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3/6/24, 12:06 PM Unite Here!Local 5 v.City and Cty.of Honolulu,231 P.3d 423-Haw: Supreme Court 2010-Google Scholar
<br /> the plaintiffs'contentions,to wit:(1)whether the plaintiffs'claims are time-barred by the applicable statute of limitations and(2)whether the Environmental Council exceeded
<br /> its statutory authority in promulgating the administrative rules regarding SEISs.
<br /> A. Statute of Limitations
<br /> As previously indicated,the circuit court ruled that Kuilima's first motion for summary judgment based on statute of limitations grounds,which was joined in by the County,was
<br /> 445 moot in light of its grant of summary judgment in favor of the defendants.Although the statute of limitations ground was reasserted on appeal before the*445 ICA,neither the
<br /> ICA majority nor the dissent addressed this threshold issue.In response to the plaintiffs'application,Kuilima again argues that the plaintiffs'claims are untimely because the
<br /> plaintiffs'complaint was filed more than 120 days after"the[p]roject started or allegedly restarted'and when[the plaintiffs]knew or reasonably should have known of the
<br /> alleged change in the timing of the[p]roject or the'new circumstances or evidence."'Alternatively,Kuilima argues that the plaintiffs'claims are time-barred because:(1)the
<br /> plaintiffs filed the complaint more than thirty days"after[the plaintiffs]had actual knowledge of the DPP's determination that a[]SEIS was not required";and(2)the plaintiffs
<br /> filed the complaint"mare than sixty days after[the plaintiffs]had actual knowledge of the DPP's determination that a[]SEIS was not required."
<br /> HEPA does not provide limitation periods for actions specifically related to supplemental assessments.However,it appears undisputed,based on the arguments of the parties,
<br /> that the limitation periods applicable to EISs are the same for SEISs.Such treatment is seemingly supported by the administrative rules promulgated to further the purpose of
<br /> HEPA that generally subject EISs and SEISs to some of the same procedural requirements.See HAIR§11-200-28(indicating that the contents of a SEIS"shall be the same as
<br /> required by this chapter for the EIS");HAIR§11-200-29(listing certain procedural requirements,including filing public notices,distribution,and acceptance procedures,and
<br /> indicating that such procedures"shall be the same for the supplemental statement as is prescribed by this chapter for an EIS").Thus,pursuant to HRS§343-7,the statute of
<br /> limitations for actions related to an EIS—and,consequently,a SEIS—is as follows:
<br /> (a)Any judicial proceeding,the subject of which is the lack of[an environmental]assessment required under section 343-5,[Supp.2005I16I]shall be initiated
<br /> within one hundred twenty days of the agency's decision to carry out or approve the action,or,if a proposed action is undertaken without a formal determination
<br /> by the agency that a statement is or is not required,a judicial proceeding shall be instituted within one hundred twenty days after the proposed action is started....
<br /> (b)Any judicial proceeding,the subject of which is the determination that a statement is required for a proposed action,shall be initiated within sixty days after the
<br /> public has been informed of such determination pursuant to[HRS]section 343-3[(Supp.2005)(pertaining to public records and notice)].Any judicial proceeding,
<br /> the subject of which is the determination that a statement is not required for a proposed action,shall be initiated within thirty days after the public has been
<br /> informed of such determination pursuant to section 343-3....
<br /> (c)Any judicial proceeding,the subject of which is the acceptance of an[EIS]required under section 343-5,shall be initiated within sixty days after the public has
<br /> been informed pursuant to section 343-3 of the acceptance of such statement.
<br /> (Emphases added.)Inasmuch as the issue here is the DPP's determination that an environmental assessment was not required,subsection(c)above,relating to judicial
<br /> proceedings involving"the acceptance of an EIS,"clearly does not apply.
<br /> On the other hand,subsection(b)'s limitation period applies to those judicial proceedings related to whether a statement is or is not required and is,thus,seemingly applicable.
<br /> For circumstances where the determination involves a statement that is not required,as here,judicial proceedings"shall be initiated within thirty days after the public has been
<br /> informed of such determination pursuant to[HRS]section 343-3."HRS§343-7(b).HRS§343-3 provides in relevant part:
<br /> 446 (a)All statements,environmental assessments,and other documents prepared under this chapter shall be made available*446 for inspection by the public during
<br /> established office hours.
<br /> (b)The[OEQC]shall inform the public of notices filed by agencies[(e.g.,the DPP)]of the availability of environmental assessments for review and comments,of
<br /> determinations that statements are required or not required,of the availability of statements for review and comments,and of the acceptance or nonacceptance of
<br /> statements.
<br /> (Emphases added.)With respect to"notices filed by agencies"referred to above,HAIR§§11-200-11.1(relating to"Notice of Determination for Draft Environmental
<br /> Assessments")and 11-200-11.2(relating to"Notice of Determination for Final Environmental Assessments"),which are nearly identical,provide in relevant part that,
<br /> if the...approving agency[(here,the DPP)]anticipates that the proposed action is not likely to have a significant effect,it shall issue a notice of determination
<br /> which shall be an anticipated negative declaration[I17!]subject to the public review provisions of section 11-200-9.1[(setting forth procedures for public review and
<br /> comment in negative declaration determination situations)].The...approving agency shall also file such notice with the[OEQC]as early as possible after the
<br /> determination is made/.]
<br /> HAIR§11-200-11.1 (emphases added)J18]A review of the record reveals no evidence demonstrating that the DPP filed a notice of its determination that a SEIS was not
<br /> required with the OEQC,and Kuilima fails to identify any such evidence.Inasmuch as the requisite notice was not provided,there is no date from which to measure the thirty
<br /> day limitation prescribed by HRS§343-3(b).Consequently,we conclude subsection(b)is inapplicable under these circumstances.
<br /> Kuilima,however,in attempting to convince this court that subsection(b)applies,essentially contends that the plaintiffs'actual knowledge may substitute for the public notice
<br /> and argues(in a footnote)that,"[i]n cases where formal publication does not occur,the statute of limitations runs from the date of actual knowledge."'(Citing HRS§91-2
<br /> (1993),I191)Specifically,Kuilima points to various instances when"[m]embers of KNSC[allegedly]admitted to having actual knowledge,"'including,interalia,(1)Shafer's
<br /> receipt of DPP's January 19,2006 response letter,indicating that a SEIS was not required,(2)KNSC director Gilbert Riviere's attendance at the February 9,2006 Koolau Loa
<br /> Neighborhood Board Meeting when the DPP's February 8,2006 letter was allegedly read aloud,and(3)"at the very latest,"KNSC members'attendance at a March 15,2006
<br /> Sunset Neighborhood Board meeting when Gill allegedly reported DPP's response.
<br /> Kuilima's citation to the general provision set forth in HRS§91-2,quoted supra at note 19,and its conclusory statement that,absent formal publication,the statute of
<br /> 447 limitations runs from actual notice is unpersuasive.As discussed above,the statute of limitations set forth in HRS§343-7(b)specifically provides that judicial proceedings*447
<br /> "shall be initiated within thirty days after the public has been informed of such determination pursuant to section 343-3."In turn,section 343-3 mandates the OEQC to inform
<br /> the public of the DPP's negative declaration upon receipt of such notification from the DPP.See Chock v.Gov't Employees Ins.Co.,103 Hawaii 263,269,81 P.3d 1178,1184
<br /> .(2003)(recognizing that"where there is a plainly irreconcilable'conflict between a general and a specific statute concerning the same subject matter,the specific will be
<br /> favored").Thus,given the plain and unambiguous statutory language,coupled with the related administrative rules discussed above,actual knowledge cannot be"substitute[d]
<br /> for public notice."Consequently,Kuilima's argument lacks merit.
<br /> Finally,with respect to HRS§343-7(a),the period of limitation begins to run upon"the agency's decision to carry out or approve the action,"or,"if a proposed action is
<br /> undertaken without a formal determination by the agency that a statement is or is not required,"then the judicial proceeding must be brought 120 days"after the proposed
<br /> action is started."In the instant case,although the subdivision application was part of the larger action(i.e.,the project),the specific"action"for statute of limitation purposes
<br /> https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 11/17
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