Decision Honors Uncle Henry Chang’s Last Wishes To Protect Marine Resources in ‘Ewa

In 2012, Uncle Henry Chang Wo, a recognized loea limu (limu expert), and the Native Hawaiian Legal Corporation (NHLC) began a long—and still pending—legal battle against permitting to increase stormwater runoff from the Kaloʻi Gulch onto an ‘Ewa shoreline. Permit proponents, including the City and County of Honolulu, the Department of Hawaiian Homelands, and the University of Hawaii, want the permit, so that polluted storm water can be discharged from urban development. Uncle Henry argued that the Board of Land and Natural Resources (BLNR) needed to more thoroughly evaluate the potential harm to limu and the marine environment. He was concerned about the effects on marine life and Native Hawaiian traditions and customs that rely on this marine life.

Uncle Henry testifying before the BLNR in 2014

Sadly, in 2017 while his case remained pending, Uncle Henry died following a battle with illness. Before he passed Uncle shared his fervent desire that his work to mālama the marine resources of ‘Ewa continue. Uncle Henry laid the foundation for this to happen by helping found and prepare Kua‘āina Ulu ‘Auamo (KUA), a nonprofit community-based organization dedicated to the empowerment and support of community-based natural resource stewardship. Upon the day he learned his life would be cut short he immediately began the process to assign his case to KUA and gave BLNR ample notice of his illness.

When Uncle Henry passed, KUA, which had followed the legal proceedings, came forward to stand in his shoes. Uncle Henry was a founding kupuna of KUA’s E Alu Pū, a statewide network of mālama ʻāina community groups. KUA also facilitates the Limu Hui which Uncle founded to pass on limu knowledge and practices. KUA desires to fulfill his wish and continue his kuleana to protect ‘Ewa and its marine life. The BLNR approved the substitution.

In response, the University of Hawai‘i asked the court to overrule the BLNR’s decision and dismiss this case. Among other things, UH argued that BLNR did not have the authority to allow the substitution and that KUA was not a proper party to stand in Uncle Henry’s shoes because his standing was “based on personal interests and rights.” The circuit court agreed.

Rather than allow Uncle Henry’s fight to end there, KUA appealed, and on November 8, 2023 the Hawai‘i Intermediate Court of Appeals (ICA) ruled in KUA’s favor. The ICA agreed with NHLC’s arguments that the BLNR had the authority to decide whether KUA could stand in Uncle Henry’s shoes to continue the case, and that “good cause” was properly shown to support BLNRʻs decision. The ICA relied upon the Hawai‘i Supreme Court’s well-established principle that in cases where environmental interests are at stake, the Court has “not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements.”

Permit proponents have 30 days from the entry of judgment on appeal to ask the Hawai’i Supreme Court to further review the ICA’s decision. If not further challenged, the ICA’s ruling will allow the case to go forward on the merits, so that full and fair consideration is given to the issue of whether the storm water ocean outlet is consistent with the criteria for obtaining a conservation district use permit, whether the State met its kuleana to protect the public trust and Native Hawaiian traditional and customary practices, and whether adequate environmental review has been done.

“This decision means the voice and actions of kupuna and loea to perpetuate their values of aloha ʻāina and their traditional practices of mālama ʻāina for the betterment of future generations can live on, beyond them and in efforts greater than one individual. KUA is honored to kakoʻo this spirit. Uncle Henry would be proud,” said Kevin Chang, Executive Director, KUA.

Presiding over the case before the ICA were the Honorable Sonja M.P. McCullen, the Honorable Jeannette H. Castagnetti, and the Honorable Paul B.K. Wong. The ICA decision can be reviewed online here: https://www.courts.state.hi.us/wp-content/uploads/2023/11/CAAP-17-0000867mop.pdf

Uncle Henry Chang Wo and KUA have been represented in this case by the Native Hawaiian Legal Corporation.

The University of Hawaii was represented by Goodsill Anderson Quinn & Stifel.