343-7 Limitation of actions. (a) Any judicial proceeding, the subject of which is the lack of assessment required under section 343-5, shall be initiated 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 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. The council or office, any agency responsible for approval of the action, or the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by environmental court action, may be adjudged aggrieved.

(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 public has been informed of such determination pursuant to section 343-3. Any judicial proceeding, 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 informed of such determination pursuant to section 343-3. The council or the applicant shall be adjudged an aggrieved party for the purposes of bringing judicial action under this subsection. Others, by environmental court action, may be adjudged aggrieved.

(c) Any judicial proceeding, the subject of which is the acceptance of an environmental impact statement required under section 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance of such statement. The council shall be adjudged an aggrieved party for the purpose of bringing judicial action under this subsection. Affected agencies and persons who provided written comment to such statement during the designated review period shall be adjudged aggrieved parties for the purpose of bringing judicial action under this subsection; provided that the contestable issues shall be limited to issues identified and discussed in the written comment. [L 1974, c 246, pt of 1; am and ren L 1979, c 197, 1(8); am L 1983, c 140, 10; am L 1992, c 241, 3; am L 2014, c 218, 8]

 

Law Journals and Reviews

 

The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation. 33 UH L. Rev. 581 (2011).

 

Case Notes

 

Plaintiff's claims that Hawai'i environmental policy act was violated were barred; plaintiff did not submit comment and filed suit more than sixty days after office of environmental quality control informed the public that the state final environmental impact statement had been accepted. 307 F. Supp. 2d 1149.

Court has no jurisdiction over actions initiated after time limit. 64 H. 126, 637 P.2d 776.

Date of commission's decision to grant SMA permit triggered time period for appeal, not date when commission made express determination that no environmental assessment was required for project; plaintiff's challenge to lack of environmental assessment thus timely. 86 H. 66, 947 P.2d 378.

Where the federal construct of a procedural right was not germane to case because this section, the statute at issue, establishes who and under what circumstances the lack of an environmental assessment, may be challenged, and federal cases recognizing this standard were inapposite because they rested on non-analogous statutes, petitioner could not be afforded so-called "procedural standing" under subsection (a). 100 H. 242, 59 P.3d 877.

Where Hawaiian homes commission did not accept the proposal for an environmental impact statement, the subject of the judicial proceeding before the trial court was not the "acceptance" of such statement; intervenors were not required to provide written comments pursuant to subsection (c) as subsection (c) did not apply; intervenor's objections, therefore, were subject to judicial review under subsection (b). 106 H. 270, 103 P.3d 939.

Appellants established standing where they showed threatened injuries under the traditional injury-in-fact test and procedural injuries based on a procedural right test; the threatened injury in fact was due to defendant's decision to go forward with harbor improvements and allow the superferry project to operate at Kahului harbor without conducting an environmental assessment; the procedural injury was based on various interests appellants identified that were threatened due to the violation of their procedural rights under this chapter. 115 H. 299, 167 P.3d 292.

Where this section waived the State's sovereign immunity against actions brought to challenge: (1) the lack of an environmental assessment; (2) the determination that an environmental impact statement is or is not required; and (3) the acceptance of an environmental impact statement, sovereign immunity did not prevent the application of the private attorney general doctrine against the State and the circuit court did not err in relying on the doctrine as a basis for its award of attorney's fees against the State and superferry jointly. 120 H. 181, 202 P.3d 1226.

Although the subdivision application was part of the larger action (i.e., the project), the specific "action" for statute of limitations purposes was the date the subdivision application was approved, as opposed to when the project itself was originally approved; thus, where plaintiffs' initial complaint was filed within 120 days of the department of planning and permitting's approval of the subdivision application, plaintiffs' claims were not barred by this section. 123 H. 150, 231 P.3d 423 (2010).

Where there was no evidence that the city department of planning and permitting filed a notice with the office of environmental quality control pursuant to HAR 11-200-11.1 of its determination that a supplemental environmental impact statement was not required, there was no date from which to measure the thirty day limitation prescribed by subsection (b) and subsection (b) was thus inapplicable; in addition, given the plain and unambiguous language of this section and 343-3, coupled with the related administrative rules, actual knowledge cannot be substituted for the public notice requirement. 123 H. 150, 231 P.3d 423 (2010).

Cited: 134 H. 86 (App.), 332 P.3d 688 (2014).

 

 

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