▪ The Metaphysics of the Kauai Superferry Statute of Repose

The question of "which came first, the Environmental Assessment exemption or the challenge?" is providing an interesting illustration of the metaphysical issue of what is the impact of a government act subsequently ruled to be illegal.

In denying the plaintiff's request for a temporary restraining order, the Fifth Circuit court did not rule on the defense raised by the State and Hawaii Superferry to the Kauai lawsuit objecting to the State's exemption of the Superferry from completing an Environmental Assessment under Haw. Rev. Stat. ch. 343.  However, as a question that likely goes to the court's subject matter jurisdiction, the issue must be dealt with, eventually.

The statute of repose in chapter 343 provides for a 120-day challenge period that starts with the agency's decision to either "carry out or approve" the action.  Haw. Rev. Stat. § 343-7(a) provides:

Any judicial proceeding, the subject of which is the lack of assessment required under section 343-5, shall be initiated within one hundred twenty days of the agency’s decision to carry out or approve the action, or, if a proposed action is undertaken without a formal determination by the agency that a statement is or is not required, a judicial proceeding shall be instituted within one hundred twenty days after the proposed action is started.

Statutes of repose such as 343-7(a) are, generally speaking, rigidly applied by the courts.   The purpose of strictly construing the time limitation is to allow the State and the exempted party to go forward and rest easy if no objection is filed within the mandated time frame, without worrying that a challenger is lurking in the shadows, and to allow the parties to rely on the exemption. 

On one hand, as reported by the Star-Bulletin here, it seems straightforward that the DOT's decision to "carry out or approve" the EA exemption occurred more than 120 days before the Kauai lawsuit:

In 2005, when the Transportation Department exempted the Hawaii Superferry from the Environmental Assessment process, the Maui Chapter of the Sierra Club filed a challenge. They won on an appeal to the state Supreme Court last month.

But no group from Kauai challenged the order.

State and Superferry lawyers argue that even despite the Supreme Court's ruling that an environmental assessment is necessary, one is not required for Kauai.

On the other hand, the same Star-Bulletin story reports that the plaintiffs allege the Hawaii Supreme Court ruled the exemption void, and consequently, the 120-day period has not even started, much less expired, because legally "it never existed" --

Lawyers for 1000 Friends, however, argued that because the Transportation Department's exemption was found to be wrong, its decision to exempt the Superferry is voided. And without any decision on the books, the Superferry is running without any environmental review, causing a new 120-day clock to start.

"Those exemptions were invalidated," said 1000 Friends' lawyer, Greg Meyers. "It was as if the determination never existed."

But if that is true, and the circuit court must act as if there was no exemption (even though there was in fact an exemption that was subsequently determined to be invalid), then metaphysically and legally, maybe there is no claim at all under chapter 343, since the court would have to act as if the State never carried out or approved an exemption, the trigger to a claim under 343-5. 

For sure, it will be interesting to see how the Fifth Circuit deals with the statute of repose issue when it arises.

9/21//2007 update: Charley Foster at Planet Kauai reports that the circuit judge has dismissed the chapter 343 and related claims on the grounds of the 120 day statute of repose.

Comments

[Robert Wood]

Please pardon a few questions from a non-lawyer:

1.) Carrying your last point a bit further, if the circuit court concludes that there is no claim under Chapter 343 i.e. “since the court would have to act as if the State never carried out or approved an exemption, the trigger to a claim under 343-5”, then would it not also be true that the DOT has yet to fulfill its responsibility to either initiate the environmental assessment process or grant an exemption?

2.) Further, would this opinion serve to invalidate the PUC’s permit approval issued with the following condition that the Superferry provide environmental clearances?

“We find it necessary, however, to condition our authorization in this docket upon Applicant’s showing, to the
satisfaction of the commission, that Applicant has complied with all applicable federal and state laws, rules and regulations, including, without limitation, matters relating to the Environmental Impact Statement Law (“ElS”), under Chapter 343,
HRS, to the extent applicable to ensure that all such requirements are appropriately addressed.” (Source iLind.net “Wednesday…the Public Utilities Commission and the Superferry” 9/05/07.)

3.) Finally, from a laypersons perspective the intent of Hawaii Supreme Court’s opinion finding the DOT’s EA/EIS exemption invalid, seems to comprehensively address the Superferry’s statewide project impact and use of State (public) funds for all proposed state harbor use. Entirely appropriate given that the DOT exemption and State funding encompassed the overall statewide project. Is this understanding of the HSC opinion in error?

The Superferry controversy has created considerable heartache for community. In the spirit of healing the wounds and “where do we most effectively go from here?”; perhaps you can offer some learned insight.

Thanks,

Robert

[rht]

Thanks for the thoughtful comments and questions.

Often lost in the back-and-forth commentary on the HSF is the concept that once a battle enters the legal arena, the confines of the debate become somewhat restricted. Courts are not supposed to make or establish policy (that is reserved for elected legislative bodies), and their role is limited to resolving disputes over what the facts are, and what the law says. Judges, unlike legislators, are not supposed to apply their own political and value preferences to a case, and that is most often true. So it is disappointing to witness much of the newspaper and other commentary directed at what the courts "should" do as a policy matter (i.e., the commentator assumes the result can be driven by whether the court thinks the HSF is a good thing or not, or whether the ferry will benefit a particular political outcome). Your questions are quite pointed and insightful, and don't fall into this trap, thankfully!

The "standing" analysis that took up over one-half of the Court's HSF opinion is not just legal mumbo-jumbo, although it may appear to be so. The question of whether a particular party has alleged a specific enough grievance is important because it is supposed to insulate the judiciary from making politically-based decisions, and keep the courts from becoming little legislatures. For a recent example of where that process broke down, see the Ohana Kauai property tax charter amendment opinion (read Justice Acoba's dissent, especially).

1. Perhaps. Whether that is dispositive in the Kauai case may depend on the specific claims asserted by the plaintiffs in that case. It would be nice if someone out there could access and post the complaint so we could see what the claims are, rather than rely secondhand on the newspapers.

2. Again, perhaps, and hard to say without seeing the Kauai complaint. But stay tuned to the media reports as the case gets litigated (if it survives the statute of repose defense, which may obviate the question). But again, courts for the most part are reactive bodies, and only deal with those issues that are raised by the parties before them.

3. I hear a lot of comments about what the Hawaii Supreme Court meant to do in its opinion, and its motive and intent. The Maui News, for example, understood that the Court retained jurisdiction in order to act as "watchdog" over the DOT. But that is not how appellate courts generally see themselves, so looking for comprehensive solutions to an ongoing controversy in a court's opinion may be effort that is best directed elsewhere. In the legislature, for example.

It's because judicial opinions as a general rule use carefully chosen words, specific to the facts and record before the court, especially when on appeal and the court's role is limited to reviewing an established record. Courts of appeals are particularly sensitive to overstepping their limited roles.

It appears that the underlying roots of the controversy engendered by HSF go much deeper than the issue of whether an interisland ferry is a good idea or not, and that the HSF issue is simply the outlet for these deeper issues. The most appropriate forum to process those issues may be outside the courts, and in bodies with elected (not appointed) policymakers who are directly accountable to the citizenry.

[Robert Wood]

Thanks very much Mr. Thomas!
Best,
Robert