The Hawaii Supreme Court last week rejected Keep the North Shore Country’s appeal of a lower court ruling upholding the state Board of Land and Natural Resources’ approval of a habitat conservation plan and incidental take license for Na Pua Makani LLC’s 25-megawatt wind farm on Oahu’s North Shore.
In 2018, following state and federal agency review, public meetings and a contested case hearing, BLNR approved the plan and license, which would allow the wind turbines to kill up to 51 hoary bats, or opeapea, over 21 years of operation.
The North Shore group then filed suit in Circuit Court, which upheld the board’s decision. On direct appeal to the Supreme Court, KNSC argued the plan was unlawful because of alleged procedural irregularities and because it did not comply with Hawaii’s endangered species statutes.
In a 73-page opinion issued Tuesday, the high court unanimously affirmed the lower court’s action, saying that “substantial ” scientific evidence and data supported the BLNR’s decision to approve the plan and its conclusion that it “will increase the likelihood that ‘ope ‘ape ‘a will survive and recover.”
In a statement Tuesday, BLNR member Chris Yuen said, “The Board followed the expert recommendations of the Endangered Species Recovery Committee, and we are deeply gratified the Supreme Court respected our judgment.”
Although disappointed by the court ruling, state Sen. Gil Riviere (D, Heeia-Laie-Waialua ) said Wednesday that “overall, this is a big win for the opeapea.”
“We’ve brought a lot of attention to the side effects of turbines on our North Shore endangered native species and vulnerable communities, ” Riviere said, citing KNSC’s recent advocacy on behalf of endangered species at the Kawailoa wind farm, which operates 30 turbines above Pupukea and Waimea, and on behalf of Kahuku residents regarding the Na Pua Makani turbines’ proximity to homes and the high school.
In a contested case hearing in 2019, KNSC challenged amendments to Kawailoa’s conservation plan that would increase its incidental take license to 160 from 60 bats for the project’s life and allow taking 24 endangered Hawaiian petrels, a species not previously included in the plan.
The amendments were sought after the company discovered an unexpectedly high number of bat fatalities and two dead petrels.
Its annual report for 2019 states five Hawaiian hoary bat fatalities were found that fiscal year, with a total 40 bats observed taken since November 2012 and an approximately 80 % chance “that actual take of Hawaiian hoary bats at the Project was less than or equal to 88 adults.”
In 2021 the parties agreed to collaborate on environmental research, with Kawailoa providing $250, 000 to study Hawaiian petrels.
With regard to alleged procedural irregularities in the Na Pua Makani case, the Supreme Court disagreed with KNSC’s contention that then-board member Samuel Gon should have recused himself from decision making because he was a member of the State Endangered Species Recovery Committee at the time the committee voted to recommend approval of the incidental take license and habitat conservation plan.
The court said “neither due process nor any statutory provision ” disqualified Gon from participating in committee and BLNR proceedings.
However, the court did agree BLNR should have provided the North Shore group a copy of a letter it received from state Sen. Lorraine Ino uye (D, Kaupulehu-Waimea-North Hilo ), according to Lance Collins, an attorney for KNSC.
Collins pointed out that while the court’s opinion said KNSC waived any challenge by not making a timely objection about the letter, it added, “Nevertheless, we take this opportunity to reiterate that (in ) future contested case hearings, BLNR could certainly do more to remove doubts of impropriety and build confidence in its permit approval process.”
Meanwhile, he added, KNSC is hopeful for a better outcome in its case on behalf of Kahuku residents. Still pending before the Supreme Court is KNSC’s petition against the city Zoning Board of Appeals regarding illegal setback variances, Collins said.
He said the city allowed Na Pua Makani’s 568-foot-tall turbines to stand as close as 275 feet from a property line even though the law requires a minimum setback of 1 foot for every foot of height, without exceptions.
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