Sierra Club v. Dept. of Transp. of State

• Decision Date: 16 March 2009
• Docket Number: No. 29035.,29035.
• Citation: 202 P.3d 1226,120 Haw. 181
• Parties: The SIERRA CLUB, a California non-profit corporation registered to do business in the State of Hawaii; Maui Tomorrow, Inc., a Hawaii non-profit corporation; and the Kahului Harbor Coalition, an unincorporated association, Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants, v. The DEPARTMENT OF TRANSPORTATION OF the STATE OF HAWAII; Brennon Morioka, in his capacity as Director of the Department of Transportation of the State of Hawaii; Michael Formby, in his capacity as Director of Harbors of the Department of Transportation of the State of Hawaii; Hawaii Superferry, Inc., Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees.
• Court: Hawaii Supreme Court

202 P.3d 1226

120 Haw. 181

The SIERRA CLUB, a California non-profit corporation registered to do business in the State of Hawaii; Maui Tomorrow, Inc., a Hawaii non-profit corporation; and the Kahului Harbor Coalition, an unincorporated association, Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants, v. The DEPARTMENT OF TRANSPORTATION OF the STATE OF HAWAII; Brennon Morioka, in his capacity as Director of the Department of Transportation of the State of Hawaii; Michael Formby, in his capacity as Director of Harbors of the Department of Transportation of the State of Hawaii; Hawaii Superferry, Inc., Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees.

No. 29035.

Supreme Court of Hawai`i.

March 16, 2009.

Isaac Hall, Wailuku, for Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants The Sierra Club; Maui Tomorrow, Inc.; and the Kahului Harbor Coalition.

Lisa M. Ginoza, First Deputy Attorney General, (Mark J. Bennett, Attorney General, Dorothy Sellers, Solicitor General, with her on the briefs) for Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees 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 with her on the briefs) (Goodsill Anderson Quinn & Stifel), Honolulu, for Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees Hawaii Superferry, Inc.

Opinion of the Court by DUFFY, J.

Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition¹ (collectively "Sierra Club") appeal from the January 31, 2008 final judgment of the circuit court² and the November 14, 2007 circuit court order granting dissolution of the injunction and vacating the order to void the operating agreement. Sierra Club cross-appeals from the March 27, 2008 circuit court order granting attorney's fees and costs. Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees State of Hawai`i Department of Transportation (DOT); Brennon Morioka, in his capacity as Director of DOT; Michael Formby, in his capacity as Director of Harbors of DOT (collectively "DOT") appeal from the January 31, 2008 final judgment and the March 27, 2008 order granting attorney's fees and costs. Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees Hawaii Superferry, Inc. (Superferry) appeals and cross-appeals from the January 31, 2008 final judgment, the November 14, 2007 order granting dissolution of the injunction and vacating the order to void the operating agreement, the October 9, 2007 order granting enforcement of the environmental assessment (EA) requirement and permanent injunction, the November 9, 2007 circuit court findings of fact and conclusions of law, and the March 27, 2008 order granting attorney's fees and costs.

The main issue to be determined in this appeal is whether Act 2 enacted in the second special session of the 2007 legislature is constitutional. Sierra Club challenges the constitutionality of Act 2 on three separate grounds: (1) Act 2 is unconstitutional special legislation; (2) Act 2 violates the separation of powers doctrine; and (3) Act 2 violates the due process rights of Sierra Club and the public.

Based on our analysis herein, we hold that Act 2 is unconstitutional as it is a special law in violation of Article XI, section 5 of the Hawai`i Constitution.

I. BACKGROUND

A. First Review by This Court: Sierra Club I

This court's first review 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), provides the initial background for this case:

The Hawaii Superferry project generally involves an inter-island ferry service between the islands of O'ahu, Maui, Kaua'i, and Hawai`i, using harbor facilities on each island. According to a permit application filed with the Public Utilities Commission (PUC) on July 22, 2004, Hawaii Superferry, Inc. has proposed to develop and operate a high-speed roll-on/roll-off ferry service, using two vessels, capable of carrying up to 866 passengers and 282 cars, or 26 trucks or buses and 65 cars per trip. As a result of negotiations between the State and Hawaii Superferry, Inc., DOT concluded that several improvements to Kahului Harbor were necessary to accommodate the Superferry project, including the construction of a removable barge to Pier 2 of the harbor and other improvements to assist in Superferry operations. According to DOT, "[t]he state anticipates the barge will cost as much as $10 million," and the State of Hawai`i has allocated a total of approximately $40,000,000 in state funds for improvements to the four harbors that will be utilized by the Superferry project.

Appellants, consisting of two nonprofits and one unincorporated association, are environmental groups whose members use the area around Kahului harbor in various ways. The Sierra Club is one of the nation's largest environmental organizations, with over 700,000 members, approximately 5,000 of which live in Hawai`i. The Sierra Club has a Hawai`i Chapter and a Maui group, which are involved in educating the public about Hawaii's natural resources through hikes, exploring wild places and natural resources, restoring and preserving eco-systems through service trips, and protecting open space through lobbying and litigation. Maui Tomorrow is described by a member as a "Maui island-wide environmental group which has participated in numerous environmental issues including but not limited to the environmentally sound growth of [ ] airport and harbor infrastructures." The Kahului Harbor Coalition is "an organization of farmers, businessmen, recreational users and citizens formed out of concern about the increased risks of alien species introductions through Kahului Harbor."

Id. at 305-06, 167 P.3d at 298-99 (footnote omitted) (brackets in original).

In Sierra Club I, Sierra Club argued that:

(1) the circuit court erred in dismissing Appellants' claim on the basis of standing because Appellants are among those injured by potential adverse impacts caused by the Hawaii Superferry project, and also because they suffer a procedural injury; (2) the circuit court erred in granting summary judgment in favor of Appellees by ruling that they complied with [Hawai`i Environmental Policy Act (HEPA)], because the exemptions were illegal and did not apply; (3) the circuit court erred in dismissing, as premature, Appellants' claim that the Hawaii Superferry project must be incorporated into the ongoing [environmental assessment (EA)] for Kahului Harbor Improvements, because the harbor exemptions were unlawfully segmented from the already initiated but incomplete EA; and (4) the circuit court erred in refusing to continue the hearing to permit further discovery because there was a factual dispute as to what was before DOT in making its exemption determination.

Id. at 305, 167 P.3d at 298.

On August 23, 2007, this court issued an order

reversing the July 12, 2005 circuit court judgment, holding that DOT's determination that the improvements to the Kahului Harbor are exempt from the requirements of [Hawai`i Revised Statutes (HRS)] chapter 343 was erroneous as a matter of law, and instructing the circuit court to enter summary judgment in favor of Appellants on their claim as to the request for an EA.

Id. The case was also remanded "for such other and further disposition of any remaining claims as may be appropriate." Id. at 343, 167 P.3d at 336. On August 31, 2007, this court filed its opinion in Sierra Club I in support of its August 23, 2007 order.

On October 3, 2007, this court filed its judgment on appeal in Sierra Club I, stating:

Pursuant to the opinion of the Supreme Court of the State of Hawai`i entered on August 31, 2007, the final judgment of the Circuit Court of the Second Circuit entered on July 12, 2005 is vacated and, in accordance with this court's August 23, 2007 order, the circuit court is instructed to enter summary judgment in favor of Appellants on their claim as to the request for an environmental assessment and the case is remanded for such other and further disposition of any remaining claims as may be appropriate.

B. Circuit Court Proceedings Following Sierra Club I Order

1. Summary Judgment Granted

On August 23, 2007, the circuit court entered summary judgment in favor of Sierra Club on its claim requesting an EA, pursuant to this court's order. On August 27, 2007, Sierra Club moved ex parte for a temporary restraining order (TRO), pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 65(b), to enjoin DOT and Superferry

from using the barge attached to Pier 2 at the Kahului Harbor or any of [sic] "premises" or state lands granted by [DOT] to [Superferry] at the Kahului Harbor for the passenger terminal, for inspection and ticketing and for roadways to and from Pier 2 and the non-harbor Kahului roadway system, unless and until [DOT] has achieved full prior compliance with the mandatory procedural obligations under HRS [c]hapter 343.

2. Temporary Restraining Order Granted

On August 27, 2007, the circuit court granted Sierra Club's ex parte motion for a TRO stating the following:

1. On August 24, 2007, this Court entered summary judgment in favor of [Sierra Club] on the claim requiring the preparation of an [EA], pursuant to Chapter 343.

2. By HRS Section 343-5(b):

Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of proposed action.

3. By Chapter 343, acceptance of a required statement is a "condition precedent":

a. To the commencement or implementation of a proposed project, HRS Section 343-5(c); [Hawai`i Administrative Rules (HAR)] Section 11-200-23...