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Electronically Filed Supreme Court SCPW-XX-XXXXXXX 18-APR-2024 08:21 AM Dkt. 95 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
BOARD OF LAND AND NATURAL RESOURCES, State of Hawaiʻi, Petitioner,
vs.
THE HONORABLE JEFFREY P. CRABTREE, Judge of the Circuit Court of the First Circuit, State of Hawaiʻi, Respondent Judge,
and
SIERRA CLUB, ALEXANDER & BALDWIN, INC., EAST MAUI IRRIGATION COMPANY, LLC, and COUNTY OF MAUI, Respondents.
SCPW-XX-XXXXXXX
ORIGINAL PROCEEDING (CASE NO. 1CCV-XX-XXXXXXX)
APRIL 18, 2024
RECKTENWALD, C.J., McKENNA, EDDINS, JJ., CIRCUIT JUDGE DeWEESE AND CIRCUIT JUDGE KAWASHIMA, ASSIGNED BY REASON OF VACANCIES
OPINION OF THE COURT BY EDDINS, J.
I.
This case concerns attorney fees. *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We hold that a state-initiated original proceeding is not a
legal action sheltered by sovereign immunity. Thus, the state
may be on the hook for reasonable attorney fees spent opposing a
frivolous petition for extraordinary relief.
Like here. We conclude the Sierra Club is entitled to
attorney fees.
II.
In 2022, the Board of Land and Natural Resources, State of
Hawaiʻi (BLNR) approved the continuation of revocable permits
that allowed Alexander & Baldwin, Inc. and East Maui Irrigation
Company, LLC to divert 40.49 million gallons of water per day
(mgd) from East Maui streams. The Sierra Club appealed to the
Circuit Court of the First Circuit Environmental Court. It
argued that the BLNR unlawfully denied its request for a
contested case hearing.
In June 2023, the environmental court modified the permits
and capped at 31.5 mgd the amount of water Alexander & Baldwin
and East Maui Irrigation could divert from the streams. The
environmental court invoked Hawaiʻi Revised Statutes (HRS)
§ 604A-2(b)’s general equitable powers and also indicated that
HRS § 91-14(g) allowed it to modify the permits.
On July 14, 2023, the environmental court sided with the
Sierra Club. The BLNR should’ve held a contested case hearing.
Then, citing Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res.,
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136 Hawaiʻi 376, 380-81, 363 P.3d 224, 228-29 (2015), and two
other cases, the environmental court explained that “[a]s a
general rule, when an agency fails to conduct a necessary
contested case hearing, any approval it has issued is void.”
Rather than void the revocable permits, however, the
environmental court “re-ordered” the 31.5 mgd cap. Like before,
the environmental court invoked HRS § 604A-2(b) (2016 & Supp.
2018) and HRS § 91-14(g) (2012 & Supp. 2019). Public trust
doctrine principles also supported the cap, the court wrote.
The environmental court’s “Decision on Appeal and Order”
explained that the court decided “not to risk chaos or
unintended consequences by voiding the revocable permits in
their entirety. Doing so would potentially leave a legal vacuum
until BLNR can issue new permits, which in turn could threaten
reliable availability of necessary water.”
On August 8, 2023, Lahaina burned and Hawaiʻi residents
died.
The next day, the BLNR petitioned this court. The
Department of the Attorney General (AG), the BLNR’s attorney,
requested an extraordinary writ. The BLNR sought a writ
“enjoining the Respondent Judge from modifying the revocable
permit conditions, including the cap amount of water permitted
to be diverted.” It also sought “an immediate stay of the
Respondent Judge’s order.”
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The AG’s petition opened: “Central Maui has no water for
fire reserve because the Respondent Judge substituted his
judgment for that of the agency. As a result, there was not
enough permitted water to battle the wildfires on Maui this
morning.”
The petition announced: “Now there is not enough fire
reserve water in Central Maui.” This shortage resulted, the
BLNR alleged, because the environmental court “refused to permit
any diversion of water for firefighting under the permits.” The
BLNR declared that “having the circuit court act as the
gatekeeper to water has resulted in an imminent threat to public
health and safety.”
Naturally we paid attention. The Department of the
Attorney General initiated an original proceeding during an
unthinkable human event. The petition advanced an idea that
legal events impacted the nation’s most devastating wildfire. A
fire that leveled Lahaina, a historic, one-of-a-kind place on
earth. Land so special that in 1802 it was established by King
Kamehameha as the Hawaiian Kingdom’s capital.
This court quickly ordered briefing. At our request, the
Sierra Club, the plaintiff during the years-long case, filed a
response. They met our speedy three-day deadline.
Both the County of Maui and the Sierra Club credibly
discredited the BLNR’s key factual claim to support its petition
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– there was no water to adequately fight the Maui fires because
of the environmental court. Maui County flatly contradicted the
BLNR. The County said it had way more than enough water to
fight the fires.
The Sierra Club called the BLNR “shameful.” It described
the BLNR’s petition as disrespectful finger-pointing, a “brazen
attempt to capitalize on tragedy to subvert the judicial
process.” Counsel’s briefing exhaustively, yet concisely,
connected wide-ranging on-the-record evidence to persuasively
confute the BLNR’s accusations.
In contrast, the BLNR’s briefing mustered nothing, even
scantly, to support its instigative claims that “there was not
morning” because the environmental court judge “substituted his
judgment for that of the agency.”
The BLNR’s petition second-guessed the environmental
court’s rulings. As the Sierra Club aptly noted, the BLNR’s
quibbles with those calls hardly amounted to writ material:
“Well-settled precedent prohibits BLNR from leap-frogging over
ongoing appellate proceedings . . . . Writs of mandamus are
decidedly ‘not meant to . . . serve as legal remedies in lieu of
normal appellate procedures,’ which is exactly what BLNR is
attempting here.”
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Before oral argument, the Sierra Club informed the
Department of the Attorney General that the statements in the
petition were sanctionable.
The BLNR did nothing.
We held oral argument. Right away, this court asked the
BLNR’s attorney whether the agency wished to “walk back”
passages, or anything it had represented, in its petition.
Counsel declined. Again and again. Much later during the
virtual oral argument, counsel deep-breathed, “We’re not blaming
the circuit judge, and we do apologize for the harshness of the
language.”
The County of Maui repeated that it had enough water and
that the environmental court’s decisions did not impact Maui’s
firefighting efforts. The County represented it had millions of
gallons of water available, strong-winds hampered helicopter
access, and it had used 37,000 gallons of water over
approximately five days of firefighting.
We took the matter under advisement.
Not for long. The next morning this court issued a two-
page order denying the BLNR’s petition.
III.
The Sierra Club moved this court per HRS § 607-14.5 (2016)
for attorney fees.
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In suits for monetary damage or injunctive relief, HRS
§ 607-14.5(a) allows “either party, whether or not the party was
a prevailing party” to recover its reasonable attorney fees if
“all or a portion of the party’s claim or defense was
frivolous.”
This original proceeding does not involve monetary
damages. Thus, it must relate to injunctive relief for the
Sierra Club to recover fees under HRS § 607-14.5.
That’s not all. After a party identifies the other side’s
frivolous claims in writing, HRS § 607-14.5(c) gives the
putatively transgressing party a chance to foreswear them. If a
party takes back its words, it may not have to pay up. There
are no attorney fees “[i]f the party withdraws the frivolous
claims or defenses within a reasonable length of time.” HRS
§ 607-14.5(c).
The BLNR opposed the Sierra Club’s motion for attorney
fees. As a state agency, it invoked sovereign immunity. That
doctrine bars monetary recovery, the BLNR says, including
attorney fees and costs. The BLNR also insists its claims were
not frivolous or made in bad faith.
We disagree.
First, we conclude that the BLNR’s petition functionally
compares to an injunctive relief action. The BLNR’s petition
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requested an “immediate stay” of a court order and asked us to
“enjoin” the environmental court.
We see little difference for purposes of HRS § 607-14.5
fees between a writ that seeks injunctive relief and a complaint
that seeks injunctive relief. The remedy is the same –
injunctive relief. Thus, any distinction between how a party
styles a request for prospective relief is immaterial.
Next, we conclude that the BLNR made frivolous claims and
declined to withdraw them despite the peril of paying attorney
fees.
Some claims have no place in our legal system. They dent
the justice system. The legislature designed HRS § 607-14.5 to
curb frivolous allegations. To award attorney fees for a
frivolous claim, a court must make “a specific finding that all
or a portion of the party’s claim or defense . . . are frivolous
and are not reasonably supported by the facts and the law in the
civil action.” HRS § 607-14.5(a) and (b).
Since this is an original proceeding, we treat the entire
petition as the pleading. The BLNR’s factual claims are
intertwined with its claims for relief. The allegations
directly support the requested relief and are subject to an HRS
§ 607-14.5 frivolous finding.
The BLNR sought a writ against the environmental court. It
believed the court exceeded its jurisdiction. The BLNR knows
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that this court rarely fact-finds. See State v. West, 95 Hawaiʻi
452, 461, 24 P.3d 648, 657 (2001) (abrogated on other grounds)
(“We take this opportunity to reiterate that fact-finding is the
fundamental responsibility of the judge of the facts at
trial.”). Yet, the BLNR’s petition overflows with factual
allegations to support its interest. The BLNR makes varied
factual claims to promote a view that the environmental court
enfeebled firefighting efforts.
The Sierra Club says the BLNR “made a series of unsupported
and unsupportable statements.” The Sierra Club paints the
BLNR’s petition as misleading and disrespectful. It makes
clear, though, that the “primary” focus of its motion relates to
“BLNR’s false statements and undisputed facts.”
We understand that representations may not always have a
sound basis in fact or law. That’s bad. But that’s sometimes
litigation. And those representations that have no reasonable
basis in fact or law are typically taken care of. See Ralston
v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d 1276, 1285 (2013).
But this is different.
The Sierra Club spotlights five representations made by the
BLNR.
1. “Central Maui has no water for fire reserve because the Respondent Judge substituted his judgment for that of the agency. As a result, there was not enough permitted water to battle the wildfires on Maui this morning.”
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2. “Now there is not enough fire reserve water in Central Maui.”
3. “Shortly after [the environmental court ‘refused to permit any diversion of water for firefighting under the permits,’] terrible wildfires broke out in Maui, leaving the court and agency hamstringed and unable to act quickly within the circuit court’s own parameters to adjust water for firefighting.”
4. “The [environmental] court disagreed and refused to permit any diversion of water for firefighting under the permits.”
5. “Time is of the essence and having the circuit court act as the gatekeeper to water has resulted in an imminent threat to public health and safety.”
We conclude these allegations were frivolous. The Sierra
Club’s answer and motion, and Maui County’s representations,
clearly establish sound grounds for us to conclude that “a
portion of the party’s claim . . . was frivolous.” HRS § 607-
14.5(a).
Contrary to the claims in the BLNR’s petition, there was
enough permitted water and reserve water to fight the fires.
And the environmental court’s actions did not “result[] . . . in
an imminent threat to public health and safety.”
The Sierra Club provided us hard data and pointed to the
underlying case’s water usage figures. If needed, there was
sufficient water in the Central Maui reservoirs to fight Maui’s
fires. By a lot. Unused water diverted from the East Maui
streams went into the Central Maui reservoirs and was available
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for firefighting (and dust control). In its July 2023 quarterly
report to the BLNR, Alexander & Baldwin and East Maui Irrigation
disclosed that in April, May, and June 2023, there was a monthly
average of 5.5 mgd available in the Central Maui reservoirs for
fire protection. Despite the BLNR’s claims, the Central Maui
reservoirs had sufficient fire water reserves. The BLNR
presented nothing to prop up its allegations.
So there were millions of gallons of water per day to fight
the fires. But how much water could Maui County use? Not
millions of gallons per day. In a 2021 contested case
proceeding, the BLNR issued this finding of fact:
According to the Maui County Fire Department, a helicopter uses approximately 2,400 gallons per hour of water; tankers use 7,000 gallons per hour; type 1 engines use 1,500 gallons per hour; type 5 engines use 800 gallons per hour; and utility vehicles use 300 gallons per hour. . . . Assuming that it is only safe to fight a fire during daylight, a fire requiring one-each of those (helicopters, tankers, and utility vehicles) would use 144,000 gallons of water (12,000 approximate gallons hourly x 12 hours of daytime firefighting) every day.
Now we turn to how much water would Maui County use to
fight the fires – a useful metric to consider if the
environmental court’s decisions impaired life-and-property-
saving efforts.
The County of Maui helped. During oral argument, the
County represented it used 37,000 gallons of water over
approximately five days of fighting the fires. High winds
hampered aerial efforts. (At oral argument, the BLNR’s counsel
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fuzzily referred to “others” who used unspecified amounts of
water.)
Next, contrary to the BLNR’s assertions, the environmental
court’s order specifically permitted water for firefighting.
The allotted water usage for firefighting would be “drawn from
the 7.5 mgd drawn by the County.” So the BLNR’s claims that the
environmental court “refused to permit any diversion of water
for firefighting under the permits” and “Central Maui has no
water for fire reserve” are counterfactual.
The BLNR also claimed that the environmental court’s permit
modification “hamstringed” the agency, leaving it “unable to act
quickly within the circuit court’s own parameters to adjust
water for firefighting.” We are dubious. Not only because,
like its other representations, the BLNR produced little or no
support to back its words. But because of the court’s actions
during the morning of August 9, 2023, the day after the fires
started and before the BLNR filed its petition. Then, the
environmental court emailed all counsel asking if there were
“any issues related to the water cap . . . and the ongoing
efforts to suppress the wildfires across Maui.” Per Alexander &
Baldwin and the BLNR’s requests, the environmental court
suspended the 31.50 mgd cap from August 9 to August 15 – “the
court hereby authorizes any additional water use above the cap
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related to actual or potential fire fighting, fire suppression,
fire hazard, or any other use related to the recent fires.”
The BLNR’s representations are “manifestly and palpably
without merit.” Coll v. McCarthy, 72 Haw. 20, 29, 804 P.2d 881,
887 (1991). They are frivolous.
The Sierra Club’s motion called the BLNR’s statements
“harmful” to both the Sierra Club and the court system. It says
the BLNR “perpetuated a false narrative that the environmental
court, the Sierra Club and others who care about the environment
were exacerbating damage caused by the fires.”
We realize that making untrue or inaccurate statements
standing alone does not establish that a party’s statements were
frivolous. See Canalez v. Bob’s Appliance Serv. Ctr., Inc., 89
Hawaiʻi 292, 300, 972 P.2d 295, 303 (1999).
Here, there’s more.
During oral argument, this court asked the deputy attorney
general many times whether the BLNR wanted to “walk back”
passages or anything it had represented. Counsel declined.
On August 30, 2023, after this court denied the petition,
the Sierra Club informed the BLNR’s counsel and senior members
of the Department of the Attorney General that it would seek
attorney fees unless the AG’s filed “an unequivocal[]
withdraw[al]” of five statements it had made in its petition.
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The Sierra Club reminded them: “The Sierra Club explained
in its answer to the BLNR’s petition that these statements have
no evidentiary support; that they are false; that they were made
in bad faith, exploiting a tragedy; and that they are
The Department of the Attorney General stood by its words.
Rejecting a request to retract and refusing to withdraw
spurious attacks on a judge count when it comes to an HRS § 607-
14.5 frivolous finding. “In determining whether claims or
defenses are frivolous, the court may consider whether the party
alleging that the claims or defenses are frivolous had submitted
to the party asserting the claims or defenses a request for
their withdrawal.” HRS § 607-14.5(b).
Though HRS § 607-14.5 does not mention “bad faith,” this
court has determined that the concept shapes a frivolous finding
under that law. We have said that an HRS § 607-14.5(b) “finding
of frivolousness is a high bar; it is not enough that a claim be
without merit, there must be a showing of bad faith.” Tagupa v.
VIPDesk, 135 Hawaiʻi 468, 479, 353 P.3d 1010, 1021 (2015). This
court has not defined the contours of HRS § 607-14.5(b)’s
“frivolous-plus” finding, but we have assessed bad faith under
certain circumstances. For instance, in Tagupa we suggested
that “an excessive and unreasonable amount of damages may be an
indication of the frivolous and bad faith nature.” 135 Hawaiʻi
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at 480, 353 P.3d at 1022 (cleaned up). And Coll reasoned that
the plaintiff’s knowledge when filing a complaint that the
allegations were false, clearly indicated bad faith. 72 Haw. at
30-31, 804 P.2d at 888. In Canalez this court declined to award
attorney fees, holding that although a party made untrue or
inaccurate statements, whether the defendant’s “negligence
caused the accident still remained unresolved.” 89 Hawaiʻi at
300, 972 P.2d at 303. These cases do not set an insurmountable
bad faith bar to HRS § 607-14.5 attorney fees. Rather, they
stress that “[a] meritless claim, without more, is not
sufficient to show that the . . . party acted in bad
faith.” Pub. Access Trails Hawaiʻi v. Haleakala Ranch Co., 153
Hawaiʻi 1, 29, 526 P.3d 526, 554 (2023).
Here, it seems that the BLNR tried to leverage the most
horrific event in state history to advance its interests.
The BLNR’s attention-grabbing petition for extraordinary
relief asked us to step in and enjoin the environmental court.
Based on “facts” the BLNR advanced. Facts wrapped in super-
charged word choices.
Turns out, the BLNR offered no evidence to back its
aggressive position that the circuit court’s orders regarding
water permits in East Maui caused a shortage of water available
to fight the wildfires. They presented nothing to show that
“there [was] not enough fire reserve water in Central Maui”
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because of the “Respondent Judge’s uninformed notions of
hydrology.”
We hold that the statements made in the BLNR’s petition
were so “manifestly and palpably without merit, so as to
indicate bad faith.” Coll, 72 Haw. at 29, 804 P.2d at 887
(citation omitted).
The morning after the oral argument, this court issued a
terse order denying the petition. The timing and content of
that order signaled our displeasure with the original
proceeding.
Writs are rare. They remedy extraordinary legal events.
The Department of the Attorney General knows that
“[e]xtraordinary writs are appropriate in extraordinary
circumstances. Exceeding jurisdiction, committing a flagrant
and manifest abuse of discretion, or refusing to act on a
subject properly before the court under circumstances in which
it has a legal duty to act, are court actions and inaction that
may constitute extraordinary circumstances to issue a writ.”
Womble Bond Dickinson (US) LLP v. Kim, 153 Hawaiʻi 307, 319, 537
P.3d 1154, 1166 (2023) (cleaned up).
The AGs also know that a writ-seeking party has a tough
lift. A petitioner must “demonstrate . . . a clear and
indisputable right to the relief requested and a lack of other
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means to redress adequately the alleged wrong or to obtain the
requested action.” Id. (cleaned up).
This court read and heard the BLNR’s arguments. The
petition does not approach the standard for extraordinary
relief.
The BLNR’s refusal to withdraw the meritless assertions,
the flimsiness of its request for extraordinary relief, and its
use of the Maui tragedy, support a finding of frivolousness and
bad faith. That is, a “portion of the claims . . . made by the
party are frivolous and are not reasonably supported by the
facts and the law in the civil action.” HRS § 607-14.5(b). And
those claims were made in bad faith. See Tagupa, 135 Hawaiʻi at
479, 353 P.3d at 1021.
IV.
Because we find HRS § 607-14.5 applies, the Sierra Club may
recover its reasonable attorney fees and costs.
We conclude the Sierra Club counsel’s requested attorney
fees and costs are reasonable. Under an accelerated timeframe,
we asked the Sierra Club to aid our understanding of the BLNR’s
petition. Counsel produced sound writing and presented solid
oral argument to this court. In this case, filed against the
environmental court judge (who declined to respond per Hawaiʻi
Rules of Appellate Procedure (HRAP) Rule 21(c) (eff. 2010)),
counsel helped set the record straight. Along with the County
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of Maui, the Sierra Club showed how the BLNR made claims “not
reasonably supported by the facts and the law.”
We conclude that the Sierra Club counsel’s request for
attorney fees was reasonable and sufficiently documented.
Wait, not so fast, the BLNR hand-waves. As a state agency,
it invokes sovereign immunity. Though reasonable attorney fees
may be appropriate, sovereign immunity shields the state from
having to pay.
Not so.
Sovereign immunity is judicially-made. The doctrine
protects a state from suits that seek monetary damages. See
Nelson v. Hawaiian Homes Comm’n, 130 Hawaiʻi 162, 168, 307 P.3d
142, 148 (2013). Most of the time. Unless there is a “clear
relinquishment of immunity and the State has consented to be
sued,” money is not a remedy for a successful suit against the
state. Bush v. Watson, 81 Hawaiʻi 474, 481, 918 P.2d 1130, 1137
(1996) (cleaned up); see also Rivera v. Cataldo, 153 Hawaiʻi 320,
323, 537 P.3d 1167, 1170 (2023).
Sovereign immunity does not bar injunctive relief actions.
In a suit like this “[w]here a party seeks only injunctive
relief, the ability to sue the state does not stem from a waiver
of sovereign immunity, but from the fact that sovereign immunity
does not bar suit in the first place.” Sierra Club v. Dep’t of
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Transp. of State of Hawaiʻi, 120 Hawaiʻi 181, 229 n.30, 202 P.3d
1226, 1274 n.30 (2009).
Some suits against the state are unconcerned with a
monetary remedy. For instance, declaratory judgment actions are
a common way the state winds up as defendant. “The State’s
sovereign immunity does not bar actions seeking prospective
declaratory or injunctive relief.” Gold Coast Neighborhood
Ass’n v. State, 140 Hawaiʻi 437, 464, 403 P.3d 214, 241 (2017).
The BLNR argues that sovereign immunity forbids damages,
and attorney fees are just like damages. Citing Gold Coast, the
BLNR maintains that because “an award of costs and fees to a
prevailing party is inherently in the nature of a damage award,”
sovereign immunity bars recovery. Id. at 465, 403 P.3d at 242.
Since fees are like damages, the BLNR’s argument goes, it
doesn’t need to pay the Sierra Club’s lawyer. Just like the
state didn’t need to pay Gold Coast Neighborhood Association’s
lawyer.
But there’s a big difference. Gold Coast Neighborhood
Association initiated the action against the state and therefore
could not recover. See id. at 443, 403 P.3d at 220. This court
purposefully left for another day whether the state may invoke
sovereign immunity to dodge attorney fees in a case where it
initiated the action. Id. at 466, 403 P.3d at 243.
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That day has come. The state did not withhold consent from
being sued. It sued. The BLNR initiated an original proceeding
against the environmental court. A separate case. In this
court. See HRS § 602-5(a)(3) (2016); HRAP Rules 17 (2006) and
45 (2016). The BLNR served the respondents, First Circuit Court
Judge Jeffrey Crabtree, and the Sierra Club. This is not a
proceeding against the state.
We hold that the state waives its sovereign immunity when
it initiates an original action. See People v. Downs, 864 N.E.
2d 320, 323 (Ill. App. Ct. 2007) (“The doctrine of sovereign
immunity bars only actions brought against the State, not
actions brought by the state.”). Thus, if the state initiates
an original action and makes frivolous claims, then it is
subject to reasonable attorney fees.
This court also has the inherent power to issue orders “for
the promotion of justice in matters pending before it.” See HRS
§ 602-5(a)(6). We read what we read. To call the Department of
the Attorney General’s petition intemperate or insolent may
understate its tone. More examples: “whims of the Respondent
Judge”; “The amount of water in East Maui streams is subject to
the Respondent Judge’s uninformed notions of hydrology”; “The
Board and other affected parties are left with no judicial
recourse . . . while Maui burns. . . . [T]hose fighting
wildfires are left hoping the Respondent Judge checks his
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email.” Such statements undermine public trust and confidence
in the judicial process.
HRS § 602-5(a)(6) empowers the Hawaiʻi Supreme Court to
issue orders to advance justice. Rivera, 153 Hawaiʻi at 324, 537
P.3d 1171. An HRS § 602-5 path to recovery of reasonable
attorney fees is also not off limits under circumstances like
these.
V.
We grant the Sierra Club’s motion.
The Sierra Club is entitled to the attorney fees and costs
detailed in counsel’s declaration and the attorney fees and
costs incurred to litigate its motion.
Miranda C. Steed /s/ Mark E. Recktenwald (Julie H. China and Danica L. /s/ Sabrina S. McKenna Swenson on the briefs) for petitioner /s/ Todd W. Eddins /s/ Wendy M. DeWeese David Kimo Frankel for respondent Sierra Club /s/ James S. Kawashima