Real Estate & Property Law

Hawaii Superferry Supreme Court Briefs

By Robert Thomas (inversecondemnation.com)

The case that would not go away, the "Hawaii Superferry" litigation, is back in the Hawaii Supreme Court this week for Round 2, with oral arguments scheduled for 9 a.m. on Thursday, December 18, 2008.  The Court generally allocates 1/2 hour per side, for a total of one hour of argument (which may be extended at the Court's discretion, but it rarely is).

I'll be attending the arguments, and technology and typing skills permitting, live blogging it.  Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday to tune in.

The key briefs of the parties are posted below:

• Sierra Club, et al.'s Opening Brief

• State of Hawaii Dep't of Transportation Answering Brief

• (Hawaii Superferry filed an Answering Brief, which "incorporates by reference the arguments set forth in the State's Answering Brief, filed August 18, 2008.")
  

The Court's web site describes the issues in the appeals:

A prior review by this court in Sierra Club v. Department of Transportation of the State of Hawai?i (Sierra Club I), 115 Hawai`i 299, 167 P.3d 292 (2007) [for that opinion, and the briefs in that phase, go here] concluded, inter alia, that an environmental assessment pursuant to HRS § 343-5 was required for the approval, construction, and use of improvements to Kahului Harbor for the Hawaii Superferry Project. Subsequently, Act 2 of the 2007 Second Special Legislative Session was signed into law by the governor. SB1 SD1, 24th Leg., 2d Spec. Sess. (2007). Among other things, Act 2 exempted large capacity ferry vessels and the construction and use of harbor improvements facilitating inter-island ferry service from the requirements of HRS chapter 343.

Following the enactment of Act 2, the circuit court filed an order on November 14, 2007 that, among other things, (1) dissolved an injunction against the Department of Transportation and two of its officers (collectively ?the Department?) and Hawaii Superferry, Inc. (Superferry) that had been previously granted by the court; (2) vacated a previous order that voided the operating agreement between the Department and Superferry; (3) designated Sierra Club, Maui Tomorrow, Inc. and The Kahului Harbor Coalition (collectively referred to as ?Sierra Club?) as ?prevailing parties?; and (4) authorized Sierra Club to request reimbursement of reasonable attorney?s fees and costs from Superferry. On January 31, 2008, the circuit court filed its final judgment dismissing Sierra Club?s five counts of its first amended complaint as moot and restating Sierra Club?s authorization to request attorney?s fees and costs from Superferry. Sierra Club filed its motion for reasonable attorney?s fees and the circuit court awarded Sierra Club reasonable attorney?s fees at the hourly rate of $200 per hour and costs in the amount of $5,442.44. Based on HRS § 607-25 and the Private Attorney General Doctrine, both Superferry and the Department were ordered to pay the total amount owed to Sierra Club.

Sierra Club appeals from the circuit court?s final judgment arguing that: (1) Act 2 is unconstitutional, (2) the injunction should not have been dissolved, and (3) Sierra Club and the public are entitled to an environmental assessment and environmental impact statement pursuant to HRS chapter 343 for the Hawaii Superferry project. Sierra Club also appeals and cross-appeals from the circuit court?s order granting its motion for reimbursement of attorney?s fees and costs, arguing that the circuit court erred in limiting the hourly rate for reimbursement of attorney?s fees to $200 and declining to award attorney?s fees and costs incurred at trial prior to the initial appeal to this court.

The Department cross-appeals from the circuit court?s final judgment to the extent that it supports or purports to support an award of attorney?s fees and costs against the Department. Superferry cross-appeals from five circuit court orders, rulings, and judgment. Both the Department and Superferry appeal separately from the circuit court order granting Sierra Club reasonable attorney?s fees and costs against the Department and Superferry based on HRS § 607-25 and the private attorney general doctrine.

Full post as published by inversecondemnation on December 15, 2008 (boomark / email).