ELR Citation: ELR 20463
No(s). 14087 (Haw. Ct. App. Sep 26, 1990)

The court holds that the procedures followed by a county planning commission in issuing an exploration permit for geothermal resource development do not violate the Hawaii Constitution, the Due Process Clause of the U.S. Constitution, or local rules, and the commission's findings are supported by the factual record. On appeal by local property owners and citizens' groups, the court holds that the legislative decision to delete provisions from Hawaii Revised Statute §205-5.1 providing for contested case hearings and to substitute public hearings and a mediation process does not violate the citizens' due process rights. A contested case hearing is not essential to the guarantee of due process. Also, a geothermal permit proceeding is a zoning matter where the opportunity to present evidence and testimony satisfies due process. The court observes that even if the property owners have a protectable property interest in farmland abutting land covered by the permit, §205-5.1 satisfies due process. The court next holds that procedural requirements imposed at the public hearing did not violate the citizen's due process rights. Due process does not require an unlimited amount of time to speak, an opportunity for public comment on the procedures employed by the commission, a second hearing, or input on selection of a mediator, even though the cost of mediation was shared. The court holds that the application for a geothermal permit does not violate the statute's requirement to describe the scope of the activity and reasons for the permit. The statute does not require the applicant to describe the potential impact of the applicant's project on areawide geothermal development. The court holds that citizens' argument that the mediator unilaterally extended the mediation period is not supported by the record. Finally, the court holds that the applicant's factual description of its operations and procedures, assessment of environmental impact, and proposals for mitigation are adequate to support the commission's decision.

Counsel for Respondents
Annette Y.W. Chock, Deputy Attorney General
State Capitol, Honolulu HI 96813
(808) 548-4740

Frederick Giannini
Deputy Corporate Counsel
County of Hawaii, Ste. 325, 101 Aupuni St., Hilo HI 96720
(808) 961-8251

Counsel for Appellants
Phillip Lowenthal
Lowenthal, August, Graham
2261 Aupuni St., Wailuku HI 96793
(808) 242-5000

Before BURNS, C.J., and HEEN and TANAKA, JJ.