Puna Pono Alliance v. State ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUN-2022
07:54 AM
Dkt. 85 SO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
PUNA PONO ALLIANCE, a Hawai#i non-profit association;
LUANA JONES; SHANA RITSEMA and JON OLSON,
Appellants-Appellants,
v.
STATE OF HAWAI#I, DEPARTMENT OF HEALTH;
PUNA GEOTHERMAL VENTURE, a Hawai#i general partnership,
Appellees-Appellees,
and every other party to the proceedings
as identified herein, Appellees
(CIVIL NO. 3CCV-XX-XXXXXXX)
and
CAAP-XX-XXXXXXX
SARA STEINER, Appellant-Appellant,
v.
STATE OF HAWAI#I, DEPARTMENT OF HEALTH;
PUNA GEOTHERMAL VENTURES, Appellees-Appellees,
and DOES 1-20, Appellees
(CIVIL NO. 3CCV-XX-XXXXXXX)
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
These consolidated secondary appeals arise from primary
appeals to the Circuit Court of the Third Circuit.1 The primary
appeals were taken from a decision made by the Director of
Appellee-Appellee State of Hawai#i Department of Health (DOH).
The Director decided that "a new or supplemental environmental
review is not required" by the Hawai#i Environmental Policy Act,
Hawaii Revised Statutes (HRS) Chapter 343 (HEPA) in connection
with Appellee-Appellee Puna Geothermal Venture's application for
renewal of its noncovered source permit under HRS Chapter 342B
("Air Pollution Control"). The circuit court dismissed both
primary appeals, concluding that it lacked jurisdiction to review
the Director's decision under HRS Chapter 91, the Hawai#i
Administrative Procedure Act (HAPA).
The issue presented by these secondary appeals is
whether the Director's HEPA decision was made in a contested case
proceeding subject to HAPA. For the reasons explained below, we
conclude it was not. We affirm: (1) the Judgment in favor of DOH
and Puna Geothermal and against Appellants-Appellants Puna Pono
Alliance, Luana Jones, Shana Ritsema, and Jon Olson
(collectively, the Alliance) entered by the circuit court on
June 23, 2021, in 3CCV-XX-XXXXXXX; and (2) the "Amended Judgment
on Appeal" in favor of DOH and Puna Geothermal and against self-
represented Appellant-Appellant Sara Steiner entered by the
circuit court on December 16, 2021, in 3CCV-XX-XXXXXXX.
Proceedings in the DOH
On December 15, 2009, DOH issued noncovered source
permit No. 0008-02-N (the Permit) to Puna Geothermal. The Permit
was issued in accordance with HRS Chapter 342B ("Air Pollution
Control") and Hawai#i Administrative Rules (HAR), Title 11,
1
The Honorable Henry T. Nakamoto presided over both primary
appeals.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Chapter 60.1.2 By letter dated September 11, 2014, Puna
Geothermal requested a renewal of the Permit. The request was
docketed in the DOH Hearings Office as No. 19-CWBN-5-24 (the
Permit Renewal Docket).
On October 17, 2019, Puna Pono demanded that DOH comply
with HEPA "by requiring an environmental review be accepted by
DOH before Puna Geothermal . . . is allowed to proceed with the
renewal of an air pollution permit[.]" HRS § 343-5 (2010 and
Supp. 2019) provided, in relevant part:
(e) Whenever an applicant proposes an action
specified by subsection (a) that requires approval of an
agency and that is not a specific type of action declared
exempt under section 343–6, the agency initially receiving
and agreeing to process the request for approval shall
require the applicant to prepare an environmental assessment
of the proposed action at the earliest practicable time to
determine whether an environmental impact statement shall be
required[.]
On October 18, 2019, the DOH Hearings Office asked that
Puna Pono clarify "which part of HRS § 343-5's 'subsection (a)'
it believes covers" Puna Geothermal's renewal application. Puna
Pono responded on October 24, 2019.
On October 25, 2019, the DOH Hearings Office issued an
order in the Permit Renewal Docket stating:
Any participants who so desire may file and serve
responses to [Puna Pono]'s demand . . . not later than
Friday, November 8, 2019.
Any participants who so desire may file and serve
replies to any and all such responses not later than
Tuesday, November 19, 2019.
Puna Geothermal filed a response to Puna Pono's demand
on November 8, 2019.
2
A permit under HRS Chapter 342B allows the permit holder to
"construct, modify, relocate, or operate [a] regulated air pollutant source."
HRS § 342B-1. A "source" is "property, real or personal, which emits or may
emit any air pollutant." HRS § 342B-1; HAR § 11-60.1-1. A "noncovered
source" is a stationary source constructed, modified, or relocated after
March 20, 1972, that is not a covered source. Id. A "covered source"
includes a source subject to the Section 111 of the federal Clean Air Act, 42
U.S.C. § 7401, et seq.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On November 18, 2019, the DOH Hearings Office issued an
order stating, in relevant part:
Questions of whether to require the preparation of
environmental assessments and impact statements are matters
to be resolved by the Director of Health, the DOH's
Environmental Health Administration and/or the Clean Air
Branch, subject to review in the Courts under the applicable
appellate processes (if any) for such decisions.
Puna Pono Alliance's [PPA] Demand for Environmental
Review, which asks that an environmental review be accepted
by the DOH before PGV is allowed to proceed with the renewal
of [the Permit], is therefore referred to the Director of
Health, the DOH's Environmental Health Administration and
the Clean Air Branch for them to resolve, along with any and
all joinders and de facto joinders therein.
(emphasis added). Thus, Puna Pono's demand for an environmental
review was severed from the Permit Renewal Docket. No appeal was
taken from the order.
By letter dated December 10, 2019, Steiner also
demanded that DOH require an environmental impact statement from
Puna Geothermal for the Permit Renewal Docket.
On June 8, 2020, Puna Pono filed a motion in the Permit
Renewal Docket for "an order that Puna Geothermal Venture (PGV)
must prepare an environmental review on the grounds that [HEPA]
and related rules of the Department of Health (DOH) applicable to
PGV's pending application for a permit renewal require such a
review." Steiner joined in the motion. Puna Geothermal
responded to the motion and joinder on June 25, 2020. Puna Pono
replied on July 6, 2020.
On August 13, 2020, the DOH Hearings Office issued an
order denying Puna Pono's June 8, 2020 motion and Steiner's
joinder "without prejudice to any rights the Director of Health,
the DOH's Environmental Management Division (EMD) and/or the
Clean Air Branch (CAB) of the EMD may have to direct an
environmental review." No appeal was taken from the order.
By letter dated September 4, 2020, the Director
informed Puna Pono, Steiner, and Puna Geothermal (among others)
that "a new or supplemental environmental review is not required
to be conducted by the DOH" for the renewal of Puna Geothermal's
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Permit. The Director's letter was published in DOH's publication
"The Environmental Notice" on September 23, 2020, as required by
HEPA.3
Primary Appeals
On October 21, 2020, the Alliance filed a notice of
appeal from the Director's decision in the circuit court. The
appeal was taken "pursuant to Hawai#i [sic] Revised Statutes
§§ [sic] 91-14[.]" The appeal was docketed as 3CCV-XX-XXXXXXX.
On June 3, 2021, the circuit court entered an order dismissing
the appeal for lack of jurisdiction. The circuit court concluded
that the Director's decision was not "a final decision and order
in a contested case[.]" The Judgment was entered on June 23,
2021. The Alliance appealed, resulting in CAAP-XX-XXXXXXX.
Steiner filed a notice of appeal from the Director's
decision on October 23, 2020. Steiner's appeal was also taken
"pursuant to Hawaii Revised Statutes 'HRS' § 91-14[.]" The
appeal was docketed as 3CCV-XX-XXXXXXX. On June 22, 2021, the
circuit court entered an order dismissing the appeal for lack of
jurisdiction. The circuit court concluded that the Director's
decision "was not a contested case[.]" The Amended Judgment was
entered on December 16, 2021. Steiner appealed, resulting in
CAAP-21-000392.
Standard of Review
"A trial court's dismissal for lack of subject matter
jurisdiction is a question of law, reviewable de novo." Tax
Found. of Hawai#i v. State, 144 Hawai#i 175, 185, 439 P.3d 127,
137 (2019).
3
HRS § 343-3 (2010) (part of HEPA) provides, in relevant part:
(b) The office [of planning and sustainable
development] shall inform the public of notices filed by
agencies of the availability of environmental assessments
for review and comments, of determinations that statements
are required or not required[.]
See also HAR § 11-200.1-4 (2019).
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Discussion
HRS § 91-14(a) (2012) allows "[a]ny person aggrieved by
a final decision and order in a contested case" to seek judicial
review. (Emphasis added.) The Hawai#i Supreme Court has held:
The first requirement for judicial review under HRS
§ 91-14 is that the appeal be from a contested case
proceeding. A "contested case" is "a proceeding in which
the legal rights, duties, or privileges of specific parties
are required by law to be determined after an opportunity
for agency hearing." HRS § 91-1. For an agency hearing to
be "required by law" it must be required by agency rule,
statute, or constitutional due process.
Cmty. Ass'ns of Hualalai, Inc. v. Leeward Plan. Comm'n, 150
Hawai#i 241, 255, 500 P.3d 426, 440 (2021) (emphasis added)
(citations omitted).
Neither the Alliance nor Steiner cite to any agency
rule or statute that required a contested case hearing for the
Director's determination under HRS § 343-5. Instead, the
Alliance relies on four cases. The cases are distinguishable
because in each, the appeal was taken from a contested case
hearing in which the administrative agency determined that no
HEPA environmental assessment was necessary.
In McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981),
abrogated in part by Camara v. Agsalud, 67 Haw. 212, 215-16, 685
P.2d 794, 796-97 (1984) (disavowing McGlone to the extent it
suggests an agency's conclusions of law are reviewed under the
clearly erroneous standard), the Board of Land and Natural
Resources (BLNR) approved the defendants' conservation district
use application (CDUA) during a regularly scheduled meeting,
without requiring the defendants to prepare an environmental
impact statement (EIS). The plaintiffs, who opposed the CDUA,
sued BLNR for injunctive and declaratory relief. The circuit
court remanded the case to BLNR for a contested case hearing.
BLNR conducted a contested case hearing, then "unanimously
reaffirmed its earlier determination that [the defendants']
proposed construction was exempt from preparation of an EIS and
thus reapproved [the] CDUA." Id. at 31, 636 P.2d at 161-62. The
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plaintiffs again filed suit, seeking a preliminary injunction.
The circuit court denied the preliminary injunction and affirmed
the BLNR decision approving the CDUA. The plaintiffs appealed to
the supreme court. Thus, the primary and secondary appeals in
McGlone were taken from the BLNR decision approving the CDUA
after a contested case hearing.
In Pearl Ridge Ests. Cmty. Ass'n v. Lear Siegler, Inc.,
65 Haw. 133, 648 P.2d 702 (1982) the supreme court held "that
when an application is made for the reclassification of
conservation lands to other uses, an environmental assessment is
necessary before the LUC [Land Use Commission] can reclassify the
lands." Id. at 134, 648 P.2d at 704. In that case, "After due
notice to interested persons, the Commission conducted a
[contested case] hearing in accord with the procedure prescribed
by HRS Chapter 205." Id. at 136, 648 P.2d at 704 (Nakamura, J.
concurring).
In Kahana Sunset Owners Ass'n v. Cnty. of Maui, 86
Hawai#i 66, 947 P.2d 378 (1997), the Maui county planning
commission decided that no HEPA environmental assessment was
required to grant a Special Management Area (SMA) permit. "A
contested case hearing on the granting of the SMA permit was held
over the course of thirteen days[.]" Id. at 68, 947 P.2d at 380.
The appeal was taken from the planning commission's decision,
after the contested case hearing, to grant the SMA permit.
And in Sierra Club v. Off. of Plan., 109 Hawai#i 411,
126 P.3d 1098 (2006) the appeal was from the Land Use
Commission's decision, after a contested case hearing, to
reclassify land from agricultural to urban without requiring an
HEPA environmental assessment. Id. at 420-21, 126 P.3d at 1107-
08.
In this case, the DOH Hearings Officer severed Puna
Pono's HEPA demand from the Puna Geothermal Permit Renewal
Docket, and denied Puna Pono's June 8, 2020 motion and Steiner's
joinder "without prejudice to any rights the Director . . . may
have to direct an environmental review." No appeal was taken.
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The Director, without conducting a contested case hearing,
determined that an HEPA environmental review was not required.
The Alliance and Steiner's remedy under HEPA would have been to
initiate a "judicial proceeding, the subject of which is the
determination that a statement is not required for a proposed
action, . . . within thirty days after the public has been
informed of such determination pursuant to section 343-3." HRS
§ 343-7(b) (2010 & Supp. 2019). The Alliance's and Steiner's
actions below were instead brought under HRS § 91-14. Because
the Director's determination was not made after a contested case
hearing, the circuit court correctly dismissed the actions for
lack of subject matter jurisdiction.
For the foregoing reasons, the Judgment entered by the
circuit court on June 23, 2021, in 3CCV-XX-XXXXXXX, and the
Amended Judgment entered by the circuit court on December 16,
2021, in 3CCV-XX-XXXXXXX, are affirmed.
DATED: Honolulu, Hawai#i, June 13, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Gary C. Zamber, Presiding Judge
for Appellants-Appellants
Puna Pono Alliance, Luana /s/ Karen T. Nakasone
Jones, Shana Ritsema Associate Judge
and Jon Olson.
/s/ Sonja M.P. McCullen
Sara Steiner, Associate Judge
Self-represented Appellant-
Appellant.
Lyle T. Leonard,
Deputy Attorney General,
State of Hawai#i,
for Appellee-Appellee State
of Hawai#i, Department of Health.
Paul Alston,
Pamela W. Bunn,
Timothy H. Irons,
for Appellee-Appellee Puna
Geothermal Venture.
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