Judge's ruling in 1000 Friends of Kauai dismissal hearing

Below are the court's minutes, in original YELL-CAPS, for your edification. Notice that Judge Valenciano found the triggering of the time limitation to bring an action under Section 343 to be February 23, '05. This was the date of a letter sent out by HDOT and published in newspapers describing the agency's decision to exempt the project from the environmental assessment requirement. The judge based this finding in part on language the state Supreme Court inserted into a footnote of the recent Sierra Club case. This footnote, 15, reads, "Although an affirmative statute of limitations defense was not raised, we note that the lawsuit was filed on March 21, 2005, which was "within one hundred twenty days of the agency's decision to carry out or approve the action," HRS § 343-7(a), taking the date of that decision as February 23, 2005, when DOT officially determined that the harbor improvements would be exempt from the requirements of HEPA."



COURT NOTED 02/23/05 AS THE OPERANT DATE FOR
PURPOSES OF 120 DAYS STATUTE OF LIMITATION
PURSUANT TO HRS 343. THERE ARE 5 CLAIMS WITHIN TH
PETITION AS FOLLOWS:
CLAIM #1 IS TIMEBARRED AND DISMISSED. THEREFORE
THE MOTION TO DISMISS IN CLAIM #1 IS GRANTED.
THE MOTION TO DISMISS IN CLAIM #2 IS GRANTED.
CLAIM #3, "THE PUBLIC NUISANCE CLAIM", TO THE
EXTENT THAT THE CLAIM RELIES ON HRS 343, THE
MOTION TO DISMISS IS GRANTED. TO THE EXTENT THAT
THE CLAIM DOES NOT RELY ON HRS 343, THE
THE MOTION TO DISMISS IS DENIED.
CLAIM #4, CONSTITUTIONAL CLAIM, IS TIMEBARRED AN
DISMISSED. TO THE EXTENT THAT THE CLAIM RELIES ON
HRS 343, THE MOTION TO DISMISS IS GRANTED.
TO THE EXTENT THAT THE CLAIM DOES NOT RELY ON
HRS 343, THE MOTION TO DISMISS IS DENIED.
CLAIM #5 IS NOT A CAUSE OF ACTION AND THE MOTION
TO DISMISS IS GRANTED. HOWEVER SHOULD THE
PETITIONER'S PREVAIL, THEY MAY SEEK ATTORNEY'S
FEES AND COSTS AS A REMEDY.











1000 Friends of Kauai attorney Daniel Hempey talks with Channel 8; Superferry employees leave the courthouse