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Oral Argument Before the Hawaii Supreme Court–SCOT-20-0000309

Courts in the Community

No. SCOT-20-0000309, Friday, May 7, 2021, 10 a.m.

In the Matter of HAWAIIAN ELECTRIC COMPANY, INC. For Waiver of the Na Pua Makani Wind Project from the Framework for Competitive Bidding, and Approval of the Power Purchase Agreement for Renewable As-Available Energy with Na Pua Makani Power Partners, LLC.

The above-captioned case has been set for argument on the merits at:

The oral argument will be held remotely and will be live streamed for public viewing via the Judiciary’s YouTube channel at

Attorneys for Appellant Life of the Land:

Lance D. Collins of Law Office of Lance D Collins, and Bianca Isaki of Law Office of Bianca Isaki

Attorneys for Appellee Public Utilities Commission:

Caroline C. Ishida and Mark J. Kaetsu

Attorneys for Appellee Hawaiian Electric Company:

Randall C. Whattoff and Kamala S. Haake of Cox Fricke LLP

NOTE: Order assigning Circuit Court Judge Christine E. Kuriyama due to a vacancy, filed 07/16/20.

COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Kuriyama, assigned by reason of vacancy

[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

This appeal involves a wind farm facility located on 706.7 acres of land in Kahuku, Oahu. In December 2014, the Public Utilities Commission (“PUC”) Decision and Order No. 32600, which approved a power purchase agreement (“PPA”) between the Hawaiian Electric Company (“HECO”) and Na Pua Makani Power Partners (“NPM”) for the purchase of wind energy. The PUC also approved of a waiver of the project from the competitive bidding framework. Life of the Land (“LOL”), a non-profit public interest environmental group, participated in the proceedings.

In September 2016, HECO filed with the PUC an amended and restated PPA and asked the PUC to allow it to construct above-ground lines connecting the wind facility to its power grid. The PUC did so in its Decision and Order No. 34866, dated October 13, 2017. The PUC then closed the docket.

On September 11, 2019, LOL filed a motion for relief from Decision and Order No. 32600. LOL filed its motion under Hawaiʻi Administrative Rule (“HAR”) 16-601-1, which states that whenever the PUC’s administrative rules are “silent on a matter, the [PUC] or hearings officer may refer to the Hawaiʻi Rules of Civil Procedure [“HRCP”] for guidance.” LOL stated that its motion was filed under HRCP Rule 60(b)(4), (5), and (6), which allow “relief from a judgment or order” where the judgment is “void” (HRCP Rule 60(b)(4)); it is “no longer equitable that the judgment should have prospective application” (HRCP Rule 60(b)(5)); or “any other reason justifying relief from the operation of the judgment” (HRCP Rule 60(b)(6)). LOL sought relief from Decision and Order No. 32600, arguing, among other things, that the parties failed to obtain an incidental take permit for the Hawaiian hoary bat within the deadlines set forth under the PPA. The PUC ultimately denied the motion in its Decision and Order No. 37074, dated April 16, 2020. The PUC concluded it lacked jurisdiction over LOL’s motion for relief because LOL should have brought its motion under the PUC administrative rule that did apply: HAR § 16-601-137, governing motions seeking any change to a decision or order, which requires that a motion for reconsideration or rehearing be filed within ten days of an order. The PUC also stated that LOL did not have standing to assert a breach of the Amended PPA, which was a contract between HECO and NPM.

LOL appeals the PUC’s Decision and Order No. 37074 to the Hawaiʻi Supreme Court and raises the following points of error:

(1) by concluding it lacked jurisdiction to consider [LOL’s] motion for relief on the basis that it is untimely under a strict construal of statutes creating a right of appeal and rules governing reconsideration.

(2) by treating [LOL’s] motion for relief pursuant to HAR § 16-601-1 as an untimely filed or raised motion for reconsideration.

(3) by failing to re-open proceedings to address HECO and NPM’s failure to obtained land rights under amended PPA § 11.2 or, alternatively, to strictly construe parties’ failure to obtain site control as required by Part IV.B.8 of the competitive bidding framework, from which parties had obtained a waiver.

(4) by treating the approval of the amended PPA as a contract between private parties and engaging in contract interpretation in concluding the meaning of the amended PPA approval.

(5) by delegating its powers to interpret its order approving the PPA and amendments to the same private parties – HECO and NPM – as a consequence of concluding that its approval of the PPA can be amended through “contractual mechanisms” available exclusively to the private parties to the contract.