Petition

Sierra Club Original Petition

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NO.

IN THE SUPREME COURT OF THE STATE OF HAWAII

SIERRA CLUB, a California non-profit ) ORIGINAL PROCEEDING

CORPORATION, )

)

Petitioner, )

)

vs. )

)

HAWAII TOURISM AUTHORITY, by and )

through its BOARD OF DIRECTORS and )

SHARI W. CHANG in her official )

capacity as Chairperson of the BOARD )

OF DIRECTORS OF THE HAWAII )

TOURISM AUTHORITY, )

)

Respondent. )

)

misc/sierrapet

PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF

CERTIFICATE OF SERVICE

ISAAC HALL #2238-0

2087 Wells Street

Wailuku, Hawaii 96793

Telephone: (808) 244-9017

Attorney for Petitioner

The Sierra Club

PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF

Petitioner THE SIERRA CLUB, a California non-profit corporation, (“Petitioner”), for cause of action against Respondents THE HAWAII TOURISM AUTHORITY and SHARI W. CHANG (“Respondents”), alleges as follows:

I. INTRODUCTION

1. Petitioner THE SIERRA CLUB files this original proceeding to challenge the action of Respondents THE HAWAII TOURISM AUTHORITY, by and through its Board of Directors, and CHANG in approving the expenditure of $114 million of state funds during the years 2000 - 2002 for advertising and marketing services to bring more mainland and international visitors to all of the major islands constituting the State of Hawaii, without first preparing an Environmental Assessment required by HRS Chapter 343, Hawaii’s Environmental Impact Statement statute (“HEPA”).

2. The expenditure of state funds for this state action triggered the requirement for the preparation of an Environmental Assessment. No exemption was claimed or, in any event, is applicable, as a matter of fact or law.

3. The actions of Respondent THE HAWAII TOURISM AUTHORITY, a newly created state agency, in expending state funds in domestic and foreign locales bringing more visitors to all of the major islands in the State of Hawaii will cause both significant economic benefits as well as significant adverse environmental, ecological and social impacts, including but not limited to overburdening coastal resources such as beaches and beach parks, overburdening the public infrastructure, including roadways and water resources, and threatening all of the major islands with an increased rate of alien species introductions, which have not yet been mitigated, among other significant adverse impacts.

4. This case is filed as an original proceeding in the Hawaii Supreme Court because the Hawaii Legislature, in HRS Chapter 201B-15, has provided that in any action or proceeding to which Respondent THE HAWAII TOURISM AUTHORITY may be a party or in which any question arises as to the validity of any action of Respondent THE HAWAII TOURISM AUTHORITY may be filed in the Supreme Court of the State, which Court is hereby vested with original jurisdiction over the action.

II. JURISDICTION AND VENUE

5. Jurisdiction over this matter is originally with the Supreme Court of the State of Hawaii pursuant to HRS Chapter 201B-15 and HRS §602-5(4).

6. Jurisdiction, standing and a cause of action are conferred, as well, pursuant to the Hawaii State Constitution, Article XI, §9; HRS §607-25, HRS 632-1, et seq. and HRS §343-7(a).

7. Venue is not at issue in this case.

III. PARTIES

A. Petitioner

8. Petitioner THE SIERRA CLUB is a California non-profit corporation, registered to do business in the State of Hawaii, with its principal place of business in Hawaii at 800 South Beretania Street, Suite 260, Honolulu HI 96813.

B. Respondents

9. Respondent the HAWAII TOURISM AUTHORITY is an “agency” or “public instrumentality” of the State, pursuant to HRS §201B-2, the Board of Directors for which may sue and be sued, pursuant to HRS §201B-3(1). For administrative purposes only, Respondent THE HAWAII TOURISM AUTHORITY is placed within the Department of Business, Economic Development and Tourism, State of Hawaii, pursuant to HRS §201B-2(a).

10. Respondent SHARI W. CHANG is the Chairperson of THE BOARD OF DIRECTORS OF THE HAWAII TOURISM AUTHORITY and is sued here in her official capacity.

IV. STANDING

11. Petitioner THE SIERRA CLUB is a national conservation organization with approximately 610,876 members, of which 3,697 reside in the State of Hawaii. The general purposes of THE SIERRA CLUB in Hawaii include: supporting actions to protect Hawaii’s land and water resources from environmentally damaging and other inappropriate uses; promoting full disclosure, to the extent permitted by law, of the impacts of developments or actions; and promoting the mitigation of adverse impacts on the social and natural environment through the environmental disclosure process. SIERRA CLUB is also committed to maintenance of responsible planning through proper application of Hawaii’s environmental laws.

12. Petitioners have been harmed by Respondents’ failure to prepare an EA because some of the members of Petitioner reside in areas within the State within which the adverse impacts that will be generated by the proposed project will be experienced; some are residents who will be harmed or inconvenienced because the necessary physical infrastructure is not available to accommodate the additional people, cars and traffic, for example; some are concerned about the impacts caused by increasing demands on freshwater supplies and electricity consumption; some are concerned with the increased introduction of pests resulting from the project; and members of Petitioner also include users of shoreline, ocean and recreational areas, whose uses of these areas will be negatively affected by this project.

13. Members, supporters, and donors of the Petitioner reside on the major islands within the State and use and enjoy its lands, forests, recreation areas, beaches and coastal waters. Their interests encompass a variety of economic, educational, cultural, religious, aesthetic, scientific, environmental, health and recreational uses of the areas directly and indirectly affected by this project, including but not limited to residential uses, religious and cultural practices, business operations, educational, recreational and scientific activities.

14. Respondents’ unlawful actions directly, immediately and adversely affect Petitioner’s organizational interests, and its members' use and enjoyment of the land, air and waters will be impaired.

15. The failure to prepare an EA creates the risk that decision-makers cannot expect to have the full consideration and analysis needed to make decisions and, as such, their decisions will be uninformed and will adversely affect the Petitioner, whose protectable interests, within the scope of the law, are described above.

16. The failure to prepare an EA creates a risk that serious environmental impacts will be overlooked.

17. The failure to prepare an EA adversely affects Petitioner’s public participation rights in that Petitioner has been and will be frustrated in its ability to participate in the debate and decision-making over the Respondents’ program.

V. GENERAL FACTUAL ALLEGATIONS

18. Respondent THE HAWAII TOURISM AUTHORITY is an “agency” as that term is defined in HRS §343-2.

19. HRS §343-5(b) requires that whenever an agency proposes an action, of the types listed in HRS §343-5(a), which is not a specific type of action declared exempt, that agency shall prepare an Environmental Assessment (“EA”) for such action at the earliest practicable time to determine whether an Environmental Impact Statement shall be required.

20. One of the types of actions triggering the requirement for the preparation of an EA is a proposed use of state funds. See HRS §343-5(1).

21. An “action” is defined as “any program or project to be initiated by any agency or applicant.” See HRS §343-2.

22. Such an “action” must have been approved, adopted or funded by the “agency,” pursuant to HRS §343-5(a)(1) and HRS §343-5(b).

23. Respondent THE HAWAII TOURISM AUTHORITY receives and expends funds deriving from the State transient accommodations tax, among other possible sources of revenues, constituting “State funds.”

24. At some time before September 15, 1999, Respondent THE HAWAII TOURISM AUTHORITY prepared and published a Request for Proposals to enter into a contract with a contractor to handle integrated tourism marketing services for the State of Hawaii for the years 2000 to 2002.

25. This was the first time that there had been an open bidding process for a contractor to handle integrated tourism marketing services for the State of Hawaii.

26. Three proposals had been received by Respondent THE HAWAII TOURISM AUTHORITY in response to the Request for Proposals, which called for meetings, conventions and incentives markets, prior to the termination date of September 13, 1999 for the receipt of Proposals.

27. On September 15, 1999, THE HAWAII TOURISM AUTHORITY, through its Board of Directors, conducted a regular meeting in Honolulu, Hawaii.

28. During the regular meeting conducted on September 15, 1999, Respondent THE HAWAII TOURISM AUTHORITY approved a new and independent contract to hire the Hawaii Visitors and Convention Bureau as Respondent THE HAWAII TOURISM AUTHORITY’s tourism marketing contractor, subject to successful contract negotiations.

29. The contract approved on September 15, 1999 authorizes the expenditure of $114 million in state funds for the years 2000 to 2002 for meetings, conventions and incentives markets both on the mainland and in foreign locations, primarily Japan, to bring more tourists to all of the major islands constituting the State of Hawaii.

30. In 1997, before Respondent THE HAWAII TOURISM AUTHORITY was created, the State of Hawaii expended $10 million for an emergency advertising campaign, $4 million of which was spent in the United States and $6 million of which was spent in Japan.

31. A study was prepared by Longwoods International on the economic impacts of this emergency advertising campaign which concluded that this expenditure of $10 million brought more than 800,000 visitors from the United States mainland and Japan to Hawaii.

32. The Longwood study determined that the incremental expenditure of $4 million influenced an estimated 496,000 additional visits from the mainland in 1998 and 1999, which visitors spent an estimated $807 million, that in turn produced $59 million in tax revenue for the State of Hawaii.

33. The Longwood study determined that the $6 million expenditure in Japan influenced an additional 314,000 trips over the two-year period following the campaign from Japan. These Japanese visitors spent an estimated $492 million resulting in an additional $36 million for the State tax revenues.

34. It is probable that the expenditure of $114 million in State funds over three years in the United States and in Japan, and other international locales, will result in like increases in the number of tourists visiting the major islands constituting the State of Hawaii.

35. While the economic benefits which may be derived from the expenditure of these State funds have been established, the countervailing environmental, ecological and social adverse impacts caused by an increased number of visitors were not addressed by Respondent THE HAWAII TOURISM AUTHORITY at any time before, on or after September 15, 1999.

36. The expenditure of these State funds in the manner provided above has the direct impact of increasing the number of visitors to the State of Hawaii and also has the direct and/or indirect impact of inducing more airline flights from new and/or more distant points of origin, both domestic and international, which will increase the rate of alien species introductions within this State, unless appropriate mitigation measures are fashioned, funded and fully implemented.

37. An increased rate of alien species introductions on all of the major islands constituting the State of Hawaii has a devastating impact upon Hawaii’s agricultural industry, Hawaii’s watersheds, relied upon for public drinking water sources, Hawaii’s eco-systems, Hawaii’s parks, Hawaii’s endangered species, Hawaii’s public health and Hawaii’s tourism economy.

38. An increased number of visitors will have the direct or indirect impact of increasing the crowding of beaches and other recreational areas, traffic, water use and electrical consumption.

VI. CAUSE OF ACTION: Failure to Prepare an Environmental Assessment

39. Petitioner hereby realleges and incorporates by reference the allegations contained within paragraphs 1 through 38 of this Petition.

40. One of the important legislative purposes of Hawaii’s Environmental Impact Statement law is “to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations.” See HRS §343-1.

41. The expenditure of State funds for advertising and marketing services, including but not limited to, meetings, conventions and incentives markets on the mainland and in foreign countries, constitutes an agency action, which was approved or authorized on September 15, 1999.

42. On September 15, 1999, Respondent THE HAWAII TOURISM AUTHORITY approved, adopted or funded an action to expend $114 million in State funds.

43. The contract has either been executed or will be executed imminently, authorizing the expenditure of State funds on this agency action, and State funds are either now being expended or will be expended imminently on this project.

44. The “action” was and is the program or project initiated by Respondent THE HAWAII TOURISM AUTHORITY to expend $114 million in State funds on the mainland and in foreign countries for advertising and marketing services to cause more visitors to travel to all of the major islands constituting the State of Hawaii.

45. Agencies must prepare Environmental Assessments, when required, at the earliest practicable time. HRS §343-5(b).

46. By virtue of the requirement that an Environmental Assessment, when required, must be prepared at the “earliest practicable time” and the requirement that environmental concerns must be given appropriate consideration in decision-making along with economic and technical considerations, the Environmental Assessment was required to be prepared at least before approving, on September 15, 1999, the expenditure of $114 million in State funds to bring more visitors to Hawaii.

47. The Minutes of the meeting of Respondent THE HAWAII TOURISM AUTHORITY on September 15, 1999 do not indicate that environmental concerns were given appropriate consideration through the availability of an Environmental Assessment and these Minutes do not indicate that Respondent THE HAWAII TOURISM AUTHORITY considered whether an Environmental Assessment was necessary or whether the proposed action was exempt from the Environmental Assessment requirement.

48. There is no evidence that Respondent THE HAWAII TOURISM AUTHORITY ever made any formal determination that an Environmental Assessment or an Environmental Impact Statement was or was not required prior to carrying out or approving the action on September 15, 1999.

49. No exemption was ever claimed by Respondent THE HAWAII TOURISM AUTHORITY.

50. No exemption is applicable, in any event, as a matter of fact or law.

51. There is no evidence that Respondent THE HAWAII TOURISM AUTHORITY prepared an “exemption notice” as defined in HAR §11-200-2.

52. Neither Respondent THE HAWAII TOURISM AUTHORITY nor the Department of Business, Economic Development and Tourism, State of Hawaii, have filed exemption lists with the Environmental Council or the Office of Environmental Quality Control, State of Hawaii.

53. There is no evidence in records maintained by Respondent THE HAWAII TOURISM AUTHORITY that it has found this action to be exempt from the requirements for the preparation of an Environmental Assessment.

54. Claims of exemptions may not be made at a later time to attempt to compensate for the lack of the entry of an “exemption notice” and for the failure to maintain any “exemption notice” in the records of the agency, here Respondent THE HAWAII TOURISM AUTHORITY.

55. An Environmental Assessment was and is required as a matter of law and fact.

56. The preparation of any required environmental documents, pursuant to Chapter 343, is a precondition to the implementation of any action or the expenditure of any State funds on that action.

57. Because Respondent THE HAWAII TOURISM AUTHORITY has not prepared an Environmental Assessment for its action expending State funds, it must be prohibited from implementing the proposed action and/or from expending any of the $114 million in State funds until and unless this precondition is satisfied and all documents required pursuant to Chapter 343 have been prepared in an adequate fashion.

58. This original proceeding has been timely filed.

59. Petitioner intends to promptly file a Motion for Summary Judgment, or some other dispositive motion as may be appropriate under these circumstances.

VII. PRAYER FOR RELIEF

WHEREFORE, Petitioner prays for relief as follows:

A. That the Hawaii Supreme Court, in this original action, enter the declaratory relief against Respondents THE HAWAII TOURISM AUTHORITY and CHANG which follows:

1. Respondent THE HAWAII TOURISM AUTHORITY is a State agency;

2. Respondent THE HAWAII TOURISM AUTHORITY must comply with the requirements of HRS Chapter 343 and the regulations promulgated thereunder.

3. The expenditure of $114 million in State funds for tourism marketing services for the State of Hawaii both on the continental United States and in foreign countries for meetings, conventions and incentives markets to induce more visitors to travel to all of the major islands in the State of Hawaii is an “agency action” and is a “program or project” initiated by an agency.

4. Respondent THE HAWAII TOURISM AUTHORITY approved, adopted or funded this program or project on September 15, 1999.

5. Respondent THE HAWAII TOURISM AUTHORITY did not determine that any exemption was available through the entry of an “exemption notice,” which document was to be maintained in its public records and made available for public review.

6. Respondent THE HAWAII TOURISM AUTHORITY failed to require the preparation of an Environmental Assessment.

7. Respondent THE HAWAII TOURISM AUTHORITY is now implementing and expending State funds, in violation of Chapter 343, without the preparation of a required Environmental Assessment.

8. Respondent THE HAWAII TOURISM AUTHORITY is violating one of the essential purposes of HRS Chapter 343 which is to insure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations.

B. That this Court enter an Order requiring Respondents to prepare an Environmental Assessment.

C. For a mandatory injunction that orders the Respondents, and their employees, agents, servants, and representatives, and any other persons acting in concert with them, either to abandon the proposed project or to prepare an EA that fully complies with Chapter 343;

D. For issuance of a temporary restraining order, preliminary injunction, and permanent injunction against the Respondents, and their employees, agents, servants, and representatives, and any other persons acting in concert with them, restraining them from proceeding with the proposed action or from expending any State funds or from selecting any alternative studies or filing or pursuing applications for approvals, until full compliance with Chapter 343 is achieved and an acceptable EA is prepared;

E. For the Court to retain continuing jurisdiction to review the Respondents’ compliance with all judgments and orders issued herein;

F. For such additional judicial determinations as are necessary to effectuate the foregoing;

G. That this Court grant Petitioner its costs of suit, including reasonable expert witness and attorneys fees and expenses; and

H. That this Court grant such other and further relief as it shall deem just and proper.

Dated: Wailuku, Maui, Hawaii

Isaac Hall

Attorney for Petitioner

The Sierra Club

VERIFICATION

STATE OF HAWAII )

) SS

CITY AND COUNTY OF HONOLULU )

Plaintiff Jeffrey Mikulina, being first duly sworn upon his oath, deposes and says that he has read the allegations set forth in the Petition for Declaratory and Injunctive Relief and that they are, to the best of his knowledge, true and correct.

Jeffrey Mikulina

Director, The Sierra Club

State of Hawaii

Chapter

STATE OF HAWAII )

) SS

CITY AND COUNTY OF HONOLULU )

On this day of , 2000, before me personally appeared Jeffrey Mikulina, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed.

Notary Public, First Judicial Circuit

Name of Notary:

State of Hawaii

My commission expires: