Friday gecko blogging

Nice color. Abrupt finish, though.

Applying Hawaii's shield law

The AP has reported the story of the ACLU invoking Hawaii's new shield law in opposing the Brescia subpoena of an individual who has been making a documentary of Native Hawaiian burial practices.

The shield law, enacted last year, protects journalists and others who are acting similarly from having to testify or produce evidence.

The subpoenas stem from a property dispute in Kauai. For eight years, landowner Joseph Brescia had sought to build on a parcel on Naue Point where 30 graves had been discovered, according to the ACLU.

Though the state Supreme Court ruled against his construction plans, Brescia filed civil lawsuits against those he contends delayed his project.

As part of those suits, Brescia subpoenaed Keoni Kealoha Alvarez, who for two years has been documenting Native Hawaiian burial practices. Alvarez is not a party in the suits.
...

Under the shield law, Alvarez is protected from complying with the subpoena, said ACLU senior staff attorney Daniel Gluck. The ACLU has sent Brescia's lawyer a letter saying the shield law voids the subpoenas, Gluck said, adding that it may be the first time since its enactment that the law has been invoked.

Another Alvarez lawyer, James Bickerton, said in a statement, "Simply put, Brescia has no right to these materials. If he can't see that by reading the law, we will ask the court to explain it to him."

Note that the paragraph stating that, "Though the state Supreme Court ruled against his construction plans, Brescia filed civil lawsuits against those he contends delayed his project," is somewhat misleading. In 2007 the Supreme Court did rule against Brescia in an appeal involving a shoreline setback dispute. But the current suit is unrelated to that case.

Joan Conrow, Garden Island, et al, prevail in defamation appeal

The case arose, in the words of the decision (PDF), out of the investigation by the Kauai Police Department of two murders and an attempted murder, each involving sexual assault and stabbing of women, that were committed in separate incidents in 2000 on Kauai. In 2000 the Plaintiff-Appellant sued the Kauai police chief, a number of officers, and the county, claiming they had engaged in misconduct while investigating him for these crimes. He also sued the authors (including Joan Conrow) and publishers of articles appearing in the Honolulu Magazine and The Garden Island claiming, among other things, that the articles had defamed him.

The trial court had granted the journalists/publishers motions for summary judgment and dismissed the complaint against the county defendants for failure to prosecute. In upholding the lower court's judgment, the Intermediate Court of Appeals provides an interesting and in depth analysis of defamation law that I won't expand on here. But it's worth a read if you're interested.

ACLU gets involved in Brescia case

Via the Advertiser, The ACLU will represent Keoni Kealoha Alvarez who, according to the article, is "an independent filmmaker working on a documentary about Native Hawaiian burial practices who has been subpoenaed by lawyers for" Joseph Brescia. According to court records available online Alvarez does not appear to be a named party in any actions involving Brescia, however the paper indicates that the subpoena is related to Brescia's "civil suit against individuals he claims have delayed [] construction." According to the article the subpoena encompassed "[n]early all of Alvarez's unpublished interviews and raw video footage."

The ACLU and Honolulu lawyer James Bickerton are invoking Hawaii's "media shield law" in contesting the subpoena on behalf of Keoni Kealoha Alvarez.
...
Bickerton said Hawaii's media shield law restricts lawyers from using subpoenas to compel protected information from journalists.

Some old cases relevant to Kauai's suit against the Hanalei boat tour operator

Hawaiioceanlaw.com has provided some interesting history relevant to Kauai County's suit alleging permit violations against a Hanalei boat tour operator -

The State of Hawaii attempted to require boat operators to obtain permits to operate in Hanalei Bay and Hanalei River. A boat operator challenged the regulations, citing the Supremacy Clause of the Constitution. The regulations were struck down by the Ninth Circuit. Young v. Coloma-Agaran, 340 F.3d 1053 (9th Cir. 2003).

Separately, rival tour boat operators brought suit against the Hanalei boat operators asserting that their alleged failure to obtain necessary state and county permits were unfair competition. The Hawaii Supreme Court rejected the suit. Whitey's Boat Cruises, Inc. v. Napali Kauai Boat Charters, Inc. No. 26334 (2006).

In Whitey's Boat Cruises, some tour boat operators claimed that a bunch of other tour boat operators were conducting tours in the area of Hanalei and along the Na Pali coast without the requisite county and state permits. The court held that the county and state permitting regulations didn't provide a private right of action for the kinds of economic harms alleged.

In the Young case, three commercial tour boat operators had successfully challenged a state regulation that prohibits them from operating their tour boats in Hanalei Bay -

In 1999, the state considered a proposal to prohibit commercial boating in Hanalei Bay. A report from the public hearing on the proposal indicates that regulators were concerned about putting to rest "years of turmoil" over tourist activities in Hanalei, as well as maintaining the natural beauty of the Hanalei area. Comments from the public were by and large hostile to continued commercial tour boat activities in Hanalei Bay. Approximately five months later, the ban took effect and the Department revoked the plaintiffs' use permits.
...

We conclude that the ban, in conjunction with the relevant federal shipping laws, violates the Supremacy Clause. Simply stated, the ban completely excludes the plaintiffs from conducting their federally-licensed tour boat businesses in Hanalei Bay. We are sympathetic to the challenges posed by the user conflicts occurring in the bay. We hold, however, that the state's refusal to issue use permits under any conditions has effectively rendered it impossible for the plaintiffs to comply with both federal and state law in order to ply their trade. See Florida Lime, 373 U.S. at 142-43, 83 S.Ct. 1210.

The state argues that the Department was exercising the state's police power to alleviate user conflicts at Hanalei when it adopted the ban. Indeed, the Supreme Court has held that "[i]n the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government." Huron Portland, 362 U.S. at 442, 80 S.Ct. 813. However, the Court went on to point out the "basic limitations" of such power: "Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action." Id. at 443, 80 S.Ct. 813 (emphasis added). Thus, even if the ban is an exercise of concurrent power, the state's contention is immaterial to our analysis; as we have explained above, the ban actually conflicts with the federal licensing scheme.

New Hawaii legal blog

Honolulu employment law and civil litigation attorney Roman Amaguin has a new (May 23) blog, Virtual Hawaii Employment Lawyer.

One to watch: County files complaint against commercial boat tour operator

According to a county press release (PDF):

The County recently filed a complaint in Fifth Circuit Court against Lady Ann Cruises, Inc. dba Na Pali Explorer.

The complaint alleges that Lady Ann Cruises is not properly permitted to operate commercial boat tours out of the Hanalei River boatyard, and is in violation of the boatyard’s special management area (SMA) permit that was issued by the Planning Commission.

In order to operate legally from the Hanalei River boatyard, Lady Ann Cruises would need permission from the Planning Commission, and no such application has been made nor has such permission been granted.

The complaint also states that loading and unloading of passengers from the Hanalei River boatyard “significantly impacts coastal waters and related coastal resources” and that such activity requires a SMA permit from the Planning Commission.

The County is asking the court to issue a temporary restraining order, preliminary injunction and/or a permanent injunction preventing the loading and unloading of passengers at Black Pot Beach.

Meanwhile, according to the Garden Island -

[A]ttorney Richard Wilson..., representing Lady Ann Cruises, Inc., doing business as Na Pali Explorer, and Mike Sheehan, owner of the river boatyard, said in a telephone interview Friday he welcomes the chance to prove in court what federal courts, state opinions and even the county’s own filings agree to: The county has no authority to regulate any boating in Hanalei River or Hanalei Bay.

Wilson said both Lady Ann and Sheehan have SMA permits, and an argument used by county attorneys seeking to dismiss a 2005 lawsuit Sheehan filed against the county used the following argument:

“The CZMA (Coastal Zone Management Act) does not afford the county authority to regulate commercial boating activity at Hanalei River or Hanalei Bay.”

Lady Ann’s operations are not illegal on any level, Wilson said. “It is fully permitted and fully allowed,” and anybody with a U.S. Coast Guard-certified vessel can operate in navigable waters of Hanalei Bay and Hanalei River, and there is little or nothing state and county officials can do about it, Wilson said.

Another sovereignty bond scandal update

I finally grabbed the chance to come up for air after a busy, busy month just in time to see that Peter Boylan at the Advetiser and Ian Lind have updated the sovereignty bond scandal story with some follow up on fallout from the FBI's execution of search warrants in the investigation last month.

Ian is to be commended for hosting some of the court documents as well as linking to some of his fascinating coverage from years past of one of the litigant's long history of involvement in - let's call them - controversial and newsworthy entanglements in financial and real estate disputes.

Following the searches and seizures, a handful of what I take to be suspects in the case provided a glimpse into what I imagine will be their defense strategy going forward. There's a certain approach to pro se litigation that attorneys generally won't indulge in, mostly because of the risk it poses to one's license to practice. The strategy is to answer every act of the other side with a blizzard of frivolous and often unhinged and incomprehensible objections, motions and appeals. Often these filings are after the manner of a deranged street corner evangelist and reveal a sort of confident, freewheeling though disjointed apprehension of legal procedures and doctrines.

The litigants have already filed hundreds and hundreds of pages of documents - things with titles like, "Affidavits of Truth from Various Individuals," "Demands for the Return of the Kokua Gift(s)(parts 1 and 2)," "Affidavits of Truth in Support of Hawaiiloa Foundation of Various Individuals (parts 1 through 4)," and "Affidavits of Probable Cause by Various Individuals (parts 1 through 8)."

It's a strategy that can work to force a settlement on opposing litigants with means too modest to defend against a relentless onslaught. (It's not without its risks, though. Such strategies can eventually get the litigant sanctioned, fined, and finally drummed out of court. But that can take years). But this isn't a modest opponent in a civil action. This is the Government in a criminal investigation.

But do they "regret the error"?

In one of the most understated corrections I've ever read (and confirming what an anonymous commenter to this post predicted), the GI said this morning:

A Saturday article entitled “Naue burial fight continues” should state that Calvert Chipchase said “We’ll let it lie.”

So, according to the correction, Brescia attorney Chipchase, while disagreeing with State Historical Preservation Division archaeologist Nancy McMahon's assertion that Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials, didn't go so far as to accuse her of lying.

Here's the original context:

McMahon said Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials, explaining that construction workers have placed large circular cement slabs over the burials, a few feet below the surface, and then covered them with dirt.

“He wasn’t supposed to do that, they never got that approval,” McMahon said. “They did that on their own, without consulting the burial treatment plan.”

“We’ll let her lie,” Chipchase fired back, explaining that the plan under review by the SHPD says that the burials must be preserved in place. “Capping is one part of that.”

Sunday shark blogging

My son and I got to swim with a couple of white tip reef sharks while diving Sheraton Caverns last Sunday. (Yes, we went diving on Mothers Day. But we made it up to her).

Brescia and the state drifting toward opposite sides of the courtroom?

In an interesting Garden Island piece today on the apparent resumption of construction activities at the Naue burial site/Brecscia property, State Historical Preservation Division archaeologist and Preservation Manager Nancy McMahon states the truism that there is no law prohibiting construction over burial sites. She also asserts (whether correctly or not, I don't know) that building over remains was no big deal in pre-contact Hawaiian society.

Then she and Brescia attorney Calvert Chipchase get into a little back and forth when McMahon asserts that Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials and Chipchase says when asked for his response, “We’ll let her lie,” explaining, according to the paper, that the plan under review by the SHPD says that the burials must be preserved in place and, as a matter of course, “[c]apping is one part of that.”

It's interesting to see the inevitable erosion between the state and the Brescia team. During last fall's unsuccessful injunction motion (most of which I attended) McMahan and state counsel sat at the same counsel table with Brescia's attorneys. If it wasn't obvious before that the state and Brescia could soon easily find themselves at opposing tables, it was by the time judge Watanabe ruled that, while Brescia didn't have to halt construction, the state had failed to follow the law when it approved the burial treatment plan and Brescia would therefore have to keep the burials accessible until the preservation division completes its performance under the order.

On the other hand, since the house is apparently to stand on stilts, it could be that construction to completion will not impede access to the burials and will therefore not run afoul of the court's order. In that case, the legal aspect of the controversy could be over.

Hawaii Supreme Court issues amended Superferry decision

After apparently considering the State's motion to reconsider and the Administration's and the Legislature's briefs, the state Supreme Court has issued an amended decision in the Superferry case. After a quick skim, it looks to me as though nothing much of substance was changed, however it does appear that the court addressed many of the issues raised in the other branches' arguments. I'm anxious, when I get some time, to read the court's final treatment of Bulgo which in my opinion was originally dealt with rather ham-fistedly.

I'm ecstatic to note that the court removed all the "equal protection" language that had so offended me from the decision's conclusion and even noted in footnote 33:

Our holding is based only on our "general law" analysis and does not in any way involve an "equal protection" analysis which involves a different standard.

A couple of local legal updates in the GI

An update in the Naue burial civil trespass case -

Among the motions granted last week by 5th Circuit Judge Kathleen Watanabe were Brescia’s ones to name certain Kauaians in the trespassing suit by default, and to order them not to trespass or obstruct construction.

The motions also affirmed that many of those named in the case, including Edens-Huff, have no title to Brescia’s property, as they had argued.

Motions to set aside the charges by attorneys for Edens-Huff, Hale Mawae, Dane Gonsalves and Andrew Cabebe were denied, meaning they could be found liable at trial for some or all of the damages resulting in their roles in hindering construction at the site, said Camille Kalama of the Native Hawaiian Legal Corporation, representing another defendant, Jeff Chandler.

Edens-Huff and many of the other named defendants can’t challenge any of the accusations made against them at next year’s trial, and will be allowed only to contest the amount of damages owed, as a result of Watanabe’s Friday rulings on the various motions, Kalama said.

Defendants including Chandler and Puanani Rogers have filed third-party claims against various state agencies, claiming the state entities failed to follow historic burial procedures, Kalama continued.

And in the Ka Loko dam disaster civil case -

Fifth Circuit Judge Kathleen Watanabe on Wednesday denied James Pflueger’s motion to delay the trial portion of his wrongful-death civil case until the manslaughter criminal case against him is decided.

10 sites that provide free access to case law

In Law Technology News.

Excusable neglect

With deadlines for a couple of appellate briefs and a handful of motions looming this month, blogging will continue to be light to non-existent for the next few weeks.

Citizen Media Law Project: Blogger Wins Big Settlement Over Public Records Delay

A little bit swamped lately. Hence the light blogging. Thought I'd pass along, though, this item from The Citizen Media Law Project -

In a nice cautionary tale for government agents who refuse to take public records requests seriously, Washington state political blogger Stefan Sharkansky won a $225,000 settlement last week from a county government that took two years to comply with his request for information. The settlement ended Sharkansky's lawsuit against King County over officials' improper delay in producing documents related to the state's 2004 gubernatorial election.
...
...Sharkansky's story is a great example of how bloggers can contribute to the public dialogue. Sharkansky saw a hole in news coverage of an important event and took it upon himself to fill it. Doing so didn't require any specialized journalistic knowledge, save for a few basics on freedom of information that one can easily acquire in a quick glance at CMLP's Legal Guide.

Local activist sues over Villages at Poipu development

Local activist Theodore (Teddy) Blake, represented by the Native Hawaiian Legal Corporation, filed suit last month over the Knudsen Trust's planned Village at Poipu development. The complaint for declaratory and injunctive relief, available online here, names as defendants the Eric A. Knudsen Trust, The county planning commission and planning department, Planning Director Ian Costa, the Department of Land and Natural Resources, and DLNR Chair Laura Thielen.

The factual allegations can be read in the complaint. The legal claims are:

• that the process of considering the Knudsen Trust's Village at Poipu development proposal violated the state public trust doctrine;
• that in the process of considering the Knudsen Trust's application for final subdivision approval of Phase One of the development, defendants failed to thoroughly investigate and protect Native Hawaiian rights;
• that defendants failed to comply with the requirements of HAR Chapter 13-284 - the administrative rules governing the review process the SHPD is to follow in making comments to state and county agencies on entitlements affecting historic properties;
• that the development threatens to cause irreparable injury to burial sites and other historic sites;
• that defendants failed to comply with the objectives, policies, and guidelines of HRS 205A, specifically, "the protection, preservation, and restoration of historic and prehistoric resources in the coastal zone management area that are significant to Hawaiian history and culture"; and
• that a supplemental EIS is required to address a plan to cross the Hapa Trail with a street.

That is a bunch of issues. And it's a classically Hawaiian land use dispute. Complaints tend not to contain much in the way of legal argument. That's not their purpose. We can hope though that there will be some summary judgment motions filed and those will give rise to some interesting arguments on the issues.

Friday gecko blogging

Looking out the kitchen window the other night...

Hawaii Legislature's Superferry reconsideration amicus brief

The Senate Majority Caucus Tweeted:

Hawaii State Legislature today filed an amicus brief in the Superferry reconsideration. Here's the brief http://tinyurl.com/cftoef

State's arguments for reconsideration of Hawaii Supreme Court Superferry decision

I put out a Twitter request last night asking if anyone had and was willing to share the state's memorandum in support of its motion for reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy.

For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow).

It contains some interesting arguments and I hope to get time to write about it in more detail later, but for now, here are the brief's highlights:

There was no exercise of legislative power over the lands: The court held that one sentence of Section 15 of Act 2 effected an exercise of legislative power over state lands - that sentence being, "Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this Act." The state asserts that the only authorization for the use of state lands is contained in the operating agreement between the state executive branch and the Superferry company. The fact that the legislature in Act 2 confirmed the ongoing viability of the executive branch operating agreement, argues the state, did not transform that operating agreement into an exercise of legislative power over state lands.

The severability section of Act 2 applies: Act 2 contains a clause stating that if any provision of the Act is held invalid, it will not affect the validity of other provisions or applications of the Act. Thus, argues the state, the court - finding that a single sentence converts Act 2 into a special law regarding lands - should have severed out that sentence and upheld the remainder of the Act.

Act 2 was not special legislation: The state argues that the court abandoned longstanding Hawaii precedent in favor of a minority view contained in a "maverick" Colorado case. According to the state the court was completely off the mark when it held that the Hawaii case, Bulgo, did not involve a statute that created a class with only one member or a statute of limited duration. (I'll insert some personal opinion here and say that I thought the court's effort to distinguish Bulgo from the facts of Superferry was flimsy and unconvincing. If the court desired but could not otherwise get past the rule of Bulgo, then it should have overturned it. It appears now that the court has given itself the best of both worlds for future cases and, if it approves of challenged legislation, may cite Bulgo, and if it disapproves, it can invoke Superferry II).

There was no basis for the award of attorney's fees against the state because the state did not waive its immunity from the fee award, and the court cannot waive the state's immunity: States enjoy sovereign immunity. As a general matter, they are immune from money damages except when they specifically and clearly waive their immunity. In other words, a state cannot be liable for money damages (including an award against it of attorneys fees) for its violation of a statute without specifically saying by way of statute that it has relinquished its immunity. Here, there is no legislation waiving sovereign immunity from an award of attorney's fees for a violation HEPA, HRS chapter 343. It was a violation of the separation of powers doctrine for the court to engage in judicial legislation and create a doctrine effectively waiving the state's immunity.

This is not an equal protection case: Again, some personal opinion - readers might recall that I was somewhat scandalized by the court's references to equal protection in the conclusion of its opinion.