Molokai Homesteaders Co-op. Ass'n v. Cobb

• Decision Date: 19 June 1981
• Docket Number: No. 6403,6403
• Citation: 629 P.2d 1134,63 Haw. 453
• Parties: MOLOKAI HOMESTEADERS COOPERATIVE ASSOCIATION, Samuel M. Peters, Sr., Rose May Peters Enos, Lucy Flores, Harry Kealoha, Maraea K. Pawn, Sr., Amoy Dacuycuy, Elizabeth Bartolome, Edward K. Pelekai, Martha Naeole, Elizabeth Makaiwi, James Mawae, Jr., Annie Kaawa, Ruth Awai, Joan Mollena, Edmund J. Kaimikana, Parker English, Philip I. Estermann, Samuel M. Peters, Jr., and Walter Ritte, Jr., Plaintiffs-Appellants, v. Christopher COBB, Individually and as Chairman, Board of Land and Natural Resources, State of Hawaii; Board of Land and Natural Resources, State of Hawaii; Kaluakoi Corporation, a Hawaii corporation; and County of Maui, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1134

629 P.2d 1134

63 Haw. 453

MOLOKAI HOMESTEADERS COOPERATIVE ASSOCIATION, Samuel M Peters, Sr., Rose May Peters Enos, Lucy Flores, Harry Kealoha, Maraea K. Pawn, Sr., Amoy Dacuycuy, Elizabeth Bartolome, Edward K. Pelekai, Martha Naeole, Elizabeth Makaiwi, James Mawae, Jr., Annie Kaawa, Ruth Awai, Joan Mollena, Edmund J. Kaimikana, Parker English, Philip I Estermann, Samuel M. Peters, Jr., and Walter Ritte, Jr. Plaintiffs-Appellants, v. Christopher COBB, Individually and as Chairman, Board of Land and Natural Resources, State of Hawaii; Board of Land and Natural Resources, State of Hawaii; Kaluakoi Corporation, a Hawaii corporation; and County of Maui Defendants-Appellees.

No. 6403.

Supreme Court of Hawai'i.

June 19, 1981.

Syllabus by the Court

1. In cases of public importance summary judgments should be granted sparingly, and never on limited and indefinite factual foundations. But where there is no genuine issue as to any material fact and defendants clearly demonstrate they should prevail as a matter of law, the disposition of a case by summary judgment is proper. Rule 56(c), H.R.C.P.

2. The Board of Land and Natural Resources has the power to contract with "domestic waters users" pursuant to HRS § 175-2, respecting the Molokai Irrigation System, and the term "domestic water users" is not intended to refer exclusively to ultimate users of water for domestic purposes. The term also embraces distributors of water for domestic use, and Appellee Kaluakoi Corporation is such a distributor.

3. The provisions of HRS Chapter 344 comprise a policy statement reflecting the concerns and goals of the State of Hawaii in the area of environmental protection in general terms. The lack of specificity in the statement suggests it does not carry a mandate for the adoption of guidelines before ad hoc decisions are rendered by agencies, and the absence of sanctions for possible non-observance buttresses a conclusion that the provisions of Chapter 344 are only hortatory.

4. The Hawaii EIS requirement calls for a broader range of information than NEPA and is more expansive in this respect than the Model State Environmental Protection Act in that the model law, unlike ours, appears to preclude the consideration of social and economic implications by limiting the environmental impacts and effects includable in an EIS to the physical. It is wider in scope than the federal or the typical state analogue because it covers private actions in certain defined situations and areas. Nevertheless, the prescribed role of the EIS in the state environmental protection scheme is informational.

5. HRS Chapter 343's environmental impact statement requirement definitely contemplates a consideration of the secondary and non-physical effects of a proposal prior to governmental approval thereof, and the effects to be studied include the socio-economic consequences of a proposed action, as well as its direct physical impact.

6. A proposal whose approval would facilitate the development of a large resort complex in a previously unpopulated area through the use of the Molokai Irrigation System's pipeline, allow water to be transported from its source to another area, and cause a rise in the salinity of the system's irrigation water would be within the purview of activities covered by a Chapter 343 environmental impact statement. The use of a government pipeline, the implicit commitment of prime natural resources to a particular purpose, perhaps irrevocably, and the substantial social and economic consequences of governmental approval of the proposal would dictate the preparation of an EIS.

7. Section 3 of Act 246, S.L.H. 1974, expresses a legislative purpose to preclude the application of Chapter 343 to actions approved prior to its effective date. With respect to actions then pending, the agencies authorized to approve them are given discretion to seek environmental impact statements. And a statement already accepted is deemed to satisfy the requirements of the Act. In short, a clear design against retroactivity is apparent.

8. No law has any retrospective operation, unless otherwise expressed or obviously intended. HRS § 1-3.

Edward Cooper Brown, Honolulu (Philip D. Bogetto and Paul McCarthy, Honolulu, with him on the briefs), for plaintiffs-appellants.

James M. Sattler, Honolulu (Anne L. Williams, Honolulu, with him on the brief), for defendant-appellee Kaluakoi Corp.

Edwin P. Watson, Deputy Atty. Gen., Honolulu, on answering brief for defendants-appellees Christopher Cobb and Board of Land and Natural Resources, State of Hawaii.

Roy Y. Yempuku, Deputy Corp. Counsel, Wailuku, Maui, for defendant-appellee County of Maui, joined in reply brief of Kaluakoi Corporation; ratification of answering brief of Christopher Cobb and Board of Land and Natural Resources.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

NAKAMURA, Justice.

This case represents the last in a series of legal challenges to the validity of the agreement between Defendant-Appellee Board of Land and Natural Resources of the State of Hawaii (hereafter the Board), and Defendant-Appellee Kaluakoi Corporation (hereafter Kaluakoi) for the use of the transmission facilities of the Molokai Irrigation System (hereafter the System) by Kaluakoi to transport water to its resort complex on the west end of the island of Molokai.

The initial challenge was mounted in the United States District Court for the District of Hawaii by the Molokai Homesteaders Cooperative Association (hereafter the Homesteaders), a plaintiff-appellant here also, and other individual plaintiffs. The suit sought to enjoin the Board, which manages the System, from entering into the proposed agreement with Kaluakoi on grounds that federal statutes had been violated and on a further basis that an executive order of the Governor of Hawaii had been breached. ¹ But the requested injunctive relief was denied by the district court, ² and its decision was affirmed by the United States Court of Appeals for the Ninth Circuit. ³

After the execution of the agreement, seventy Hawaiian homesteaders, lessees of forty-acre farm lots on Molokai under the Hawaiian Homes Commission Act, brought an action against the Board and Kaluakoi in the Circuit Court of the Second Circuit seeking a declaration that the Board's authorization of the execution of the agreement by its executive officer was invalid due to its failure to comply with the provisions of HRS Chapters 91, 171, and 174, and injunctive relief. Following a non-jury trial, the court entered judgment in favor of the Board and Kaluakoi, which we affirmed in Ah Ho v. Cobb, 62 Haw. 546, 617 P.2d 1208 (1980).

In the case on appeal, the Homesteaders and several individual plaintiffs sought similar relief in the Circuit Court of the First Circuit, but on different grounds. They allege the agreement is void because (1) the Board was not endowed by HRS Chapter 175 with authority to enter into an agreement with Kaluakoi for the use of the pipeline and other transmission facilities, (2) the Board neglected to adopt environmental standards and guidelines as mandated by HRS Chapter 344 prior to the consummation of the agreement, and (3) no environmental impact statement as required by HRS Chapter 343 had been sought by the Board. As we find the averments related to Chapter 175 lack substance, Chapter 344 does not call for the adoption of specific guidelines covering each agency determination, and Kaluakoi's proposal and Board approval thereof antedated the effective date of the relevant provisions of Chapter 343, we affirm the award of summary judgment to defendants-appellees.

I.

Since the relevant facts and circumstances surrounding this controversy have been described in detail in the earlier opinions, ⁴ we reiterate only portions thereof bearing directly on the issues confronting us now.

The System's component elements are the Waikolu Valley Diversion Works, a tunnel, feeder mains, a reservoir, and distribution pipelines. They function to deliver water for irrigation from Molokai's windward side to lands at Hoolehua and Mauna Loa, and the System has the capacity to transport twenty-one million gallons of water per day. But prior to the agreement, it was being utilized to deliver only about two million gallons daily. Even after the agreement, it is being operated at approximately one-fourth of its capacity.

In 1972, Kaluakoi submitted a written application to the Board to "rent space" in the System to transport water from its well in central Molokai to a resort complex it planned to develop at the island's west end. ⁵ A public hearing to discuss the proposal was conducted on October 11, 1972. Before taking action on the application, the Board also filed a statement in compliance with the Executive Order of August 23, 1971, to the effect that a "lease" of part of the System's excess capacity to Kaluakoi for the stated purpose would not have a significant environmental impact. ⁶ On January 12, 1973, the Board approved the application with modifications, and its executive officer was authorized to negotiate a rental fee for the use of the System's facilities and to enter into an agreement with Kaluakoi. While the terms of the agreement were substantially fixed at this time, the formal contract was not executed until July 11, 1975, after the decision of the federal appellate court had been filed and after the enactment of HRS Chapter 343. ⁷

The Homesteaders and several individuals residing on Molokai brought the instant suit on December 15, 1975, naming the Board, its Chairman and Executive Officer Christopher Cobb, Kaluakoi, and the County of Maui as defendants. Defendants moved for summary judgment shortly thereafter and a final order dismissing plaintiffs' claims was filed on August 25, 1976. After a denial of their motion for reconsideration of the foregoing order, plaintiffs filed their appeal to this court.

II.

Plaintiffs-appellant...