Continuing the firm’s tradition of high-level appellate advocacy, Damon Key attorneys Robert H. Thomas, Mark M. Murakami and Christi-Anne H. Kudo Chock recently filed two friend-of-the-court briefs in the U.S. Supreme Court involving complex constitutional, maritime and environmental issues.
In the first case, Winter v. Natural Resources Defense Council, the Supreme Court struck down an injunction which restricted the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the Southern California coast.
In August, Robert, Mark, and Christi-Anne filed a brief amicus curiae on behalf of several military service organizations including the Navy League, the Military Affairs Council of the Chamber of Commerce of Hawai‘i, and the Southwest Defense Alliance. The brief outlined the views of nine retired Admirals that the Navy’s judgment on how it trains its sonar operators should be respected. The brief highlighted the over 300 years of naval service by the Admirals, and their reasons why the injunction, poses a grave threat to national security and the men and women in the U.S. Navy. The Navy uses MFA sonar -- which transmits sound and listens for a reflection from the target -- to hunt for quiet diesel-electric submarines. These submarines are designed to avoid detection by other types of sonar, and are employed by Iran, North Korea, and China, among others. Several recent incidents illustrate the danger: in late 2006 near Okinawa, a Chinese diesel-electric attack submarine was not detected by the Kitty Hawk Carrier Strike Group until it surfaced within torpedo range. In November 2007, the same battle group was “shadowed” by a submarine in the Taiwan Strait prompting a confrontational standoff for twenty-eight hours.
MFA sonar unfortunately may injure marine mammals in some cases, even though there has not been a single document instance of such injury in the Southern California training area. After consultation with other federal agencies, the Navy concluded that the use of MFA sonar with certain self-imposed mitigation measures would not have a significant impact on the environment. The California federal court, however, restricted the Navy’s training with MFA sonar, until the Navy completed an Environmental Impact Statement because of the possible threat to marine mammals such as whales, dolphins, and seals. The injunction prevented the Navy from qualifying at least one Strike Group prior to deployment.
On November 12, the Supreme Court, in a 7-2 decision, agreed with the Navy and the brief filed by Damon Key that judges should not lightly second guess commanders’ judgment on how to train for deployment, and struck down the restrictions.
Closer to home, these same attorneys filed a brief on behalf the Ocean Tourism Coalition, a non-profit trade group in UFO Chuting, Inc. v. Smith, another case pending in the U.S. Supreme Court. That case involves the State of Hawai‘i’s attempt to ban parasailing in the waters off Maui for five months per year. A parasailing company sued the State in federal court, arguing the ban was unconstitutional because it interfered with federally-protected navigation. Although the court initially agreed and struck down the ban, the court reversed itself and dismissed the case after Hawaii’s congressional delegation attached a rider to an omnibus budget bill that seemed to allow the State to regulate in this area.
The Ocean Tourism Coalition’s amicus brief urges the Supreme Court to review the dismissal, and points out that states are prohibited under the Constitution’s commerce clause from enacting regulations that interfere with the free movement of commerce and navigation. The State of Hawai‘i’s and the federal government’s responses are due in early October, and the Supreme Court will decide whether to review the case in late 2008.
Damon Key has a long history of high-stakes appellate litigation in the Hawai‘i courts of appeals, as well as in the federal Ninth Circuit and the U.S. Supreme Court. Perhaps the firm’s most famous appellate victory was in Kaiser Aetna v. United States, 444 U.S. 164 (1979), where Charlie Bocken and Diane Hastert won a Supreme Court case that protected the private nature of Hawai‘i Kai Marina, and overturned one hundred years of law giving the army Corps of Engineers nearly unfettered ability to take private waterways.
