NO. 29035 Thursday, December 18, 2008 – 9:00 a.m.

THE SIERRA CLUB, a California non-profit corporation registered to do business in the State of Hawai`i; MAUI TOMORROW, INC., a Hawai`i non-profit corporation; and the KAHULUI HARBOR COALITION, an unincorporated association, Petitioners/Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants, vs. THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I; BRENNON MORIOKA, in his capacity as Director of the DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I; MICHAEL FORMBY, in his capacity as Director of Harbors of the DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I, Respondents/Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees, HAWAII SUPERFERRY, INC., Respondent/Defendant-Appellee/Cross-Appellant/Cross-Appellee.
(Declaratory Judgment)

Attorney(s) for Petitioners/Plaintiffs-Appellants/Cross-appellees/Appellees/Cross-Appellants(s)
Isaac D Hall, Jr.

Attorney(s) for Respondent/Defendant-Appellee(s)
Honorable Mark J. Bennett, Attorney General, and Lisa Ginoza, Deputy Attorney General, for the Department of Transportation of the State of Hawai`i; Brennon Morioka, in his capacity as Director of the Department of Transportation of the State of Hawai`i; Michael Formby, in his capacity as Director of Harbors of the Department of Transportation of the State of Hawai`i.

Lisa Woods Munger, Bruce L. Lamon and Lisa A. Bail (Goodsill Anderson Quinn & Stifel) for Hawaii Superferry, Inc.

NOTE: Certificate of recusal of Justice Levinson filed 10/17/08.

NOTE: Order of assigning Judge Michael A. Town in place of Levinson, recused, filed 10/22/08.

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Michael A. Town in place of Levinson, recused.

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Brief description:

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) 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.