involve significant secondary impacts such as

population changes or impacts on groundwater." (Formatting

altered.) For support, Genova referenced the section of its

opposition regarding Count I (Impacts Not Assessed). There,

Genova asserted that "the FEA examined the anticipated total

water demand for the Project, including drinking water, water

for fire protection, and irrigation water for the Project's

landscaped areas."

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But neither DHHC nor Genova point to where in the FEA

or the record the other projects' potential water use is shown.

Although Genova appended excerpts of Hale Mahaolu's 2022 FEA,

those excerpts do not describe that project's anticipated water

uses.

Given the importance of water, its limited

availability, and a lack of information regarding anticipated

competing water needs, the final EA did not adequately address

the Project's cumulative impacts on water resources. See Kiaʻi

Wai, 151 Hawaiʻi at 462, 517 P.3d at 745. Without an adequate

cumulative impacts analysis as to at least one reasonably

foreseeable future action, the final EA could not support DHHC's

FONSI. See HAR §§ 11-200.1-2, -21.

Thus, the circuit court erred by granting Genova,

DHHC, and the County's motions for summary judgment and denying

Protect Waiehu's motion for summary judgment on Count II. We do

not address Protect Waiehu's remaining arguments as to this

count.

3. Count III (Segmentation)

In Count III, Protect Waiehu asserted the "Project is

a component or phase of a larger total program," the "FEA failed

to assess a component or phase of a larger total program," and

the "FEA did not assess or disclose the environmental impacts of

other components of the larger total program."

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Protect Waiehu moved for summary judgment on

Count III, alleging the FEA improperly segmented the Project

"[b]y omitting any disclosure and analysis of the environmental

impacts of" the Project's "new pressurized force main" sewer

line. In particular, Protect Waiehu appeared to contend the FEA

did not sufficiently analyze the environmental impacts of two

proposed offsite routes for the Project's sewer line.

In its opposition to Genova's second motion for

summary judgment, Protect Waiehu argued for the first time that

the FEA improperly segmented from its analysis the construction

of a 1-million-gallon water storage tank on a 1.5-acre lot west

of the Project area. 14 In support of its segmentation argument,

Protect Waiehu contended the water storage tank's construction

qualified as an action under HEPA because its integration with

the existing County water system would "utilize State or County

lands" and require a discretionary grading and grubbing permit

from the County. Protect Waiehu further contended that the

water storage tank possessed no independent utility, as it

"would not reasonably be built absent the Project." As such,

Protect Waiehu argued the FEA should have, but did not, "assess

[the proposed water storage tank's] direct, secondary, or

14 The Preliminary Engineering Report indicated the 1.5-acre lot would "be purchased and dedicated to Maui County DWS to accommodate [the] new tank." (Formatting altered.) At the time of the summary judgment hearing, Genova did not own — nor had it entered into a contract to purchase — the 1.5-acre lot. Protect Waiehu identified Wahi Hoomalu LP as the owner of the 1.5-acre lot.

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cumulative impacts as part of the Project" because the FEA's

"scope of review [was limited] to the 238 acres of the Parcel."

During the summary judgment hearings, Genova argued

the FEA clearly identified the existence and location of the

water storage tank, "DHHC knew that this 1.5 acres was also part

of this project[,]" and "the hard look that was done on the

project site [was] sufficient for DHHC to say well, if there's

an additional 1.5 acres, you know, your biologist doesn't need

to go walk that 1.5 acres."

In reaching its decision, the circuit court stated

that it based its ruling "upon all of the material that's been

submitted, [its] review of everything, and mainly, frankly, the

oral arguments that [it] heard."

On appeal, in POE 3 and Argument D, Protect Waiehu

argues "the FEA does not assess the direct, secondary, and

cumulative impacts of [the] Project's Offsite Components." The

"offsite components" appear to include the "[c]onstruction of

the sewer/force main line under State highways"; "[i]nstallation

of waterlines to connect the Project to the Central Maui Water

Transmission System"; and interconnection of the "1-milliongallon capacity water tank . . . with the County's existing

storage tanks, requiring work on the County's parcel as

depicted" in the Preliminary Engineering Report. Regarding the

Hale Mahaolu development to be built nearby, Protect Waiehu

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argues HEPA requires that that project and Genova's Project be

considered together.

"[A]gencies making exemption determinations must

consider [HAR § 11-200.1-10 (eff. 2019) 15] as a preliminary step

in defining the action at issue." Sierra Club v. Dep't of

Transp., 115 Hawaiʻi 299, 337, 167 P.3d 292, 330 (2007). HAR

§ 11-200.1-10 explains when component or individual programs or

projects shall be considered "a single action" for the purposes

of environmental review:

§11-200.1-10 Multiple or phased actions. A group of

actions shall be treated as a single action when:

(1) The component actions are phases or increments

of a larger total program;

(2) An individual action is a necessary precedent

to a larger action;

(3) An individual action represents a commitment to

a larger action; or

(4) The actions in question are essentially

identical and a single EA or EIS will

adequately address the impacts of each

individual action and those of the group of

actions as a whole.

(Formatting altered.) An "action" is "any program or project to

be initiated by an agency or applicant." HAR § 11-200.1-2.

"To determine whether projects are improperly

segmented under [HAR § 11-200.1-10]," courts should apply the

15 Sierra Club cites to HAR § 11-200-7, the previous version of HAR § 11-200.1-10, which was non-substantively amended in 2019. See Save Kaiwa Ridge v. Dep't of Land & Nat. Res., 156 Hawaiʻi 300, 574 P.3d 320, No. CAAPXX-XXXXXXX, 2025 WL 2436060, at *5 n.4 (App. Aug. 25, 2025) (SDO).

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"'double' or 'multiple' independent utility test" and "consider

whether each of the projects--not just one of the projects--would occur independently." Kiaʻi Wai, 151 Hawaiʻi at 447, 464,

517 P.3d at 730, 747.

If not, then the projects — all of which must also

qualify as an "action" as defined by HEPA — shall be treated as

a single action under HAR § 11-200.1-10, and the FEA must review

their environmental impacts together. See id. at 464-65, 517

P.3d at 747-48. Courts should apply the segmentation rules

"using common sense to further informed decision-making," as

"too broad a reading of the segmentation rules would require

boundless HEPA review." See id. at 465, 517 P.3d at 748.

In Kahana Sunset Owners Association v. County of Maui,

for example, a proposed development did not trigger HEPA's

environmental review requirements, but the drainage line for the

development did, as it was to be installed beneath state or

county lands and did not fall within a HEPA exemption. 86

Hawaiʻi 66, 71-72, 947 P.2d 378, 383-84 (1997). Applying the

precursors to HAR §§ 11-200.1-10(1) and 200.1-10(2) then in

effect, the Hawaiʻi Supreme Court determined the "proposed

drainage system [was] part of the larger project and [was] a

'necessary precedent' for the development." Id. at 74, 947 P.2d

at 386. It further determined that the "drainage system ha[d]

no independent utility" and "would not [have been] constructed

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except as part of the larger development. Isolating only that

particular component of the development for environmental

assessment would [therefore] be improper segmentation of the

project." Id. at 74, 947 P.2d at 386. Thus, "even though only

the drainage line triggered HEPA," the supreme court held that

"the EA had to consider the entire development as part of the

same action." Kiaʻi Wai, 151 Hawaiʻi at 462, 517 P.3d at 745

(summarizing holding in Kahana Sunset Owners Association, 86

Hawaiʻi at 74, 947 P.2d at 386).

Since Kahana Sunset Owners Association, the supreme

court has clarified that "for actions to have been improperly

segmented, the actions must fall within the formal definition of

an 'action' under HEPA." Kiaʻi Wai, 151 Hawaiʻi at 465, 517 P.3d

at 748.

a. Offsite Components

Protect Waiehu takes issue with the Project's "offsite

components" — the 1-million-gallon water storage tank, water

lines, and sewer lines.

It appears from the record that the proposed

integration of Genova's 1-million-gallon water storage tank with

the County's existing water storage tanks qualifies as an

"action" under HEPA because connecting the tanks would require

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use of County land. 16 See HRS § 343-5(a)(1) (2022) (requiring

environmental assessments for actions proposing the use of state

or county lands). Maps in the Preliminary Engineering Report,

for example, depict Genova's plan to install new waterlines

across a portion of the County's parcel, connecting the County's

existing water storage tanks to Genova's proposed 1-milliongallon water storage tank on the adjacent 1.5-acre lot. And the

FEA itself explained that the "new 1.0 [million-gallon] tank

[would] be configured in order to be filled primarily from the

DWS' Central Maui Water Transmission System, or alternately from

the DWS' Waiehu wells for added reliability and [would] be

dedicated to DWS upon completion."

As to independent utility, Genova specifically

acknowledged that the proposed water storage tank had none.

Genova argued "the water tank is a million gallons[,] which is

enough to service the project, but not enough to service other

developments in other communities. It's being built for this

project." Stated differently, Genova acknowledged the water

storage tank would not be constructed absent the Project and did

not possess independent utility beyond the Project. Genova also

failed to present any evidence that the construction of the

16 The existing water tanks are located on TMK No. 2-3-3-002:028, which is owned by the County. See https://qpublic.schneidercorp.com/ Application.aspx?AppID=1029&LayerID=21689&PageTypeID=4&PageID=9251&KeyValue=3 30020280000 [https://perma.cc/V2FA-XBR3].

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water storage tank was exempt from HEPA review. See HAR § 11-200.1-15 (eff. 2019) (setting forth general types of actions

that may be declared exempt from the preparation of an EA given

their probable minimal effects, including "[c]onstruction and

location of single, new, small facilities or structures" for

"[w]ater, sewage, electrical, gas, telephone, and other

essential public utility services").

Accordingly, HAR § 11-200.1-10 required the FEA to

consider the 1-million-gallon water tank as part of the Project.

See Kiaʻi Wai, 151 Hawaiʻi at 464-65, 517 P.3d at 747-48. And it

did. Specifically, the FEA determined that "DWS' existing water

source, storage, and distribution systems [did] not have

sufficient capacity to serve the project demand without

significant improvements." Those significant improvements

included the construction of the proposed 1-million-gallon water

storage tank. Thus, to the extent that Protect Waiehu claims

the water tank was improperly segmented from the FEA, this claim

fails.

However, the gravamen of Protect Waiehu's segmentation

argument appears to be that the FEA insufficiently identified,

analyzed, and disclosed the impacts of the water tank

construction. The same may be said of Protect Waiehu's

arguments regarding the water and sewer lines. Illustratively,

Protect Waiehu's opening brief asserts, "The FEA does not assess

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the Offsite Components' impacts, which as actions, require HEPA

compliance," and directs this court to the section of its brief

containing its arguments as to Count I (Impacts Not Assessed).

To the extent Protect Waiehu's argument regarding

Count III (Segmentation) reiterates and collapses into its

argument in Count I (Impacts Not Assessed), we have already

determined that the circuit court erred by denying Protect

Waiehu's motion for summary judgment, and we decline to address

it further.

We further note that this court is "not obligated to

search the record to crystallize the parties' arguments," nor

are we obligated to "sift through the voluminous record to

verify an appellant's inadequately documented contentions."

Onaka v. Onaka, 112 Hawaiʻi 374, 387, 146 P.3d 89, 102 (2006)

(quoting first Kienker v. Bauer, 110 Hawaiʻi 97, 104 n.12, 129

P.3d 1125, 1132 n.12 (2006); then Lanai Co. v. Land Use Comm'n,

105 Hawaiʻi 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004)).

b. Hale Mahaolu

Relying on HAR § 11-200.1-10(1), Protect Waiehu

appears to argue that the Project and Hale Mahaolu are component

actions of "DHHC's policy to develop affordable housing in a

particular area" and, thus, "should have been assessed

together."

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HAR § 11-200.1-10(1) provides that "[a] group of

actions shall be treated as a single action when . . . [t]he

component actions are phases or increments of a larger total

program[.]" A program is defined as:

a series of one [or] more projects to be carried out

concurrently or in phases within a general timeline, that

may include multiple sites or geographic areas, and is

undertaken for a broad goal or purpose. A program may

include: a number of separate projects in a given

geographic area which, if considered singly, may have minor

impacts, but if considered together, may have significant

impacts; separate projects having generic or common

impacts; an entire plan having wide application or

restricting the range of future alternative policies or

actions, including new significant changes to existing land

use plans, development plans, zoning regulations, or agency

comprehensive resource management plans; implementation of

multiple projects over a long time frame; or implementation

of a single project over a large geographic area.

HAR § 11-200.1-2 (emphases added).

Here, the Project and Hale Mahaolu both purport to

address Maui's affordable housing shortage. 17 However, Protect

Waiehu does not point to any facts in evidence establishing that

DHHC, in furtherance of its affordable housing policy, developed

a larger total program within the meaning of HEPA, of which the

Project and the neighboring Hale Mahaolu development were part.

Nor does Protect Waiehu point to any caselaw showing that these

projects constituted component actions of a larger total program

initiated by DHHC. Instead, Protect Waiehu merely identifies

17 According to the FEA, the purpose of the Project is to "help satisfy the need for affordable housing in central Maui." (Emphasis omitted.) Likewise, Hale Mahaolu was proposed "[i]n response to the current and projected shortage of affordable housing in Maui County."

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similarities between the Project and the Hale Mahaolu

development.

Accordingly, Protect Waiehu did not carry its summary

judgment burden as to Count III, and the circuit court did not

err by entering judgment in Genova, DHHC, and the County's favor

as to this count.

c. Summary Judgment Analysis

We pause to briefly address Protect Waiehu's

contentions as to the circuit court's "standard of review."

Protect Waiehu contends in POE 1 and Argument A that the circuit

court reached its ruling on Count III (Segmentation) by applying

"clear error and arbitrary and capricious standards" of review

instead of "a de novo review under a right/wrong standard" and

by "wrongly deferr[ing] to DHHC's 'policy decision'" that "this

affordable housing should go in the northerly direction."

The circuit court was asked to rule on the parties'

motions for summary judgment. We discussed the analysis for

ruling on a motion for summary judgment above at pages 12-15.

While the circuit court's discussion during arguments may have

included terms like "clear error" or "arbitrariness" and

"capriciousness," the written order ruling on the motions for

summary judgment is straightforward and simply indicates the

denial and grant of these motions. Nevertheless, given our

analysis above, any error by the circuit court does not alter

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our determination that Protect Waiehu did not satisfy its

summary judgment burden as to Count III.

4. Count IV (Contents of EA)

In Count IV, Protect Waiehu claimed, among other

things, that Genova's FEA did "not respond to substantive

comments received regarding the Project's DEA and to conduct

consultations in good faith," and Genova "did not provide

sufficient responses to substantive comments on the DEA."

Protect Waiehu moved for summary judgment, alleging

"DHHC violated significant impact determination notice

requirements," and "the FEA failed to comply with consultation

and public comment requirements." (Formatting altered.)

On appeal, in POE 2 and Argument B, Protect Waiehu

argues that the "multiple procedural violations rendered the FEA

meaningless." (Formatting altered.) In particular, Protect

Waiehu points to multiple comments not being addressed, citizen

groups not being consulted, DHHC improperly delegating its

duties to Genova, and Genova improperly incorporating the 2005

Hale Mua FEA's Archaeological Inventory Study and the

concurrence from the State Historic Preservation Division.

Protect Waiehu's claims regarding Genova's inadequate

responses to certain public comments are dispositive, and we do

not reach its remaining arguments.

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HAR § 11-200.1-20 (eff. 2019) applies "only if . . .

an approving agency anticipates a FONSI determination for a

proposed action and . . . the applicant has completed the draft

EA requirements of sections 11-200.1-18 and 11-200-19 [sic]."

HAR § 11-200.1-20(a). When preparing a draft EA, applicants

must conduct early consultation, and the draft EA must include

"[w]ritten comments, if any, and responses to the comments

received, if any, and made pursuant to the early consultation

provisions of subsection (a)[.]" Id. § 11-200.1-18(a), (d)(10)

(eff. 2019).

Genova's responses to the comments it received during

early consultation were thus required to comply with HAR § 11-200.1-20(f), which governs public review and response

requirements for draft EAs.

Under HAR § 11-200.1-20(f), applicants must endeavor

to "address specific environmental concerns identified by the

commenter, providing a response that is commensurate with the

substantive content of those comments" received. 18 As mentioned

18 HAR § 11-200.1-20(f) provides in full:

In responding to substantive written comments,

proposing agencies and applicants shall endeavor to resolve

conflicts or inconsistencies in information and address

specific environmental concerns identified by the

commenter, providing a response that is commensurate with

the substantive content of those comments. The response

shall describe the disposition of significant environmental

issues raised (for example, the response may point to

revisions to the proposed action to mitigate anticipated

(continued . . .)

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earlier, "'Environment' means humanity's surroundings, inclusive

of all the physical, economic, cultural, and social conditions

that exist within the area affected by a proposed action[.]"

HAR § 11-200.1-2.

Here, Genova's responses to the early consultation

comments it received from the Maui County Police Department

(MPD), the Maui County Department of Transportation (MDOT), and

the Hawaiʻi Department of Education (HIDOE) were not

"commensurate with the substantive content of those comments."

For example, Genova's response to MPD was insufficient

because it did not acknowledge or address the recommendations

that "the [P]roject meet[] the minimal standards set forth by

county codes and state laws," or that the Project should deploy

"flag men" and "proper signage" to direct traffic as needed.

The MPD commented in full:

This is in response to your letter dated November 6,

2020 requesting comments for the proposed Waiehu

Residential Community Project located at Kahekili Highway

and Waiehu Beach Road.

(. . . continued)

impacts or objections raised in the comment, or may refute

all or part of the comment). In particular, the issues

raised when the proposing agency's or applicant's position

is at variance with recommendations and objections raised

in the comments shall be addressed in detail, giving

reasons why specific comments and suggestions were not

accepted, and factors of overriding importance warranting

an override of the suggestions. The response shall

indicate changes that have been made to the text of the

draft EA.

(Emphases added.)

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In review of the submitted documents, we would like

to recommend the project meets the minimal standards set

forth by county codes and state laws. If the roads will be

temporarily closed due to alternating traffic, we ask the

project manager utilize flag men to conduct traffic

control, as well as post proper signage along the routes

during construction.

Thank you for giving us the opportunity to comment on

this project.

(Formatting altered.)

Instead, Genova's response characterized MPD's letter

as not providing any comments at all. Genova responded in full:

Thank you for your comment letter of November 16,

2020, indicating that the department does not have any

comments on the proposed project at this time.

(Formatting altered.)

Similarly, Genova's response to MDOT failed to address

comments regarding ensuring public transit safety. MDOT

commented in full:

We appreciate the opportunity to provide early

consultation comments on the Proposed Waiehu Residential

Community Project.

[MDOT] provides public transit services within the

vicinity of the proposed residential community project. In

order for public transit to be considered for expansion in

new developments, there are certain criteria that makes

transit works such as through streets whether it's major

collector roads or within the subdivisions. Providing

interconnecting sidewalks within and between the

subdivisions and ample lighting in the evenings is also

necessary for walkable communities and for the safety of

potential residents and public transit riders.

(Formatting altered.)

Genova again mischaracterized the letter as not

providing any comments at all. Genova responded in full:

Thank you for your letter dated November 17, 2020,

regarding the subject application. The applicant

acknowledges that your department has no comments or

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

recommendations to offer at this time. Thank you for

taking the time to have a follow up meeting with project

team in May 2021.

(Formatting altered.)

Finally, although Genova responded to most every part

of the HIDOE's comment, it did not acknowledge that the

intermediate school and high school serving the Project area

were "over capacity" and would remain so for the next five

years:

The HIDOE schools servicing the proposed Project are

Waiheʻe Elementary, ʻĪao Middle, and Baldwin High. Waiheʻe

Elementary has capacity and will continue to have capacity

during the next five years. Both ʻĪao Middle and Baldwin

High are over capacity. This over capacity is expected to

remain over the next five years.

The Project is located within the Central Maui School

Impact District with fee amounts of $2,371 for multi-family

residential units and $5,373 for single family residential

units. The Project developer is encouraged to meet with

the HIDOE as early as possible to discuss executing an[]

Educational Contribution Agreement.

The combined application should identify whether the

Project will include accessory dwelling units.[ 19]

(Formatting altered.)

Instead, Genova indicated it would meet with HIDOE to

execute an Educational Contribution Agreement and related

information about the types of units the Project would include.

Thank you for your comment letter of December 4,

2020. The Applicant acknowledges that the project is in

the Central Maui School Impact District and will continue

to coordinate with [HI]DOE staff to discuss executing an

Educational Contribution Agreement. The forthcoming Draft

EA will include a unit type breakdown and discussion of the

impact fees. No accessory dwelling units are proposed as

part of this project.

19 Modern orthography added.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(Formatting altered.)

Because Protect Waiehu demonstrated, as a matter of

law, that the final EA did not contain commensurate responses to

at least three comments it received, the final EA could not

support DHHC's FONSI. See HAR § 11-200.1-20(f). Thus, the

circuit court erred by granting Genova, DHHC, and the County's

motions for summary judgment and denying Protect Waiehu's motion

for summary judgment on Count IV. We do not address Protect

Waiehu's remaining arguments as to this count.

III. CONCLUSION

Based on the foregoing, we vacate the circuit court's

June 22, 2023 final judgment, which was based on the circuit

court's June 16, 2023 order, as to Counts I (Impacts Not

Assessed), II (Possible Significant Impacts), IV (Contents of

EA), Counts V (Public Trust), and VII (Injunction). We affirm

on Counts III (Segmentation) and VI (Traditional & Customary

Rights).

We remand this case for further proceedings consistent

with this memorandum opinion. Furthermore, we instruct the

circuit court to enter judgment in favor of Protect Waiehu and

against Genova, DHHC, and the County as to Counts I (Impacts

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Analysis), II (Significance Criteria), and IV (Contents of EA). 20

Genova's motion to dismiss this appeal is denied.

DATED: Honolulu, Hawaiʻi, September 21, 2026.

On the briefs: /s/ Katherine G. Leonard

Presiding Judge

Ryan D. Hurley,

Christina Lizzi, /s/ Clyde J. Wadsworth for Plaintiff-Appellant. Associate Judge

Andrew J. Lautenbach, /s/ Sonja M.P. McCullen Kari K. Noborikawa, Associate Judge (Starn O'Toole Marcus &

Fisher),

for Defendant-Appellee Genova

Construction and Development.

Brian A. Bilberry,

Deputy Corporation Counsel,

for Defendants-Appellees

Department of Housing and

Human Concerns of the County

Of Maui; County of Maui.

20 Vacating as to Counts V (Public Trust) and VII (Injunction), which incorporate by reference the allegations contained in the preceding counts, comports with the supreme court's decision in Kia‘i Wai.

In Kia‘i Wai, the supreme court vacated the order granting summary judgment on the constitutional claims presented in Counts VIII and IX, even though it did not reach the arguments raised as to those claims. Rec. on Appeal Vol. 1 of 2 at 23, 25, Kiaʻi Wai, 151 Hawaiʻi at 465-66 n.48, 517 P.3d at 749-50 n.48 (CAAP-XX-XXXXXXX), Dkt. No. 19 (asserting violations of Haw. Const. art. XI, § 1 and Haw. Const. art. XII, § 7 in Counts VIII and IX respectively); Rec. on Appeal Vol. 2 of 2 at 189-90, Kiaʻi Wai, 151 Hawaiʻi at 465-66 n.48, 517 P.3d at 749-50 n.48 (CAAP-XX-XXXXXXX), Dkt. No. 21 (granting summary judgment as to Counts V, VI, VIII, and IX); Marn v. McCully Assocs., CAAP-XX-XXXXXXX, 2022 WL 4128616, at *1 n.1 (App. Sep. 12, 2022) (order) (quoting State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) ("The most frequent use of judicial notice of ascertainable facts is in noticing the contents of court records.")).

The supreme court also remanded the case for determination of whether injunctive relief, requested in Count X of the complaint, was warranted, presumably in light of its decision. Rec. on Appeal Vol. 1 of 2 at 26, Kiaʻi Wai, 151 Hawaiʻi at 467, 517 P.3d at 750 (CAAP-XX-XXXXXXX), Dkt. No. 19. Here, however, we vacate Count VII (Injunction) without instructions, as Genova sold the Parcel to DHHL and DHHL is not a party to this litigation.

Protect Waiehu Ahupua'a, Inc. v. Department of Housing and Human Concerns of the County of Maui

Authorities cited

Opinion · public domain