News Roundup
Supreme Court Rules against our HCP Challenge
February 22, 2022 - The Supreme Court ruled against our challenge of Na Pua Makani’s Habitat Conservation Plan.
In late 2016, we brought a contested case regarding their plan to minimize and mitigate impacts on endangered species, including the unprecedented killing of the `ōpe`ape`a (Hawaiian hoary bat) by wind turbines in Hawaii.
After thoroughly considering written briefs and two days of evidentiary hearings, the hearing officer agreed the plan was inadequate and should be rejected. The Board of Land and Natural Resources disregarded the recommendation to send the plan back to the Endangered Species Recovery Committee and accepted it in early 2018. We appealed that decision through the courts and now the final ruling has been issued.
While we are disappointed with the outcome of the case, we take comfort in knowing that we expanded awareness of the adverse impacts of gigantic turbines on endangered species and the residents of the host community. It would be inconceivable to surround windy Diamond Head with turbines, yet the small rural community of Kahuku is now surrounded by 568-foot behemoths. This environmental injustice will no longer be ignored. Host communities and endangered species will not be overlooked in the rush to alternative energy
Keep the North Shore Country continues the fight to protect vulnerable communities and native species. Last year, we secured $250,000 to fund research which helped confirm the existence of breeding pairs of the endangered u`au (Hawaiian petrel) on Oahu. Presently, we have a case pending before the Intermediate Court of Appeals against the illegal placement of two Na Pua Makani wind turbines within the minimum property setback.
Of course, we won the landmark Supreme Court case that led to the perpetual conservation of hundreds of acres at Kawela Bay and the Turtle Bay Resort and huge reductions in potential development. Our mission is to preserve, protect and enhance the heritage and rural character of the North Shore of Oahu, Hawaii, in partnership with communities from Kaena Point to Kahaluu. We welcome your feedback.
2021 Annual Report
December 29, 2021 - Here is a year end review of the work being done by KNSC, including a brief update on Turtle Bay Resort..
Turbine Setbacks Case Now before the ICA
December 29, 2021 - KNSC and Kahuku Community Association are challenging illegal approvals by the Department of Planning and Permitting's (DPP) that allowed two turbines to be constructed within the minimum property setback. Our appeal is now before the Intermediate Court of Appeals.
The Zoning Board of Appeals and Circuit Court both ruled that our appeal was filed too late and refused to consider the illegality of DPP's decision. The setback waiver was done ministerially and never publicly announced. Nobody except the developer and the DPP knew about the decision, so how could a 30 day limit to appeal be valid? We cannot believe the law requires interested parties to know, in advance, that the city is about to do something illegal and to formally request to be informed if they do.
We learned about these decisions in December 2019 and requested a contested case. The City approved construction of 568' tall turbines as close as 275' from a property line, even though the law requires a minimum setback of one foot for every foot of height and the law does not allow exceptions to the minimum requirements.
The basic questions, "Did the City violate the law?" and "What should be done to correct the violation?" are yet to be answered.
Hawaii Supreme Court Will Hear Our Case on April 1st
March 22, 2021 - The Hawaii Supreme Court will hold oral arguments on our challenge of Na Pua Makani's Habitat Conservation Plan on April 1, 2021 at 2 p.m. The proceedings will be live streamed at YouTube.com/HawaiiCourts
Kawailoa Wind, LLC and Keep the North Shore Country
Collaborate on Environmental Research Plan
January 29, 2021 - Kawailoa Wind, LLC (Kawailoa) and Keep the North Shore Country (KNSC) have agreed to collaborate on an environmental research plan for the Kawailoa Wind Project (the Project) on the north shore of O`ahu. The plan will enhance the existing knowledge of endangered species on O`ahu by funding research for the `ua`u (Hawaiian petrel) and modify the search area for monitoring turbine impacts to the `ōpe`ape`a (Hawaiian hoary bat) and other endangered species.
Kawailoa, who operates 30 wind turbines in the hills above Waimea Bay, requested an amendment to its habitat conservation plan (HCP) and incidental take license due to the unexpectedly higher take of `ōpe`ape`a at the project and discovery of two `ua`u fatalities, a species not previously covered by the plan.
KNSC, a community based environmental organization, objected to the proposed HCP amendment and was granted a contested case hearing by the Board of Land and Natural Resources. Both parties have agreed to the enhanced research plan as settlement for the contested case. Kawailoa has agreed to fund $250,000 for `ua`u research on O`ahu and to increase the search radius around each turbine for two years.
Both parties appreciate the respect and good faith exhibited by each side during HCP amendment process and subsequent constructive settlement discussions, and both parties leave on good terms.
Here is the Star Advertiser news report.
KNSC and KCA take setback case to court
November 24. 2020 - KNSC and Kahuku Community Association have appealed to the First Circuit Court the Honolulu Zoning Board of Appeals (ZBA) dismissal of a contested case and the Department of Planning and Permitting's (DPP) decision to allow two turbines to be constructed within the minimum property setback. The community organizations had been granted a contested case hearing by the ZBA in regards to approvals granted by DPP to allow 568' turbines to be built as close as 275' from the property line, in contradiciton to the county ordinance that the set back be at least as far back as the turbine is tall. The ZBA filings are posted under Legal Docs.
Na Pua Makani Bat Case is at the Supreme Court
August 10, 2020 - Supreme Court denies motion for stay. On June 17, 2020, KNSC requested a stay against NPM becoming oprational until the Court rules on the merits of the HCP case. According to AES statements, the system was expected to become operational in summer 2020, construction was complete, and interconnection would soon occur. AES opposed the motion and BLNR took no position. On August 7, 2020, KNSC requested an expedited review of the motion.
February 26, 2020 - Supreme Court accepts transfer of case from the Intermediate Court of Appeals.
December 30, 2019 - The state filed its answering brief.
December 20, 2019 - Na Pua Makani filed their answering brief on November 14, 2019. The state asked for another extension and was granted until December 30, 2019 to submit it.
September 25, 2019 - Keep the North Shore Country (KNSC) filed its opening brief with the Intermediate Court of Appeals to reverse an agency decision to accept the Habitat Conservation Plan (HCP) for the Na Pua Makani wind project being built near Kahuku. Here are the brief and the errata brief.
The Defendents, the State and Na Pua Makani, have each asked for extensions to file their response briefs. They will be posted here when submitted.
June 21, 2019 - Keep the North Shore Country (KNSC) is asking the Intermediate Court of Appeals to reverse an agency decision to accept the Habitat Conservation Plan (HCP) for the Na Pua Makani wind project being built near Kahuku. Here is the filing.
Na Pua Makani is proceding with plans to construct eight new wind turbines near Kahuku High and Intermediate School, the tip of each blade reaching 568' into the sky. By comparison, the existing wind turbines in Kahuku are 427' tall. We are concerned about the likely adverse impact on the endangered opeapea, Hawaiian hoary bat.
Keep the North Shore Country has objected to this HCP because critical information was not properly considered in its preparation. Key elements such as the change in turbine height from 427' to 656' (now 568'), relevant data from the Kawailoa Wind project, and certain operational restrictions were overlooked.
The HCP is needed because the wind turbines are expected to kill endangered species like the opeapea (Hawaiian hoary bat). The developer must apply for an Incidental Take License and this is done by developing a viable Habitat Conservation Plan that will provide a net benefit to endangered species.
After a thorough investigation of the facts in a contested case, the Hearing Officer agreed with us that NPM has not satisfied the requirements of Hawaii Environmental Law; she recommend that the HCP be denied. Unfortunately, the BLNR disregarded this recommendation and granted it, instead.
Circuit Court Judge Jeffrey Crabtree heard oral arguments on December 5, 2018, and then affirmed BLNR's decision on April 10, 2019, granting deference to the agency's decision.
We believe the circuit court and BLNR got it wrong, so we are asking the Intermediate Court of Appeals to review the facts and decisions.
Several years ago, we lost the Turtle Bay Resort EIS case in the lower courts, only to prevail at the Supreme Court. We will continue to fight this case with the most vigorous case we can bring.
Court Rules to Uphold BLNR Decision
May 23, 2019
Judge Crabtree ruled, in general, to grant deference to the Board of Land and Natural Resources in accepting Na Pua Makani's Habitat Conservation Plan. The Order Affirming BLNR's Decision came down on April 10, 2019, with an invitation to ask kfollow up question. KNSC submitted questions and NPM submitted a response. On May 1st, Judge Crabtree issued a minute order with instructionsfor NPM to file the final order, which was entered on May 23, 2019..
Hearing Held on December 5th
December 5, 2018
Oral arguments for our legal challenge of BLNR's decision to approve Na Pua Makani's Habitat Conservation Plan (HCP) were presented on December 5, 2018 at 9:00 am.
Circuit Court Judge Jeffrey Crabtree will take the case under advisement and carefully review all the facts of the case before ruling.
Na Pua Makani has proposed to construct eight or nine new wind turbines near Kahuku High School, the tip of each blade reaching 656' into the sky. By comparison, the existing wind turbines in Kahuku are 427' tall. On May 16, 2018, the BLNR approved the HCP, but limited the maximum height to approximately 570'. There are some serious flaws in this approval.
The HCP is needed because the wind turbines are expected to kill endangered species like the opeapea (Hawaiian hoary bat). The developer must apply for an Incidental Take License and this is done by developing a viable Habitat Conservation Plan that will provide a net benefit to endangered species.
After a thorough investigation of the facts in a contested case, the Hearing Officer agreed with us that NPM has not satisfied the requirements of Hawaii Environmental Law; she recommend that the HCP be denied. Unfortunately, the BLNR disregarded this recommendation and granted it, instead.
We believe the court will set aside the BLNR decision and send the matter back to the Endangered Species Recovery Committee for a better review of the rapidly changing science, new facts and questions about this project that have come to light in recent years. The hearing will be open to the public.
Protecting Endangered Species by Challenging
a Habitat Conservation Plan
October 19, 2018
A hearing date is set for 9:00 am in the Court of Judge Crabtree, 5th Floor, District Court Building on Alakea Street.
KNSC filed a Notice of Appeal and complaint on June 15, 2018 in Circuit Court to overturn the BLNR decision to approve the HCP on May 16, 2018. An amended complaint and the Opening Brief were subsequently filed on August 21st. Responding briefs were filed by BLNR and NPM-part 1
and NPM-part2. KNSC filed a reply brief on 10/15/2018.
March 12, 2018
Na Pua Manani filed a Responsive Brief to our Motion to Recuse Member Gon. We then filed a Reply Brief. Mr. Gon also filed a statement.
Environment Hawaii published an article about the BLNR hearing, request for recusal of Member Gon, and the ex parte communications between a state senator and the board members.
January 25, 2018
Oral argments were held before the Board on January 12, 2018, but not before some troubling outside communications occured with board members. Apparently, a state Senator sent a letter to the Board and spoke with at least two members by phone, to pursuade them to disregard the Hearing Officer's recommendation and approve the HCP. This type of interference with any judicial proceding is wrong. As a result of this improper ex parte communication, one board member recused himself from the deliberations. The second member stated he did not engage in conversation about this case and chose to stay involved with the procedings.
In addition to the ex parte communications, KNSC is concerned about continued participation by board member Samuel Gon III. He served on the Endangered Species Recovery Committee when the HCP was developed and he moved the motion to accept it. Now, he sits on the board that is considering the adequacy of the plan. He should have recused himself, but declined to do so. KNSC objects to his participation and filed a motion for Gon's recusal.
November 1, 2017
Hearing Officer issues Recommendation to Board to DISAPPROVE the HCP.
September 11, 2017
Closing Briefs were submitted by all parties to the hearings officer, who will take these documents under advisement, along with the opening briefs and testimony from the hearing, which was held on August 7 and August 8, 2017.
Na Pua Makani is seeking approval to construct eight or nine new wind turbines near Kahuku High School, the tip of each blade reaching 656' into the sky. By comparison, the existing wind turbines in Kahuku are 427' tall.
The HCP is needed because the wind turbines are expected to kill endangered species like the opeapea (Hawaiian hoary bat). The developer must apply for an Incidental Take License and this is done by developing a viable Habitat Conservation Plan that will provide a net benefit to endangered species.
They have not done so, and we believe we have clearly made the case.
The next step is for the hearings officer to make a recommendation to the Board of Land and Natural Resources. The Board would then decide whether or not to accept, reject, or return Na Pua Makani's Habitat Conservation Plan (HCP) to the Endangered Species Recovery Committee,
We commend the hearing officer for her thorough review of the issues presented in the contested case and applaud her recommendation. The wind developer must do more to protect and support recovery of our endangered species. Keep the North Shore Country will continue to participate in the process.
June 26, 2017
Na Pua Makani submitted its brief in support of their Habitat Conservation Plan. The brief is posted in Legal Docs. We have three weeks, until July 17, to file an answering brief. NPW will then have one week to reply to that. The hearing begins on August 7, 2017.
May 15, 2017
Keep the North Shore Country was granted standing to bring a contested case before the Hawaii Board of Land and Natural Resources on the merits of the Habitat Conservation Plan (HCP) submitted by Na Pua Makani Power Partners as part of their application to build eight or nine massive wind turbines near Kahuku.
Because the proposed wind turbines are likely to kill endangered opeapea (Hawaiian Hoary Bat) and other endangered species, Na Pua Makani must seek an Incidental Take License (ITL), a permit issued under the United States Endangered Species Act. The ITL application requires an HCP to document the status of likely affected endangered species and habitat, and mitigation measures that should render a net benefit to the species.
The contested case forces Na Pua Makani to demonstrate how its HCP meets state environmental protection law. We do not believe they will be able to do so.
The Contested Case Hearing will commence on August 7, 2017.
Case Documents are posted on the Legal Docs page.