Kon v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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.
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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.

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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

omitted.)

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.

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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,

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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].

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(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.

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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.

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