Robinson v. Ariyoshi, Civ. No. 74-32.

• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)
• Writing for the Court: William F. Quinn and John J. Rapp, Honolulu, Hawaii, for Olokele Sugar Co., Ltd
• Citation: 703 F. Supp. 1412
• Decision Date: 18 January 1989
• Docket Number: Civ. No. 74-32.
• Parties: Selwyn A. ROBINSON, et al., Plaintiffs, v. George R. ARIYOSHI, et al., Defendants, and McBryde Sugar Co., Ltd., et al., Defendants.

703 F. Supp. 1412

Selwyn A. ROBINSON, et al., Plaintiffs,
v.
George R. ARIYOSHI, et al., Defendants,
and
McBryde Sugar Co., Ltd., et al., Defendants.

Civ. No. 74-32.

United States District Court, D. Hawaii.

January 18, 1989.

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COPYRIGHT MATERIAL OMITTED

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J. Garner Anthony, Alexander C. Marrack, Honolulu, Hawaii, for plaintiffs

William F. Quinn and John J. Rapp, Honolulu, Hawaii, for Olokele Sugar Co., Ltd.

J. Russell Cades and Philip J. Leas, Honolulu, Hawaii, for McBryde Sugar Co., Ltd.

Corrinne K.A. Watanabe, Atty. Gen., Steven Michaels, Deputy Atty. Gen., and Paul D. Alston, Honolulu, Hawaii, for State Officials.

Robert B. Bunn, Honolulu, Hawaii, for Small Owners Ida Albarado, et al.

ORDER ON McBRYDE'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS

PENCE, Senior District Judge.

Defendant and Cross-Claimant McBryde Sugar Co., Ltd. (McBryde), has again in 1988 moved this court for an award of attorneys' fees and costs actually paid by McBryde in and relevant to this present litigation, plus interest lost thereby. The motion is based upon the Civil Rights Attorneys' Fees Award Act of 1976, 42 U.S.C. § 1988 (1976). With the instant motion, of course, were additional exhibits, affidavits, and memoranda in support of the motion. The court will take judicial notice of the prior affidavits, exhibits, and records and files in this case as they may involve the problem of attorneys' fees and costs.

On October 29, 1985, McBryde filed a similar motion for attorneys' fees, etc., but before this court had ruled on that motion, the court of appeals vacated this court's 1977 decision in favor of McBryde and other plaintiffs. This court, therefore, was estopped from further consideration of that motion. On December 28, 1987, this court, on remand, re-entered judgment in favor of McBryde (and other plaintiffs), hence McBryde's re-filed motion for attorneys' fees, etc.

The attorneys' fees and costs sought by McBryde are the fees and costs McBryde actually paid prior to and including December 31, 1987 in connection with this litigation. The fees requested by McBryde were incurred for proceedings in:

1. The Supreme Court of the State of Hawaii in McBryde's attempt, in 1973, to obtain a re-hearing and an evidentiary hearing on its constitutional claims evolving from that court's ruling in January 1973 in McBryde Sugar Company v. Robinson, 54 Haw. 174, 504 P.2d 1330 (McBryde I) that the "State is the owner of all the water" in the Hanapepe River, that the English commonlaw doctrine of riparian rights governs the use of Hawaii's stream waters, and that neither McBryde, the Small Owners, nor any of the other plaintiffs could transport water out of the watershed.

2. The United States Supreme Court on the Petition for Certiorari in 1974.

3. This court, in proceedings from 1974 through 1977.

4. The Ninth Circuit Court of Appeals, in appellate proceedings from 1977 through 1985.

5. The Supreme Court of Hawaii, in proceedings on the certified questions from the Ninth Circuit Court of Appeals from 1981 through 1983.

6. This court, in proceedings on its first remand from 1985 through 1986.

7. The Ninth Circuit Court of Appeals, in proceedings on appeal of this court's judgment after remand.

8. The United States Supreme Court, in the proceedings on State Officials' Petition for Certiorari.

9. The Ninth Circuit Court of Appeals in proceedings on remand from The Court.

10. This court, in proceedings on remand from the Ninth Circuit Court of Appeals, and

11. This court, in proceedings on the original application for attorneys' fees in 1985.

The attorneys' fees sought by McBryde in the instant motion also included fees paid by McBryde on behalf of the Small

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Owners, Ida Albarado, et al., as well as McBryde's portion of the fees paid by the Hawaiian Sugar Planters' Association in support of all plaintiffs involved in this litigation. The total fees that McBryde has actually paid and set forth in Exhibit B of its Motion for Award of Attorneys' Fees of April 14, 1988 are $1,198,301.29. In addition, McBryde requests an upward adjustment of those fees to compensate McBryde for delay in repayment thereof by the State. McBryde asked this court to award compensation for delay in payment by either of two alternate methods. First, McBryde asked that it be awarded $1,051,805.09 as lost interest on fees and costs actually paid by McBryde (as calculated in Exhibit A of McBryde's Supplemental Exhibit of June 3, 1988) and based upon McBryde's parent corporation's actual average investment rate of return for the years that fees were paid. The total award requested (June 3, 1988), adjusted for delay of payment by this method, totals $2,250,106.38. McBryde sets forth that this represents the actual cost and lost income as of December 31, 1988 experienced by McBryde as a result of payment of attorneys' fees and costs over the years since 1973 and through December 31, 1987

Second, as an alternative to the above method of compensating McBryde, McBryde requests this court to award fees based upon the current hourly rates for attorneys and sets forth the basis for that calculation in Exhibit C. The resulting requested fee award under this method would be $1,948,032.72. McBryde asked this court that the award based on current hourly rates be effective only if the appellate court determines that the State Officials have no obligation to pay interest.

Finally, in addition to the upward adjustment to the fees actually paid in order to compensate for delays in payment, McBryde requests a further upward adjustment for:

1. The amount of time spent by McBryde's attorneys on the litigation and not billed to McBryde, and

2. The relentless litigious actions of the State Officials in their unremitting attempt to sustain the ruling of the Supreme Court and keep, for the State, the virtually absolute and almost untrammelled control over all of the flowing waters in the State of Hawaii.

The initial reaction of anyone, not thoroughly familiar with the political background behind the above-referred-to opinion of the Supreme Court of the State of Hawaii, in 1973, in McBryde v. Robinson, as well as the history of the movements of this litigation up and down through the Hawaii Supreme Court, this United States District Court, the Circuit Court of Appeals, and The Supreme Court of the United States, when presented with a claim on the part of the attorneys for McBryde and the owners of small parcels of land and water rights that McBryde should be repaid over $2 million for attorneys' fees, costs, and losses it has paid and suffered, might well be that any such request is outrageous. The position of the Attorney General's Office of the State of Hawaii is that McBryde's claim for those fees, costs, and losses should, in part, be entirely denied and the remainder drastically cut. This position, on the part of the present Attorney General of the State of Hawaii, might, charitably, be excused because he inherited this case from his politicized predecessors in office. Nevertheless, it must be remembered that Hawaii's Governor Waihee, who appointed the present Attorney General, became Governor through the support of the political machine built up by former Governor Burns and preserved and continued by Governor Ariyoshi.¹

The casual observer would not know that on January 10, 1973, the "Richardson Court" (which, on December 20, 1973 became a 3-2 majority), headed by Chief Justice

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Richardson and Justice Abe, and without any warning to any of the parties in the water rights case, Robinson, McBryde, Olokele, the Small Owners, and the State, in the appeal before it, had decided, sua sponte, that it was going to change all of the laws regarding flowing waters in the State of Hawaii and take away from the plaintiffs all claims to water from the mountain streams, give ownership of the waters to the State, and give to any owner of riparian soil along a stream the absolute right to see that fresh water stream flow, undiminished by any diversion of the waters thereof, past his land, his kuleana, down to the sea and become salted. By also holding that there could be no diversion of waters out of the watershed, Justices Richardson and Abe, in implementing their own political philosophy—some have likened it to that of Robin Hood—of taking the property of big business entities and giving it to the people of the State, without paying them for that property, completely overlooked the impact of that decision upon not only the sugar plantation plaintiffs, but also the Small Owners in this case, some of whom had leases from the State which mandated that they use water diverted out of the watershed to irrigate their vegetable market crops or lose the leases. Those Justices also overlooked the impact of their decision on the Board of Water Supply of this county of Honolulu, which had purchased, some by way of condemnation, water rights, and was diverting water out of various watersheds in order to supply water to all the inhabitants of Honolulu. Those Justices apparently were oblivious to the obvious fact that the implementation of their opinion would mean that all of the sugar plantations on Kauai, on Oahu, on Maui, and some on the Big Island, would be forced instantly to close down and go out of business—throwing thousands of workers out of jobs

All of those almost catastrophic evils should have been instantly apparent to the Attorney General of the State of Hawaii back in 1973. It should have been even more apparent to the successive Attorney Generals thereafter. However, the attitude of the Attorney General of the State of Hawaii on January 10, 1973, when, by the ukase and fiat of Justices Richardson and Abe, the water rights of Robinson, McBryde, Olokele, and the Small Owners were, without warning, expropriated, taken away from...