Judge Voids Lease for Energy Plant Proposed on Hawaiian Home Lands
The efforts of Albert Hee and his company, Waimana Enterprises, to develop a 58-megawatt co-generation plant at Kawaihae have once more come to a screeching halt.
On October 26, Third Circuit Judge Riki May Amano negated the 1993 lease to Hee of 40 acres on the Big Island, finding that the Hawaiian Homes Commission had not complied with her earlier order requiring it to reconsider the adequacy of an environmental assessment that a previous commission chair, Hoaliku Drake, had accepted for the lease.
Hee does not accept Amano’s ruling as valid. “We don’t believe it’s correct and have filed a writ of mandamus with the [state] Supreme Court.” A writ of mandamus asks for expedited review.
Judge Amano, Hee told Environment Hawai’i, “had dismissed the case at the request of Mauna Kea Homeowners,” one of the plaintiffs. “We feel it’s pretty clear, in case law, that when you dismiss a case, you give up jurisdiction.”
Randy Vitousek, attorney for plaintiffs James Growney and the Mauna Kea Homeowners Association, disputes Hee’s claim. “Judge Amano decided that she had jurisdiction, since no final judgment had been entered, and that she was authorized to review compliance with the remand order. She found the agency had not complied, because of how they conducted the hearing.”
“Also,” Vitousek continued, the agency “applied the wrong legal standard as to whether an environmental assessment or an environmental impact statement was required.”
Should Amano’s ruling stand, any proposal to build a power plant on the Kawaihae site will almost certainly have to be accompanied by a full environmental impact statement, given a change in state law in 1996. That change, to Chapter 343, the statute governing environmental impact statements and environmental assessments, requires an EIS for any project involving “substantial energy consumption,” Vitousek notes.
Background
In 1993, Drake found that the proposed lease and the power plant that Hee intended to build on it would have “no significant impact” on the environment and surrounding community. Drake’s decision was challenged by three homelands beneficiaries, represent–ing themselves pro se. One has since died. The remaining two, Jojo Tanimoto and Linda Dela Cruz, were later joined by the Mauna Kea Homeowners Association (residents of the upscale Kohala Ranch area) and its president, Growney.
The beneficiaries challenged the project on two points: the environmental assessment was inadequate, they said, and also the determination that Albert Hee qualified for special consideration as a Native Hawaiian corporation (one whose principal is of at least 50 percent Hawaiian ancestry).
In response, the Department of Hawaiian Home Lands claimed that Chapter 343 did not apply to Hawaiian Home Lands. That argument was taken to the state Supreme Court, which determined that DHHL was not exempt and remanded the matter back to Amano’s court. It was at this point that the Mauna Kea Homeowners Association joined the case.
Amano, in turn, remanded the issue to the Hawaiian Homes Commission. Procedurally, Drake had erred in accepting the EA unilaterally, Amano found. Acceptance or rejection should have been determined by the full commission, she ruled.
But rather than conducting a review of the 1993 EA, the Hawaiian Homes Commission merely voted, 6-3, to reaffirm Drake’s decision. When Growney asked to be granted a contested case hearing on the adequacy of the EA, his request was denied by Ray Soon, the present commission chair, and only voted upon after the fact by the full commission.
By reaffirming Drake’s decision, the Hawaiian Homes Commission apparently hoped to avoid publishing notice of its acceptance of the Environmental Assessment in the state Environmental Notice, the twice-monthly record published by the Office of Environmental Quality Control. Without that published notice, judicial appeal of the acceptance or rejection of an EA or EIS by an agency is not possible.
Amano had also ordered the commission to rehear testimony on whether Hee met the 50 percent standard of Hawaiian ancestry to qualify as a “Native Hawaiian corporation.”
In August, the commission received tes–timony about Hee’s ancestry, but went into closed, executive session to heart its own staff genealogist testify on the subject. After emerging from the executive session, the commission then voted to find Hee did indeed qualify.
By October, the parties were back again in Amano’s courtroom, with the plaintiffs arguing that the Hawaiian Homes Com–mission had violated Amano’s earlier order by its refusal to grant a contested case hearing on the matter of the environmental assessment and by taking testimony on Hee’s ancestry in executive session.
Amano’s impatience with the commission was evident. While Waimana’s attorney, Ward Fujimoto, was claiming that Amano had never specifically ordered a contested case hearing, Amano interrupted: “The court order intended to give the commission the chance to follow the law and do it right,” she said. What the commission had done, she said, was “come to court and just give lip service to their purported com–pliance with the court order.”
As reported by Chris Loos of the Hawai’i Tribune-Herald, “Amano said it ‘bothers me a lot’ that the commission voted after going into executive session with a witness. ‘I find that action to be somewhat disin–genuous,’ Amano said. ‘I guess I expected people to act responsibly in the matters that we discussed.’”
Amano then granted a motion by the plaintiffs for summary judgment, finding that the lease to Hee and Waimana was void. The matter of Hee’s ancestry becomes moot, until such time as the Hawaiian Homes Commission receives a new appli–cation for a lease from Hee.
Volume 10, Number 6 December 1999
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