Puna Pono Alliance v. Puna Geothermal Venture

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-APR-2024
07:56 AM
Dkt. 154 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PUNA PONO ALLIANCE, a Hawai#i non-profit association;
JON OLSON; and HILLARY E. WILT,
Plaintiffs-Counterclaim Defendants-Appellants/Cross-Appellees,
v.
PUNA GEOTHERMAL VENTURE, a Hawai#i General Partnership,
Defendant-Counterclaimant-Appellee/Cross-Appellant,
and
COUNTY OF HAWAII, STATE OF HAWAI#I DEPARTMENT OF LAND
AND NATURAL RESOURCES,
Defendants-Appellees/Cross-Appellees,
and
JOHN DOES 1-10;
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC151000034)

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

Plaintiffs-Counterclaim Defendants-Appellants/Cross-

Appellees Puna Pono Alliance, a Hawai‘i non-profit association,1

Jon Olson, and Hillary E. Wilt (collectively, Puna Pono or

Plaintiffs) appeal from the October 30, 2019 Final Judgment

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Puna Pono Alliance has since been dissolved; as all named
plaintiffs shared counsel, this summary disposition order will simply refer to
them as "Puna Pono or Plaintiffs."
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(Judgment) entered by the Circuit Court of the Third Circuit

(Circuit Court).2 Defendant-Counterclaim Plaintiff-

Appellee/Cross-Appellant Puna Geothermal Venture, a Hawai‘i

General Partnership (PGV), cross-appeals from the Judgment and

challenges the Circuit Court's May 6, 2015 Order Denying [PGV's]

Motion to Dismiss Complaint, or in the Alternative, Motion for

Summary Judgment (Order Denying Dismissal).

Puna Pono raises two points of error on appeal,

contending that the Circuit Court erred in: (1) denying the May

25, 2016 Plaintiffs' Motion for Partial Summary Judgment

(Plaintiffs' MPSJ); and (2) granting PGV's June 30, 2016 Motion

for Summary Judgment (PGV's MSJ) and the County of Hawaii's

(County's) July 1, 2016 Cross-Motion for Summary Judgment

(County's MSJ).

PGV also raises two points of error on appeal,

contending that the Circuit Court erred in: (1) denying PGV's

March 3, 2015 motion to dismiss; and (2) dismissing PGV's

Counterclaim without adjudicating Counts II and III of the

Counterclaim.
Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the parties' points of error as follows:

2
The Honorable Greg K. Nakamura presided.

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Puna Pono's Appeal

Puna Pono requested partial summary judgment declaring

that Hawai#i County Code (HCC) § 14-114 (2012) was a legislative

act authorized by Hawaii Revised Statutes (HRS) § 46-17 (2012)

and is not preempted by State law. The County, as well as PGV,

opposed the motion. PGV filed, inter alia, a cross-motion for

summary judgment on multiple grounds, including but not limited

to preemption. The County also filed, inter alia, a cross-motion

for summary judgment on multiple grounds, including but not
limited to preemption.

HCC § 14-114 provides:
Section 14-114. Restrictions.
Geothermal resources exploration drilling and
geothermal production drilling operations being conducted
one mile or less from a residence, shall be restricted to
the operating hours of 7:00 a.m. – 7:00 p.m.

HRS § 46-17 provides:
§ 46-17 Regulation of certain public nuisances. Any
provision of law to the contrary notwithstanding, the
council of any county may adopt and provide for the
enforcement of ordinances regulating or prohibiting noise,
smoke, dust, vibration, or odors which constitute a public
nuisance. No such ordinance shall be held invalid on the
ground that it covers any subject or matter embraced within
any statute or rule of the State; provided that in any case
of conflict between a statute or rule and an ordinance, the
law affording the most protection to the public shall apply,
with the exception that:
(1) An ordinance shall not be effective to the
extent that it is inconsistent with any permit
for agricultural burning granted by the
department of health under authority of chapter
342B, or to the extent that it prohibits,
subjects to fine or injunction, or declares to
be a public nuisance any agricultural burning
conducted in accordance with such a permit; and
(2) An ordinance shall not be effective to the
extent that it is inconsistent with any noise
rule adopted by the department of health under
authority of chapter 342F.

On October 10, 2016, the Circuit Court entered a

Decision and Order Denying [Plaintiffs' MPSJ], Granting [PGV's

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MSJ], and Granting [County's MSJ] (Decision and Order). In the

Decision and Order, the Circuit Court stated that the specific

issue to be addressed was whether HCC § 14-114 is enforceable

against PGV, and the broader issue was whether HCC § 14-114 is

preempted by State law. The Circuit Court pointed to various

provisions of HRS Chapter 182, Reservation and Disposition of

Government Mineral Rights, and Hawai#i Administrative Rules (HAR)

Title 13, Sub-Title 7, Chapter 183, Rules on Leasing and Drilling

of Geothermal Resources, to highlight the comprehensive State
statutory and regulatory scheme providing the Board of Land and

Natural Resources (Board) the power to regulate geothermal well

drilling activities, including through the granting of a drilling

permit. The Circuit Court concluded that HCC § 14-114 conflicted

with the Board's power to regulate geothermal drilling

activities, and therefore, it was preempted by the State

statutory and regulatory regime.

On appeal, both the County and the State (as well as

PGV) filed answering briefs setting forth a whole host of reasons

why the Circuit Court's ruling should be affirmed, most

importantly, that Hawaii's comprehensive statutory and regulatory
scheme regulating geothermal resources preempts the ordinance.

The Hawai#i Supreme Court recently reaffirmed the test

applicable to the issue of preemption:
As we stated in Ruggles v. Yagong, 135 Hawai #i 411,
353 P.3d 953 (2015):
A county's power to promulgate ordinances is governed
by Article VIII, Section 1 of the Constitution of the State
of Hawai#i, which states, "The legislature shall create
counties, and may create other political subdivisions within

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the State, and provide for the government thereof. Each
political subdivision shall have and exercise such powers as
shall be conferred under general laws." (Emphasis added.)
Thus, pursuant to the Hawai#i Constitution, a county's
powers are limited to those conferred by the legislature
under general laws. The legislature has outlined the
"General powers and limitations of the counties" in HRS §
46-1.5 (2012). HRS § 46-1.5(13) [2018] provides

Each county shall have the power to enact ordinances
deemed necessary to protect health, life, and
property, and to preserve the order and security of
the county and its inhabitants on any subject or
matter not inconsistent with, or tending to defeat,
the intent of any state statute where the statute does
not disclose an express or implied intent that the
statute shall be exclusive or uniform throughout the
State[.]
Ruggles, 135 Hawai#i at 422, 353 P.3d at 964.

HRS § 46-1.5(13) was intended to mandate "the
preemption of any ordinance that either conflicted with the
intent of a state statute or legislated in an area already
staked out by the legislature for exclusive and statewide
statutory treatment." Richardson v. City and Cnty. of
Honolulu, 76 Hawai#i 46, 60, 868 P.2d 1193, 1207 (1994).
A municipal ordinance may be preempted by state law
"if (1) it covers the same subject matter embraced within a
comprehensive state statutory scheme disclosing an express
or implied intent to be exclusive and uniform throughout the
state or (2) it conflicts with state law." Richardson, 76
Hawai#i at 62, 868 P.2d at 1209 (citations omitted).

State v. Pickell, SCWC-XX-XXXXXXX, 2023 WL 8889767, *3-4 (Haw.

Dec. 26, 2023).

We conclude that HCC § 14-114 covers the same subject

matter as that set forth in the comprehensive State statutory and

regulatory scheme governing geothermal resources, and that this

scheme is impliedly intended to be exclusive and uniform.

Therefore, we conclude that the Circuit Court did not err in

reaching this conclusion.

PGV's Cross-Appeal

PGV first argues that the Circuit Court erred in

denying its motion to dismiss Puna Pono's complaint on the

grounds that it failed to state a claim upon which relief could

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be granted. However, in light of our conclusion that the Circuit

Court correctly granted summary judgment in favor of PGV and

against Puna Pono, we conclude that this issue is moot. See

generally Leone v. Cnty. of Maui, 141 Hawai‘i 68, 89, 404 P.3d

1257, 1278 (2017).

PGV further argues that the Circuit Court erred when it

summarily dismissed Counts II and III of its Counterclaim when

the Circuit Court entered judgment in favor of PGV based on

preemption. Count II of the Counterclaim sought a declaratory
ruling that HCC § 14-114 is unenforceable because it is

unconstitutionally vague, ambiguous, and overbroad. Count III of

the Counterclaim sought a declaratory ruling that HCC § 14-114

cannot be enforced against it based on its vested rights and

equitable estoppel.

"A fundamental and longstanding principle of judicial

restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them." Rees v.

Carlisle, 113 Hawai‘i 446, 456, 153 P.3d 1131, 1141 (2007)

(citation omitted). In addition, the Circuit Court's ruling in

favor of PGV on the grounds that preemption rendered HCC § 14-114

unenforceable rendered PGV's request for relief on alternative

grounds moot. See Leone, 141 Hawai‘i at 89, 404 P.3d at 1278.3

3
PGV has not argued that an exception to the mootness doctrine
applies here.

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For these reasons, the Circuit Court's October 30, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, April 18, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Gary C. Zamber,
for Plaintiffs-Counterclaim /s/ Keith K. Hiraoka
Defendants-Appellants/ Associate Judge
Cross-Appellees.
/s/ Sonja M.P. McCullen
Lerisa L. Heroldt, Associate Judge
Deputy Corporation Counsel,
Laureen L. Martin,
Deputy Corporation Counsel
Section Chief,
County of Hawai#i,
Office of the Corporation Counsel,
for Defendant-Appellee/Cross-Appellee
COUNTY OF HAWAI#I.

Thomas L.H. Yeh,
Jill D. Raznov,
(Law Offices of Yeh & Moore),
for Defendant-Counterclaim Plaintiff-
Appellee/Cross-Appellant
PUNA GEOTHERMAL VENTURE.

Kimberly T. Guidry,
Solicitor General,
Nicholas M. McLean,
Deputy Solicitor General,
Department of the Attorney General,
for Defendant-Appellee/Cross-Appellee
STATE OF HAWAI#I DEPARTMENT OF LAND
AND NATURAL RESOURCES.

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