Bridge’s Tactics in Lawsuit to Force An EIS Characterized as a SLAPP

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Late last year, Bridge `Aina Le`a announced it would be preparing an environmental impact statement for a development planned for some 3,000 acres of land at Puako, on the western side of the island of Hawai`i. Yet for two years, the company strenuously fought in court efforts by a group of citizens to get it to do just that.

The lawsuit was filed in July 2000 by a group of nearby residents and landowners calling themselves Protect Puako. Their complaint alleged that the owner, Bridge Puako (later renamed Bridge `Aina Le`a) had failed to comply with the state’s environmental disclosure laws. Named as defendants were both the landowner and the county of Hawai`i, which had, according to the lawsuit, been remiss in failing to require an environmental assessment or environmental impact statement.

Ultimately, the challenge was deemed untimely: the deadline for contesting the county’s failure in this regard had passed in the early 1990s, when county approvals for rezoning involving infrastructure improvements over public lands were granted. But before the litigation ran its course, Bridge `Aina Le`a had filed a counterclaim against Protect Puako, intimating that the group was in essence a front for the Puako Community Association, which in the early 1990s had reached an agreement with the previous owner of the land, Nansay Hawai`i, to drop challenges to the proposed development in return for assurances that environmental monitoring would take place and that golf courses on the property would adopt management practices that restricted pesticide use and otherwise limited environmental harm.

A review of the record of the litigation in Third Circuit Court in Hilo gives an indication of just how nasty things became. One of Bridge’s representatives, real-estate broker Eugene McCain, sent letters to members of the Puako Community Association threatening to sue them if Protect Puako did not back off. Attorneys for the landowner later admitted McCain’s actions may have been overzealous, yet their own questions posed to people thought to be involved with Protect Puako were characterized by the Protect Puako attorney as intimidating and intended to chill free speech. In January 2001, Bridge `Aina Le`a filed a counterclaim against Protect Puako and a third-party complaint against the Puako Community Association as well.

At one point, the attorney for Protect Puako, Steven Strauss, asked the court for a protective order, “declaring that Protect Puako need not further respond to the document production requests of Bridge Puako” – as Bridge `Aina Le`a was then known – and “staying all discovery in this case.”

“Bridge Puako now seeks written depositions of everyone it believes is supportive of Protect Puako and ask[s] them questions about their finances and contacts… None of this desired information has anything to do with whether state environmental review is required in this case or whether injunctive relief is proper, the only relief sought in Protect Puako’s complaint,” Strauss wrote in a brief filed with the court.

Strauss argued to the judge, Riki May Amano, that the counterclaim amounted to a SLAPP suit. SLAPP stands for strategic lawsuit against public participation, and it is a term that has come into use to describe efforts of corporations to use the court system as a means of intimidating people who, through their involvement in governmental processes, seek to thwart or alter a corporation’s plans. A local representative of the national SLAPP Resource Center, based in Colorado, agreed, and in July 2001 filed an amicus curiae brief with the court, setting forth the many ways in which the Bridge `Aina Le`a counterclaim met the definition of SLAPP..

Judge Amano appointed Hilo attorney Valta Cook to act as a “discovery master” and arbitrate the dispute, but Cook’s determination was not accepted by Strauss, who sought relief, in the form of a writ of mandamus, from the Supreme Court. Filing a brief on behalf of Protect Puako were the national SLAPP Resource Center and Earthjustice, on behalf of Hawai`i’s Thousand Friends.

Long story short: the Supreme Court turned down Strauss on December 5, 2001. A month later, Strauss had withdrawn as Protect Puako’s attorney and Jim Paul, of Honolulu, took over the case. In June, Bridge `Aina Le`a dropped its third-party complaint against the Puako Community Association and counterclaim against Protect Puako. With that, the court entered judgment against Protect Puako on all remaining claims.

Meanwhile, in Guam

Several of the parties involved in the Puako development have brought lawsuits alleging defamation and other damages against people in Guam. The lawsuits stem from efforts by a company owned primarily by John Baldwin, Guam Greyhound, Inc., to win voter approval on a referendum to allow slot machines at Guam’s dog-racing track. According to materials provided to the Land Use Commission, Baldwin is co-owner, with Shawn Scott, of Bridge Capital, which in turn owns Bridge `Aina Le`a.

In 2006, Guam Greyhound launched the first of two efforts to win voter approval of expanded gambling opportunities. Opposed to the referendum was a group calling itself Lina`La Sin Casino (Chamorro for Life Without Casinos), headed by Jacqueline Marati.

Marati and Lina`La Sin Casino distributed a press release describing, among other things, the efforts of Scott to win voter approval for slot-machine gambling in Washington, D.C., in 2004. Under Scott’s plan, his company would keep 75 percent of the revenue, with the remainder going to the district. In 2004, the political action committee that Scott helped finance was fined $622,880 for violations of election laws. Marati and Lina`La Sin Casino erroneously stated that the fine was against Scott.

Within days, Scott’s attorney, Deborah Dietsch-Perez of the Dallas law firm of Lackey Hershman put out a statement to the Guam press, disputing many of the claims made by Marati about Scott, Baldwin, and another party closely involved with Bridge Capital and its subsidiaries, Hoolae Paoa. In August, Dietsch-Perez filed lawsuits against Marati and Lina`La Sin Casino on behalf of Baldwin and Guam Greyhound, in Guam Superior Court, and on behalf of Paoa, in the First Circuit Court of Hawai`i.

Guam Greyhound and Baldwin also sued Dorothy Brizill, a leader of DCWatch, a group opposed to the Washington, D.C. gambling initiatives. Brizill had made statements on a Guam radio program in August 2006 that, Baldwin’s attorneys alleged, repeated the same defamatory statements made by Lina`La Sin Casino.

In 1998, the Guam Legislature passed the Citizens Participation in Government Act, which follows closely language in a model anti-SLAPP statute. Brizill, represented by the ACLU in Washington, D.C., argued that the Guam law made her immune from defamation claims.

In ruling on the case last July, Judge Elizabeth Barrett-Anderson of the Superior Court of Guam agreed with Brizill and granted a motion to dismiss the case. “The Court agrees with the Supreme Court of West Virginia in Webb v. Fury, … in its statement concerning a SLAPP lawsuit, ‘we shudder to think of the chill … were we to allow this lawsuit to proceed. The cost to society in terms of the threat to our liberty and freedom is beyond calculation.’…”

Baldwin’s attorneys have appealed to the Guam Supreme Court, arguing that the Guam anti-SLAPP law is unconstitutional. Baldwin’s and Guam Greyhound’s suit against Marati and her organization is pending, delayed, according to her attorney Anita Arriola, by charges of a conflict of interest on the part of the judge assigned the case. A hearing could well await the Guam Supreme Court’s decision in the Brizill case, she told Environment Hawai`i in a telephone interview.

Arriola is also defending Marati in the case brought by Paoa. Although initially filed in state court in Honolulu, Arriola successfully argued for its removal to U.S. District Court in Honolulu, and, in December 2007, won an order for its removal to federal court in Guam. No hearing date has been set.

— Patricia Tummons

Volume 18, Number 9 March 2008

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