Appeals Court Decision Undermines Environmental Law

ICA ruling allows for dangerous biotech mosquito experiments to continue despite lack of study of risks to the health of our islands

This week, the State of Hawai‘i Intermediate Court of Appeals (ICA) decided in favor of the State of Hawai‘i Department of Land and Natural Resources (DLNR) and their Board (BLNR) in our case against them. Hawai‘i Unites’ appeal sought a ruling that our environmental court case to stop the mosquito releases on Maui and require an environmental impact statement (EIS) be remanded back to the circuit court and go to trial. The ICA has now issued a ruling affirming the circuit court’s granting of summary judgment to the DLNR and BLNR.

This is a disappointing decision not only for Hawai‘i Unites and our supporters, but for the standard of review for environmental proceedings in general.

The ICA did not find that the lower court erred in their summary judgment ruling, and the BLNR’s decision that an EIS was not required has been upheld. At the same time, the ICA acknowledged that the DLNR’s final environmental assessment (FEA) did not comply with Hawai‘i Administrative Rules:

“We hold that BLNR did not clearly err by concluding that DLNR's proposed action will not have a significant effect, but DLNR's final environmental assessment did not comply with Hawaii Administrative Rules (HAR) § 11-200.1-20(d) (2019). We vacate in part the Final Judgment and remand for the Environmental Court to order that DLNR amend the final environmental assessment to comply with HAR § 11-200.1-20(d).”

This point of error was outlined in our opening brief, with reference to the legal framework in which proposing agencies and applicants are required to respond in the FEA to all substantive comments:

“Perhaps the single undisputed fact (besides all parties’ acknowledgment that native honeycreepers are worth saving) is that the State Defendants failed to properly comply with the Hawai‘i Administrative Rules in compiling their FEA and that Defendant BLNR accepted a flawed document, improperly issuing a FONSI. Though Defendant DLNR does not dispute that it failed to comply with HAR Sec. 11-200.1-20 in preparing its FEA (thus rendering Defendant BLNR’s acceptance of the FEA a violation of HRS Chapter 343), this issue was not addressed in the Circuit Court’s Minute Order/Order granting Defendants’ Motion for Summary Judgment.”

In other words, the DLNR did not properly respond to any of the comments our community submitted during the comment period for the draft environmental assessment. The ICA has now ordered that the FEA be amended to comply with HAR.

The Intermediate Court of Appeals’ decision to allow these mosquito releases to move forward with no studies of the potential significant impacts sets a damaging precedent. Our environmental laws are undermined when agencies can get away with a lower standard of review for massive projects like this that can have irreversible consequences that may affect the health of our islands’ people, ‘āina, and wildlife. Just because there are “conservation” agencies that agree with these biotech experiments does not make these projects right for our environment.

Hawai‘i Unites is proud of the work that we’re doing to protect the ‘āina, and we’re grateful for our community’s support in challenging the actions of the multi-agency partnership pushing these bacteria-infected mosquitoes onto our fragile ecosystems. While we’re disappointed by this ICA ruling, we still feel that our case is strong. We’re reviewing our options for taking this case to the Supreme Court of the State of Hawai‘i.

We will continue researching, documenting, and speaking truth about these dangerous mosquito releases, and we will not stop calling these agencies out for their actions or for any harms that may result from their use of sacred lands as biotech industry testing grounds.

Your tax-deductible donations help us move forward with our mission.

Mahalo,
Tina Lia
Founder
Hawai‘i Unites
HawaiiUnites.org

Hawai‘i Unites is a 501(c)(3) nonprofit organization dedicated to the conservation and protection of our environment and natural resources. Your tax-deductible donations help us to fulfill our mission of honoring and protecting our sacred connection to the natural world.

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Report a Mosquito Bite

The State of Hawai‘i and its multi-agency partnership Birds, Not Mosquitoes have been releasing bacteria-infected mosquitoes in East Maui and conducting pilot study releases on Kaua‘i since 2023. As part of our ongoing research and documentation, Hawai‘i Unites has been compiling reports from throughout the islands about unusual mosquito bite reactions. If you’ve been bitten by a mosquito and would like to report the incident, please complete our Mosquito Bite Incident Report.

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