HANDOUT # 1 COURSE GUIDE & SYLLABUS. Office Hours: Mondays from 9 a.m. till 1 p.m. in 203C, and by phone or appointment.

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1 HANDOUT # 1 ENVIRONMENTAL LITIGATION SEMINAR (Law 529) Professors Lea Hong and Kapua Sproat Spring 2009 Wednesdays 3:30 p.m. 5:10 p.m. SR 3 (3 credits) COURSE GUIDE & SYLLABUS Office Hours: Mondays from 9 a.m. till 1 p.m. in 203C, and by phone or appointment Phone: Professor Hong: Professor Sproat: lea.hong@tpl.org kapuas@hawaii.edu Course Material Reader: An electronic copy of materials excerpted from Axline, Environmental Citizen Suits (Butterworths/Michie, 1995 Supp.), American Law Institute- American Bar Association s Continuing Legal Education on Environmental Litigation (2008), and other sources will be provided. Other References: (1) Selected Environmental Law Statutes, Edition (West). This is an excellent reference for the major federal statutes; highly recommended for any student pursuing environmental law practice. (Can be ordered online or through the UH Bookstore). (2) Frankel, Protecting Paradise: A Citizen s Guide to Land & Water Use Controls in Hawai i (1997) (available from Sierra Club). Written by WSRSL graduate David Frankel (former Executive Director of the Hawai i Chapter of the Sierra Club), this guidebook provides a roadmap to Hawai i s environmental laws. (3) Joyce, Hawai i Environmental Law Handbook (3d ed 2000). From the perspective of a private corporate practitioner, this handbook is an excellent reference to Hawai i s environmental laws. (Order privately; approx. $100). (4) Jarman, Making Your Voice Count: A Citizen Guide to Contested Case Hearings (2002). Written to assist members of the public in administrative hearings. (Available from ELP).

2 Course Introduction & Objectives Welcome to Environmental Litigation Seminar! Environmental law is one of the most dynamic and exciting legal fields in Hawai`i and around the world. It is also an important part of the Law School s mission statement and curriculum, as well as the foundation for our Environmental Law Program. The issues involved in environmental law are important, complex, and often high-profile. Lawyers in the government, private, and public interest sectors who specialize in this area are often in great demand throughout the country, and are increasingly active in the Hawai`i bar. This course is designed both for students who may want to practice law in this area, and for those who simply want to learn more about exciting and challenging legal issues. This seminar, which focuses on environmental litigation, and citizens suits in particular, will be a practical, lively course that synthesizes statutory and case analysis, legal research, writing, oral advocacy, lawyering skills, topical environmental issues, and legal strategy. Students who participate actively in the course will: (1) acquire substantive knowledge and practical legal training in a vital area of environmental law, specifically environmental enforcement and citizen suit litigation and defenses to such suits; (2) gain advanced insight into the realities of the adjudicatory process and strategic litigation, applicable to all types of public interest and environmental litigation; and (3) learn about the ins-and-outs of the federal and state litigation process, from both substantive legal and practical perspectives. The first-year course in civil procedure is a fundamental building block for this course. It is also recommended, but not required, that students have taken environmental law, administrative law, federal courts, and evidence. Our course work will focus on the many procedural issues common to the major federal and state environmental laws, and require you to apply to specific factual settings some important provisions of three federal laws: (1) the federal endangered species act; (2) the federal environmental policy act (the impact statement law); and (3) the federal clean water act. A primary emphasis will be learning how federal (and to a lesser extent, state) laws apply to past and current environmental controversies in Hawai`i and beyond. For this course, we expect every student to (1) read and think carefully about each assignment; (2) attend each class, arrive punctually, and not leave early; (3) participate actively in class discussions; and (4) complete all the written and oral assignments. Timely attendance and class participation are required. If a student has more than two unexcused absences, fails to participate in class, or is habitually tardy, the student s final grade may be reduced. A sign-in sheet will be circulated for each class; it is each student s responsibility to sign in. In addition, each student should regularly check his or her and MyUH for notices regarding this class and assignments. Because class meets only once a week and the assignments are dynamic, expect important communications via from time to time. Reading assignments may be modified throughout the semester in response to the pace of the class and extenuating circumstances. Generally, however, we will adhere to the syllabus. Occasionally, we will have guest lecturers come to class, and we hope to 2

3 have one site visit. This may require us to modify our schedule. We will give you as much advance warning as possible of any schedule changes. There is no final examination in this class. There are four components to a student s final grade for this class, weighted as follows: (1) 60-Day Notice Letter 30% (2) Motion for Summary Judgment 30% (Draft 15%, Final 15%) (3) Oral Argument 20% (10% Practice, 10% Final) (4) Class Participation and Other Assignments 20% The assignments will require knowledge of the range of procedural issues discussed in your readings and in class, as well as significant original research. The assignments are designed to simulate real practice and to allow you to acquire substantive knowledge of one or more important environmental laws. As real lawyers would do in preparing a brief or for oral argument, you should learn from the analysis and research (good or otherwise) of your classmates. We expect you to work cooperatively with other students in the class, not just those on your side of an issue, but opposing counsel as well. Civility and cooperation are critical lawyering skills. To enhance this group learning process, you may be asked to share copies of your written assignments with other students. Of course, any written work must be your own and may not be written or edited by anyone else. A final note: This is not an easy class. Most students generally find it challenging due to the amount of outside reading and research required. However, if you are interested in learning what strategic public interest litigation is really like, you should find the work rewarding and FUN! We look forward to working with all of you this semester! 3

4 1. Class #1 (Jan. 21) SYLLABUS SPRING 2009 *exercises and readings subject to modification Introduction to the Course and Citizen Suits Reading: Origin of Citizen Suits/Expansion of Standing (Axline, Ch. 1) Citizen Suits and Defenses Against Them (Lloyd, pp. 3-7) Strategies for Prosecuting and Defending C/S (Axline, Ch. 9) Ethical Considerations (Axline, pp thru 10-8) 2. Class #2 (Jan. 28) Forum and Venue Introduction to the Endangered Species Act Reading: Forum and Venue (Axline, Ch. 2, except 2.06, pp to 2-16) Endangered Species (Evolution of National Wildlife Law, Ch. 7) Forum and Venue Examples: a. Hīhīwai Stream Restoration Coalition v. Browner, Civil No , Complaint (pp. 1-3 only) b. Sierra Club v. City and County of Honolulu, Civil No , Complaint (pp. 1-5 only) 3. Class #3 (Feb. 4) Review relevant state and federal provisions regarding venue and jurisdiction, including: Haw. Const. Art. XI, 9; Haw. Rev. Stat (HEPA jurisdiction); (general jurisdiction); (declaratory relief actions jurisdiction); (injunctive relief jurisdiction); (state venue); 28 U.S.C.A (federal question jurisdiction); 28 U.S.C.A (federal declaratory judgments); 16 U.S.C.A (ESA jurisdiction, venue and citizen suits); and 33 U.S.C.A (citizen suits) (access via Westlaw or Lexis). Discovery, FOIA & UIPA Endangered Species Science & Policy Reading: Discovery (Axline, Ch. 3) Discovery, FOIA & UIPA Examples: a. Freedom of Information Act Request re SURTASS/LFA, dated September 10, 1998 and December 1, 1998 b. Uniform Information Practices Act Request re TMDLs dated August 20, 2001 c. UIPA Request Form d. Hïhïwai Stream Restoration Coalition v. Browner, Civil No , Plaintiff s Statement of Appeal from 4

5 Magistrate Judge s Order Denying Plaintiff s Motion to Supplement the Administrative Record e. OHA v. O Keefe, Civil No , Plaintiff s Memorandum In Opposition to Federal Defendants Motion to Strike Review the federal Freedom of Information Act (5 U.S.C. 552 et seq.) and Hawai`i s Uniform Information Practices Act (Ch. 92F) (download from Lexis or Westlaw) Assignment A: Research and present to class information on a Hawai`i threatened or endangered species. 4. Class #4 (Feb. 11) Notice and Standing Reading: Notice (Lloyd (from Class #1), pp ) Standing and Rights of Action in Environmental Litigation (Beers) Notice & Standing Examples: a. 40 C.F.R. Part 135(A), Prior Notice of Citizen Suit Under the Clean Water Act b. `Alalä Complaint (pp only) c. Sierra Club v. City and County of Honolulu, Civil No , Complaint (pp. 5-8 only) d. Hīhīwai Stream Restoration Coalition v. Browner, Civil No , Declaration of T. Kaipo Faris Sierra Club v. The Department of Transportation of the State of Hawai`i, 115 Hawai`i 299, 167 P.3d 292 (2007) (available on Westlaw or Lexis) 5. Class #5 (Feb. 18) Defendants Strategies Writing Client Memos and 60-Day Notice Letters Reading: Defendants Strategy (re-read Axline, Ch. 9, pp thru 9-12 from Class #1) 60-Day Notice Examples: a. 60-Day Notice Letter re Ten Endangered Plant Taxa, February 11, 1999 b. 60-Day Notice Letter re Meadow Gold Dairy s Clean Water Act Violations, February 10, 2000 c. 60-Day Notice Letter re City and County of Honolulu s Clean Water Act Violations, May 4, 2004 Assignment B: 60-Day Notice Letter Due by midnight on March 6,

6 6. Class #6 (Feb. 25) Intervention and Diligent Prosecution More on Writing Client Memos and 60-Day Notice Letters Reading: Intervention and Diligent Prosecution (Axline, Ch. 5 and Ch. 6, pp thru 6-20 only) Intervention and Diligent Prosecution (Lloyd (from Class #1), pp ) Clean Water Act Diligent Prosecution Handout Knee Deep Cattle Co., Inc. v. Bindana Investment Co., Ltd., 94 F.3d 514 (9 th Cir. 1996) Intervention & Diligent Prosecution Examples: a. State fines Meadow Gold Diary $80,000 in sewage spill, Honolulu Star-Bulletin, August 16, 1991 b. State of Hawai`i v. Meadow Gold Dairies, Civil No , Memorandum in Support of Sierra Club/Surfrider Foundation s Motion to Intervene, March 23, Class #7 (Mar. 4) Reading: Deadline: Exhaustion, Primary Jurisdiction, Laches, Statutes of Limitations Exhaustion, Primary Jurisdiction, Laches, Statutes of Limitations (Axline, Ch. 6, pp thru 6-60) Mootness and Ripeness (Axline, Ch. 6, pp thru 6-45) Mootness & Ripeness (Lloyd (from Class #1), pp ) a. Blue Ocean Preservation Society v. Energy Department, 745 F.Supp (D. Haw. 1991) Assignment B: 60-Day Notice Letter Due by midnight on March 6, Class #8 (Mar. 11) Writing Motions for Summary Judgment Reading: Motion for Summary Judgment Unit (Assignments C & D) Local Rules 7.4, 7.5, 7.6, 56.1, Rules of the United States District Court of the District of Hawai`i (eff. 2003) Gregory J. Wallace, Summary Judgment: Lasting Lessons of the Trilogy, The Litigation Manual (Pretrial) 99 (1999) Mark Herrmann, From the Partner, Litigation, Fall 1998, at 8 Assignment C: Motion for Summary Judgment First Draft Due by midnight on March 20,

7 9. Class #9 (Mar. 18) Remedies and Injunctions Reading: Deadline: Remedies and Injunctions (Axline, Ch. 7 and Appendix N ) Remedy & Injunction Examples: a. Hawai i Thousand Friends v. City and County of Honolulu [Enchanted Lakes Pump Station], Civil No DAE, Order Approving and Entering Consent Decree b. U.S. EPA, Interim Clean Water Act Settlement Penalty Policy, March 1, 1995 Assignment C: First Draft of Motion for Summary Judgment Due by midnight on March 20, 2009 [March is Spring Break] 10. Class #10 (Apr. 1) Attorneys Fees and Costs More on Writing Motions for Summary Judgment Reading: Attorneys Fees and Costs (Axline, Ch. 8) Attorneys Fees & Costs Examples: a. Blue Ocean Preservation Society v. James D. Watkins, Civil No DAE, Order Awarding Attorneys Fees and Costs b. Local Rule 54.3, Rules of the United States District Court for the District of Hawai i c. Center for Biological Diversity v. Pirie, Civil No (EGS), Plaintiff s Amended Motion For An Award Of Attorneys Fees, Costs and Expenses Review relevant state provisions regarding attorneys fees and costs, including: Haw. Rev. Stat Class #11 (April 8) State Law (Ch. 343) More on Writing Motions for Summary Judgment Reading: State Law (Axline, Ch. 4) Little NEPAs and Their Environmental Impact Assessment Processes (Sive and Chertok) NEPA in the Courts (Cohen et al.) Assignment D: Motion for Summary Judgment Final Draft Due by midnight on April 20, 2009 (in two weeks) 7

8 12. Class #12 (Apr. 15) Oral Argument: Approaches and Techniques Reading: Oral Argument Unit (Assignment F) a. Kenneth R. Berman, Snatching Victory: Arguing to Win, Litigation (Winter 1995), pp b. John K. Larkins, Jr., Oral Argument on Motions, The Litigation Manual Pretrial 107 (1999) c. Michael R. Fontham et al., Preparing for Oral Argument and Presenting the Oral Argument Persuasive Written and Oral Advocacy, Ch. 6-7 (2002) Deadline: Assignment D: Final Draft of Motion for Summary Judgment Due by midnight on April 20, Classes #13 & 14 (Apr. 22) Assignment F: Oral Argument (time and place to be announced) 14. Class #15 to be scheduled (site visit) 8