News Roundup

Appeal Filed in Na Pua Makani Bat Case

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.

News Archives

Please note that older links in the archived files may no longer connect to original content.

Please reload

Please reload