Dedman v. Board of Land and Natural Resources

Decision Date14 July 1987
Docket NumberNos. 11126 and 11334,s. 11126 and 11334
Citation69 Haw. 255,740 P.2d 28
PartiesRalph Palikapu O'Kamohoalii DEDMAN and Dr. Noa Emmett Auwae Aluli, Intervenors-Appellants, and Volcano Community Association, et al., Petitioners, v. BOARD OF LAND AND NATURAL RESOURCES, et al., Appellees. Ralph Palikapu O'Kamohoalii DEDMAN and Dr. Noa Emmett Auwae Aluli, Petitioners-Appellants, and Lehua Lopez, et al., Petitioners, v. BOARD OF LAND AND NATURAL RESOURCES, et al., Appellees.
CourtHawaii Supreme Court

Syllabus by the Court

1. In order to find an unconstitutional infringement on religious practices, it is necessary to examine whether or not the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, whether or not claimants' free exercise of religion is burdened by the regulation, the extent or impact of the regulation on the parties' religious practices, and whether or not the state has a compelling interest in the regulation which justified such a burden.

2. Designation of an area as a geothermal resource subzone and approval of specific geothermal development plans do not infringe on claimants' freedom to exercise their religion where it is undisputed that claimants never used the land for religious purposes and have presented no objective evidence of harm to religious practices.

3. Hawaii Revised Statutes § 91-12 (1985) requires an agency to rule upon proposed findings, but a separate ruling on each proposed finding filed by a party is not indispensable. The statute only requires that the parties not be left to guess, with respect to any material questions of fact, or to any group of minor matters that may have cumulative significance, the precise findings of the agency.

4. An agency's findings are presumptively correct, and cannot be set aside on appeal unless they are shown to be clearly erroneous in view of the reliable, probative and substantial evidence of the record as a whole.

Yuklin Aluli, Honolulu, for appellants Dedman, Aluli in No. 11126 and for appellant Aluli in No. 11334.

Steven C. Moore, Boulder, Colo., Native American Rights Fund, for appellant Dedman in No. 11334.

William H. Tam, Honolulu, Deputy Atty. Gen., for appellees Bd. of Land and Natural Resources and Susumu Ono.

Benjamin Matsubara (Stephanie A. Rezents and Edsel M. Yamada with him on the briefs; Ukishima and Matsubara, of counsel), Honolulu, for The Estate of James Campbell and The True/Mid-Pacific Geothermal Venture.

Allan T. Murakami and Melody K. Mackenzie, Native Hawn. Legal Corp., Honolulu, for appellant Dedman in No. 11334.

Patricia K. O'Toole, Hilo, Deputy Corp. Counsel, for appellee County of Hawaii.

Before LUM, C.J., NAKAMURA, PADGETT and HAYASHI, JJ., and HEEN, Intermediate Court of Appeals Associate Judge, in place of WAKATSUKI, J., excused.

LUM, Chief Justice.

I.

This appeal presents us with various challenges to the approval of the development of geothermal energy in the Kilauea Middle East Rift Zone ("KMERZ") on the island of Hawaii. The two separate appeals taken from the decisions of the Board of Land and Natural Resources ("Board") were consolidated at oral argument as they present similar facts and issues to this court. Hawaii Rules of Appellate Procedure 3(b).

Both cases challenge the decision to permit geothermal energy development in the KMERZ area on the ground that it violates Appellants' right to freely exercise their religion. In No. 11126, Appellants also allege the Board failed to adequately consider their religious claims in weighing the criteria for establishing a geothermal resource subzone under Hawaii Revised Statutes ("HRS") § 205-5.2(d)(3) (1985).

Other errors alleged on appeal concern the designation of the area as a geothermal resource subzone and the grant of a permit to develop a 25 megawatt ("MeW") geothermal generator with exploration for development of another 75 MeW of geothermal energy in the future.

We affirm.

II.

In 1983 the Hawaii legislature passed the Geothermal Energy Act which granted the Board of Land and Natural Resources primary responsibility for establishing geothermal resource zones within the state. Act 296, § 3, 1983 Haw.Sess.Laws 638, codified at HRS § 205-5.2(a) (1985). Once the Board has established such zones, if the project falls within an area zoned conservation land, as in the present case, then the Board has jurisdiction to approve the project. Act 151, § 2, 1984 Haw.Sess.Laws 279, codified at HRS § 205-5.1(d) (1985).

In the present case, Appellees The Estate of James Campbell and True/Mid-Pacific Geothermal Venture (collectively "Campbell") applied for a conservation district use permit in the Kahauale'a area on March 2, 1982. Over the next year, the Board received the environmental impact statement on the application and conducted contested case hearings concerning this matter. On February 25, 1983, the Board heard oral argument on the application, propounded its findings of fact and conclusions of law, and rendered its Decision and Order ("February 25, 1983 Decision"). The February 25, 1983 Decision granted Campbell the permit with 43 conditions on exploration and development of baseline activities.

In June of 1983, volcanic eruptions in the Kahauale'a area caused some question as to the safety of tapping geothermal resources in the specific site approved. In May of 1984, the Board proposed administrative rules concerning hearings on the designation and regulation of geothermal resource subzones. Also in May of 1984, the legislature passed Act 151, which mandated the Board to assess the February 25, 1983 Decision regarding the Kahauale'a area as a geothermal resource subzone. 1984 Haw.Sess.Laws § 3, at 281. In July, the Board's administrative rules concerning geothermal subzones were adopted, and in August they were amended.

Throughout 1984, various public and contested case hearings were held around the island of Hawaii concerning designation of the Kahauale'a area as a subzone. On December 28, 1984, the Board issued its preliminary Decision and Order approving the designation of the Kahauale'a area as a geothermal subzone ("December 28, 1984 Decision"). The decision instructed Campbell to explore the possibility of a land swap wherein the Kahauale'a land, which is situated adjacent to Volcano National Park, would be exchanged for land in the Wao Kele 'O Puna Natural Area Reserve (to the east) in the KMERZ. On August 10, 1984, Campbell applied for a conservation district use permit to develop 100 MeW of geothermally generated electricity in the KMERZ.

During much of 1985 more public and contested case hearings were held on designation of the KMERZ as a geothermal resource subzone. In October of 1985, the Board amended the December 28, 1984 Decision and approved the land swap but included an area to be later given to the nearby national park.

In November of 1985, Appellants were granted intervenor status in the scheduled contested case hearings concerning the approval of the KMERZ area as a geothermal resource subzone. The hearings were held from November 13 to 15 in Hilo. On December 20, 1985, the Board issued its Decision and Order, and on April 9, 1985, it issued findings of fact and conclusions of law ("April 9, 1985 Decision") approving of 9,014 acres as a geothermal resource subzone.

On December 27, 1985, the State and Campbell Estate exchanged deeds, the State receiving the Kahauale'a land and Campbell Estate receiving a portion of the KMERZ area. The State reserved, however, mineral rights, including the underground steam, and required Campbell Estate "covenant that the use and enjoyment of the land conveyed shall not be in support of any policy which discriminates against anyone based upon race, creed, color or national origin." See HRS § 171-64 (1985).

The Board accepted Campbell's application for a conservation district use permit on January 3, 1986 and required that they complete an environmental impact statement on the proposed action. A public hearing on the application was heard on January 13, 1986, at which time a contested case hearing was requested. Contested cases hearings were held from February 18 to 23, 1986 and on March 14, 1986. The Board issued its Decision and Order on April 11, 1986 later amended by the findings of fact and conclusions of law filed June 18, 1986 ("June 18, 1986 Decision"). The June 18, 1986 Decision permits Campbell to explore, develop, and produce up to 25 MeW of geothermal energy, and allows Campbell to explore for the future development of an additional 75 MeW, all subject to compliance with conditions on archaeological sites and air, water, land, noise, and light pollution monitoring.

Defendants subsequently filed a motion to appeal to this court. The Board granted Appellants' motion on September 28, 1986. 1

III.

Appellants' religious claims with regard to both the designation of a geothermal resource subzone and the granting of the permit are essentially the same. Hence, this issue is treated immediately below. Challenges to the Board's exercise of discretion involve separate issues and are treated separately for each appeal in section IV.

Appellants' main contention on appeal is that the approval of the geothermal project will infringe on their religious practices as "Pele practitioners." According to Appellant Aluli, the goddess 2 Pele migrated to the Northwestern Hawaiian Islands from Tahiti. She then moved down the island chain until she reached the island of Hawaii where she lives today. Areas in the island chain where she attempted to establish herself are considered sacred. Appellant Aluli identified as especially sacred the area "from Moku'aweoweo [the top of], Mauna Loa, all the way down including these areas from Puna to Ka'u" on the southeastern portion of the island. Phenomena associated with the volcanic activity, i.e., heat, steam, magma, as well as the surrounding landscape, i.e., ferns, shrubs, land and even the...

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