The Sierra Club, a California Non-Profit Corporation Registered to Do Business in the State of Hawaii; Maui…

Summary

The Hawaii Supreme Court held that Act 2 of the 2007 second special session is unconstitutional special legislation under Article XI, section 5 of the Hawaii Constitution because the class it benefits — 'a large capacity ferry vessel company' — is an illusory class of one (Hawaii Superferry): only Superferry existed in the class at enactment, only Superferry held an operating agreement with the State, and Act 2's maximum twenty-one-month viability made future membership realistically impossible. The court first determined that Act 2 exercises legislative power over state lands (section 15 reauthorized Superferry's use of Kahului Harbor lands after the circuit court voided the operating agreement), then applied the Canister two-step analysis together with the Haman/Town of Surprise 'actual probability' standard to conclude the class is illusory, faulting the circuit court for treating Act 2 as constitutional and dismissing Sierra Club's claims as moot. The court also affirmed that Sierra Club was the prevailing party on the principal disputed issue (the HRS chapter 343 environmental assessment requirement) notwithstanding Act 2's mid-litigation change of the applicable law, distinguishing Sole v. Wyner, and began the section confirming that the private attorney general doctrine supports recovery of fees from DOT and Superferry. Justice Nakayama, concurring in part and dissenting in part (joined by Chief Justice Moon), agreed on special legislation, prevailing-party status, and fees against Superferry, but would hold that the fee award against DOT exceeds the scope of the state's sovereign-immunity waiver and requires a further waiver.