2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2)

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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 Q.That would trigger a[SEIS]? A.It could be.Again,the key wording is significant impact.[A]significant impact would result from the change in the scope,timing,so forth. Q.So is that your understanding of the DPP's view of this,is that a[SEIS]is not necessary for a project that has a[]SM[P]or a unilateral agreement unless there will be a significant impact...in some area? A.Yes. Q.And it's not may,it's will? A.May.No,it's may. Q.It's may? A.Yes.It specifically says that in the rules. Q.So it's not necessarily somebody coming in saying that this will have an impact,it's somebody looking at it to say may this have an impact or not,correct? A.That's correct. (Emphases added.) 4. Plaintiffs' Reply Evidence in Support of Cross-Motion In further support of their cross-motion for summary judgment,the plaintiffs submitted evidence in their November 8,2006 reply memorandum,regarding new information about monk seals in the project area that was not previously available.Specifically,the plaintiffs deposed Charles Littnan,Ph.D.(Dr.Littnan),a marine mammal ecologist who has studied the habitat requirements,diet,and feeding behavior of the Hawaiian monk seal for over ten years.According to Dr.Littnan,both the beach and near shore areas of the project are now known to be a foraging habitat to the monk seal population,the beach has been identified as an important"hauling out habitat,"M and the first recorded pupping of Hawaiian monk seals in the project area occurred on June 1,2006.Dr.Littnan stated that"the numerous recently reported sightings of monk seals in the area suggest that the beaches and near shore areas of the[p]roject are critical to the regeneration of the monk seal population"because there are numerous beaches on[Oahu]which have had no reported sightings of monk seals on them,indicating that some beaches are not attractive to monk seals.Several seal species have been shown to have preference for particular beach characteristics(e.g.[,]slope,exposure to swells,substrate[sand or rock], proximity to feeding areas),so it is reasonable to believe monk seals have similar criteria in their choice of beach.Further,the fact that multiple seals have used this area indicates that there is something that is causing them to select it specifically. As a result,Dr.Littnan stated that he"expect[s]that the number of pups born in the main Hawaiian[i]slands will continue to increase each year for the foreseeable future, and[,]assuming there are no changes in the conditions of the[r]esort[a]rea,it is very likely that the monk seals will continue to use the...[a]rea as a habitat for pupping."Dr. Littnan further testified that,although the project area is not currently designated as a critical habitat,"the last critical habitat assessment for Hawaiian monk seals was performed prior to the increased presence of monk seals in the[m]ain Hawaiian[i]slands,[and]it cannot be assumed that the[p]roject area will not be so designated in the future." 5. Circuit Court's Decision On November 13,2006,a hearing on the parties'respective motions for summary judgment was held.After considering the arguments made and the evidence submitted by the parties,the circuit court entered an order on December 5,2006,granting Kuilima's third motion for summary judgment and the County's joinder and denying the plaintiffs' 440 cross-motion for summary judgment.The circuit court essentially agreed with the defendants'interpretation of HAR§§11-200-26 and 11-200-27 that a SEIS is'440 required only when there is a substantive project change and determined that,as a matter of law,the timing of the project had not substantively changed.As previously noted,the circuit court,based upon its grant of summary judgment in favor of the defendants,ruled that the defendants'motion for judgment on the pleadings and the other two motions for summary judgment were moot.Also,on December 5,2006,the circuit court entered the following relevant findings of fact(FOFs)and conclusions of law(COLS): [FOFs] 1.[HRS]§343-5(g)[(Supp.2005)]provides that an[EIS]that is accepted with respect to a particular action shall satisfy the requirements of the chapter and no other statement for that proposed action shall be required. 2.[HEPA]allows the Environmental Council to draft rules and regulations to implement HEPA[.] 3.An EIS is supposed to be prepared,and environmental consequences of an action are supposed to be reviewed,at the earliest possible time.See HRS§343- 5(b).The[c]ourt finds that this was done with respect to the[project]in 1985.The EIS for the[p]roject was accepted in October 1985,and is a matter of public record. 4.Although there has been some delay in the[p]roject from the community's perspective,there have been ongoing activities and actions with respect to the [p]roject throughout the past[twenty]years.In addition,the[p]roject was adopted as part of the Ko'olauloa Sustainable Communities Plan in May of 1999;the public had an opportunity to participate with respect to the adoption of that[p]lan. 5.The[DPP],as the accepting authority,is responsible for determining whether a[SEIS]is required for the[p]roject.See HAIR§[]XX-XXX-XX. 6.At the end of 2005 and beginning of 2006,certain North Shore neighborhood boards...and other individuals asked the DPP whether the timing of the[p]roject would require a[SEIS].The[p]laintiffs did not write any of those letters.The DPP responded,indicating that it had determined that a[SEIS]was not required for the[p]roject.Although it does not appear that specific reasons were given,the DPP determined that the timing of the action has not changed so as to require a [SEIS]. 7.The...1985 EIS contained only general statements in terms of phasing of the[p]roject,but those statements did not impose a time limit on the[p]roject based on that proposed phasing time frame.The...1985 EIS does not obligate Kuilima to follow that phasing time frame. https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 8/17