No. SCWC-13-0003857, Thursday, February 19, 2015, 10 a.m.

POFOLK AVIATION HAWAII, INC., and HALE O`LELE CORP., Petitioners/Plaintiffs-Appellants, vs. DEPARTMENT OF TRANSPORTATION FOR THE STATE OF HAWAI`I, GLENN M. OKIMOTO, FORD FUCHIGAMI, and SIDNEY A. HAYAKAWA, Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Eric A. Seitz, Della A. Belatti, and Sarah R. Devine

Attorneys for Respondents:

Michael S. Vincent and Jack Rosenzweig, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 01/06/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

Petitioners-Plaintiffs-Appellants Pofolk Aviation Hawai`i, Inc. and Hale O`lele Corp. (Pofolk) applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) November 21, 2014 judgment, entered pursuant to the ICA’s October 24, 2014 published opinion.

This case arises from the Hawai`i Department of Transportation’s (DOT) imposition of landing fees on users of Dillingham Airfield (Dillingham). Dillingham is owned by the United States but leased to the DOT. Pofolk operates a commercial skydiving operation out of Dillingham. The DOT alleges that Pofolk owes unpaid landing fees. Pofolk claims that the DOT’s landing fees, the fee schedule for which is set forth in the DOT’s administrative rules, are invalid as applied to Dillingham because Hawai`i Revised Statutes (HRS) § 261-12(a) states that “[n]o rule of the director shall apply to airports or air navigation facilities owned or operated by the United States.”

The Circuit Court of the First Circuit (circuit court) found that the DOT was authorized to impose landing fees at Dillingham pursuant to HRS § 261-7(e), and denied Pofolk’s request for an injunction preventing the DOT from imposing further landing fees or collecting unpaid landing fees at Dillingham. Pofolk appealed to the ICA, which affirmed the circuit court’s judgment.

In its application, Pofolk argues that HRS § 261-12(a) prohibits the DOT from applying its rules to Dillingham and, because the DOT’s landing fee schedule is set forth in the DOT’s administrative rules, imposition of those fees at Dillingham violates HRS § 261-12(a). In response, the DOT argues that its landing fees are applied to Dillingham not by rule but by procedure, which is permitted pursuant to HRS § 261-7(e). In the alternative, the DOT argues that the phrase “owned or operated by the United States” in HRS § 261-12(a) should be read as “owned and operated by the United States” to better reflect the legislature’s intent.