Recent litigation involving the Pele Defense Fund

Pele Defense Fund v. Department of Land and Natural Resources, was filed on November 20, 2012, Civil No. 12-1-0568 in the Hawai`i Third Circuit Court, as a declaratory judgment action challenging a decision of DLNR’s Division of Forestry and Wildlife (DOFAW) that its proposed Ka`u Forest Reserve Management Plan would have no significant environmental impacts and therefore DLNR would not prepare an environmental impact statement (EIS).  DOFAW’s Ka’u management plan includes fencing 12,000 acres of forest, eradicating animals, reintroducing the Hawaiian crow, and contemplates even more fence enclosures in the future. The suit refers to the Plaintiffs’ criticism of the cultural assessment, the interruption of hunting and gathering access, and failure to measure the results of prior similar efforts. Plaintiffs seek to preserve the Ka`u Forest Reserve for Native Hawaiian traditional and spiritual practices, and for education of future generations, claiming the risk of environmental impacts have been overlooked.  On December 5, 2013, the State filed a motion for summary judgment asking the Court to dismiss the lawsuit.  The Plaintiffs filed a memorandum opposing the State's motion on January 6, 2014.  The Hilo Court decided the case by granting the motion and the matter is now in the Hawai`i Intermediate Court of Appeals for further review.

In Dedman et al. v. . Department of Land and Natural Resources, an amended complaint was filed on October 21, 2015, in the Kona Environmental Court challenging a permit granted by DLNR to two University of Hawai`i organizations proposing geothermal exploration on Hualalai in West Hawai`i, claiming an environmental assessment was required. On February 26, 2016, the permits were cancelled and rescinded by the BLNR at the request of the two University organizations.  More ...

Published litigation decisions involving the Pele Defense Fund

Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai`i 64, 881 P.2d 1210 (1994): Pele Defense Fund, Kapoho Community Association, Robert Petricci, Jennifer Perry, Steve Phillips, and Aurora Martinovitch sought judicial review of Department of Health decision granting partnership's request for permits for geothermal wells and power plant. Partnership moved to dismiss, and plaintiffs moved to stay permits. The Circuit Court, Third Circuit, denied partnership's motion and granted plaintiffs' motion. Partnership brought interlocutory appeal. The Supreme Court, Klein, J., held that: (1) for purposes of determining whether circuit court had jurisdiction to hear appeal of Department decision, administrative hearings were “contested cases” within meaning of statute governing judicial review of administrative contested cases because hearings were required by due process, and (2) adjacent property owners demonstrated sufficient participation and potential injury in fact for standing to seek judicial review of Department decision. Affirmed in part, reversed in part, and remanded. Anthony Ranken for appellants

Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992), petition for writ of certiorari denied 507 U.S. 918, 113 S.Ct. 1277, 122 L.Ed.2d 671 (February 22, 1993):  Challenge was brought by nonprofit corporation to decision of state to exchange public “ceded” lands for other lands, alleging that exchange constituted breach of trust created by Hawaii Admission Act and federal civil rights statute, and alleging that exchange violated Hawaii Constitution, statutes, and constitutional right to due process. The Third Circuit Court, Hilo Division, entered order granting defendant's motion to dismiss or for partial summary judgment. Appeal was taken. The Supreme Court, Klein, J., held that: (1) corporation had standing to sue on behalf of its members when alleged injuries were “generalized” injuries for which relief granted to organization would provide remedy to any individual member; (2) decision of federal Court of Appeals was res judicata on claims brought under federal civil rights statute; (3) corporation could bring suit for limited purpose of enjoining state officials from breach of trust by disposal of trust assets in violation of Hawaii Constitution and statutory provisions; (4) defendants had sovereign immunity from claims seeking retrospective relief; and (5) material issues of fact as to whether native Hawaiians' rights under constitutional provision extended beyond the ahupua'a in which they resided precluded granting summary judgment.  Alan T. Murakami (Melody K. MacKenzie, Paul Nahoa Lucas, Yuklin Aluli and Steven C. Moore, with him on the briefs, of Native Hawaiian Legal Corp.), Honolulu, for plaintiff-appellant.    First page of complaint filed on March 10, 1989.  August 26, 2002, Final Judgment and text of Findings of Fact and Conclusions of Law; Order

Pele Defense Fund v. Puna Geothermal Venture, 9 Haw.App. 143, 827 P.2d 1149 (1992): Pele Defense Fund, Aurora Martinovich, Robert Petricci, Steven Philips, Susan Philips, Gregory Pommerenk, and Deborah Pommerenk brought suit for declaratory judgment and injunctive relief challenging award of geothermal resource permit. The Third Circuit Court, Hawaii County, dismissed action. Plaintiffs appealed. The Intermediate Court of Appeals, Heen, J., held that: (1) claim that condition of permit could never be complied with rendering permit null and void was barred by res judicata; (2) issue of whether permittee was required to obtain permit for excessive noise could have been, but was not, raised in prior proceeding between parties resulting in final judgment for permittee, and thus claim was barred by res judicata; (3) claim that permittee's failure to satisfy condition of permit rendered any issued building and construction permits illegal was not barred since it could not have been raised until after appeal from initial decision; (4) genuine issue of material fact existed as to whether condition of permit remained unsatisfied rendering building and construction permits illegal, precluding summary judgment in favor of permittee; and (5) plaintiffs were not barred by exhaustion of administrative remedies doctrine from seeking judicial determination of issue. Vacated and remanded. Anthony Ranken for appellants

Aluli v. Lewin, 73 Haw. 56, 828 P.2d 802 (1992), reconsideration denied 73 Haw. 625, 831 P.2d 935 (1992): Noa Emmett Aluli, M.D., Karl Kirkendall; Michael Laplante, Robert Petricci, Steven M. Moser, M.D., and the Pele Defense Fund brought action for declaratory and injunctive relief to prevent construction and operation of geothermal wells pursuant to permit issued by State Department of Health (DOH). The Third Circuit Court, Hawaii County, Shunichi Kimura, J., entered order denying relief, and appeal was taken. The Supreme Court, Wakatsuki, J., held that DOH engaged in “rulemaking” contrary to requirements of Hawaii Administrative Procedures Act when, in issuing permit for construction and operation of geothermal wells that would emit hydrogen sulfide into air, it imposed certain special conditions regarding permissible amounts of hydrogen sulfide emissions. Reversed and remanded for issuance of injunctive relief ordering a stop to to any construction activity based on the permit until DOH duly promulgated rules governing hydrogen sulfide emissions. Anthony Ranken for appellants. After this decision was issued, and an injunction was issued against further construction activity, the developer building a geothermal site in Wao Kele o Puna decided to quit the project and left the State (and the State agreed to take over obligations to restore the former construction site.)

Pele Defense Fund v. Puna Geothermal Venture, 8 Haw.App. 203, 797 P.2d 69 (1990): Appellants Pele Defense Fund, Robert Petricci, Steve Philips, Gregory Pommerenk, Deborah Pommerenk, Delan Perry, and Jennifer Perry appeal from Hawaii County Planning Commission's award of a geothermal resource permit to Respondent Puna Geothermal Venture (Respondent) on October 3, 1989. The Intermediate Court of Appeals, Heen, J., held that: (1) attachment of condition to permit, even though of prospective application, did not affect finality of decision for appeal purposes; (2) opponents lacked standing to challenge adequacy of rule requiring that notice to property owners within 300 to 1,000 feet of a proposed resource be given; and (3) opponents were not entitled to notice of rescheduling of hearings. Thomas E. Luebben, pro hac vice, Albuquerque (Anthony L. Ranken with him on the briefs; Anthony L. Ranken, Wailuku, of counsel), for appellants.

Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990): Action was brought by an individual and the Pele Defense Fund challenging transfer by the Hawaii Board of Land and Natural Resources of certain trust land. The United States District Court for the District of Hawaii granted defendants' motion to dismiss, and plaintiffs appealed. The Court of Appeals held that the Eleventh Amendment barred relief.  Yuklin Aluli, Melody K. MacKenzie, Native Hawaiian Legal Corp., Honolulu, Hawaii, Steven C. Moore, Native American Rights Fund, Boulder, Colorado, for appellants.

Medeiros v. Hawaii County Planning Com'n, 8 Haw.App. 183, 797 P.2d 59 (1990): Delan Perry, Jennifer Perry (the Perrys), and Nelson Ho (collectively Appellants) appeal from Appellee Hawaii County Planning Commission's (Commission) August 15, 1989 approval of a geothermal resource permit (the permit) authorizing Appellees Hawaii Natural Energy Institute and the Research Corporation of the University of Hawaii (Applicants) to drill four exploratory geothermal wells in the East Rift Zone of the Puna District on the Island of Hawaii. Intermediate Court of Appeals, Heen, J., held that: (1) statute providing that authority's decision on geothermal resource permit application was not subject to contested case hearing did not violate due process; (2) procedures actually employed by commission provided property owners with opportunity to be heard in meaningful manner and thus did not violate due process; and (3) application did not violate rule requirement that it describe scope of planned activities and reasons for requesting permit. Delan Perry, Pahoa, pro se (Jennifer Perry and Nelson Ho joined on briefs). Thomas E. Luebben, pro hac vice, Albuquerque (Anthony L. Ranken, of counsel), for Jennifer Perry. (Pele Defense Fund and others were parties in the trial court but not appellants.) 

Dedman v. Board of Land and Natural Resources, 69 Haw. 255, 740 P.2d 28 (1987): Intervenors (including founders of Pele Defense Fund, before organization was created in February of 1987) challenged the approval of the development of geothermal energy in the Kilauea Middle East Rift Zone in two separate appeals from decisions of the Board of Land and Natural Resources.  Board accepted application for conservation district use permit as to land received by applicant from state in exchange for applicant's land, located in area of volcanic eruptions, causing question as to safety of tapping geothermal resources. Intervening parties contended that area involved was sacred. Board entered decision permitting exploration, development, and production of geothermal energy.  Intervenors appealed. The Supreme Court held that: (1) designation of “sacred” area as geothermal resource subzone and approval of specific geothermal development plans did not infringe on claimants' freedom to exercise their religion, as it was undisputed that claimants never used land for religious purposes and claimants presented no objective evidence of harm to religious practices, and (2) statute setting forth criteria for establishing geothermal resources subzone, which criteria are substantially adopted by administrative rule, and which statute explicitly leaves methods for assessing factors to discretion of Board of Land and Natural Resources, is sufficiently clear to comport with due process.  Yuklin Aluli, Steven C. Moore, Native American Rights Fund, and Allan T. Murakami and Melody K. Mackenzie, Native Hawaiian Legal Corporation, for appellants. First page of notice of appeal from Board to Circuit Court filed on May 12, 1986.

Related geothermal cases

Blue Ocean Preservation Society v. Watkins, 754 F.Supp. 1450 (D. Haw. 1991): an action brought by three environmental groups (Plaintiffs), represented by the Sierra Club Legal Defense Fund, seeking to compel the federal government to prepare an Environmental Impact Statement (EIS) covering the development of geothermal energy on the Island of Hawaii before proceeding further with that development. Defendant federal departments and agencies moved for summary judgment on the grounds that Plaintiffs' claim is not ripe, and that this court therefore lacks subject matter jurisdiction. Plaintiffs filed a cross-motion for partial summary judgment on the issue of whether the geothermal project constitutes a major federal action within the meaning of 42 U.S.C. § 4332(2)(C).  Court ruled in Plaintiffs' favor and, 767 F. Supp. 1518, ordered the government "to commence forthwith the preparation of an EIS in compliance with NEPA, so as to address the serious concerns raised regarding the environmental impact geothermal development as proposed may have upon the land and within the waters of the State of Hawaii. The government is — i.e., all defendants are — permanently enjoined from any further participation in the Project other than the funding and work necessary for the preparation of the EIS itself until such EIS is complete."

Wao Kele o Puna v. Waihee, Civil No. 91-3553-10 in the Hawai`i First Circuit Court: plaintiffs’ (including PDF), represented by the Sierra Club Legal Defense Fund, filed a complaint for declaratory and injunctive relief on October 23, 1991, alleging state and other defendants failed to comply with the state's environmental impact statement law (Chapter 343, Hawai`i Revised Statutes) in promoting a large scale geothermal and cable project.  After the state abandoned the project, a settlement agreement was entered wherein the state defendants agreed "that they will not undertake, initiate or instigate any acts or actions in furtherance of a Large-Scale Geothermal/cable Project unless and until an environmental impact statement has been prepared in compliance with H.R.S. Chapter 343" (the agreement refers to such a project as "the production of geothermal energy on the Island of Hawai`i for export to any other part of the Hawaiian Islands.")

Puna Speaks v. Edwards, 554 F. Supp. 117 (D. Haw. 1982): Federal District Court in Honolulu held environmental assessments for three geothermal projects were adequate for purposes of the National Environmental Policy Act and the Department of Energy was not required to file a formal NEPA environmental impact statement, therefore plaintiffs' failed to show significant or irreparable harm for a preliminary injunction in their case based primarily on NEPA violations.

Puna Speaks v. Hodel, 562 F. Supp. 82 (D.Haw. 1983): Federal District Court in Honolulu denied Plaintiffs an injunction pending appeal, based on determination that geothermal project would have no significant environmental impact and therefore a formal environmental impact statement was not required.

Unrelated PGV case

Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 104 P.3d 912 (2004): the Hawai`i Supreme Court remanded the case to the Third Circuit Court (Hilo) for determination of an appropriate sanction after the Hilo trial court had required an attorney to pay PGV's attorney fees and costs.  The tort suit against PGV alleging that odors, fumes, and noxious gases exacerbated the plaintiff's asthma was dismissed summarily when expert witnesses identified by the plaintiff's attorney were unavailable to attend trial.  The Supreme Court held the plaintiff's attorney had failed to conduct a reasonable investigation before filing a pretrial statement listing two doctors as expert witnesses on medical causation, and therefore was liable for sanctions under court rules.  However, the decision also held the $101,114.57 award against the plaintiff's attorney was improperly determined by the trial court.  The case did not reach the merits of the plaintiff's claim in the trial court due to the unavailable experts, and the appeal by the attorney as the real party in interest concerned the sanctions award, not the plaintiff's claim.