▪ 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.