Rohr v. County of Hawai'i Windward Planning Commission

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAY-2024
07:51 AM
Dkt. 112 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CLAUDIA ROHR, Plaintiff-Appellant,
v.
COUNTY OF HAWAI‘I WINDWARD PLANNING COMMISSION;
COUNTY OF HAWAI‘I PLANNING DEPARTMENT,
Defendants-Appellees,
and
HU HONUA BIOENERGY, LLC, Intervenor-Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 17-1-0384)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

We dismiss this appeal as moot. 1
Self-represented Plaintiff-Appellant Claudia Rohr
(Rohr) appeals from the (1) October 15, 2018 "Order Denying
Motion for Leave to File Supplemental Complaint Filed August 3,
2018"; (2) December 21, 2018 "Order Denying [Rohr]'s Motion for

1 As this is a dismissal order, no judgment will be entered.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Reconsideration of the Motion for Leave to File Supplemental
Complaint, Filed September 26, 2018"; (3) December 21, 2018
"Order Granting [Intervenor-Defendant-Appellee] Hu Honua
Bioenergy, LLC's [(Hu Honua)] Motion to Dismiss Amended
Complaint for Lack of Subject Matter Jurisdiction or for Summary
Judgment, Filed July 5, 2018"; (4) April 24, 2019 Final
Judgment; (5) June 26, 2019 "Order Denying [Rohr]'s Motion for
Reconsideration, Filed May 6, 2019"; and (6) July 31, 2019
"Order Denying [Rohr]'s Motion Relief [sic] from Judgment and
Motion to Join Party, Filed June 4, 2019," all filed and entered
by the Circuit Court of the Third Circuit (Environmental Court). 2
Upon careful review of the record, the briefs
submitted by the parties, their responses to our April 23, 2024
Order to Show Cause (OSC) regarding mootness, and having given
due consideration to the arguments advanced and the issues
raised, we dismiss.
Rohr's appeal challenges whether the Public Utilities
Commission's (PUC) 2017 approval of Hawaiʻi Electric Light
Company, Inc.'s (HELCO) amended power purchase agreement (PPA)
(2017 PPA Approval) with Hu Honua violated the Hawaiʻi
Environmental Policy Act (HEPA). On September 20, 2018, the
Environmental Court held that the 2017 PPA Approval did not
trigger HEPA review because the PPA was not an "action," and
granted summary judgment on Rohr's Complaint.
We take judicial notice of the dockets and records in
related cases, Matter of Haw. Elec. Light Co., Inc. (HELCO I),
145 Hawaiʻi 1, 445 P.3d 673 (2019), Matter of Haw. Elec. Light
Co., Inc. (HELCO II), 149 Hawaiʻi 239, 487 P.3d 708 (2021), and

2 The Honorable Greg K. Nakamura presided.
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Matter of Haw. Elec. Light Co., Inc. (HELCO III), 152 Hawaiʻi
352, 526 P.3d 329 (2023), entered since the filing of the record
in this appeal.
Appellant Life of the Land appealed the 2017 PPA
Approval and denial of its intervention in HELCO I; and in 2019,
the Hawaiʻi Supreme Court vacated the 2017 PPA Approval,
instructing the PUC to hold a new hearing on the PPA and
allowing Life of the Land to participate. 145 Hawaiʻi at 10, 25,
445 P.3d at 682, 697. Following the hearing on remand, Hu Honua
appealed regarding the scope of the remand in HELCO II, and in
2021, the Hawaiʻi Supreme Court remanded for the PUC to conduct a
new contested case hearing on the PPA. 149 Hawaiʻi at 241-42,
487 P.3d at 710-11. In 2022, the PUC issued an order denying
the PPA (2022 PPA Denial) because it found that the PPA "was not
in the public interest." HELCO III, 152 Hawaiʻi at 356, 526 P.3d
at 333. Hu Honua appealed, and the 2022 PPA Denial was affirmed
by the supreme court in 2023 in HELCO III. Id. at 356, 359, 526
P.3d at 333, 336.
We issued an April 23, 2024 OSC, requesting the
parties to respond regarding whether this appeal should be
dismissed for lack of appellate jurisdiction due to mootness,
where the 2017 PPA Approval was vacated in HELCO I; the PPA was
ultimately denied in the 2022 PPA Denial; and the Hawaiʻi Supreme
Court affirmed the 2022 PPA Denial in 2023 in HELCO III.
On April 29 and May 7, 2024, Defendants-Appellees
County of Hawaiʻi Windward Planning Commission, County of Hawaiʻi
Planning Department (collectively, the County), and Hu Honua
filed their responses stating that they agreed this appeal is
moot for the reasons set forth in the OSC. Also on May 7, 2024,
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Rohr filed a response and argued the case is not moot because
two exceptions to the mootness doctrine applied.
Hawaiʻi appellate courts have recognized three
exceptions to the mootness doctrine: (1) capable of repetition,
yet evading review (CRER); (2) public interest; and
(3) collateral consequences. US Bank Nat'l Assoc. as Tr. for
Citigroup Mortg. Loan Tr. Inc. Mortg.-backed Notes, Series 2005-
11 v. Greenberg, No. CAAP-XX-XXXXXXX, 2023 WL 7104851, at *4
(Haw. App. Oct. 27, 2023) (SDO) (citing Hamilton ex rel. Lethem
v. Lethem, 119 Hawaiʻi 1, 5-10, 193 P.3d 839, 843-48 (2008); 3
Carmichael v. Bd. of Land & Nat. Res., 150 Hawai‘i 547, 560, 506
P.3d 211, 224 (2022).
With regard to the CRER exception, the supreme court
has explained that:
The phrase, "capable of repetition, yet evading review,"
means that a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit.

Lethem, 119 Hawaiʻi at 5, 193 P.3d at 843 (cleaned up). Rohr
argues that this matter is "capable of repetition" because Hu
Honua will eventually pursue "a new contract with HE[L]CO for
the same biomass power plant." Here, assuming arguendo a new
PPA may be pursued in the future and the matter is thus "capable

3 The Hawai‘i Supreme Court adopted the third exception for
"collateral consequences" in Lethem, to allow appellate review of a ninety-
day temporary restraining order (TRO), recognizing that a TRO "by its very
nature" would "always evade review . . . ." 119 Hawai‘i at 6, 193 P.3d at 844.
The Lethem court applied the collateral consequences exception because "there
[wa]s a reasonable possibility that the family court's issuance of the
[(minor's)] TRO against Father [would] cause harm to Father's reputation . .
. ." Id. at 12, 193 P.3d at 850.
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of repetition," it would not "evade full review . . . ." A PPA
is not subject to a time restriction or expiration that would
prevent such review, unlike the TRO in Lethem. See id. at 6,
193 P.3d at 844. We conclude the CRER exception to the mootness
doctrine does not apply.
"When analyzing the public interest exception, this
court looks to (1) the public or private nature of the question
presented, (2) the desirability of an authoritative
determination for future guidance of public officers, and (3)
the likelihood of future recurrence of the question." Id. at 6-
7, 193 P.3d at 844-45 (cleaned up). Rohr argues that the matter
is "of great public concern," and a decision is needed to
"advise public officials" on whether an environmental assessment
is required when reviewing applications for PPAs. Here, the
issue on appeal concerned whether the 2017 PPA Approval was an
"action" triggering HEPA review, and HEPA compliance is a matter
of public concern. HELCO I, however, vacated the 2017 PPA
Approval, rendering it a nullity. See HELCO III, 152 Hawaiʻi at
354, 526 P.3d at 331 (reaffirming that the supreme court vacated
the 2017 PPA Approval in HELCO I); Tri-S Corp. v. W. World Ins.
Co., 110 Hawaiʻi 473, 497, 135 P.3d 82, 106 (2006) ("The vacated
order below is thus a nullity, and any error contained therein
is now without effect." (citation omitted)). We conclude that
"an authoritative determination for future guidance of public
officers" on the applicability of HEPA to a vacated order that
is a nullity is neither practical nor desirable. See Tri-S
Corp., 110 Hawai‘i at 497, 135 P.3d at 106; Lethem, 119 Hawaiʻi at
6-7, 193 P.3d at 844-45 (citation omitted). Thus, the public
interest exception to the mootness doctrine does not apply.

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For the foregoing reasons, IT IS HEREBY ORDERED that
this appeal is dismissed.
DATED: Honolulu, Hawai‘i, May 17, 2024.
On the briefs:
/s/ Katherine G. Leonard
Claudia Rohr,
Acting Chief Judge
Self-Represented Plaintiff-
Appellant.
/s/ Keith K. Hiraoka
Associate Judge
D. Kaena Horowitz,
Deputy Corporation Counsel
/s/ Karen T. Nakasone
for Defendants-Appellees.
Associate Judge
Rex Y. Fujichaku,
for Intervenor-Defendant-
Appellee.

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