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:
- (Hawaii Superferry filed an Answering Brief, which “incorporatesby 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 Hawaiʻi (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 anenvironmental assessment pursuant to HRS § 343-5 was required for theapproval, construction, and use of improvements to Kahului Harbor forthe Hawaii Superferry Project. Subsequently, Act 2 of the 2007 SecondSpecial Legislative Session was signed into law by the governor. SB1SD1, 24th Leg., 2d Spec. Sess. (2007). Among other things, Act 2exempted large capacity ferry vessels and the construction and use ofharbor improvements facilitating inter-island ferry service from therequirements of HRS chapter 343.
Following the enactment of Act 2, the circuit courtfiled an order on November 14, 2007 that, among other things, (1)dissolved an injunction against the Department of Transportation andtwo of its officers (collectively “the Department”) and HawaiiSuperferry, Inc. (Superferry) that had been previously granted by thecourt; (2) vacated a previous order that voided the operating agreementbetween the Department and Superferry; (3) designated Sierra Club, MauiTomorrow, Inc. and The Kahului Harbor Coalition (collectively referredto as “Sierra Club”) as “prevailing parties”; and (4) authorized SierraClub to request reimbursement of reasonable attorney’s fees and costsfrom Superferry. On January 31, 2008, the circuit court filed its finaljudgment dismissing Sierra Club’s five counts of its first amendedcomplaint as moot and restating Sierra Club’s authorization to requestattorney’s fees and costs from Superferry. Sierra Club filed its motionfor reasonable attorney’s fees and the circuit court awarded SierraClub reasonable attorney’s fees at the hourly rate of $200 per hour andcosts in the amount of $5,442.44. Based on HRS § 607-25 and the PrivateAttorney General Doctrine, both Superferry and the Department wereordered to pay the total amount owed to Sierra Club.
Sierra Club appeals from the circuit court’s finaljudgment arguing that: (1) Act 2 is unconstitutional, (2) theinjunction should not have been dissolved, and (3) Sierra Club and thepublic are entitled to an environmental assessment and environmentalimpact statement pursuant to HRS chapter 343 for the Hawaii Superferryproject. Sierra Club also appeals and cross-appeals from the circuitcourt’s order granting its motion for reimbursement of attorney’s feesand costs, arguing that the circuit court erred in limiting the hourlyrate for reimbursement of attorney’s fees to $200 and declining toaward attorney’s fees and costs incurred at trial prior to the initialappeal to this court.
The Department cross-appeals from the circuit court’sfinal judgment to the extent that it supports or purports to support anaward of attorney’s fees and costs against the Department. Superferrycross-appeals from five circuit court orders, rulings, and judgment.Both the Department and Superferry appeal separately from the circuitcourt order granting Sierra Club reasonable attorney’s fees and costsagainst the Department and Superferry based on HRS § 607-25 and theprivate attorney general doctrine.