Sierra Club v. The Department of Transporation, State of Hawaii (Order Denying Motion for Reconsideration)

NO. 29035

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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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,

vs.

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.

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APPEAL AND CROSS-APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO. 05-1-0114)



ORDER DENYING MOTION FOR RECONSIDERATION
(By: Acoba, Duffy, JJ., and Circuit Judge Town,
in place of Levinson, J., recused; and Nakayama, J.,
Dissenting, With Whom Moon, C.J., Joins)

Upon consideration of the motion for reconsideration filed on April 13, 2009 by Defendants-Appellees/Cross- Appellants/Appellants/Cross-Appellees the 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, requesting that this court review its opinion filed on March 16, 2009, the Hawaii State Legislature's Amicus Curiae Brief, filed on April 16, 2009, and the record herein,

IT IS HEREBY ORDERED that the motion for reconsideration is denied.

It should be noted that the issues of severability raised in the DOT's motion for reconsideration and in the Hawaii State Legislature's amicus curiae brief in support of the motion were the first time these issues were raised in this entire litigation. Neither DOT nor Superferry presented the argument of severability in defense of Act 2's constitutionality before the circuit court or before this court on appeal in its written briefs or in oral argument. As such, this argument is deemed waived.

DATED: Honolulu, Hawai‘i, May 13, 2009.

Mark J. Bennett, Attorney
General of Hawaii, and
Dorothy Sellers, Solicitor
General, for defendants-
appellees/cross-appellants/
appellants/cross-appellees
State of Hawaii, Department of
Transportation on the motion

Girard D. Lau, First Deputy
Solicitor General, and
Deirdre Marie-Iha, Deputy
Solicitor General, for
amicus curiae Hawaii State
Legislature

DISSENT BY NAKAYAMA, J., IN WHICH MOON, C.J., JOINS

While I concur with the majority's conclusion that Act 2 constitutes unconstitutional special legislation, having filed a dissenting opinion on the issue of attorney's fees being awarded against the State based on the private attorney general doctrine, I would grant the motion for reconsideration of that issue.