University`s motion - Puna Pono Alliance

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CARRIE K. S. OKINAGA 5958-0
University General Counsel
RY AN M . AKAMINE 4358-0
BRUCE Y. MATSUI 3721-0
Associate General Counsels
University of Hawai 'i
2444 Dole Street, Bachman Hall 110
Honolulu , Hawai'i 96822
Telephone: (808) 956-2211
Facsimile: (808) 956-2109
2016 h R-I PH 3: 42
J.KUBO
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Attorneys for Defendant
UNIVERSITY OF HAW AI ' I
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
RALPH P ALIKAPU DEDMAN; TERRI L. )
NAPEAHI; ROBERT M. PETRICCI; RUTH- )
REBECCAL YNNE TY ANA LOKELANI
)
ALOUA; ALICIA M. ILIKEA KAM;
)
WINTER NANI HOOHULI; CLARE
)
LOPRINZI; JOSEPH KASSEL ND, L.Ac.;
)
and MISHA KASSEL, MD,
)
)
Plain ti ffs,
)
)
)
)
v.
STATE OF HAWAI'I, DEPARTMENT OF
LAND AND NATURAL RESOURCES;
UNIVERSITY OF HAW AI' I, HAWAII
INSTITUTE OF GEOPHYSICS AND
PLANETOLOGY and CENTER FOR THE
STUDY OF ACTIVE VOLCANOES; and
JOHN DOES 1-10,
Defendants.
)
)
)
)
)
)
)
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)
)
Civil No. 15-l-274K
(Kona) (Environmental Court)
DEFENDANT UNIVERSITY OF
HA WAIT S MOTION TO DISMISS
AMENDED COMPLAINT OR TO DISMISS
ALL CLAIMS AGAINST
DEFENDANT UNIVERSITY OF HAW AI'I;
MEMORANDUM IN SUPPORT OF
MOTION ; DECLARATION OF DONALD
THOMAS ; EXHIBITS " 1"; NOTICE OF
MOTION; AND CERTIFICATE OF
SERVICE
HEARING MOTION
JUDGE: Honorable Ronald Ibarra
TRIAL DATE: None
HEARING DATE: April 20, 2016
HEARING TIME: 8:00 a.m.
-----------------------------)
DEFENDANT UNIVERSITY OF HAW AIT S MOTION TO DISMISS AMENDED
COMPLAINT OR TO DISMISS ALL CLAIMS AGAINST
DEFENDANT UNIVERSITY OF HAW AI'I
Defendant UNIVERSITY OF HAWAI'I hereby moves for dismissal of the Amended
Complaint or dismissal of all claims against Defendant UNIVERSITY OF HAW AI'I based on
the mootness doctrine. Succinctly stated, the Plaintiffs have no justiciable claim in this case
because the issued permits that the Plaintiffs were challenging, and sought to enjoin, were
cancelled and rescinded by the Board of Land & Natural Resources on February 26,2016. The
project underlying the permit(s) will not proceed , and there is no ongoing legal controversy left
to be decided by this Court.
This motion is brought pursuant to Hawai 'i Rules of Civil Procedure 7(b), 12(b)(l) and
12(h)(3), and is also based on the attached memorandum, declaration and exhibit, and the
pleadings and record herein.
Dated:
APR 0 1 2016
Honol ul u, Hawai ' i, _ _ _ _ _ _ _ _
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CAR . K. S. OKINAGA
RYAN M. AKAMINE
BRUCE Y. MATSUI
Attorneys for Defendant
UNIVERSITY OF HAW AI'I
2
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
RALPH PALIKAPU DEDMAN; TERRI L.
NAPEAHI; ROBERT M. PETRICCI; RUTHREBECCALYNNE TYANA LOKELANI
ALOUA; ALICIA M. ILIKEA KAM;
WINTER NANI HOOHULI; CLARE
LOPRINZI; JOSEPH KASSEL ND, L.Ac.;
and MISHA KASSEL, MD,
)
)
)
)
)
)
)
Civil No. IS-1-274K
(Kona) (Environmental Court)
MEMORANDUM IN SUPPORT OF
MOTION
)
Plaintiffs,
)
)
)
)
v.
STATE OF HAWAI'I, DEPARTMENT OF
LAND AND NATURAL RESOURCES;
UNIVERSITY OF HAW ArI, HAWAII
INSTITUTE OF GEOPHYSICS AND
PLANETOLOGY and CENTER FOR THE
STUDY OF ACTIVE VOLCANOES; and
JOHN DOES I-tO,
)
)
)
)
)
)
)
)
Defendants.
)
)
-----------------------------)
MEMORANDUM IN SUPPORT OF MOTION
I.
INTRODUCTION
Plaintiffs filed suit against Defendant UNIVERSITY OF HAW AI'I ("University") and
the Defendant STATE OF HAW AI'I regarding a geothermal exploration permit(s) issued to the
University. The Plaintiffs claim that the "[a]pproval of the application for geothermal
exploration around Hualalai was improvidently granted ... ". See FIRST AMENDED
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; SUMMONS filed on
October 21,2015, page 8, paragraph 28. Plaintiffs sought "temporary, preliminary and
permanent injunctive relief'. Id. at page 9, paragraph 30.
II.
FACTUAL BACKGROUND
The Hawai ' i Institute of Geophysics and Planetology ("HIGP" ) and The Center for the
Study of Active Volcanoes ("CSAV") applied for and was issued Geothermal Exploration Permit
(H-Ol), Hualalai West Rift Zone, Hawaii dated May 7,2015, by the State of Hawai ' i,
Department of Land And Natural Resources ("DLNR"), and subsequently requested an
amendment to Permit H-Ol. See DECLARATION OF DONALD M. THOMAS; EXHffiIT "I " ,
paragraph 4.
The HIGP and CSA V personnel were unable to progress on the proposed project beyond
the permitting process , the grant agreement that provided funds for the project expired on June
30, 2015; subsequent efforts to obtain alternate funding for the project were unsuccessful and
there appears to be no prospect for additional funding to pursue the project in the foreseeable
future. Id. at paragraph 5.
For HIGP and CSA V, Dr. Donald Thomas requested that the DLNR end, cancel, and/or
terminate Permit H-O 1 and that the application for the amendment to Permit H-O I be withdrawn.
Id. at paragraph 6. Dr. Thomas did not know about the approval granted July 10, 2015 (Item L5) for an additional Geothermal Exploration Permit, Hualalai West Rift Zone, Hawai'i , which I
understood to be the application for the amendment to Permit H-Ol. Id. at paragraph 10.
On February 26 , 2016, the Board of Land and Natural Resources approved the
cancellation of Geothermal Exploration Permit (H-Ol), Hualalai West Rift Zone dated May 7,
2015, and rescinded its approval granted July 10,2015 for the amendment. Id. at paragraphs 7-9
and Exhibit" I" .
HIGP and CSA V does not plan to proceed with the research project associated with the
cancelled and rescinded permit at issue in this case. Id. at paragraph 11.
2
As a result of the permit(s) at issue being cancelled and/or rescinded, this motion seeks
the di smissal of the FIRST AMENDED COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF; SUMMONS filed on October 21,2015 , or a dismissal of all claims
against the University on the gro unds that Plaintiff's claim(s) is mooted, and there is no
justiciable claim to be decided against the University.
III.
APPLICABLE LEGAL STANDARD
Hawai'i Rule of Civil Procedure ("HRCP") Rule 12 provides in relevant part:
Rule 12. DEFENSES AND OBJECTIONS -- WHEN AND HOW
PRESENTED -- BY PLEADING OR MOTION -- MOTION FOR
JUDGMENT ON THE PLEADINGS .
(b) How presented.
Every defense, in law or fact, to a cl aim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim,
shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of
the pleader be made by motion : (1) lac k of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5) in sufficiency of
service of process, (6) failure to state a claim upon which relief can
be granted, (7) failure to join a party under Rule 19. A motion
making any of these defenses shall be made before pleading if a
further pleading is permitted. No defense or objection is waived by
being joined with one or more other defenses or objections in a
responsive pleading or motion . If a pleading sets forth a claim for
relief to which the adverse party is not required to serve a
responsive pleading, the adverse party may assert at the trial any
defense in law or fact to that claim for relief. If, on a motion
asserting the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to
such a motion by Rule 56 .
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(h) Waiver or preservation of certain defenses.
(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.
HRCP Rule 12(b)( 1) provides for the dismissal of claims when the court lacks
jurisdiction. HRCP Rule 12(h)(3) requires the court to dismiss an action when the court lacks
jurisdiction over the subject matter.
A trial court's dismissal for lack of subject matter jurisdiction is a question
of law, reviewable de novo. McCarthy v. United, 850 F.2d 558, 560 (9th Cir.
1988), cert. denied, 489 u.s. 1052, 103 L. Ed. 2d 581,109 S. Ct. 1312 (1989); see
also Moir v. Greater Cleveland Regional Transit AlIth., 895 F.2d 266, 269 (6th
Cir. 1990). Moreover, we adopt the view of the Ninth Circuit Court of Appeals in
Love v. United States, 871 F.2d 1488 (9th Cir. 1989), opinion amended on other
grounds and superseded by Lo ve v. United States, 915 F.2d 1242 (9th Cir. 1989):
Our review [of a motion to dismiss for lack of subject matter jurisdiction] is based
on the contents of the complaint, the allegations of which we accept as true and
construe in the light most favorable to the plaintiff. Dismissal is improper unless
"it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Id. at 1491 (citations omitted).
However, "when considering a motion to dismiss pursuant to Rule 12(b)(1) the
[trial] court is not restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve factual disputes concerning
the existence of jurisdiction." McCarthy, 850 F.2d at 560 (citations omitted); see
also SA C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 213
(1990). Therefore, based on the applicable standard of review, we set forth the
facts below as alleged by Norris in his complaint and in the materials presented to
the trial court outside the pleadings.
Norris v. Hawaiian Airlines, 74 Haw . 235, 239-240, 842 P.2d 634, 637 (Haw. 1992)
It is axiomatic that mootness is an issue of subject matter jurisdiction. "Whether a
court possesses subject matter jurisdiction is a question of law reviewable de
novo ."
Hamilton v. Lethem, 119 Haw. 1, 4-5,193 P.3d 839,842-43 (Haw. 2008).
4
IV.
ARGUMENT
It is well-settled that the mootness doctrine encompasses the circumstances that
destroy the justiciability of a case previously suitable for determination. A case is
moot where the question to be determined is abstract and does not rest on existing
facts or rights. Thus, the mootness doctrine is properly invoked where "events ...
have so affected the relations between the parties that the two conditions for
justiciability relevant on appeal -- adverse interest and effective remedy -- have
been compromised."
In re Thomas, 73 Haw. 223, 225-26, 832 P.2d 253, 254 (Haw. 1992).
The policy underlying the mootness doctrine is also well recognized:
This court will not proceed to a determination when its judgment would be wholly
ineffectual for want of a subject matter on which it could operate. An affirmance
would ostensibly require something to be done which had already taken place. A
reversal would ostensibly avoid an event which had already passed beyond recall.
One would be as vain as the other. To adjudicate a cause which no longer exists is
a proceeding which this court uniformly has declined to entertain.
Diamond v. State, 112 Haw. 161,170145 P.3d 704,713 (Haw. 2006)
In the present case, Plaintiffs' claim that the "[a]pproval of the application for geothermal
exploration around Hualalai was improvidently granted". The approval of the application
resulted in the issuance of the permit(s). The permit(s) at issue were cancelled and/or rescinded:
At its regular meeting held on February 26, 20 16, the Board of Land and Natural
Resources (Board) approved the cancelation of Geothermal Exploration Permit (I
1-0 I), llua lalai West Rift Zone dated May 7, 2015, as requested by your letter
dated February 1,2016. At the same meeting, the Board also rescinded its
approval granted July 10,2015 (Item L-5) for an additional Geothermal
Exploration Permit, Hualalai West Rift Zone, Hawaii.
See Declaration of Donald M. Thomas, Exhibit" 1".
The legal claim in this matter is therefore mooted because the two conditions for
justiciability -- adverse interest and effective remedy -- have been compromised. Accordingly,
this Court no longer has jurisdiction, and is therefore required to dismiss the action pursuant to
HRCP Rule 12(h)(3).
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V.
CONCLUSION
Based on the foregoing, Defendant UNIVERSITY OF HAW AI'I requests that the Court
dismi ss the FIRST AMENDED COMPLAINT FOR DECLARATOR Y AND INJUNCTIVE
RELIEF; SUMMONS , filed by Plaintiffs on October 21 , 2015 , or dismiss the claims against
Defendant UNIVERSITY OF HAWAI'I.
Dated:
APR 0 1 2016
Honolulu, Hawai ' i, _ _ _ _ _ _ _ _--'-
~
CA~IE
K. S. OKINAGA
RYAN M. AKAMINE
BRUCE Y. MATSUI
Attorneys for Defendant
UNIVERSITY OF HAW AI' I
6
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
RALPH PALIKAPU DEDMAN; TERRI L.
NAPEAHI; ROBERT M. PETRICCI; RUTHREBECCALYNNE TYANA LOKELANI
ALOUA; ALICIA M. ILIKEA KAM;
WINTER NANI HOOHULI; CLARE
LOPRINZI; JOSEPH KASSEL NO, L.Ac.;
and MISHA KASSEL, MD,
)
)
)
)
)
)
)
Civil No. lS-I-274K
(Kona) (Environmental Court)
DECLARATION OF DONALD M.
THOMAS ; EXHIBIT "1 "
)
Plaintiffs,
)
)
)
)
v.
STATE OF HAWAI'I, DEPARTMENT OF
LAND AND NATURAL RESOURCES ;
UNIVERSITY OF HAW Arl, HAW All
INSTITUTE OF GEOPHYSICS AND
PLANETOLOGY and CENTER FOR THE
STUDY OF ACTIVE VOLCANOES; and
JOHN DOES 1-10,
)
)
)
)
)
)
)
)
Defendants.
)
)
----------------------------)
DECLARATION OF DONALD M. THOMAS
1.
I am a Geochemist in the Hawai'i Institute of Geophysics and Planetology in the School
of Ocean and Earth Science and Technology at the University of Hawai 'i at Manoa
("University"), and the Director of The Center for the Study of Active Volcanoes.
2.
I have personal knowledge of the facts set forth in this declaration, except where facts are
alleged upon information and belief.
3.
This Declaration is being made in support of DEFENDANT UNIVERSITY OF
HAW AIT S MOTION TO DISMISS AMENDED COMPLAINT AND/OR TO
DISMISS ALL CLAIMS AGAINST DEFENDANT UNIVERSITY OF HAW AI'I.
1
4.
The Hawai'i Institute of Geophysics and Planetology and The Center for the Study of
Active Volcanoes applied for and was issued Geothermal Exploration Permit (H-Ol) ,
Hualalai West Rift Zone, Hawaii dated May 7,2015 , by the State of Hawai ' i, Department
of Land And Natural Resources ("DLNR"), and subsequently requested an amendment to
Permit H-O 1. I was directly involved in this process.
5.
Unfortunately, we were unable to progress on the proposed project beyond the permitting
process, the grant agreement that provided funds for the project ex pired on June 30, 2015;
subseq uent efforts to obtain alternate funding for the project were unsuccessful and there
appears to be no prospect for additional funding to pursue the project in the foreseeable
future .
6.
By letter dated February 1, 2016 to Mr. Carty Chang, I requested that the DLNR end,
cancel, and/or terminate Permit H-O 1 and I also requested the withdrawal of our
application for the amendment.
7.
Upon information and belief, on February 26, 2016, the Board of Land and Natural
Resources approved the cancellation of Geothermal Exploration Permit (H-O 1) , Hualalai
WestRift Zone dated May 7,2015.
8.
Upon information and belief, on February 26,2016, the Board of Land and Natural
Resources also rescinded its approval granted July 10,2015 (Item L-s) for an additional
Geothermal Exploration Permit, Hualalai West Rift Zone, Hawai ' i.
9.
I received the attached letter dated March 1, 2016 from Mr. Carty S. Chang, Chief
Engineer, DLNR, confirming the cancellation of Geothermal Exploration Permit (H-O 1),
Hualalai West Rift Zone dated May 7 , 2015 and rescinding its approval granted July 10,
2015 (Item L-s) for an additional Geothermal Exploration Permit, Hualalai West Rift
2
Zone, Hawai ' i. See Exhibit" 1".
10.
I did not know about the approval granted July 10,2015 (Item L-5) for an additional
Geothermal Exploration Permit, Hualalai West Rift Zone, Hawai ' i, which I understood to
be the application for the amendment to Permit H-01.
11.
The Hawai ' i Institute of Geophysics and Planetology and The Center for the Study of
Active Volcanoes does not plan to proceed with the research project associated with the
cancelled and rescinded permit at issue in this case.
I, DONALD M THOMAS, declare under penalty of law that the foregoing is true and
correct.
y '''-(_ _ __
Dated: ----,</!''-f(;_I'--jI<--2.=--..9.:......
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DONALD M THOMAS
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ENG INEERI NG DIVI SION
POST OFFICE BOX 373
HONO l.ULU,IIAWAII 96809
MAR - 1 2016
Dr. Donald Thomas
University of Hawaii at Hilo
The Center for the Study of Active Volcanoes (CSAV)
200 West Kawili Street
Hilo, Hawaii 96720
Dear Dr. Thomas :
Cancellation of Gcothennal Exploration Permit (1l-01), Hualalai West Rift Zone, Hawaii datcd
May 7, 2015 and Rcscission of Approval Granted July 10,2015 for Additional Geothermal
Exploration Permit, Hualalai West Rift Zone
At its regular meeting held on February 26, 2016, the Board of Land and Natural Resources (Board)
approved the cancellation o/" Geothermal Exploration Permit (11-01) , Iluaialai West Rift Zone dated
May 7, 2015, as requested by your letter dated February 1, 2016 . At the same meeting, the Board
also rescinded its approval granted July 10, 2015 (Item L-5) for an additional Geothermal Exploration
Permit, Hualalai West Rift Zone, Hawaii .
Thank you for your attention.
Attachment - BLNR February 26, 2016 Item L-4
State of Ila wa ii
DEPARTM ENT OF LAND AND NATURA L RESOUR CES
Engineering Divisi on
February 26, 2016
Board of Land and Natural Resources
State of Hawaii
Honolulu , Hawa ii
Cancellation of Geothennal Explol-ation Permit H-O I, Hualalai West Rift Zone, Hawaii,
Issued May 7, 2015 and Rescind BLNR Approval (.July In, 2015, Item L-5) for
Additional Geothennal Exploration Permit, Hualalai West Rift Zone, Hawaii
BACKGROUND: In June 2014, the DLNR Eng ineering Division contracted the Univers ity of lIawa ii (UH)
to continue its magnetotulluric (MT) and gra vity surveys supported by funding from the U.S . Department of
Energy and DLNR, in the Hualalai area of I lawai i Island. UH submitted an application for a Geothermal
Exploration Permit to conduct these non-in vas ive exploration activities on various parcels located on the
Hualalai West Rift Zone; the 8LNR approved the application on March 2 7 , 20 15 (Item 1,-2) and Geothermal
Expl oration Permit H -OI was issued on May 7, 20 15. UH subsequ cntl y id en tified additional parce ls for
surveying and submitted a second application for these sites. On July 10,2015 (Item 1,-5), the £3 LN R
approved the application for the second Geothermal Exploration Permit ; this second permit has not been
issued du e to outstanding doc ulllentati on.
Ralph P. Dedman et al filed a la\vsuit claiming that the I3 LN R shou ld not have issued or approved the
permits without requirin g the preparation of an environmental impact statemcnt. The lawsu it remains
pending.
REQU EST: UI I has been un able to progress past the pcrmitting phase due to the loss of fundin g and key
project staff. Due to the uncertainty of ('utme ('unding support to continue its efforts, UII has requested the
cancellation andlor terminati on of Geothermal Exploration Permit 11-0 I issued May 7. 2015 and the
withdrawal of second permit applicati on.
RECOMM ENDJ\TION : That the Board approve the call1:ellation nr Geothermal Expl oration Permit H-O I ,
Hualalai West Rift Zone, Hawaii, issued May 7, 20 15 and rescind I3LNR approval (July 10, 2015. Item L-5)
for the additional Geothermal Exploration Permit, Ilu aialai West Rift. Zone, Hawaii.
/fUIIY~SLlbl~~ittCd'
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, .:..----2
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Attachments:
,C ANG
Eng~e
I - BLNR March '27 , 2015 Item L-2
2 - Geothermal Exploration Permit H-O I dated May 7, 2015
3 - BLNR July 10, 2015 Item L-5
4 - UH Lctter dated February I, 2016
Approved for ,submittal :
/
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SUZANNE 0 :· CASE, Chairperson
Board of Land and Natural Resources
Approved by ~he Board of
L.and &Natural Resources
at the meeting held on
\ftB Z. 6 Illt3
ITEM L-4