NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-FEB-2025 08:35 AM Dkt. 73 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ANNAMARIE KON; MARTHA HARDEN and GENE LANG THOMAS, Plaintiffs-Appellants, v. STATE OF HAWAIʻI, DEPARTMENT OF HEALTH; PUNA GEOTHERMAL VENTURE, a Hawaiʻi general partnership, Defendants-Appellees, and JOHN DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiffs-Appellants Annamarie Kon et al. appeal from
the Circuit Court of the Third Circuit's April 19, 2021 Final
Judgment. 1 On appeal, Plaintiffs challenge the circuit court's
granting of summary judgment in favor of Defendants-Appellees
Puna Geothermal Venture (or PGV) and State of Hawai‘i Department
of Health (DOH). 2
1 The Honorable Henry T. Nakamoto presided. 2 Plaintiffs also challenge the denial of their motion for reconsideration. Based on our decision, we need not address this issue. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and vacate and remand.
According to Puna Geothermal's motion for summary
judgment, it was operating under a 2009 Noncovered Source Permit
issued by DOH's Clean Air Branch (DOH Permit or NSP). In 2014,
Puna Geothermal filed a timely application to renew its DOH
Permit, but community members (not Plaintiffs) requested a
contested case hearing regarding further environmental review,
which was delayed for various reasons. 3 One reason for the
contested case hearing delay was the 2018 Kīlauea eruption that
caused Puna Geothermal to shut down for over a year. However,
the DOH Director ultimately determined that further
environmental review was not required to renew Puna Geothermal's
DOH Permit.
Plaintiffs filed a complaint for declaratory and
injunctive relief. Plaintiffs alleged that Puna Geothermal's
application "to renew DOH air pollution permits for an action
that uses state land" required an environmental review or, in
the alternative, that substantive changes to the project
3 The contested case docket numbers challenging Puna Geothermal's permit renewal are 15-CWBN-8-13 and 19-CWBN-5-24.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
required a supplemental environmental review. (Emphasis
omitted.)
Puna Geothermal moved for summary judgment, arguing it
was entitled to judgment as a matter of law because there was no
"action" under Hawai‘i Revised Statutes (HRS) Chapter 343, the
Hawai‘i Environmental Policy Act (HEPA). 4 Puna Geothermal argued
that the "renewal request" was "for the fully developed Facility
that has been in commercial operation for more than twenty-five
years, and not for any change in the Facility or its operations.
It is therefore, not an 'action' as a matter of law." (Emphases
The circuit court granted Puna Geothermal's motion for
summary judgment, concluding "the renewal of the permit" was not
an "action":
It is undisputed that PGV's geothermal facility ("Facility") was developed decades ago and the potential environmental impacts were disclosed in a 1987 [Environmental Impact Statement (EIS)]. The Court finds the renewal of PGV's NSP is not for any change in the Facility or its operations, and concludes that the renewal of the permit is not an "action" as a matter of law.
(Emphases added.)
4 Puna Geothermal also argued there was no HEPA "trigger." See HRS § 343-5(a) (2010). Plaintiffs moved for partial summary judgment on the issue of whether there was a trigger, which the circuit court granted. Puna Geothermal did not appeal or cross-appeal from the circuit court's decision. Thus, the trigger issue is not before us.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
This court reviews the grant or denial of summary
judgment de novo. Villaver v. Sylva, 145 Hawai‘i 29, 34, 445
P.3d 701, 706 (2019).
The burden is on the party moving for summary judgment
"to show the absence of any genuine issue as to all material
facts, which, under applicable principles of substantive law,
entitles the moving party to judgment as a matter of law."
Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 528, 403
P.3d 277, 305 (2017) (citations omitted). A defendant movant
"may satisfy [its] initial burden of production by either
(1) presenting evidence negating an element of the non-movant's
claim, or (2) demonstrating that the [non-movant] will be unable
to carry his or her burden of proof at trial." Ralston v. Yim,
129 Hawai‘i 46, 60, 292 P.3d 1276, 1290 (2013).
Where there is an "action" proposed for state lands,
an environmental assessment is required (unless exempted). HRS
§§ 343-5(a)(1), -6(a)(2) (2010). HEPA defines "action" as "any
program or project to be initiated by any agency or applicant."
HRS § 343-2 (2010).
In the context of permit renewals, it is not the
renewal of the permit that is a HEPA action; it is the activity
under the permit that may constitute a HEPA action. Carmichael
v. Bd. of Land & Nat. Res., 150 Hawai‘i 547, 569, 506 P.3d 211,
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
233 (2022) ("As demonstrated by our opinion in Umberger, it is
the applicant's permitted activity—i.e., the activity for which
the A&B Defendants initially sought permit approval—that
constitutes 'action' within the meaning of HEPA.").
Thus, the circuit court correctly concluded that the
renewal of the DOH Permit was not a HEPA action. However, the
circuit court erred by not considering whether the activity
allowed under the DOH Permit was an "action." This error might
have been harmless if Puna Geothermal nonetheless met its
summary judgment burden.
To satisfy its summary judgment burden, Puna
Geothermal attempted to show that Plaintiffs could not prove the
"action" element of their claim by providing the circuit court
with the following:
(1) a citation to Thermal Power Co.'s 1987
environmental impact statement for the Puna
Geothermal Venture Project (1987 EIS); 5
(2) the January 22, 2021 declaration of Michael L.
Kaleikini, "Senior Director, Hawai‘i Affairs, of
Ormat Technologies, Inc."; and
5 Thermal Power Co., Puna Geothermal Venture Project: Environmental Impact Statement (1987) [hereinafter 1987 EIS], https://scholarspace.manoa.hawaii.edu/items/d15fbdda-ee96-40ff-b146- 83649754ab93 [https://perma.cc/45TU-4W9L].
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(3) a September 8, 2019 letter from the Department of
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-FEB-2025 08:35 AM Dkt. 73 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
ANNAMARIE KON; MARTHA HARDEN and GENE LANG THOMAS, Plaintiffs-Appellants, v. STATE OF HAWAIʻI, DEPARTMENT OF HEALTH; PUNA GEOTHERMAL VENTURE, a Hawaiʻi general partnership, Defendants-Appellees, and JOHN DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiffs-Appellants Annamarie Kon et al. appeal from
the Circuit Court of the Third Circuit's April 19, 2021 Final
Judgment. 1 On appeal, Plaintiffs challenge the circuit court's
granting of summary judgment in favor of Defendants-Appellees
Puna Geothermal Venture (or PGV) and State of Hawai‘i Department
of Health (DOH). 2
1 The Honorable Henry T. Nakamoto presided. 2 Plaintiffs also challenge the denial of their motion for reconsideration. Based on our decision, we need not address this issue. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and vacate and remand.
According to Puna Geothermal's motion for summary
judgment, it was operating under a 2009 Noncovered Source Permit
issued by DOH's Clean Air Branch (DOH Permit or NSP). In 2014,
Puna Geothermal filed a timely application to renew its DOH
Permit, but community members (not Plaintiffs) requested a
contested case hearing regarding further environmental review,
which was delayed for various reasons. 3 One reason for the
contested case hearing delay was the 2018 Kīlauea eruption that
caused Puna Geothermal to shut down for over a year. However,
the DOH Director ultimately determined that further
environmental review was not required to renew Puna Geothermal's
DOH Permit.
Plaintiffs filed a complaint for declaratory and
injunctive relief. Plaintiffs alleged that Puna Geothermal's
application "to renew DOH air pollution permits for an action
that uses state land" required an environmental review or, in
the alternative, that substantive changes to the project
3 The contested case docket numbers challenging Puna Geothermal's permit renewal are 15-CWBN-8-13 and 19-CWBN-5-24.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
required a supplemental environmental review. (Emphasis
omitted.)
Puna Geothermal moved for summary judgment, arguing it
was entitled to judgment as a matter of law because there was no
"action" under Hawai‘i Revised Statutes (HRS) Chapter 343, the
Hawai‘i Environmental Policy Act (HEPA). 4 Puna Geothermal argued
that the "renewal request" was "for the fully developed Facility
that has been in commercial operation for more than twenty-five
years, and not for any change in the Facility or its operations.
It is therefore, not an 'action' as a matter of law." (Emphases
The circuit court granted Puna Geothermal's motion for
summary judgment, concluding "the renewal of the permit" was not
an "action":
It is undisputed that PGV's geothermal facility ("Facility") was developed decades ago and the potential environmental impacts were disclosed in a 1987 [Environmental Impact Statement (EIS)]. The Court finds the renewal of PGV's NSP is not for any change in the Facility or its operations, and concludes that the renewal of the permit is not an "action" as a matter of law.
(Emphases added.)
4 Puna Geothermal also argued there was no HEPA "trigger." See HRS § 343-5(a) (2010). Plaintiffs moved for partial summary judgment on the issue of whether there was a trigger, which the circuit court granted. Puna Geothermal did not appeal or cross-appeal from the circuit court's decision. Thus, the trigger issue is not before us.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
This court reviews the grant or denial of summary
judgment de novo. Villaver v. Sylva, 145 Hawai‘i 29, 34, 445
P.3d 701, 706 (2019).
The burden is on the party moving for summary judgment
"to show the absence of any genuine issue as to all material
facts, which, under applicable principles of substantive law,
entitles the moving party to judgment as a matter of law."
Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 528, 403
P.3d 277, 305 (2017) (citations omitted). A defendant movant
"may satisfy [its] initial burden of production by either
(1) presenting evidence negating an element of the non-movant's
claim, or (2) demonstrating that the [non-movant] will be unable
to carry his or her burden of proof at trial." Ralston v. Yim,
129 Hawai‘i 46, 60, 292 P.3d 1276, 1290 (2013).
Where there is an "action" proposed for state lands,
an environmental assessment is required (unless exempted). HRS
§§ 343-5(a)(1), -6(a)(2) (2010). HEPA defines "action" as "any
program or project to be initiated by any agency or applicant."
HRS § 343-2 (2010).
In the context of permit renewals, it is not the
renewal of the permit that is a HEPA action; it is the activity
under the permit that may constitute a HEPA action. Carmichael
v. Bd. of Land & Nat. Res., 150 Hawai‘i 547, 569, 506 P.3d 211,
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
233 (2022) ("As demonstrated by our opinion in Umberger, it is
the applicant's permitted activity—i.e., the activity for which
the A&B Defendants initially sought permit approval—that
constitutes 'action' within the meaning of HEPA.").
Thus, the circuit court correctly concluded that the
renewal of the DOH Permit was not a HEPA action. However, the
circuit court erred by not considering whether the activity
allowed under the DOH Permit was an "action." This error might
have been harmless if Puna Geothermal nonetheless met its
summary judgment burden.
To satisfy its summary judgment burden, Puna
Geothermal attempted to show that Plaintiffs could not prove the
"action" element of their claim by providing the circuit court
with the following:
(1) a citation to Thermal Power Co.'s 1987
environmental impact statement for the Puna
Geothermal Venture Project (1987 EIS); 5
(2) the January 22, 2021 declaration of Michael L.
Kaleikini, "Senior Director, Hawai‘i Affairs, of
Ormat Technologies, Inc."; and
5 Thermal Power Co., Puna Geothermal Venture Project: Environmental Impact Statement (1987) [hereinafter 1987 EIS], https://scholarspace.manoa.hawaii.edu/items/d15fbdda-ee96-40ff-b146- 83649754ab93 [https://perma.cc/45TU-4W9L].
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(3) a September 8, 2019 letter from the Department of
Land and Natural Resources (DLNR) Chairperson,
attached to which was an August 22, 2019 letter
from Puna Geothermal's attorney to the DLNR
Chairperson.
In its reply to Plaintiffs' memorandum in opposition, Puna
Geothermal included:
(4) the March 9, 2020 declaration of Darin W.C. Lum,
an Environmental Engineer V with DOH's Clean Air
Branch, submitted in another proceeding.
As to Kaleikini's and Lum's declarations, they did not
expressly identify the activity allowed under the DOH Permit and
the activity proposed under the renewal application. And
assuming arguendo that Puna Geothermal's August 22, 2019 letter
to the DLNR Chairperson was admissible evidence, the letter also
did not identify the activity allowed under the DOH Permit and
the activity proposed under the renewal application. Finally,
Puna Geothermal did not provide the circuit court with the DOH
Permit or the renewal application.
Without evidence showing the activity allowed under
the DOH Permit and the activity proposed under the renewal
application, Puna Geothermal could not meet its summary judgment
burden of negating the "action" element under HEPA.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court erred in granting Puna
Geothermal's motion for summary judgment.
Based on the foregoing, we vacate the circuit court's
April 19, 2021 "Order Granting (1) Plaintiffs' Motion for
Partial Summary Judgment, Filed on January 11, 2021, and
(2) Defendant Puna Geothermal Venture's Motion for Summary
Judgment, Filed on January 22, 2021" to the extent it granted
Puna Geothermal's motion for summary judgment, and we vacate the
April 19, 2021 Final Judgment. (Formatting altered.) We remand
this case to the circuit court for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawai‘i, February 28, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Gary C. Zamber, for Plaintiffs-Appellants. /s/ Karen T. Nakasone Associate Judge Ewan C. Rayner, Deputy Solicitor General, /s/ Sonja M.P. McCullen for Defendant-Appellee, Associate Judge State of Hawaiʻi, Department of Health.
Paul Alston, Pamela W. Bunn, Timothy H. Irons, (Dentons), for Defendant-Appellee, Puna Geothermal Venture.