UPDATE: Justices Decline to Reconsider Turtle Bay
The Hawaii Supreme Court said Tuesday it would not review its April decision that requires developers at the Turtle Bay resort to update an environmental study before moving forward with a massive expansion. The circumstances surrounding the project have changed even if the project itself has not, the court said in its original ruling, which is now essentially final.
In the decades since the environmental impact statement for Turtle Bay’s expansion was first approved in 1985, Oahu’s North Shore has experienced changes to its traffic patterns, and endangered monk seals and turtles have become more prevalent in the area, environmentalists argued.
The court, without comment, on Tuesday [pdf] backed by Chief Justice Ronald Moon, Justices Paula Nakayama and James Duffy and Circuit Judge Derrick Chan, in place of Justice Mark Recktenwald, who recused himself.
The order denied a [pdf] filed by Turtle Bay developers Kuilima Resort Co. in the days after the court’s [pdf]. Civil Beat previously covered the impact of the decision, the reconsideration motion and a subsequent argument from the development community criticizing the court and trashing environmentalists.
Dissenting Tuesday was Justice Simeon Acoba, who wrote that [pdf] for reconsideration because he feels the court “usurped” the role of the Honolulu Department of Planning and Permitting and substituted its own judgment of the facts, not just the law.
Essentially, the city originally decided that if the timing of the project was the only factor to change, it could not require a supplemental environmental impact statement before issuing final permits. The city did not even attempt to address the question of whether there would be significant environmental impacts. It said its hands were tied.
Acoba said he agreed with his fellow justices when they wrote that the city focused on the wrong issues in its interpretation of Hawaii’s environmental disclosure law. Timing is a factor in determining whether to require a new environmental review. Diamonds may be forever, but documents are not.
But Acoba thinks the court should have stopped there. It should have told the city to take a hard look, consider the 25-year change in timing, and reach its own conclusions about whether the existing study contained enough information to enable an informed decision about the permits, he said.
“By deciding what the likely impact of the project would be, due to changes in the surrounding area, this court assumed the role of the DPP,” Acoba wrote. He later added that “because this court made the threshold determination that the DPP did not apply the correct legal standard, the case should have been remanded to the DPP to apply that standard.”
Read Acoba’s full 17-page dissenting opinion here:
DISCUSSION Should the Hawaii Supreme Court have remanded the case back to the Honolulu Department of Planning and Permitting? Join the conversation about Turtle Bay’s environmental impact statement.
