Board of Land and Natural Resources v. Crabtree. Petition for Writs of Mandamus and Prohibition, filed 08/09/2023. S.Ct. Order Denying Petition, filed 08/24/2023 [ada].

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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.
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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

enough permitted water to battle the wildfires on Maui this

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

frivolous.”

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

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