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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0002125
                                                              06-SEP-2017
                                                              08:07 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


  RENE UMBERGER, MIKE NAKACHI, KAʻIMI KAUPIKO, WILLIE KAUPIKO,
   CONSERVATION COUNCIL FOR HAWAIʻI, THE HUMANE SOCIETY OF THE
       UNITED STATES, and CENTER FOR BIOLOGICAL DIVERSITY,
                Petitioners/Plaintiffs-Appellants,

                                    vs.

   DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAIʻI,
                 Respondent/Defendant-Appellee.


                            SCWC-13-0002125

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
          (CAAP-13-0002125; CIVIL NO. 12-1-2625-10 JHC)

                           SEPTEMBER 6, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          For a nominal fee per year, the Department of Land and

Natural Resources (DLNR) authorizes the collection of fish or

other aquatic life for aquarium purposes (aquarium collection)
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by issuing permits pursuant to Hawaii Revised Statutes (HRS) §

188-31 (2011) and its administrative rules.          Subject to certain

terms and conditions contained in the permit and restrictions

provided by statutes and administrative rules, each commercial

aquarium collection permit authorizes the extraction of an

unlimited number of fish or other aquatic life annually from the

State’s coastal waters.     DLNR also issues recreational aquarium

collection permits that authorize an annual catch limit for each

permit of almost 2,000 fish or other aquatic life.           The

fundamental issue presented in this case is whether aquarium

collection pursuant to permits issued under HRS § 188-31 and

DLNR’s administrative scheme is subject to the environmental

review procedures provided in the Hawaii Environmental Policy

Act (HEPA).   We hold that commercial aquarium collection under

HRS § 188-31 and DLNR’s administrative rules is subject to

HEPA’s requirements.     We further hold that the record is not

adequate for this court to determine whether recreational

aquarium collection may be exempt from HEPA.          Accordingly, we

remand this case to the circuit court for further proceedings to

resolve the issue of whether recreational aquarium collection

under HRS § 188-31 and DLNR’s administrative rules is also

subject to HEPA.




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                   I. FACTS AND PROCEDURAL HISTORY

          Petitioners Rene Umberger, Mike Nakachi, Kaimi

Kaupiko, and Willie Kaupiko identify themselves as concerned

Hawaii citizens, avid divers, and subsistence fishermen.

Petitioner Conservation Council for Hawaii is a nonprofit

organization based in Hawaii with approximately 5,500 members

worldwide whose mission is to protect native Hawaiian species

and to restore native Hawaiian ecosystems for future

generations.   Petitioner Humane Society of the United States, a

national nonprofit organization with over 11 million members, is

dedicated to the protection of wildlife and habitat.           Petitioner

Center for Biological Diversity is a nonprofit organization

dedicated to preserving, protecting, and restoring biodiversity,

native species, ecosystems, and public lands; the organization

has approximately 450,000 members, many of whom live in Hawaii.

Respondent Department of Land and Natural Resources (DLNR) is

the state agency that holds the statutory authority to issue

permits for aquarium collection.

          On October 24, 2012, Petitioners filed a complaint for

declaratory judgment and injunctive relief in the Circuit Court

of the First Circuit (circuit court) specifically challenging

fifty aquarium collection permits that DLNR had issued in the




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120 days before the filing of the complaint.1           The complaint

sought (1) a declaration that DLNR is in violation of HEPA,

chapter 343 of the HRS, for failing to complete the HEPA review

process prior to approving the challenged permits; (2) a

declaration that DLNR’s issuance and renewal of these permits

without complying with HEPA is invalid and illegal; (3) an

injunction enjoining collection under the challenged permits

until DLNR fully complies with HEPA; and (4) an injunction

enjoining DLNR from approving, renewing, or issuing any aquarium

collection permits prior to completing a HEPA review of the

issuance of the challenged permits.2         DLNR filed an answer

requesting a dismissal with prejudice of Petitioners’ complaint.

           Thereafter, DLNR moved for summary judgment, arguing

that (1) DLNR’s practice of not requiring environmental review

of applications for aquarium collection permits is entitled to

deference and (2) environmental review is not required for

aquarium collection permits because there is no action initiated

by an applicant requiring agency approval (applicant action).3

     1
            In addition to these named permits, Petitioners challenged any
other aquarium collection permits renewed or granted by DLNR in the 120 days
prior to the filing of their complaint.
     2
            The complaint also requested that the circuit court retain
continuing jurisdiction to review DLNR’s compliance with all judgments and
orders.

     3
            The Honorable Jeannette H. Castagnetti presided over the
proceedings in this case.




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In support of DLNR’s motion for summary judgment, Alton K.

Miyasaka, an aquatic biologist in DLNR’s Division of Aquatic

Resources, submitted a declaration.        Miyasaka averred that

“[a]nyone who applies for a permit pursuant to [HRS] § 188-31

and who goes through the above process receives a permit” and

that DLNR “does not have and does not exercise discretion with

respect to the permits.”      Thus, according to Miyasaka, the

process does not involve discretionary consent and there is no

applicant action.

           Petitioners opposed DLNR’s motion for summary

judgment, contending that (1) DLNR’s failure to comply with HEPA

prior to issuing aquarium collection permits is not entitled to

deference because the aquarium collection permitting statute is

clear and not subject to agency interpretation and (2) aquarium

collection is a HEPA “action” subject to DLNR’s discretionary

consent.

           Petitioners cross-moved for summary judgment,

contending that (1) HEPA mandates environmental review of

aquarium collection permits and (2) the issuance of aquarium

collection permits is subject to DLNR’s discretionary consent.

In support of Petitioners’ summary judgment motion, they

attached (1) the declarations of Gail Grabowsky, Petitioner

Umberger, Petitioner Nakachi, Petitioner Kaimi Kaupiko,

Petitioner Wilfred Kaupiko, Marjorie F.Y. Ziegler, Inga Gibson,


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Miyoko Sakashita, and Dane Enos; (2) excerpts of The Report to

the Twenty-Fifth Legislature on the Findings and Recommendations

of Effectiveness of the West Hawaii Regional Fishery Management

Area [hereinafter The Report to the Twenty-Fifth Legislature]4;

(3) excerpts of Hawaii’s State of the Reef, published by DLNR’s

Division of Aquatic Resources5; and (4) DLNR’s approval of Disney

Aulani’s request for a special activity permit to collect

aquarium fish for a period of one year in order to stock a

saltwater swimming pool.

            Gail Grabowsky, an associate professor at Chaminade

University and the Director of the University’s Environmental

Studies Program,6 stated that commercial aquarium collectors

      4
            Petitioners relied on this report in asserting that “[o]ver 200
species are collected for the aquarium trade in Hawaii,” that “the level of
aquarium collection along the west coast of the island of Hawaii have
documented substantial increases, i.e., 25 percent between 2000 and 2010, in
the number of collectors and in the collection of certain species,” and that
aquarium collection permits allow the collection of species that are
“particularly vulnerable to depletion.”
      5
            Petitioners relied on this publication in explaining that DLNR is
charged as the steward of Hawaii’s natural resources, including ocean
ecosystems, and that DLNR manages the fourth longest coastline in the United
States, including 410,000 acres of coral reefs. Petitioners also used this
publication in contending that DLNR itself has previously recognized the
detrimental effects of removal of reef fish on the coral reef ecosystem and
that further studies in this area are necessary if this activity is to
continue.
      6
            Grabowsky holds a bachelor’s degree and a doctorate in zoology
from Duke University, has authored or co-authored various published
scientific works, and has received several honors, scholarships, and grants
in her field. As relevant here, her research has focused on ornamental reef
fish collection on Oahu, marine invertebrate zoology, molecular/morphological
evolution, coral reef health, sea bird habitat conservation, sea bird by-
catch reduction, box jellyfish dispersal, and natural history in Hawaii.




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self-report to DLNR the type and quantity of marine animals that

they collect and that this practice results in underreporting

because commercial collectors “may either fail to turn in catch

reports or inaccurately quantify their catch.”           Grabowsky

explained that “[a]quarium collectors utilize modern and ever-

improving technologies, like scuba equipment, highly camouflaged

wetsuits, nitrox (a mix of nitrogen and oxygen, usually with a

higher-than-normal level of oxygen to extend dive time), GPS

systems, and underwater scooters, to increase their ability to

locate aquarium fish.”7

            According to Grabowsky, “although aquarium collection

is prohibited along 35% of the west coast of the island of

Hawaii, less than 1% of the remaining area around the Main

Hawaiian Islands is protected.”8          Grabowsky opined that the

drastic differences in species abundances between well-protected

areas and those that are not “reveal[] that aquarium collection

is removing and having detrimental effects on species that play

important ecological roles in reef ecosystems.”           Because the

most heavily fished species are herbivorous algae eaters,

     7
            Grabowsky declared that aquarium collectors at times also use
underwater blankets to cover the reef so that fish would not be able to take
refuge in the coral.
      8
            Based on other studies, Grabowsky declared that “there has been a
severe depletion of fish” in the Main Hawaiian Islands when compared to the
diversity and population of fish in the Northwestern Hawaiian Islands.




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Grabowsky stated that their removal from the reef ecosystem

decreases the reef’s ability to withstand habitat degradation

and could result in an algal-dominated reef.           Grabowsky found

that “the most greatly affected species are those that have been

heavily exploited.”      Grabowsky’s survey of relevant studies

indicated “that certain rare, vulnerable species are under

intense collection pressure, and the effects of collection on

many of their populations [are] unknown.”9

            Grabowsky explained that aquarium collection typically

focuses on juvenile fish because they are smaller and more

aesthetically pleasing and thus more popular to customers.

According to Grabowsky, this “can result in top-heavy age

distributions of many of the heavily collected species on reefs,

and means that there are fewer juveniles in reef ecosystems that

are able to grow up to reproduce as adults.”

            Based on her research and review of relevant

scientific literature, Grabowsky concluded that “aquarium

collection is having a detrimental effect on fish populations

around Oahu and in other areas of the state,” it “disrupts the

ecosystems and makes them less able to respond to other


      9
            According to Grabowsky, some of these vulnerable species, such as
Tinker’s butterflyfish and psychedelic wrasse, have been listed on DLNR’s
“Species of Greatest Conservation Need,” but they are still being collected
without any limits.




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stressors,” and “it removes animals that occupy important and

unique ecological niches.”         Grabowsky opined that prohibiting

collection in certain areas does not adequately address the

problem in that, “while it may slow the disappearance of the

fish species and reef degradation, . . . it will not prevent

it.”    Finally, Grabowsky declared that the “data showing that

the current permitting system and designation of protected areas

adequately protects the reef ecosystems is lacking.”

             Petitioner Umberger also submitted a declaration

stating that she had been diving professionally since 1983 and

had done at least 10,000 scuba dives around the Main Hawaiian

Islands and in various international locations.             Umberger stated

that, based on her observations during her dives through the

years, fish species that are highly prized by the aquarium trade

have abruptly disappeared from a lot of dive sites.10

             Based on Umberger’s experience diving and snorkeling

along the west coast of the island of Hawaii, she declared that

there is a marked difference in the condition between those

reefs that are open to collection and those that are not: reefs


       10
            For example, Umberger explained that the three dragon eels (which
could retail for over a thousand dollars apiece) and several flame angelfish
that she had been seeing in the Red Hill area of south Maui for years had
disappeared. In addition, during the years that she had spent scuba diving,
Umberger stated that she saw corals physically broken apart to expose the
crevices in the reef.




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open to collection have fewer colorful and aesthetically

pleasing fish and invertebrates.         Umberger also attested that

she had “noticed a dramatic reduction in biodiversity on reefs

and in the density of species of fish that are collected by the

aquarium trade.”    Finally, Umberger opined that DLNR’s current

permitting practices “will have irreversible, negative

consequences for Hawaii’s reef ecosystems and [her] interests in

enjoying and protecting these precious areas.”

          Petitioner Nakachi also submitted a declaration in

support of Petitioners’ summary judgment motion.           Nakachi stated

that he is a resident of Kailua-Kona on the island of Hawaii and

a scuba diving tour operator since 1987 who has gone on tens of

thousands of scuba dives, both recreationally and as part of his

scuba diving tour business, in and around Hawaii waters for the

past forty years.    According to Nakachi, his “recreational and

aesthetic interests in seeing healthy reef ecosystems full of

colorful fish are harmed by aquarium collection under the

challenged permits.”     Nakachi also averred that his economic

interests are harmed because his business relies on a healthy

marine environment in order to be successful.          Nakachi described

his experience in which a dive site that was once populated by

colorful fish species experienced a decline in the fish

population and coral damage when aquarium collectors discovered




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the dive site’s location.11       Over the years that he had spent

diving in the waters of Hawaii, Nakachi observed “negative

changes on the coral reefs . . . because of aquarium collection,

particularly along the west coast of the island of Hawaii.”

Based on Nakachi’s diving experience in State waters, he

declared that “[t]here is a very noticeable difference in

aquarium fish species’ populations and coral damage between the

areas that are open to collection and the areas that are

closed.”    Nakachi averred that his clients “have expressed

concern . . . about the changes they see on the coral reefs

where they dive,” the fact that there are fewer fish in the

reefs, and damaged corals.       According to Nakachi, these concerns

had prompted his clients not to dive in Hawaii anymore.

            Nakachi echoes Grabowsky’s description of the

technology he had observed aquarium collectors use over the

years, see supra.     Based on the decline that he had witnessed in

aquarium fish population and the health of corals where he

dives, Nakachi stated that he is “afraid that [the] reef

ecosystems will continue to decline until they are not able to

sustain marine life anywhere near the previous levels.”



      11
            One site on the island of Hawaii had “no fish left” by 2006 when
Nakachi went back to scuba dive there.




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            Petitioners Ka‘imi Kaupiko and Wilfred “Willie” Kaupiko

also submitted declarations in support of Petitioners’ summary

judgment motion.     The Kaupikos are Native Hawaiian subsistence

fishermen living in the village of Miloli‘i, which is located on

the west side of the island of Hawai‘i.         They attested that their

cultural, subsistence, and aesthetic interests are harmed by

DLNR’s issuance of aquarium collection permits without first

engaging in HEPA review “because aquarium collectors remove

species of fish that [they] fish for” and because they had

“noticed a substantial decline in the variety and number of fish

on reefs along the west coast of Hawai‘i over the past decade.”

Based on the Kaupikos’ experience, when they had gone out

fishing, they had hardly seen any types of fish that are

collected by the aquarium trade, even in areas near Miloli‘i that

are closed to collection.12

            Ka‘imi Kaupiko stated that the dwindling number of fish

affects his ability to feed himself and his family and

negatively impacts the ecosystem of which they are a part.

Ka‘imi also declared that he had noticed coral dying after being

damaged by boat anchors and pollution and that “removal of fish


      12
            Willie Kaupiko stated that he had seen, in January and November
2012, aquarium collectors taking fish in areas where collection is
prohibited.




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for aquarium collection further disrupts an already-stressed

ecosystem.”    Ka‘imi attested that “[t]he reefs on the west coast

of the island of Hawai‘i do not look as healthy as they used to”

and that he is “worried about the ability of [the] reef

ecosystems to survive so that future generations can continue

fishing and practicing . . . Native Hawaiian traditions.”13

            The Kaupikos concluded that aquarium collection under

the challenged permits affects their ability to catch fish for

food, disrupts the ecosystem, hurts the reef’s ability to

withstand harm from things like pollution and physical damage,

and harms their cultural, subsistence, recreational, and

aesthetic interests, as well as their ability to use, enjoy, and

protect the ocean and coral reefs for future generations’ use

and education.

            Marjorie Ziegler, the Executive Director of Petitioner

Conservation Council for Hawaii, and Miyoko Sakashita, a staff

member of Petitioner Center for Biological Diversity (CBD),

submitted declarations stating that the members of their

respective organizations are harmed by DLNR’s aquarium

collection permitting system “because it threatens to impair


      13
            Because Ka‘imi Kaupiko is involved in educating young people in
Miloli‘i about Hawaiian cultural traditions involving fishing and the ocean,
he also declared that aquarium collection affects his “ability to educate
children in the village about healthy reefs and fish populations.”




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their aesthetic, subsistence, and recreational interests in

using, enjoying, and protecting the State’s reefs.”14            They

further averred that “DLNR’s failure to comply with its legal

obligations deprives” their organizations and their “members of

both the information that would be generated through the HEPA

process and the opportunity to participate actively in the

process of environmental review.”

            Inga Gibson, the Hawai‘i State Director of Petitioner

Humane Society of the United States (HSUS), declared that DLNR’s

issuance of aquarium collection permits without HEPA review

“adversely affects HSUS’s organizational interests in protecting

animals from unnecessary harm, suffering, and death, as well as

its members’ and supporters’ ability to protect, observe, and

enjoy Hawai‘i’s coral reef animals and ecosystems that are and

will be affected by collection under the challenged permits.”

Gibson averred that aquarium collectors remove types of fish

that serve a larger role in reef ecosystems, a practice that

“has negative effects on other marine species that inhabit coral

reefs.”    Gibson also stated that HSUS views “aquarium collection

as a harmful, disposable trade, because up to forty percent of

fish may die before reaching their final destination and many of

      14
            Sakashita also stated that CBD’s members, including herself,
“regularly use Hawai‘i’s coastal waters for recreation, aesthetic enjoyment,
observation, research, and other educational activities.”




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the collected fish are not suitable for living in captivity,

surviving only a fraction of their natural lives.”           Gibson

concluded that DLNR’s permitting regime “affects HSUS’s members’

recreational, aesthetic and educational interests in protecting,

studying, and observing these fish and invertebrates and their

coral reef habitats.”

          Dane Enos, a resident of Kailua-Kona and a former

commercial aquarium fish collector, submitted a declaration in

support of Petitioners’ summary judgment motion describing the

procedure he followed in collecting aquarium fish before he left

the trade.   Enos explained that his “decisions about which

species to take and how many animals to collect were based on

consumer demand.”    Once he received an order for a particular

species from a wholesaler, he would “go out to the reefs to try

and fill that order” and that “[t]he price [he] would get paid .

. . would fluctuate depending on whether the wholesalers already

had that particular species of fish in their shops.”           Enos’s

practice was to “operate[] on a fourteen to eighteen month

system of rotation at sites where [he] collected[] to give fish

time to reproduce before going back to the same spot.”            Enos

declared that his commercial aquarium collection permit allowed

him “to take an unlimited type and quantity of species from

coastal waters” and “to collect anywhere in the State of Hawai‘i

other than in areas . . . where aquarium collection was


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prohibited.”   Enos stated that, when he first started collecting

in 1985, there were not as many collectors as there were when he

left the trade in 2002.     At the tail end of his participation in

the trade, Enos described how other collectors would take “fish

from the same spot too frequently, affecting the number of

animals and the balance of the ecosystem.”         Some collectors,

according to Enos, also broke off finger corals so as to create

a uniform surface for their nets.        Enos attested that “after

witnessing collectors over-harvesting fish and invertebrates and

damaging the reefs, in addition to the stress on the reefs from

other factors, like pollution, [he] decided that [he] could not

continue collecting” and left the trade.

          DLNR opposed Petitioners’ motion for summary judgment,

reiterating its position that there is no HEPA “action” and no

“approval” involved in aquarium collection and that the

environment is not harmed by the current permitting system.                In

support of its opposition, DLNR submitted a declaration from

Alton Miyasaka, averring that DLNR’s Division of Aquatic

Resources “continually monitors and studies populations of fish

and other aquatic life potentially affected by aquarium fish

permits issued pursuant to [HRS] § 188-31” and that the current

population levels of aquarium fish are sustainable.           Miyasaka

stated that the collection “areas are quite limited,” that

Hawaii and Oahu are the “main collecting islands,” and that


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Kauai, Molokai, and Lanai “have essentially no contribution to

the statewide totals and may be considered unfished.”            On the

island of Hawaii, Miyasaka continued, “35% of the 90-mile Kona

coast is closed to aquarium collecting.”         However, Miyasaka

stated that, although the 90-mile Kona coast “represent[s]

approximately 12.6% of the total coastline of the state, [it]

accounted for 68% of the statewide total catch numbers” in 2011.

Miyasaka averred that the top ten areas where aquarium

collection is conducted “account for 90% of all animals

collected” and that “[t]hese top ten areas represent less than

22% of the entire coastline.”       As such, Miyasaka represented

that “the vast majority of the State’s coastline is largely

unfished.”

          Miyasaka declared that the annual total for animals

caught from 1999 to 2010 ranged from 412,587 to 1,019,720 per

year, but he reasoned that “most of these numbers are from

invertebrates rather than fish” (i.e., the ratio of

invertebrates to fish ranges from 50% to close to 90% per year).

According to Miyasaka, “this is significant because

invertebrates generally reproduce faster than fish and therefore

can replenish themselves faster.”        However, Miyasaka neither

addressed nor referenced Petitioners’ contentions that were

based on excerpts of The Report to the Twenty-Fifth Legislature

and Hawaii’s State of the Reef, both of which were published by


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DLNR.   See supra notes 4 & 5.      These publications stated that

aquarium collection permits allow the collection of species that

are particularly vulnerable to depletion and recognized the

detrimental effects of removal of reef fish on the coral reef

ecosystem.

           The Report to the Twenty-Fifth Legislature, on which

Petitioners relied as part of their summary judgment motion,

also addressed the issues surrounding the collection of

invertebrates for aquarium purposes.        The Report stated that

researchers studying the Florida marine aquarium fishery had

found that “the once small ornamental fish fishery has grown

dramatically in recent years to become a large scale

invertebrate-dominated industry.”        The researchers noted that

the focus of aquarium collection shifted from “purely ornamental

species to ones providing biological services in home aquaria,”

such as “[i]nvertebrate grazers [that] can control algal

growth.”   The researchers concluded that “the intensive

collecting of such species was ecologically unsound.”

           Miyasaka also described the process used in aquarium

collection:

           Typically each animal is hand caught. The collector sets
           [the] net, guides the fish into the net, then hand scoops
           the fish off the net. Each fish is carefully selected for
           its condition (no damage to fins or body), size, and
           species. Fish that are damaged or imperfect are returned
           to the ocean. Any fish that is not the right size, color,
           or species is not taken. Little or no unwanted fish are
           taken so there is little or no bycatch (a fish that is
           taken unintentionally). This attention to detail is why


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          the marine life in the Hawaiian aquarium fishery is
          considered one of the highest quality products in the
          world.

          In their reply to DLNR’s opposition, Petitioners

argued that aquarium collection is an “action” and that aquarium

collection permit applications require DLNR’s “approval,” i.e.,

discretionary consent.     In addition, Petitioners challenged

DLNR’s assertion that aquarium collection was being conducted in

a sustainable and environmentally sound manner, stating that

this assertion is not based on anything other than Miyasaka’s

conclusory declaration.     Thus, Petitioners concluded that HEPA

applies to aquarium collection under permits issued by DLNR.

          After a hearing on the respective parties’ motions for

summary judgment, the circuit court granted DLNR’s motion for

summary judgment and denied Petitioners’ cross motion for

summary judgment, reasoning that there is no applicant “action”

that triggers HEPA in this case.         The circuit court stated that

environmental review under HEPA is required only if there is an

“action,” i.e., a “program” or “project.”         Because “program” and

“project” are not statutorily defined under HEPA, the circuit

court, relying on a generally accepted dictionary, defined

“program” “as a ‘plan or system under which action may be taken

toward a goal.’”    The circuit court defined “project” “as ‘a




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                                                                            15
specific plan or design; scheme’ or a ‘planned undertaking.’”

Because aquarium collection, according to the circuit court, is

not a “specifically identifiable program[] or project[],” the

court determined “that as a matter of law, ‘aquarium collection’

is not an applicant ‘action’ that triggers HEPA.”            The circuit

court entered its final judgment on June 24, 2013.

                           II. ICA PROCEEDINGS

            Petitioners appealed from the order denying their

cross motion for summary judgment, the order granting DLNR’s

motion for summary judgment, and the circuit court’s final

judgment.    In its published opinion, the Intermediate Court of

Appeals (ICA) outlined the steps for evaluating whether an

action is subject to environmental review.          Preliminarily, there

must be a “program or project to be initiated by an agency or

applicant.”    Umberger v. Dep’t of Land & Nat. Res., 138 Hawaii

508, 512, 382 P.3d 320, 324 (App. 2016) (quoting HRS § 343–2

(2010)).    In addition, the program or project must (1) be

initiated by an agency or a private party and require government

approval; (2) qualify under one or more of the nine categories

of land uses and administrative acts enumerated in HRS § 343-

     15
            The circuit court relied on Merriam-Webster’s definition of
“program” and “project.” See Program, Merriam-Webster, http://www.merriam-
webster.com/dictionary/program (last visited July 13, 2017); Project,
Merriam-Webster, http://www.merriam-webster.com/dictionary/program (last
visited July 13, 2017).




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5(a) (2010); and (3) not be exempt under HRS § 343-6(a)(2)

(2010).   Id. at 512—13, 382 P.3d at 324—25.

          The ICA characterized the “action” in this case as

“the ‘taking of marine or freshwater nongame fish and other

aquatic life for aquarium purposes,’ that is initiated by an

applicant’s request for an aquarium fish permit.”           Id. at 513,

382 P.3d at 325 (quoting HRS § 188-31(a) (2011)).           The ICA

emphasized that while the “[a]ppellants described the alleged

action as the ‘directed, intentional, large-scale commercial

removal under each [p]ermit, and collectively under the dozens

of such [p]ermits DLNR issued,’” they sought “an interpretation

of HEPA that would apply equally to both recreational and

commercial aquarium fish permits.”        Id. at 513–14, 382 P.3d at

325–26.

          The statutory analysis of the ICA commenced with an

examination of the meaning of “action.”         While HEPA defines

“action” as “any program or project to be initiated by an agency

or applicant,” the ICA acknowledged that HEPA does not define

“program” and “project.”      Id. at 514, 382 P.3d at 326 (quoting

HRS § 343-2).   The ICA discussed various decisions issued by the

appellate courts of Hawaii that held there was an “action” under

HEPA such that the environmental review process was triggered.

Those cases involved “[t]he Napilihau Villages, Mahukona Lodge,

Koa Ridge project, harbor improvements for the Superferry


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Project, Laumaka subdivision, and a research program concerning

genetically modified algae.”      Id. at 516, 382 P.3d at 328.         In

these cases, the ICA observed that there were “specifically

identifiable programs or projects.”        Id.   According to the ICA,

aquarium collection is unlike any of the activities that this

court has previously considered as programs or projects for the

purposes of HEPA.    Id.   In concluding that aquarium collection

is not a “specifically identifiable program or project,” the ICA

emphasized that aquarium collection “includes a parent netting

one or two fish from a stream for his or her child’s fish tank,

as well as larger scale commercial operations.”          Id.

          In addition, the ICA reasoned that HEPA review is not

the sole mechanism through which marine life and reef ecosystem

could be protected from unconstrained removal in large numbers.

The ICA highlighted other statutory frameworks and

administrative rules that allow DLNR to manage aquatic life and

resources, including catch limits and restrictions for certain

species applicable to commercial aquarium collection permit

holders and DLNR’s authority to attach conditions to commercial

marine licenses and permits.      Id.

          Further, the ICA noted that DLNR issues permits and

licenses for activities similar to aquarium collection--e.g.,

bait fish licenses, freshwater game fish licenses, hunting

licenses, camping permits, etc.       According to the ICA, there is


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“no rational distinction or logical reason why HEPA

environmental review procedures should be required for aquarium

fish permits, but not for these other types of licenses and

permits.”   Id.   Thus, the ICA concluded that aquarium collection

under permits issued pursuant to HRS § 188-31 does not qualify

as a HEPA “action.”       Id. at 517, 382 P.3d at 329.

            The ICA, however, rejected DLNR’s argument “that, even

if aquarium collection fell within the definition of an

‘applicant action,’ it is not subject to HEPA because there is

no discretionary agency approval of aquarium fish permits.”                Id.

at 517–18, 382 P.3d at 329–30.       The ICA determined that the fact

that the application for an aquarium fish permit is online and

completely automatic does not equate to DLNR lacking discretion

because the plain language of HRS § 188-31, as supported by its

legislative history, explicitly confers discretion on DLNR in

deciding whether to approve an application.          Id. at 518, 382

P.3d at 330.   The ICA also reasoned that the online application

“is simply the means by which DLNR has determined to exercise

its discretion.”    Id.     Thus, the ICA affirmed the circuit

court’s judgment that granted DLNR’s motion for summary judgment

and denied Petitioners’ cross motion for summary judgment.             Id.

                     III. ARGUMENTS ON CERTIORARI

            In their application for writ of certiorari,

Petitioners advance four contentions: (1) the legislature


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intended the words “program” and “project” to encompass a broad

scope of human activity, including aquarium collection; (2) HEPA

applies to individuals and provides mechanisms to resolve

practical difficulties that may be encountered during the

environmental review process16; (3) the ICA’s construction of

“program or project” undermines DLNR’s public trust and

statutory duties to conserve Hawaii’s marine resources; and (4)

other regulatory tools that DLNR possesses are not substitutes

for HEPA, nor do such tools excuse violations of HEPA.

           In its response, DLNR contends that (1) the ICA was

correct in concluding that aquarium collection is not an

“action” within the meaning of HEPA; (2) the environment is not

harmed by the present system and any harm to the environment is

irrelevant to the analysis; (3) Petitioners’ argument regarding

public trust was never pleaded and, in any event, does not

assist this court in construing HRS chapter 343; and (4) the ICA

erred in holding that the issuance of aquarium collection

permits requires DLNR’s discretionary consent.

     16
            Petitioners argue that the ICA’s concern about one-fish
recreational aquarium collection is unjustified because that activity may be
exempted from HEPA pursuant to HRS § 343-6(a)(2) (2010) as it may fall within
one of DLNR’s exempt categories--minor alteration in the conditions of land,
water, or vegetation. Petitioners also assert that “tiering,” which allows
an agency to incorporate previous environmental assessments and impact
statements or to group similar actions in a single environmental assessment
or impact statement, would address the ICA’s apparent concern about the
burden on small-time aquarium collectors of complying with HEPA’s
requirements.




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                        IV. STANDARDS OF REVIEW

          A trial court’s ruling on a motion for summary

judgment is reviewed de novo under the right/wrong standard.

Salera v. Caldwell, 137 Hawaii 409, 415, 375 P.3d 188, 194

(2016).   “The interpretation of a statute is a question of law

reviewable de novo.”     Kauai Springs, Inc. v. Planning Comm’n of

Cty. of Kauai, 133 Hawaii 141, 163, 324 P.3d 951, 973 (2014)

(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 334,

843 P.2d 668, 671 (1993)).

                              V. DISCUSSION

          The central question in this case is whether aquarium

collection pursuant to permits issued under HRS § 188-31 (2011)

and DLNR’s administrative rules is subject to the environmental

review provisions of HEPA.      An environmental assessment under

HEPA is required if three conditions are satisfied: (1) the

proposed activity is an “action” under HRS § 343-2 (2010); (2)

the action proposes one or more of the nine categories of land

uses or administrative acts enumerated in HRS § 343-5(a) (2010);

and (3) the action is not declared exempt pursuant to HRS § 343-

6(a)(2) (2010).    See Sierra Club v. Dep’t of Transp. of the

State of Haw., 115 Hawaii 299, 306, 167 P.3d 292, 299 (2007).

In cases where the proposed action is initiated by a private

party for approval by a government agency, an additional




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requirement is that the agency exercises discretionary consent

in the approval process.      HRS § 343-5(e) (Supp. 2012).        The

circuit court granted DLNR’s summary judgment motion and denied

Petitioners’ cross motion for summary judgment on the grounds

that aquarium collection under HRS § 188-31 is not a HEPA

“action.”    Thus, if there is a genuine issue of material fact as

to whether aquarium collection is a HEPA “action,” then summary

judgment in favor of DLNR on this basis was erroneous.            If, on

the other hand, there is no genuine issue of material fact that

aquarium collection under HRS § 188-31 and the DLNR

administrative scheme is a HEPA “action,” that it falls within

one of the categories of land uses or administrative actions set

forth in HRS § 343-5(a), that it is not exempt from HEPA, and

that the issuance of a permit requires DLNR’s exercise of

discretionary consent, then the circuit court erred in denying

Petitioners’ cross motion for summary judgment.

  A. Whether Issuance of a Permit for Aquarium Collection is a
                          HEPA “Action”

1. The Plain-Language Construction of “Action” under HRS § 343-2

            To determine whether aquarium collection is a HEPA

“action,” we begin by interpreting HRS § 343-2, which sets forth

the statutory definition of “action.”        HEPA defines “action” as

“any program or project to be initiated by any agency or




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applicant.”17    HRS § 343-2.     “Program” and “project” are not

defined terms under HEPA.       As such, “this court may resort to

legal or other well accepted dictionaries as one way to

determine the ordinary meaning” of those words.           State v.

Guyton, 135 Hawaii 372, 378, 351 P.3d 1138, 1144 (2015) (quoting

State v. Pali, 129 Hawaii 363, 370, 300 P.3d 1022, 1029 (2013)).

“Program” is generally defined as “a plan or system under which

action may be taken toward a goal.”18         “Project” is defined as “a

specific plan or design” or “a planned undertaking.”19

             In determining whether aquarium collection is a

program or project, the crucial first step is properly defining

the activity authorized by aquarium collection permits issued by

DLNR.     See Sierra Club, 115 Hawaii at 306 n.6, 167 P.3d at 299

n.6 (“An important preliminary step in assessing whether an

‘action’ is subject to environmental review is defining the

action itself.”).     HRS § 188-31(a) provides that



     17
            It follows from this definition that there are two types of HEPA
“actions”: agency actions and applicant actions. Sierra Club, 115 Hawaii at
306, 167 P.3d at 299. The parties’ position in this case is that aquarium
collection under HRS § 188-31 constitutes an applicant action and not an
agency action. An applicant action is initiated “by a private party who
requires government approvals for the project to proceed.” Id.
      18
            Program, Merriam-Webster, https://www.merriam-
webster.com/dictionary/program (last visited July 14, 2017).
     19
            Project, Merriam-Webster, https://www.merriam-
webster.com/dictionary/project (last visited July 14, 2017).




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           [e]xcept as prohibited by law, the department, upon receipt
           of a written application, may issue an aquarium fish
           permit, not longer than one year in duration, to use fine
           meshed traps, or fine meshed nets other than throw nets,
           for the taking of marine or freshwater nongame fish and
           other aquatic life for aquarium purposes.[20]

This statutory subsection, together with DLNR’s administrative

rules, allows permit applicants to engage in two general types

of activities: recreational aquarium collection and commercial

aquarium collection.

           Recreational aquarium collection permits--those

“issued . . . for non-commercial use,” Hawaii Administrative

Rules (HAR) § 13-77-2 (effective 2015)--allow the extraction of

up to “five fish or aquatic life specimens per person per day,”

HAR § 13-75-14 (effective 2007).          Thus, each recreational permit

authorizes the collection of up to 1,825 fish or other aquatic

life within a one-year period.        Id.    In the case of commercial

aquarium collection permits, which is intended for issuance to

persons who collect “for profit or gain or as a means of

livelihood,” HAR § 13-74-1 (effective 2010), DLNR has not

promulgated any rules that establish limits on the total number

of fish and other aquatic life that commercial collectors may

extract for the entire period in which the permits are

     20
            Although permits issued under HRS § 188-31 are valid for no
longer than one year, DLNR allows such permits to be renewed instead of
requiring holders of expired permits to reapply. See Licenses & Permits,
State of Haw. Division of Aquatic Resources,
http://dlnr.hawaii.gov/dar/licenses-permits/ (last visited July 24, 2017).




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effective.    See HAR § 13-75-14 (providing a total catch limit

only for recreational collection).21

            HRS § 188-31 also clearly delineates the aquarium

collection practices that must be complied with to obtain a

permit when aquarium collectors are allowed to use fine meshed

traps or nets to take fish and other aquatic life for aquarium

purposes.    Subsection (b) of HRS § 188-31 states that, “[e]xcept

as prohibited by law, the permits shall be issued only to

persons who can satisfy the department that they possess

facilities to and can maintain fish and other aquatic life alive

and in reasonable health.”       HRS § 188-31(b).

            The extraction of fish or other aquatic life under

aquarium collection permits is also limited to “aquarium

purposes,” HRS § 188-31(c), which, per the statute, “means to

hold salt water fish, freshwater nongame fish, or other aquatic

life alive in a state of captivity as pets, for scientific




     21
            A few statutes and regulations restrict or limit the manner and
extent to which aquarium collection may be conducted: bag and size limits for
certain aquatic species on Oahu (see HAR § 13-77-6(b), (c), (d) (effective
2015)) and in West Hawaii (see HAR § 13-60.4-4 (effective 2013)), length and
height requirements for allowed mesh nets that apply to Oahu (see HAR § 13-
77-6(a)), monthly reporting requirements for commercial collectors (see HRS
§§ 189-3 (2011), 189-3.5 (2011); HAR § 13-74-20(d) (effective 2010)), and
DLNR’s power pursuant to HAR § 13-75-14(4) (effective 2007) to attach
conditions to commercial permits. Permits issued are also subject to terms
and conditions imposed by DLNR that are generally consistent with or
reference the statutes and rules that relate to aquarium collection.




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study, or for public exhibition or display, or for sale for

these purposes,” HRS § 188-31(d)(1).

          Based on the language of HRS § 188-31, the framework

it establishes, and the administrative rules that DLNR

promulgated pursuant to HRS § 188-31, the defined activity

authorized under an aquarium collection permit is as follows:

          (1)   the extraction annually from State waters of
                an unlimited number of fish or other aquatic
                life for profit or other gains (in the case
                of commercial aquarium collection) or of
                1,825 fish or other aquatic life for non-
                commercial purposes (in the case of
                recreational aquarium collection), subject
                to the terms and conditions of the permit
                and restrictions set by law;
          (2)   through the use of fine meshed nets or
                traps;
          (3)   by individuals who can satisfy DLNR that
                they possess facilities that can maintain
                aquatic life alive and in reasonable health;
                and
          (4)   for the purpose of holding aquatic life
                alive in a state of captivity as pets, for
                scientific study, or for public exhibition
                or display, or for sale for these purposes.

          The course and scope of conduct allowed by both

recreational and commercial aquarium collection permits issued

under HRS § 188-31 and DLNR’s administrative scheme encompass



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activity that qualifies as a “program” or “project.”           The

activity is a “specific plan” or “a planned undertaking”--and,

therefore, a “project”--because it involves the systematic and

deliberate extraction of aquatic life using procedures,

equipment, facilities, and techniques authorized or required by

HRS § 188-31 and related administrative rules for the specific

purpose of holding captive such aquatic life for aquarium

purposes in order to earn profit (in the case of commercial

permit holders) or for non-commercial use (in the case of

recreational permit holders).

          In the same vein, both recreational and commercial

aquarium collection are “programs” within the plain meaning of

that word: the “plan or system under which action may be taken”

is the purposeful and methodical extraction of aquatic life from

State waters through the use of fine meshed nets and traps and

the transfer of such aquatic life to facilities that are capable

of keeping the collected aquatic life alive.          The “desired goal”

is to take aquatic life from its habitat and hold it in a state

of captivity for aquarium purposes, as defined by HRS § 188-

31(d)(1), in order to earn profits (in the case of commercial

permit holders) or for non-commercial use (in the case of

recreational permit holders).       Additionally, the method by which

extraction is accomplished involves instruments and techniques




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that enhance the efficiency and amount of the collection.22

Accordingly, aquarium collection conducted under permits issued

pursuant to HRS § 188-31 and DLNR’s administrative rules is a

“program or project” and therefore constitutes a HEPA “action.”

    2. HEPA’s Purpose and Structure Support the Plain-Language
                Construction of the Word “Action”

           Our interpretation of “action,” together with our

conclusion that aquarium collection under HRS § 188-31 and

DLNR’s administrative rules constitutes a HEPA “action,” is

confirmed by the purpose of HEPA, as explained in HRS § 343-1

(2010), and by HEPA’s framework.          See State v. Bovee, 139 Hawaii

530, 544 n.13, 394 P.3d 760, 774 n.13 (2017) (explaining that

laws in pari materia--those dealing with the same subject

matter--shall be construed with reference to each other); State

v. Alangcas, 134 Hawaii 515, 526, 345 P.3d 181, 192 (2015)

(stating that legislative history is relevant in statutory

construction even when the language appears clear because it

ensures that the literal interpretation is consonant with the


     22
            The declarations that Petitioners submitted, describing several
aquarium collection practices that holders of permits employ, firmly support
the conclusion that aquarium collection under HRS § 188-31 is both a
“program” and “project”: sophisticated and advanced techniques--such as the
use of scuba technology, underwater jet propulsion systems, nitrox tanks,
fizzing, underwater blankets, etc.--are utilized to extract aquatic life from
State waters for aquarium purposes. These averments illustrate how
elaborate, methodical, and systematic aquarium collection under HRS § 188-31
is practiced in order to achieve the ultimate purpose of holding captive
aquatic life for specific, statutorily enumerated purposes.




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underlying policy that the legislature sought to implement

through the statute, thereby avoiding an absurd or unjust

result).

           It has been frequently stated that “HEPA’s purpose is

‘to establish a system of environmental review which will ensure

that environmental concerns are given appropriate consideration

in decision making along with economic and technical

considerations.’”    Nuuanu Valley Ass’n v. City & Cty. of

Honolulu, 119 Hawaii 90, 103, 194 P.3d 531, 544 (2008) (quoting

HRS § 343–1).   The Hawaii Legislature enacted HEPA after finding

“that an environmental review process will integrate the review

of environmental concerns with existing planning processes of

the State and counties and alert decision makers to significant

environmental effects which may result from the implementation

of certain actions.”     HRS § 343-1.     The legislature also found

“that the process of reviewing environmental effects is

desirable because environmental consciousness is enhanced,

cooperation and coordination are encouraged, and public

participation during the review process benefits all parties

involved and society as a whole.”        Id.   Environmental impact

statements also “allow decision-makers to make informed

decisions” when confronted by certain proposed actions.            H.

Stand. Comm. Rep. No. 521, in 2005 House Journal, at 1242.




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            The purpose of HEPA and the legislature’s intent in

enacting HEPA indicate that it was not meant to be applied only

to a narrow set of activities.        See generally Pearl Ridge

Estates Cmty. Assʻn v. Lear Siegler, Inc., 65 Haw. 133, 140–41,

648 P.2d 702, 707 (1982) (noting that HEPA’s scope is wider

“than the federal or the typical state analogue” (quoting

Molokai Homesteaders Coop. Ass’n v. Cobb, 63 Haw. 453, 465, 629

P.2d 1134, 1143 (1981))).       This determination is supported by

the wide range of activities and courses of conduct to which

HEPA has been applied, including construction of buildings,

expansion of or modifications to preexisting buildings,

development of residential communities, and other real estate

developments;23 construction on government lands in order to

build or connect to sewage lines, waterlines, or other

infrastructure;24 development of public transportation;25


      23
            See Unite Here! Local 5 v. City & Cty. of Honolulu, 123 Hawaii
150, 155, 231 P.3d 423, 428 (2010) (expansion of the Turtle Bay resort,
including the addition of hotel and condominium units and infrastructure);
Nuuanu Valley Ass’n, 119 Hawaii at 94, 194 P.3d at 535 (development of a
subdivision consisting of nine residential lots); Price v. Obayashi Haw.
Corp., 81 Hawaii 171, 173, 914 P.2d 1364, 1366 (1996) (recreational
development project on the North Shore of Oahu); Kahana Sunset Owners Ass’n
v. Cty. of Maui, 86 Hawaii 66, 68, 947 P.2d 378, 380 (1997) (multi-family
residential development on Maui); Waikiki Resort Hotel, Inc. v. City & Cty.
of Honolulu, 63 Haw. 222, 224, 624 P.2d 1353, 1356–57 (1981) (construction of
a hotel building in Waikīkī); Hewitt v. Waikiki Shopping Plaza, 6 Haw. App.
387, 390, 722 P.2d 1055, 1057 (1986) (construction of a shopping and parking
complex in Waikīkī).

      24
            See Sierra Club v. Office of Planning, State of Haw., 109 Hawaii
411, 413, 126 P.3d 1098, 1100 (2006) (tunneling underneath several state
highways in order to construct a sewage transmission line and a water

                                                             (continued . . .)


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construction of power generating facilities and the drilling of

exploratory geothermal wells;26 the growing of imported algae on

facilities in state lands;27 and the Management Plan of the

Observatory Site on the summit of Haleakala
                                          ̅ in which a new solar

telescope was under construction.28         The commonality among the

varied activities to which HEPA has been applied is their

potential of producing “environmental concerns” that HEPA

intended to be “given appropriate consideration in decision

making along with economic and technical considerations.”               See

Nuuanu Valley Ass’n, 119 Hawaii at 103, 194 P.3d at 544 (quoting

(continued . . .)

transmission line); Citizens for Prot. of N. Kohala Coastline v. Cty. of
Haw., 91 Hawaii 94, 103, 979 P.2d 1120, 1129 (1999) (construction of
underpasses below a state highway for golf carts); McGlone v. Inaba, 64 Haw.
27, 29, 636 P.2d 158, 160–61 (1981) (construction of underground utilities on
state conservation land); Molokai Homesteaders Coop. Ass’n, 63 Haw. at 455,
629 P.2d at 1137 (use of transmission facilities of the Molokai Irrigation
System to transport water to a resort complex on the west end of Molokai);
Life of the Land v. Ariyoshi, 59 Haw. 156, 157–67, 577 P.2d 1116, 1117 (1978)
(construction of the Central Maui Water Transmission System).

      25
             See Sierra Club, 115 Hawaii at 305, 167 P.3d at 298 (proposed
developments to the Kahului Harbor in order to accommodate the operations of
the Hawaii Superferry project).

      26
             Kepoo v. Kane, 106 Hawaii 270, 275, 103 P.3d 939, 944 (2005)
(power generating facility); Medeiros v. Haw. Cty. Planning Comm’n, 8 Haw.
App. 183, 186, 797 P.2d 59, 61 (1990) (drilling of four exploratory
geothermal wells); Waianae Coast Neighborhood Bd. v. Hawaiian Elec. Co., 64
Haw. 126, 127, 637 P.2d 776, 777 (1981) (addition of an electric generating
plant on Oahu).

      27
            Ohana Pale Ke Ao v. Bd. of Agric., State of Haw., 118 Hawaii 247,
254, 188 P.3d 761, 768 (App. 2008).

      28
            Kilakila O Haleakala v. Univ. of Hawaii, 138 Hawaii 364, 371,
382 P.3d 176, 183 (2016).




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HRS § 343-1).       The diversity of the subject matter of previous

HEPA cases affirms that the word “action” has not been (and

should not be) narrowly construed.            In this light, our

determination that aquarium collection is a HEPA “action”

furthers HEPA’s purpose as stated under HRS § 188-31: it “will

ensure that environmental concerns are given appropriate

consideration in decision making” so as to foster a holistic and

thoughtful decisional process.           HRS § 343–1.     Given the nature,

magnitude, and scale of aquarium collection under HRS § 188-31

and DLNR’s administrative rules, any environmental effects that

aquarium collection may have fall squarely within the ambit of

what HEPA’s environmental review framework intends to integrate

into governmental decision making.29

               Lastly, our interpretation of “action” and our

conclusion that it includes aquarium collection pursuant to

permits issued under HRS § 188-31 and DLNR’s administrative

rules are also supported by HEPA’s framework.              As discussed, the

fact that a proposed activity qualifies as an “action” does not

mean that it would require environmental review, since the

activity must also fall within a statutory category listed in

HRS § 343-5(a) and not be exempt from HEPA.              See Sierra Club,


      29
               Compare the challenged activities in previous HEPA cases, supra
notes 23—28.




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115 Hawaii at 306, 167 P.3d at 299.        And for applicant actions,

as in this case, the agency must exercise discretionary consent

as to the proposed activity in order for the activity to be

subject to HEPA.    See infra Part V.D.      Thus, our interpretation

of “action,” which would include a range of activities that has

the potential of producing environmental effects, is supported

by the HEPA framework because other steps in the HEPA analysis

serve to counterbalance the scope of the meaning of “action.”

That is, the succeeding steps in the HEPA analysis filter

activities that qualify as “actions” in order to determine which

“actions” actually require environmental review.

                   3. The ICA Erred in its Analysis

          The ICA, in the course of conducting a plain-language

interpretation of HEPA “action,” noted that the circuit court

used a well-accepted dictionary to define “program” and

“project.”   Umberger v. Dep’t of Land & Nat. Res., 138 Hawaii

508, 514, 382 P.3d 320, 326 (App. 2016).         The ICA concluded that

aquarium collection under HRS § 188-31 is not a HEPA “action”

because (1) none of the other cases decided by Hawaii appellate

courts involved activity similar to aquarium collection; (2) a

permit might include a situation in which a parent collects one

or two fish or other aquatic life for use in a home aquarium;

(3) other statutes and administrative rules exist that




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sufficiently regulate aquarium collection; and (4) other

permitting regimes would be subject to HEPA environmental review

if aquarium collection under HRS § 188-31 were considered an

“action.”    Id. at 515—17, 382 P.3d at 327—29.

            With respect to the ICA’s first line of reasoning, it

concluded that aquarium collection is not a HEPA “action”

because, compared to any of the activities involved in previous

HEPA cases, it is not a “specifically identifiable program or

project.”    Id. at 516, 382 P.3d at 328.        However, as discussed,

the class of activities and courses of action that HEPA covers

is broad so as to successfully effectuate the intent and purpose

of the statutory scheme.       See supra notes 23—28.       Additionally,

there has been no HEPA case in which this court determined

whether an activity is a HEPA “action” by evaluating its

similarity to the challenged activities in other HEPA cases.

Doing so would unreasonably delimit HEPA’s application in a

manner inconsistent with its purpose.30

            The ICA’s second line of reasoning is that it would be

“unprecedented” to apply HEPA to the hypothetical situation in

     30
            Further, if the similarity of aquarium collection to a previous
activity to which HEPA was applied is a relevant consideration on whether
aquarium collection is an “action,” then aquarium collection qualifies as an
“action” because it is similar to Disney Aulani’s request for a permit to use
small mesh nets to collect live marine life for stocking a saltwater swimming
pool. Under the ICA’s analysis, just as Disney Aulani’s proposed activity
was deemed to be a HEPA “action,” so would aquarium collection under permits
issued pursuant to HRS § 188-31 and DLNR’s administrative rules.




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which a “parent net[s] one or two fish from a stream for his or

her child’s fish tank.”     Umberger, 138 Hawaii at 516, 382 P.3d

at 328.   The premise of this line of reasoning is that, even

though recreational aquarium collection permits authorize the

extraction of almost 2,000 fish or other aquatic life per person

annually, for the purpose of determining whether HEPA applies,

the focus should be on the possibility that a person would use

his or her recreational aquarium collection permit to take only

one or two fish.

           This analysis is flawed because the properly defined

activity for the purposes of the HEPA analysis must encompass

the outer limits of what the permits allow and not only the most

restrictive hypothetical manner in which the permits may be

used.   That is, as discussed, the analysis must proceed from the

properly defined activity allowed under aquarium collection

permits, see supra Part V.A. (defining the activity authorized

under HRS § 188-31 and DLNR’s related administrative rules).

See Sierra Club, 115 Hawaii at 306 n.6, 167 P.3d at 299 n.6.

           In addition, a parent netting one or two fish for a

home aquarium may not even be within the ambit of HRS § 188-31

because aquarium collection permits are required only if the

applicant intends “to use fine meshed traps, or fine meshed nets

other than throw nets, for the taking of marine or freshwater

nongame fish and other aquatic life for aquarium purposes.”                HRS


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§ 188-31(a).     DLNR expounds on this distinction on its own

website, informing the public that a permit to collect fish and

other aquatic life for a home aquarium is not required “if a)

the net has large mesh (more than two inches mesh); b) the net

has small mesh but is less than three feet in length, height, or

width, including the handle; or c) using a slurp gun.”              FAQ’s,

State of Haw. Division of Aquatic Resources,

http://dlnr.hawaii.gov/dar/fishing/faqs/ (last visited July 11,

2017).     Under these circumstances, the act of netting one or two

fish would not constitute aquarium collection under HRS § 188-31

and, consequently, would not be a HEPA “action.”31            Lastly, the

situation postulated by the ICA--a parent netting one or two

fish or other aquatic life for recreational purposes--is not

present in this case,32 and DLNR’s own evidence in fact showed

that, from 1999 to 2010, millions of aquatic life were harvested

under aquarium collection permits issued pursuant to HRS § 188-

31.




      31
            In addition, a parent collecting one or two fish for recreational
purposes would not fall within any of the categories of land uses and
administrative acts under HRS § 343-5(a), see infra Part V.B. & note 47, and
even if it were to qualify under any of the categories under HRS § 343-5(a),
a parent engaging in aquarium collection of this nature may also be exempt
from HEPA, see infra Part V.C. & note 51.
      32
            Petitioners also emphasize in their application for writ of
certiorari that this scenario is not part of the record in this case.




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           In holding that aquarium collection does not

constitute a HEPA “action,” the ICA also reasoned that there is

a “panoply of other regulatory tools that are in place” “to

protect marine life and the reef ecosystem from the

‘unconstrained removal’ of large numbers of aquarium fish.”

Umberger, 138 Hawaii at 516, 382 P.3d at 329.           The regulations

that the ICA identified include bag and size limits for certain

aquatic species on Oahu (see HAR § 13-77-6(b), (c), (d)

(effective 2015)), length and height requirements for allowed

mesh nets that apply to Oahu (see HAR § 13-77-6(a)), monthly

reporting requirements for commercial collectors (see HRS §§

189-3 (2011), 189-3.5 (2011); HAR § 13-74-20(d) (effective

2010)), and DLNR’s power pursuant to HAR § 13-75-14(4)

(effective 2007) to attach other conditions to commercial

permits.   Umberger, 138 Hawaii at 516–17, 382 P.3d at 328–29.33

However, as the ICA itself acknowledged, these regulations and

statutory frameworks are not “dispositive” of whether aquarium

collection pursuant to HRS § 188-31 and DLNR’s administrative

rules is a HEPA action.      Id. at 517, 382 P.3d at 329.         Further,


     33
            The ICA also referenced statutory provisions governing Marine
Life Conservation Districts, Regional Fisheries Management Areas (including
Fish Replenishment Areas), Shoreline Fisheries Management Areas (including
Marine Protection Areas), and Marine Refuges. Umberger, 138 Hawaii at 516–
17, 382 P.3d at 328–29.




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none of these regulations and statutes defines or modifies

aquarium collection pursuant to HRS § 188-31 and DLNR’s

administrative rules in a manner that would exclude such

collection from the meaning of “action” under HEPA.34

           The ICA’s reasoning that other statutes and rules that

overlap with HEPA could somehow place certain activities outside

of the meaning of “action” or preclude the application of HEPA

to such activities is also contradicted by its own precedent.

As the ICA itself recognized in Ohana Pale Ke Ao, where HEPA

overlaps and is consistent with another chapter of the HRS, both

would be given effect.      Ohana Pale Ke Ao v. Bd. of Agric., State

of Haw., 118 Hawaii 247, 255, 188 P.3d 761, 769 (App. 2008).

Here, there is no hindrance to giving effect to the statutes and

     34
            The ICA’s suggestion that the number or comprehensiveness of
agency rules plays a significant role in determining whether an activity
qualifies as a HEPA “action” generates numerous evaluative considerations and
other complications. For example, there is no standard for deciding whether
a statutory or regulatory scheme is sufficiently comprehensive, protective,
and enforced as to render a regulated activity not a HEPA “action.” In
addition, the existence of other statutes and rules concerning a particular
activity does not necessarily mean that their purpose would be identical to
that of HEPA or that they, in fact, are sufficiently protective. In this
case, for example, despite the statutes and rules that the ICA underscored in
its opinion, excerpts of publications that Petitioners submitted in support
of their motion for summary judgment illustrate the detrimental effects of
aquarium collection to fish population and coral reef ecosystems.

            Further, the feasibility of the ICA’s analysis is also predicated
on the assumption that any comprehensive statutory or regulatory scheme in
place is strictly enforced. However, there is no evidence in the record that
could support this assumption. Petitioner Willie Kaupiko declared that some
aquarium collectors fish in prohibited areas, that he reported the incidents
to DLNR, that DLNR is non-responsive or slow to respond, and that DLNR did
not investigate the allegations.




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regulations identified by the ICA while also applying the

requirements of HEPA to aquarium collection because the statutes

and regulations have not been demonstrated to be inconsistent

with HEPA.    See id.35

           Further, as mentioned, HEPA’s purpose is “to establish

a system of environmental review which will ensure that

environmental concerns are given appropriate consideration in

decision making along with economic and technical

considerations.”     HRS § 343–1.     If the fact that other laws and

rules that facially appear to bear upon the environmental

effects of an activity would exclude the activity from HEPA’s

purview, then this would frustrate HEPA’s purpose of requiring

agencies to appropriately consider environmental concerns in

their decision-making process.        In other words, under the ICA’s

analysis, an agency would be able to bypass the protections

provided through HEPA by promulgating administrative rules that

appear to address or bear upon the possible environmental

effects of an activity that the agency regulates without

actually engaging in the informed and deliberate decision-

making process that HEPA requires.


      35
            No evidence was presented to demonstrate any inconsistency
between HEPA, on the one hand, and the statutes and rules that the ICA
referenced in its opinion, on the other. DLNR does not argue (nor has it
argued in the lower courts) that such an inconsistency exists.




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           The ICA’s final reason for its holding that aquarium

collection under HRS § 188-31 is not a HEPA “action” is that

Petitioners “offered no rational distinction or logical reason

why HEPA environmental review procedures should be required for

aquarium fish permits, but not for . . . other types of licenses

and permits,” including (among others) bait fish licenses,

commercial marine licenses, special activity permits, permits to

enter or conduct activities in certain areas, hunting licenses,

camping permits, collecting permits, and commercial activity

permits.   Umberger, 138 Hawaii at 517, 382 P.3d at 329.

Implicit in the ICA’s reasoning is the concern that, if aquarium

collection under HRS § 188-31 were considered a HEPA “action”

subject to environmental review, other permitting regimes

administered by government agencies would also be subject to

environmental review.     See id.    However, the fact that aquarium

collection is conducted pursuant to the permitting scheme that

DLNR administers does not drive the conclusion that aquarium

collection is a HEPA “action” or that HEPA applies.           The

activities authorized by the permitting schemes that the ICA

utilized in its analysis are not effective points of comparison

given their substantial differences, both in magnitude and

nature, from the activities sanctioned by aquarium collection

permits.   For example, many of the activities under the




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permitting regimes that the ICA identified do not appear to be

“programs” or “projects.”

             Further, as stated, in order for HEPA to apply, the

activity must be an action that falls within a category

enumerated in HRS § 343-5(a), discussed infra Part V.B., and not

be exempt, discussed infra Part V.C.           See Sierra Club, 115

Hawaii at 306, 167 P.3d at 299.          And for applicant actions, an

additional prerequisite is that the action must be subject to an

agency’s exercise of discretionary consent, discussed infra Part

V.D.    Thus, concluding that aquarium collection under HRS § 188-

31 and DLNR’s administrative rules is a HEPA “action” or is

subject to HEPA does not necessarily prescribe a determination

that activities under other permitting regimes are also HEPA

“actions” or are subject to HEPA’s environmental review

requirements.      Such activities must independently meet the

analytical framework set forth in Sierra Club and discussed in

this case.

             Based on the foregoing, the ICA’s analysis did not

proceed from a full and proper definition of the activity

authorized under aquarium collection permits.             Instead, the ICA

appeared to focus on an extreme hypothetical subset of the

activity being proposed.         In addition, the ICA improperly relied

on other statutes, administrative rules, and other permitting




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regimes in its analysis.       For these reasons, the ICA erred in

concluding that aquarium collection is not a HEPA “action.”36

 B. Whether Aquarium Collection Falls Within One or More of the
           Nine Categories Listed Under HRS § 343–5(a)

           For an activity to be subject to HEPA environmental

review, the second requirement is that it must fall within at

least one category of land uses or administrative acts (known as

“triggers”) enumerated in HRS § 343-5(a) (2010).37           See Sierra

Club v. Dep’t of Transp. of the State of Haw., 115 Hawaii 299,

306, 167 P.3d 292, 299 (2007).        DLNR conceded for the purposes

of the summary judgment proceedings that “there is a use of

state land” in this case and that, therefore, “[t]here is a

‘trigger’ pursuant to Haw. Rev. Stat. § 343-5(a) (2010).”              After




     36
            Petitioners also contend that the ICA’s construction of “program”
and “project” undermines DLNR’s public trust and statutory duties to conserve
marine resources. In light of our disposition in this case, this issue need
not be reached.
     37
            The parties’ primary dispute in this case involves whether
activities allowed under permits issued pursuant to HRS § 188-31 and DLNR’s
administrative rules are HEPA “actions.” Having found that aquarium
collection pursuant to permits issued by DLNR is a HEPA “action”--contrary to
the circuit court’s ruling--we proceed to consider other grounds upon which
the circuit court’s grant of summary judgment to DLNR may be affirmed. See
Reyes v. Kuboyama, 76 Hawaii 137, 140–41, 870 P.2d 1281, 1284–85 (1994)
(“This court may affirm a grant of summary judgment on any ground appearing
in the record, even if the circuit court did not rely on it.”). Thus, we
consider whether there is an issue of material fact as to either of the two
other requisites of HEPA review.




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reviewing the applicable legal principles in the discussion that

follows, we conclude that DLNR’s concession is correct.38

            Categories of land use under which aquarium collection

may fall include HRS § 343-5(a)(1) (actions that “[p]ropose the

use of state or county lands”)39 and HRS § 343-5(a)(2) (actions

that “[p]ropose any use within any land classified as a

conservation district by the state land use commission under

chapter 205”).     Therefore, we determine (1) whether marine

waters40 and the submerged lands in which aquarium collection is

     38
            We review the merits of DLNR’s concession because a court is not
bound by a party’s “apparent concession of law.” Ass’n of Apartment Owners
of Newtown Meadows ex rel. its Bd. of Dirs. v. Venture 15, Inc., 115 Hawaii
232, 254, 167 P.3d 225, 247 (2007) (citing McCandless v. Campbell, 20 Haw.
404, 405 (1911)). “[W]e are free to interpret . . . and apply the correct
law to its enforcement.” Beclar Corp. v. Young, 7 Haw. App. 183, 190, 750
P.2d 934, 938–39 (1988).
     39
            In full, HRS § 343-5(a)(1) provides as follows:

                  (a) Except as otherwise provided, an environmental
            assessment shall be required for actions that:

                  (1) Propose the use of state or county lands or the
                       use of state or county funds, other than funds to
                       be used for feasibility or planning studies for
                       possible future programs or projects that the
                       agency has not approved, adopted, or funded, or
                       funds to be used for the acquisition of
                       unimproved real property; provided that the
                       agency shall consider environmental factors and
                       available alternatives in its feasibility or
                       planning studies; provided further that an
                       environmental assessment for proposed uses under
                       section 205-2(d)(11) or 205-4.5(a)(13) shall only
                       be required pursuant to section 205-5(b) . . . .
     40
            Aquarium collection under HRS § 188-31 also allows extraction of
fish and other aquatic life from freshwater sources. HRS § 188-31(a). We do
not address freshwater sources because the activities under the permits being
challenged in this case, based on the parties’ filings and the record on
appeal, all transpire in marine waters and submerged lands.




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conducted constitute state lands or are within a conservation

district and (2) whether aquarium collection constitutes “use.”

 1. Whether Marine Waters and Submerged Lands in Which Aquarium
         Collection is Conducted Constitute State Lands

           “Land” is not defined by HEPA, so we commence our

statutory construction by employing “the well-settled canon that

‘[l]aws in pari materia, or upon the same subject matter, shall

be construed with reference to each other.          What is clear in one

statute may be called upon in aid to explain what is doubtful in

another.’”    State v. Bovee, 139 Hawaii 530, 544, 394 P.3d 760,

774 (2017) (quoting State v. Alangcas, 134 Hawaii 515, 527, 345

P.3d 181, 193 (2015)); accord HRS § 1–16 (1993).            Chapter 171 of

the HRS, the chapter that created DLNR and prescribes its

authority,41 defines “land” as “includ[ing] all interests therein

and natural resources including water, minerals, and all such

things connected with land, unless otherwise expressly

provided.”    HRS § 171-1 (2011) (emphasis added).          HRS § 171-2

then defines “public lands” as

           all lands or interest therein in the State classed as
           government or crown lands previous to August 15, 1895, or
           acquired or reserved by the government upon or subsequent
           to that date by purchase, exchange, escheat, or the
           exercise of the right of eminent domain, or in any other
           manner; including lands accreted after May 20, 2003, and
           not otherwise awarded, submerged lands, and lands beneath
           tidal waters that are suitable for reclamation, together

     41
            See generally HRS §§ 171-3 (2011), 171-4 (2011), 171-6 (2011),
171-7 (2011).




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            with reclaimed lands that have been given the status of
            public lands under this chapter . . . .

HRS § 171-2 (2011) (emphases added).42

            Thus, included within the meaning of “land” and

“public lands” are “water” and “submerged lands.”            HRS §§ 171-1,

171-2.    Based on these definitions, marine waters and submerged

lands in which aquarium collection is conducted are included

within the meaning of “land” under HEPA.          HRS §§ 171-1, 171-2.

            Further, when the State acts as a trustee and

exercises fiduciary duties over certain areas not typically

considered “state lands,” this court has held that, for HEPA

purposes, those areas qualify as state lands.           For example, this

court held that Hawaiian homelands are “state lands” for HEPA

purposes because of the State’s trust obligations with respect

to those lands and its fiduciary duty to the beneficiaries of

those lands.    Kepoo v. Watson, 87 Hawaii 91, 97–98, 952 P.2d

379, 385–86 (1998).      Similar to the State’s trusteeship to

Hawaiian homelands, this court has repeatedly reaffirmed that


     42
            On the same note, DLNR’s administrative rules define “[l]and” as
“all real property, fast or submerged, and all interests therein, including
fauna, flora, minerals, and all such natural resources, unless otherwise
expressly provided.” HAR § 13-5-2 (effective 1994). The Land Use
Commission’s rules define “[l]and” as “all real property in the State
including areas under water within the boundaries of the State.” HAR § 15-
15-03 (effective 1997).

            DLNR then defines the phrase “[s]ubmerged lands” as “lands from
the shoreline seaward to the extent of the State’s jurisdiction.” HAR § 13-
5-2.




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the State’s public trust obligations pursuant to article XI,

section 1 of the Hawaii Constitution extend “to all water

resources.”   In re Water Use Permit Applications (Waiāhole), 94

Hawaii 97, 133, 9 P.3d 409, 445 (2000); Kauai Springs, Inc. v.

Planning Comm’n of the Cty. of Kauai, 133 Hawaii 141, 172, 324

P.3d 951, 982 (2014) (“[T]he public trust doctrine applies to

all water resources without exception or distinction.” (quoting

Waiāhole, 94 Hawaii at 133, 9 P.3d at 445)).         The common law of

Hawaii also embodies the precept that “navigable waters” and

“[t]he lands under the navigable waters in and around the

territory of the Hawaiian Government are held in trust for the

public uses of navigation.”      King v. Oahu Ry. & Land Co., 11

Haw. 717, 725 (Haw. Terr. 1899).         Just as Hawaiian homelands are

“state lands” for the purposes of HRS § 343-5(a)(1) because they

are subject to the State’s statutorily defined trust

obligations, so too are marine waters and submerged lands, both

of which are subject to the State’s constitutional and common-

law public trust duties.      See Kepoo, 87 Hawaii at 97–98, 952

P.2d at 385–86; Waiāhole, 94 Hawaii at 133, 9 P.3d at 445.            It

therefore follows that the State marine waters and the submerged

lands in which aquarium collection occurs are “state lands”

under HEPA.




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   2. Whether Marine Waters are Within a Conservation District

              HEPA environmental review is also triggered when an

action “[p]ropose[s] any use within any land classified as a

conservation district by the state land use commission under

chapter 205.”       HRS § 343-5(a)(2).       According to HRS § 205-2(e)

(Supp. 2012), “[c]onservation districts shall include areas

necessary for . . . conserving indigenous or endemic . . .

fish[] and wildlife, including those which are threatened or

endangered,” or “would maintain or enhance the conservation of

natural or scenic resources.”           Thus, the legislature uses the

term “areas” in defining “conservation districts,” and it does

not limit what constitutes “conservation districts” to “lands.”

Id.43

              Additionally, pursuant to HRS § 343-5(a)(2), the Land

Use Commission has adopted HAR § 15-15-20, which provides in

relevant part the following:

                    §15-15-20 Standards for determining “C” conservation
              district boundaries. Except as otherwise provided in this
              chapter, in determining the boundaries for the “C”
              conservation district, the following standards shall apply:

                    . . . .

                    (6)   It shall include lands having an elevation below the
                           shoreline as stated by section 205A-I, HRS, [and]
                           marine waters . . . .




        43
            Additionally, as discussed in the preceding section, the term
“lands” includes “submerged lands” and “waters.”




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HAR § 15-15-20(6) (effective 1997) (emphases added).            In

addition, HAR § 15-15-22(a)(2) (effective 1997) provides that in

interpreting district boundaries, “[l]and having an elevation

below the shoreline [and] marine waters . . . of the State[] . .

. shall be included in the conservation district.”            HAR § 15-15-

22(a)(2) (effective 1997).       Thus, the legislature and the Land

Use Commission, through its statutory rulemaking authority,

clearly included lands below the shoreline (i.e., submerged

lands) and marine waters of the State within conservation

districts.    See HRS § 205-2(e) (Supp. 2012); HAR § 15-15-20(6);

HAR § 15-15-22(a)(2).

           The inclusion of State marine waters within

conservation districts designated by the Land Use Commission is

reinforced by HRS § 190-1 (2011), which provides that “[a]ll

marine waters of the State . . . constitute[] a marine life

conservation area to be administered by the department of land

and natural resources subject to this chapter and any other

applicable laws not inconsistent herewith or with any rules

adopted pursuant hereto.”44       Consistent with its legislative

mandate, DLNR has promulgated administrative rules that

     44
            Since 1990, the legislature has defined “state marine waters” “as
extending from the upper reaches of the wash of the waves on shore seaward to
the limit of the State’s police power and management authority, including the
United States territorial sea, notwithstanding any law to the contrary.” HRS
§ 190-1.5 (2011).




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established subzones within conservation districts.45            A

conservation district, under DLNR rules, encompasses subzones of

“[l]ands and state marine waters seaward of the shoreline to the

extent of the State’s jurisdiction, unless placed in a

[protective] or [limited] subzone.”         HAR § 13-5-13(b)(5)

(effective 1994) (emphasis added).         Accordingly, lands and State

marine waters seaward of the shoreline under the State’s

jurisdiction, in which the aquarium collection practices

challenged in this case are conducted, are within conservation

districts classified by the Land Use Commission pursuant to its

authority under HRS chapter 205 and thus fall within a category

of land use enumerated in HEPA.

   3. Whether Aquarium Collection is a “Use” Under HRS § 343–5

           We next consider whether aquarium collection is a

“use” under HRS § 343-5.       “Use” is also an undefined term under

HEPA, and this court has previously observed that its ordinary

meaning “could be construed to apply to any ‘use’ of state or

county land, no matter what or how benign that ‘use’ may be.”


     45
            DLNR’s rulemaking power originates from the legislature, which
has authorized DLNR to “establish and from time to time modify the limits of
one or more conservation districts in each county and may, if it deems
necessary, declare all waters within any county a conservation district.”
HRS § 190-2 (2011). In addition, the legislature has required DLNR in HRS §
183C-3(7) (Supp. 1994) to “[e]stablish and enforce land use regulations on
conservation district lands” and in HRS § 183C-4(b) and (d) (Supp. 1997) to
“adopt rules governing the use of land within the boundaries of the
conservation district” and to establish and define zones within the
conservation district.




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Nuuanu Valley Ass’n v. City & Cty. of Honolulu, 119 Hawaii 90,

103, 194 P.3d 531, 544 (2008).       Our court declined to adopt such

a sweeping interpretation, concluding “that the boundaries of

the meaning of the word ‘use,’ as contemplated by HRS § 343–

5(a)(1), is not unlimited in possibilities.”          Id.   In reaching

this conclusion, the court noted that, in a previous case, we

rejected the plaintiff’s argument “that the ‘potential use of’ a

public highway leading to [a development] project”

“constitute[s] use of state land.”        Id. (quoting Citizens for

Prot. of N. Kohala Coastline v. Cty. of Hawaii, 91 Hawaii 94,

103 n.8, 979 P.2d 1120, 1129 n.8 (1999)).         Thus, this court

concluded in Nuuanu Valley that merely connecting to an existing

drainage system and county lines without any construction or

tunneling beneath state or county lands was not a “use” within

the meaning of that term in HRS § 343-5(a)(1).          Id. at 103—04,

194 P.3d at 544—45.

          What can be readily gleaned from Nuuanu Valley is that

whether a proposed activity constitutes a “use of state or

county lands” depends on the nature of the activity and the

extent of the involvement of state or county lands.           Id. at 103,

194 P.3d at 544.    When the proposed activity utilizes state or

county lands in a decidedly inconsequential or negligible

manner, like the mere connection to state or county lands in

Nuuanu Valley, or when the use is hypothetical, like the


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“potential use” of a public highway in Citizens, then the

activity does not rise to the level of “use” contemplated by

HEPA.     When, on the other hand, the proposed activity utilizes

state or county lands in an actual and more substantial way, the

activity qualifies as a “use” under HEPA.            Compare Nuuanu

Valley, 119 Hawaii at 103–04, 194 P.3d at 544–45 (connecting to

existing county lines was not a “use”), with Kahana Sunset

Owners Ass’n v. Cty. of Maui, 86 Hawaii 66, 71, 947 P.2d 378,

383 (1997) (installing a new drainage line beneath a public

street that would be connected to an existing culvert beneath a

public highway was a “use”), Citizens, 91 Hawaii at 103, 979

P.2d at 1129 (constructing two underpasses beneath a state

highway was a “use”), and Sierra Club v. Office of Planning,

State of Haw., 109 Hawaii 411, 415–16, 126 P.3d 1098, 1102–03

(2006) (constructing sewage and water transmission lines by

tunneling beneath state highways was a “use”).

             Permits for commercial aquarium collection allow for

the unlimited collection of fish and other aquatic life, and

each recreational permit authorizes the extraction of close to

2,000 fish or other aquatic life annually, subject to the terms

and conditions of the permits and to certain restrictions set by

law.    See HAR § 13-75-14; see supra note 21.           The aquatic life

collected inhabits “state lands” and conservation districts, as



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discussed, and are integral components of the State’s reef

ecosystem.    Thus, aquarium collection utilizes “state lands” and

conservation districts in an actual and substantial manner.

Said differently, aquarium collection as allowed under

commercial and recreational permits cannot be said to fall

within the narrow spectrum of activities that this court has

excluded from the meaning of the word “use” in Nuuanu Valley.46

Accordingly, aquarium collection pursuant to permits issued

under HRS § 188-31 qualifies as a “use of state . . . lands” and

as a “use within . . . a conservation district.”47

C. Whether Aquarium Collection is Exempt under HRS § 343-6(a)(2)

           Having determined that aquarium collection under HRS §

188-31 and DLNR’s permitting scheme is a HEPA “action” that

qualifies as a “use of state . . . lands,” we proceed to the

     46
            DLNR argues that, if aquarium collection under HRS § 188-31 is
considered a HEPA “action,” all activities “in a government building or by a
government employee” would be subject to environmental review pursuant to
HEPA because those activities involve “the use of state or county lands or
the use of state or county funds.” This assertion is without merit because,
as discussed, not all activities qualify as a “use,” and activities such as
“turning on the lights” in a government building, a hypothetical that DLNR
asserts, are unquestionably not within the set of activities that qualify as
a “use” under Nuuanu Valley.
     47
            As stated, a parent netting one or two fish for recreational use
would not fall within any of the categories listed in HRS § 343-5(a). See
supra note 31. The reason is that the nature and magnitude of the
involvement of marine waters and submerged lands in this type of activity are
inconsequential and negligible such that this activity would not qualify as a
“use” of state lands or conservation districts under HRS § 343-5(a). It
follows that, if permits were issued for activities similarly limited in
nature and magnitude as a parent collecting one or two fish for recreational
purposes, the activities under such permits would also not be considered a
“use” of state and conservation lands.




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third part of the analysis: whether aquarium collection is

exempt from HEPA environmental review.          HRS § 343-6 requires the

Environmental Council to adopt, amend, or repeal rules that

shall “[e]stablish procedures whereby specific types of actions,

because they will probably have minimal or no significant

effects on the environment, are declared exempt from the

preparation of an environmental assessment.”48             HRS § 343-6(a)(2)

(2010).    The Environmental Council accordingly adopted

categories of “actions” in HAR § 11-200-8(a) that “may be

declared exempt by the proposing agency or approving agency from

the preparation of an environmental assessment provided that


      48
            HEPA defines “[s]ignificant effect” as

            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 (2010).

            HAR § 11-200-2 defines “effects” 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. Effects may
            also include those effects resulting from actions which may
            have both beneficial and detrimental effects, even if on
            balance the agency believes that the effect will be
            beneficial.

HAR § 11-200-2 (effective 1996).




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agencies declaring an action exempt under this section shall

obtain the advice of other outside agencies or individuals

having jurisdiction or expertise as to the propriety of the

exemption.”   HAR § 11-200-8(a) (effective 1996).          These

categories include the operations, repairs, replacement or

reconstruction of existing structures; construction and

modification of certain small facilities or structures; minor

alterations in the conditions of land, water, or vegetation;

basic data collection and research activities; construction or

placement of minor structures accessory to existing facilities;

interior alterations; demolition of certain structures; certain

zoning variances; continuing administrative activities; and

acquisition of land and structures for the purpose of affordable

housing.   Id.

           In addition, the Environmental Council decreed by

administrative rule that “[e]ach agency, through time and

experience, shall develop its own list of specific types of

actions which fall within the exempt classes, as long as these

lists are consistent with both the letter and intent expressed

in these exempt classes and chapter 343, HRS.”          HAR § 11-200-

8(d).   The authority of the various agencies under HAR § 11-200-

8(d), however, is not boundless.         As this court explained in

Kahana Sunset, the intent of the exemption list in HAR § 11-200-

8, adopted pursuant to HRS § 343-6(a)(2), is “to exempt only


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very minor projects from the ambit of HEPA.”          Kahana Sunset

Owners Ass’n v. Cty. of Maui, 86 Hawaii 66, 72, 947 P.2d 378,

384 (1997).    Thus, this court later held that, when developing

lists of the exemptions pursuant to HAR § 11-200-8(d), an agency

must preliminarily determine that the action to be declared

exempt is a very minor project that “will ‘probably have minimal

or no significant effects on the environment.’”          Sierra Club v.

Dep’t of Transp. of the State of Haw., 115 Hawaii 299, 316, 167

P.3d 292, 309 (2007).      Our decision in Sierra Club also

concluded “that not only must the exemption list be developed

with regard to the letter and intent of HEPA and its

regulations, but so also must individual exemption

determinations.”     Id.   This means that individual exemption

determinations must be determined to “probably have minimal or

no significant effects on the environment.”          Id. (quoting HAR §

11-200-2).

             Guided by these principles, this court in Sierra Club

concluded that an agency must make the following determinations

in deciding whether a proposed activity is exempt from HEPA.

Preliminarily, the agency must determine whether the action is

part of a “group of actions” that must be “treated as a single

action” pursuant to HAR § 11-200-7 (effective 1985).

Thereafter, the agency must conduct a four-step analysis: an

action is exempt from HEPA if (1) it is within an exempt class


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promulgated by the Environmental Council in HAR § 11-200-8(a) or

within an exemption category created by the agency itself

pursuant to its authority under HAR § 11-200-8(d); (2) the

relevant exemption category can be applied because the activity

does not have a significant cumulative impact and it does not

have a significant impact on a particularly sensitive

environment, see HAR § 11-200-8(b); (3) the agency obtained the

advice of other agencies or individuals having jurisdiction or

expertise as to the propriety of the exemption, HAR § 11-200-

8(a); and (4) the action will probably have minimal or no

significant effects on the environment, HRS § 343-6(a)(2); see

also HAR § 11-200-8(d); Sierra Club, 115 Hawaii at 315—16, 167

P.3d at 308—09.    If the action fails to satisfy any of the four

requirements discussed, it is not exempt from HEPA.           Sierra

Club, 115 Hawaii at 315—16, 167 P.3d at 308—09.

          As a matter of law, it cannot be concluded that

commercial aquarium collection, which involves the extraction of

an unlimited number of fish and other aquatic life annually, may

be exempt from HEPA because it does not qualify within any of

the exemption categories in HAR § 11-200-8(a).          The most

relevant exemption--“[m]inor alterations in the conditions of

land, water, or vegetation” under HAR § 11-200-8(a)(4)--has no

application because a permit for extraction of an unlimited

number of aquatic life cannot be said to constitute only a


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“[m]inor alteration” in the condition of State waters and

submerged lands.49

            With respect to recreational aquarium collection,

which allows each permit holder to extract close to 2,000 fish

or other aquatic life per year,50 the record is not sufficiently

developed so as to allow this court to determine whether this

“action” may be exempted from HEPA under an exemption category

in HAR § 11-200-8(a) or under DLNR’s own exemption list

promulgated pursuant to HAR § 11-200-8(d).51          In sum, commercial

     49
            With the Environmental Council’s approval, DLNR has promulgated
its own exemption list pursuant to its authority under HAR § 11-200-8(d).
Exemption List for the Department of Land and Natural Resources (2015),
http://oeqc.doh.hawaii.gov/Shared%20Documents/Environmental_Council/Exemption
_Lists_By_Department/State_Agencies/DLNR_Comprehensive_Exemption_List_06-05-
15_Final.pdf. None of the exemption classes that DLNR adopted applies in
this case. The closest relevant exemption under Exemption Class 4--“[m]inor
alterations in [S]tate waters, including restoration of native species and
control of invasive weeds, algae, invertebrates, fishes or other invasive
aquatic organisms”--does not apply because, as discussed, commercial aquarium
collection cannot be said to constitute a “[m]inor alteration[] in [S]tate
waters.”

            Because we conclude that activities allowed by commercial
aquarium collection permits do not qualify under any of the exemption
categories in HAR § 11-200-8(a) and in DLNR’s own exemption list, it is not
necessary for this court to apply the other prongs of the exemption framework
to commercial aquarium collection.
     50
            When the aquarium collector does not collect the maximum amount
of aquatic animals authorized, the catch could be such that rarer, more
vulnerable species are specifically targeted.
     51
            A parent collecting one or two fish for recreational use, aside
from not falling within any of the categories under HRS § 343-5(a), may also
be exempt from HEPA. See supra note 31. This is because this activity
arguably falls under the exemption for minor alterations in the conditions of
land, water, or vegetation, as discussed in this section. Thus, if permits
issued under HRS § 188-31 allow only activities similar in nature and
magnitude as a parent collecting one or two fish for recreational purposes,
the activity may also be exempt from HEPA within the framework discussed
above.




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aquarium collection is not exempted from HEPA, but the

possibility that recreational aquarium collection as authorized

under HRS § 188-31 and DLNR’s administrative rules may be

exempted should be explored further by the parties and the

circuit court upon remand using the analytical framework

discussed herein.

                       D. Discretionary Consent

          We have determined that aquarium collection is a HEPA

“action” that qualifies as a use of state lands and that, while

commercial aquarium collection is not exempted from HEPA’s

environmental review requirements, the record is not

sufficiently developed for this court to determine whether the

same is true for recreational aquarium collection.           However,

because aquarium collection has been cast in this case as an

applicant action, in order for environmental review to be

required under HEPA, there is an additional inquiry of whether

issuing a permit for aquarium collection requires “approval of

an agency.”   HRS § 343-5(e) (Supp. 2012).52



    52
           In relevant part, HRS § 343-5(e) provides as follows:

               (e)    Whenever an applicant proposes an action
          specified by subsection (a) that requires approval of an
          agency and that is not a specific type of action declared
          exempt under section 343-6, the agency initially receiving
          and agreeing to process the request for approval shall
          require the applicant to prepare an environmental
          assessment of the proposed action at the earliest

                                                            (continued . . .)


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            “Approval,” as defined by HEPA, “means a discretionary

consent required from an agency prior to actual implementation

of an action.”      HRS § 343-2 (2010).     “‘Discretionary consent’

means a consent, sanction, or recommendation from an agency for

which judgment and free will may be exercised by the issuing

agency, as distinguished from a ministerial consent.”                Id.   DLNR

contends that it does not issue an “approval” because it does

not exercise discretion whenever it issues aquarium collection

permits pursuant to HRS § 188-31 (2011) and that, therefore,

HEPA does not apply to aquarium collection.




(continued . . .)

            practicable time to determine whether an environmental
            impact statement shall be required . . . .

HRS § 343-5(e) (emphasis added).

            In their reply, Petitioners argue that the ICA’s holding
regarding DLNR’s discretionary authority is not properly before this court
because DLNR did not cross-file an application for writ of certiorari
challenging that portion of the ICA’s published opinion. However, whether
discretionary authority exists is a “subsidiary question fairly comprised” by
the issue presented in Petitioners’ application for writ of certiorari--
whether aquarium collection pursuant to HRS § 188-31 and DLNR’s
administrative rules requires HEPA review--because, as explained, in order to
ultimately resolve the issue presented, this court must determine whether
DLNR exercises discretionary consent in granting HRS § 188-31 aquarium
permits. Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d)(1) (2016)
(“The statement of a question presented will be deemed to include every
subsidiary question fairly comprised therein.”). In addition, we reach the
question of discretionary authority as part of our duty to consider any
grounds upon which the circuit court’s summary judgment ruling may be
affirmed. See supra note 37.




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            HRS § 188-31 expressly provides that DLNR, “upon

receipt of a written application, may issue an aquarium fish

permit, not longer than one year in duration, to use fine meshed

traps, or fine meshed nets other than throw nets, for the taking

of marine or freshwater nongame fish and other aquatic life for

aquarium purposes.”53     HRS § 188-31(a) (emphasis added).          “The

term ‘may’ is generally construed to render optional,

      53
            As stated, HRS § 188-31 provides the following:

                  (a)   Except as prohibited by law, the department,
            upon receipt of a written application, may issue an
            aquarium fish permit, not longer than one year in duration,
            to use fine meshed traps, or fine meshed nets other than
            throw nets, for the taking of marine or freshwater nongame
            fish and other aquatic life for aquarium purposes.

                  (b)   Except as prohibited by law, the permits shall
            be issued only to persons who can satisfy the department
            that they possess facilities to and can maintain fish and
            other aquatic life alive and in reasonable health.

                  (c)   It shall be illegal to sell or offer for sale
            any fish and other aquatic life taken under an aquarium
            fish permit unless those fish and other aquatic life are
            sold alive for aquarium purposes.

                  The department may adopt rules pursuant to chapter 91
            for the purpose of this section.

                  (d) For the purposes of this section:

                  (1) “Aquarium purposes” means   to hold salt water
                       fish, freshwater nongame   fish, or other aquatic
                       life alive in a state of   captivity as pets, for
                       scientific study, or for   public exhibition or
                       display, or for sale for   these purposes; and

                  (2) “Aquarium fish permit” means a permit issued by
                       the board for the use of fine mesh nets and
                       traps to take salt water fish, freshwater
                       nongame fish, or other aquatic life for
                       aquarium purposes.

HRS § 188-31 (emphases added).




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permissive, or discretionary the provision in which it is

embodied; this is so at least when there is nothing in the

wording, sense, or policy of the provision demanding an unusual

interpretation.”    State v. Kahawai, 103 Hawaii 462, 465, 83 P.3d

725, 728 (2004) (quoting State ex rel. City of Niles v. Bernard,

372 N.E.2d 339, 341 (Ohio 1978)).        Where “may” and “shall” “are

used in the same statute, especially where they are used in

close juxtaposition, we infer that the legislature realized the

difference in meaning and intended that the verbs used should

carry with them their ordinary meanings.”         State v. Cornelio, 84

Hawaii 476, 493, 935 P.2d 1021, 1038 (1997) (quoting Gray v.

Admin. Dir. of the Court, State of Haw., 84 Hawaii 138, 149, 931

P.2d 580, 591 (1997)).     In such instances, “the close proximity

of the contrasting verbs ‘may’ and ‘shall’ requires a non-

mandatory, i.e., a discretionary, construction of the term

‘may.’”    Id. (quoting Gray, 84 Hawaii at 149, 931 P.2d at 591).

            In HRS § 188-31, “may” is used in subsection (a),

where DLNR is given the authority to issue aquarium collection

permits.    The verb “shall” is then used in subsection (b), which

provides that “the permits shall be issued only to persons who

can satisfy the department that they possess facilities to and

can maintain fish and other aquatic life alive and in reasonable

health.”    HRS § 188-31(b).    The verbs “shall” and “may” are both



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used in subsection (c), which states that “[i]t shall be illegal

to sell or offer for sale any fish and other aquatic life taken

under an aquarium fish permit unless those fish and other

aquatic life are sold alive for aquarium purposes” and that

“[t]he department may adopt rules pursuant to chapter 91 for the

purpose of this section.”      HRS § 188-31(c).      Thus, the verbs

“may” and “shall” are used “in close juxtaposition” in HRS §

188-31, and the legislature should be presumed to have done so

deliberately and with full knowledge of the difference between

the ordinary significations of these verbs.          Cornelio, 84 Hawaii

at 493, 935 P.2d at 1038.      As such, the use of the verb “may” in

subsection (a) “render optional, permissive, or discretionary”

DLNR’s statutory authority to issue aquarium collection permits

pursuant to HRS § 188-31.      Kahawai, 103 Hawaii at 465, 83 P.3d

at 728.

          HRS § 188-31(b) provides further indication that DLNR

possesses the authority to exercise discretionary consent in the

aquarium collection permitting process.         Subsection (b) of HRS §

188-31 provides that “the permits shall be issued only to

persons who can satisfy the department that they possess

facilities to and can maintain fish and other aquatic life alive

and in reasonable health.”      HRS § 188-31(b) (emphasis added).

Accordingly, HRS § 188-31(b) explicitly allows DLNR to exercise

its independent judgment in determining whether a permit


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applicant possesses facilities to and can maintain fish and

other aquatic life alive and in reasonable health.           See HRS §

343-2 (defining discretionary consent as “a consent, sanction,

or recommendation from an agency for which judgment and free

will may be exercised by the issuing agency, as distinguished

from a ministerial consent”).       If DLNR is not satisfied that a

permit applicant has the ability to comply with the provisions

of HRS § 188-31(b), DLNR has the statutory discretion not to

issue an aquarium collection permit.        Not only does DLNR

exercise its independent judgment pursuant to HRS § 188-31(b),

DLNR is also authorized, under HRS § 188-31(c), to adopt

administrative rules to effectuate the aquarium collection

permitting scheme.    HRS § 188-31(c).      As the ICA also

recognized, the legislative history of HRS § 188–31 makes DLNR’s

discretionary authority clear, as the statute “provides

safeguards so that the abuse of the privilege of using fine mesh

nets can be prevented.”     Umberger v. Dep’t of Land & Nat.

Resources, 138 Hawaii 508, 518, 382 P.3d 320, 330 (App. 2016)

(emphasis omitted) (quoting H. Stand. Comm. Rep. No. 586, in

1953 House Journal, at 675).      Thus, there is no merit to DLNR’s

argument that it does not possess the authority to exercise

discretionary consent in the aquarium collection permitting

process.




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          DLNR further argues that it does not exercise

discretion in issuing aquarium collection permits because “[t]he

application process is on-line and completely automatic.”

However, the fact that DLNR has chosen not to exercise its

discretion under the plain and unambiguous language of HRS §

188-31 does not nullify the statute’s clear directive that DLNR

is given the authority to exercise discretionary consent.             An

agency may not defeat the express provisions of a statute simply

by operating in a manner that does not comport with the

legislature’s grant of authority.        See Hyland v. Gonzales, 139

Hawaii 386, 382, 390 P.3d 1273, 1279 (2017) (concluding that the

local election board’s interpretation of its regulation must be

consistent with the act being administered and that the board

cannot contradict the statute that it is attempting to

implement).   This would also be contrary to the principle,

recognized by a majority of this court, that “[a]n agency is a

creature of the legislature, and the scope of its authority is

specifically delineated by statute.”        Mauna Kea Anaina Hou v.

Bd. of Land & Nat. Res., 136 Hawaii 376, 413 n.14, 363 P.3d 224,

261 n.14 (2015) (Pollack, J., concurring).

          To conclude, DLNR’s challenge to the ICA’s holding

that DLNR has discretionary consent is without merit.            Thus,

aquarium collection pursuant to permits issued under HRS § 188-

31 is an applicant action that requires agency approval.


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                          E. Summary Judgment

          The circuit court granted DLNR’s motion for summary

judgment and, correspondingly, denied Petitioners’ summary

judgment motion upon concluding that aquarium collection under

HRS § 188-31 (2011) is not a HEPA “action.”          This court’s

framework in reviewing decisions regarding summary judgment is

as follows:

          [S]ummary judgment is appropriate if the pleadings,
          depositions, answers to interrogatories, and admissions on
          file, together with the affidavits, if any, show that there
          is no genuine issue as to any material fact and that the
          moving party is entitled to judgment as a matter of law. A
          fact is material if proof of that fact would have the
          effect of establishing or refuting one of the essential
          elements of a cause of action or defense asserted by the
          parties. The evidence must be viewed in the light most
          favorable to the non-moving party. In other words, we must
          view all of the evidence and the inferences drawn therefrom
          in the light most favorable to the party opposing the
          motion.

Lambert v. Waha, 137 Hawaii 423, 432 n.9, 375 P.3d 202, 211 n.9

(2016) (quoting Querubin v. Thronas, 107 Hawaii 48, 56, 109 P.3d

689, 697 (2005)).    The burden is on the moving party “to show

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 matter of law.”           French v.

Haw. Pizza Hut, Inc., 105 Hawaii 462, 470, 99 P.3d 1046, 1054

(2004) (quoting GECC Fin. Corp. v. Jaffarian, 79 Hawaii 516,

521, 904 P.2d 530, 535 (App. 1995)).        Only after the moving

party satisfies its initial burden would the burden shift to the




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nonmoving party to “demonstrate specific facts, as opposed to

general allegations, that present a genuine issue worthy of

trial.”   Id. (emphasis omitted) (quoting GECC Fin. Corp., 79

Hawaii at 521, 904 P.2d at 535).

            Because aquarium collection pursuant to commercial and

recreational permits issued by DLNR is a HEPA “action,” the

circuit court erred in granting DLNR’s motion for summary

judgment on the basis that aquarium collection is not a HEPA

“action.”    The circuit court also erred to the extent that it

denied Petitioners’ summary judgment motion with respect to

commercial aquarium collection permits because, as discussed,

the authorized conduct under such permits is an applicant

“action” under HEPA, is a use of state lands and a use within a

conservation district, is not exempted from HEPA, and is subject

to DLNR’s discretionary consent.         Thus, the conduct allowed

under commercial aquarium collection permits, issued pursuant to

HRS § 188-31 and DLNR’s administrative scheme, is subject to

HEPA environmental review, and there is no genuine issue of

material fact as to this issue.       To the extent that the circuit

court did not grant Petitioners’ summary judgment motion with

respect to recreational aquarium collection permits, it did not

err because the record is not sufficiently developed so as to

allow the circuit court to determine whether activities allowed

under recreational permits may be exempted from HEPA


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environmental review.     In other words, there was a genuine issue

of material fact as to whether activities authorized by

recreational permits are subject to HEPA review.

          In summary, the circuit court erred in granting DLNR

summary judgment and in denying Petitioners’ summary judgment

motion with respect to commercial aquarium collection permits.

The circuit court did not err in denying Petitioners’ motion for

summary judgment with respect to recreational aquarium

collection permits.

          We note that HRS § 343-5(g) (Supp. 2012) provides that

agencies, in preparing an environmental assessment, “may

consider and, where applicable and appropriate, incorporate by

reference, in whole or in part, previous determinations of

whether a statement is required and previously accepted

statements.”   HRS 343-5(g) (Supp. 2012).        A similar authority,

derived from HRS § 343-5, exists in HAR § 11-200-13(a)

(effective 1996), providing “that whenever an agency proposes to

implement an action or receives a request for approval, the

agency may consider and, when applicable and appropriate,

incorporate by reference, in whole or in part, previous

determinations of whether a statement is required, and

previously accepted statements.”         These provisions alleviate the

concern that an environmental assessment would necessarily have

to be prepared whenever an applicant applies for an aquarium


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collection permit.    Further, “a group of proposed actions may be

treated by a single environmental assessment or statement,” HRS

§ 343-6(a)(1) (2010), when “[t]he actions in question are

essentially identical and a single statement will adequately

address the impacts of each individual action and those of the

group of actions as a whole,” HAR § 11-200-7 (effective 1985).

Such an approach can assuage concerns about aquarium collectors

not having the resources to comply with HEPA.

            On remand, the circuit court is directed to grant

Petitioners’ summary judgment motion to the extent that

Petitioners are requesting declaratory relief and a prohibitory

injunction as to commercial aquarium collection pursuant to

permits issued under HRS § 188-31 and DLNR’s administrative

rules.   Further proceedings are necessary, however, in order to

determine whether Petitioners are entitled to declaratory relief

and a prohibitory injunction as to recreational aquarium

collection permits.

                             VI. CONCLUSION

            Accordingly, we vacate the ICA’s judgment insofar as

it affirmed the circuit court’s judgment granting DLNR summary

judgment.    The ICA’s judgment is further vacated to the extent

that it affirmed the circuit court’s judgment denying

Petitioners’ motion for summary judgment with respect to

commercial aquarium collection permits.         Similarly, the circuit


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court’s judgment is vacated insofar as it granted summary

judgment to DLNR and denied Petitioners’ summary judgment motion

with respect to commercial aquarium collection permits.            The

remaining portions of the judgments of the ICA and the circuit

court are otherwise affirmed, and this case is remanded to the

circuit court for further proceedings consistent with this

opinion.

Paul H. Achitoff and                     /s/ Mark E. Recktenwald
Summer Kupau-Odo
for petitioners                          /s/ Paula A. Nakayama

                                         /s/ Sabrina S. McKenna
William J. Wynhoff
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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