§343-7  Limitation of actions.  (a)  Anyjudicial proceeding, the subject of which is the lack of assessment requiredunder section 343-5, shall be initiated within one hundred twenty days of theagency’s decision to carry out or approve the action, or, if a proposed actionis undertaken without a formal determination by the agency that a statement isor is not required, a judicial proceeding shall be instituted within onehundred twenty days after the proposed action is started.  The council oroffice, any agency responsible for approval of the action, or the applicantshall be adjudged an aggrieved party for the purposes of bringing judicialaction under this subsection.  Others, by court action, may be adjudgedaggrieved.

(b)  Any judicial proceeding, the subject ofwhich 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 suchdetermination pursuant to section 343-3.  Any judicial proceeding, the subjectof which is the determination that a statement is not required for a proposedaction, shall be initiated within thirty days after the public has beeninformed of such determination pursuant to section 343-3.  The council or theapplicant shall be adjudged an aggrieved party for the purposes of bringingjudicial action under this subsection.  Others, by court action, may beadjudged aggrieved.

(c)  Any judicial proceeding, the subject ofwhich is the acceptance of an environmental impact statement required undersection 343-5, shall be initiated within sixty days after the public has beeninformed pursuant to section 343-3 of the acceptance of such statement.  Thecouncil shall be adjudged an aggrieved party for the purpose of bringingjudicial action under this subsection.  Affected agencies and persons whoprovided written comment to such statement during the designated review periodshall be adjudged aggrieved parties for the purpose of bringing judicial actionunder this subsection; provided that the contestable issues shall be limited toissues 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]

 

Case Notes

 

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

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

  Date of commission’s decision to grant SMA permit triggeredtime period for appeal, not date when commission made express determinationthat no environmental assessment was required for project; plaintiff’schallenge to lack of environmental assessment thus timely.  86 H. 66, 947 P.2d378.

  Where the federal construct of a procedural right was notgermane to case because this section, the statute at issue, establishes who andunder what circumstances the lack of an environmental assessment, may bechallenged, and federal cases recognizing this standard were inapposite becausethey 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 proposalfor an environmental impact statement, the subject of the judicial proceedingbefore the trial court was not the "acceptance" of such statement;intervenors were not required to provide written comments pursuant tosubsection (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 threatenedinjuries under the traditional injury-in-fact test and procedural injuriesbased on a procedural right test; the threatened injury in fact was due todefendant's decision to go forward with harbor improvements and allow thesuperferry project to operate at Kahului harbor without conducting anenvironmental assessment; the procedural injury was based on various interestsappellants identified that were threatened due to the violation of their proceduralrights under this chapter.  115 H. 299, 167 P.3d 292.

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