## Facts

- The Hawaiʻi Department of Transportation and the Federal Highway Administration proposed upgrading Saddle Road (State Highway 200), including a realignment segment (PTA-1) crossing 206.70 acres of conservation district land.
- Because the alignment would use conservation district land, the agencies applied to the Board of Land and Natural Resources (BLNR) for a Conservation District Use Permit (CDUP).
- An Environmental Impact Statement (EIS) was prepared under federal and state environmental review processes and incorporated a U.S. Fish and Wildlife Service Biological Opinion issued through Endangered Species Act § 7 consultation.
- The Biological Opinion evaluated effects on listed species and critical habitat, including the endangered palila and its habitat on Mauna Kea, and included detailed mitigation measures.
- The Biological Opinion concluded that, with specified mitigation, the project was not likely to jeopardize listed species and would offset modifications to critical habitat.
- The Federal Highway Administration adopted the mitigation measures and required their inclusion in construction contracts.
- BLNR approved the CDUP based on the project as presented, which included the mitigation measures as part of the application.
- Project challengers (Morimoto and Yamada) appealed; the circuit court affirmed BLNR, and the appeal proceeded to the Hawaiʻi Supreme Court.

## Issues

1. Whether BLNR, under HAR § 13-5-30(c)(4), had to assess “adverse impacts” without considering mitigation, or could evaluate the “proposed land use” as mitigated when mitigation was incorporated into the application.
2. Whether BLNR’s CDUP approval was invalid because the permitted project allegedly did not match the project analyzed in the EIS and Biological Opinion.
3. Whether BLNR’s findings regarding impacts and mitigation effectiveness were supported by substantial evidence and were not arbitrary or capricious.

## Decision

- The Hawaiʻi Supreme Court affirmed the circuit court judgment upholding BLNR’s approval of the CDUP.
- BLNR properly treated incorporated mitigation measures as part of the “proposed land use” for purposes of HAR § 13-5-30(c)(4).
- The court concluded the EIS, Biological Opinion, and CDUP approval were consistent in project description, impact analysis, and mitigation commitments.
- BLNR’s findings were supported by reliable, probative, and substantial evidence in the administrative record, warranting judicial deference to the agency’s determinations.

## Legal Principles

- When mitigation measures are incorporated into a conservation district permit application, BLNR may evaluate whether the “proposed land use” will avoid substantial adverse impacts by considering the project as mitigated under HAR § 13-5-30(c)(4).
- Administrative findings are upheld on judicial review when supported by substantial evidence in the record and not arbitrary, capricious, or an abuse of discretion.
- BLNR may rely on environmental review materials, including biological analyses and mitigation commitments developed through federal consultation, when making conservation district permitting determinations.

## Conclusion

The court upheld BLNR’s CDUP approval for the Saddle Road PTA-1 realignment, holding that BLNR may assess conservation-district impacts based on the project as proposed with incorporated mitigation, and that BLNR’s impact and mitigation findings were supported by substantial evidence.


Morimoto v. Bd. of Land & Nat. Res., 107 Haw. 296, 113 P.3d 172 (Haw. 2005)