Morimoto v. Board of Land and Natural Resources

The Hawaii State Department of Transportation (HSDT) and the Federal Highway Administration (FHA) decided to upgrade Saddle Road, a Hawaiian state highway, to conform to federal requirements. PTA-1, a portion of the project that realigned the road through 206.70 acres of conservation-district lands, required a conservation-district use permit (CDUP) from the Board of Land and Natural Resources (BLNR) (defendant). The HSDT and the FHA completed an environmental-impact statement (EIS) that incorporated a biological opinion (BO) from the United States Fish and Wildlife Service (FWS) detailing the project area’s listed species and critical habitats under the Endangered Species Act. The HSDT and the FHA conducted a biological assessment of PTA-1’s potential impact on the listed species. Based on the biological assessment’s conclusions, the BO included a detailed mitigation plan to minimize PTA-1’s impact on the critical habitat of the Palila, a species of bird. The mitigation plan also included mitigation measures to minimize PTA-1’s impact on other listed species. By incorporating these mitigation measures, the BO concluded that PTA-1 was not likely to jeopardize any listed species and would offset modifications to critical habitats. The FHA approved PTA-1’s route, adopted the proposed mitigation measures, and required the mitigation commitments to be included in all project construction contracts. After the BLNR grated the CDUP, Daniel Morimoto and Kats Yamada (the challengers) (plaintiffs) challenged the BLNR’s decision, arguing that the BLNR was required to determine whether PTA-1 would have an adverse impact on listed species without factoring the proposed mitigation measures into the determination. The circuit court upheld the determination, and the challengers appealed.