Hon. Michael D. Wilson Heads Hawaii's Environmental Court Working Group
Monday, August 17, 2015
Posted by: Joe Libertelli
Hawaii State Supreme Court Associate Justice Michael D. Wilson, '79 was interviewed in the Hawaii Star Advertiser on his role in starting a specialized Hawaiian Environmental Court.
Michael D. Wilson Photo by JAMM AQUINO / JAQUINO@STARADVERTISER.COM
The Hawaii Supreme Court associate justice has taken a leading role in establishing a court
that specializes in Hawaii’s environmental laws
By Shannon Tangonan
POSTED: 01:30 a.m. HST, Aug 14, 2015
Hawaii Supreme Court Associate Justice Michael D. Wilson considers himself lucky to have grown up on the edge of what was known then as “Kawainui Swamp.”
When he was about 18, Wilson joined a group to protect Kawainui Marsh from being drained and developed. He learned from the organization’s leaders how the marsh held religious, cultural and agricultural significance. Today, the marsh is being restored as a recreational area.
Looking back,Wilson views that time as one of the pivotal experiences that fed his passion to protect the environment. He currently heads the Environmental Court Working Group, which
helped implement Hawaii’s new Environmental Court that launched July 1.
Hawaii is the second state in the nation — the first being Vermont — to develop an environmental court. From July 1 to Aug. 1, 119 cases have been heard in Hawaii’s new court, statistics show.
“I really think (the environmental court) is an amazing institution … and I hope that it ends up being something that can help other parts of the country, too,” he said.
Wilson, 62, attended the University of Wisconsin Madison, known internationally for its environmental policy, on a tennis scholarship. He became a professional tennis player for about 1 1/2 years so that he could pay for law school, and later earned his law degree from Antioch College in Washington, D.C.
When he became a trial lawyer, he was involved with the Sandy Beach Initiative. He also was
president of Hawaii’s Thousand Friends, a nonprofit that supports responsible growth. And he served as Gov. Ben Cayetano’s director of the state Department of Land and Natural Resources.
Wilson was sworn in as an associate justice last year, even though the Hawaii State Bar Association voiced concerns about his professionalism and his treatment of women in the workplace.
Wilson said there is always the potential for controversy during confirmation hearings. The
experience, he said, was humbling and “made me really have a tremendous amount of appreciation for Hawaii and the community.”
Question: Could you tell me when the environment became a priority for you?
Answer: When you’re little, growing up in the ocean becomes part of your reality. The fish, the coral, the waves, the challenge of getting tired in the ocean or getting beat up in the ocean from the elements. I was lucky because I grew up on the edge of the largest freshwater marsh in Hawaii, and that is Kawainui Marsh. It’s been formally recognized by the World Heritage Organization. When I was in college, the community organized to try to protect Kawainui Marsh. At that point it was called Kawainui Swamp.
Q: How were you involved?
A: I helped do reports. Reports on what was in the news. Sometimes I would just help to move
equipment in and out of cars. Sometimes I would prepare food. I was just sort of a general assistant. … Are you familiar at all with Kawainui Marsh? It’s been restored as a recreation area. It’s also been recognized for the endangered species of birds … and is the subject of a very organized community group called the Kawainui Marsh Heritage Foundation.
Q: Where did you go to college?
A: I went to college at the University of Wisconsin Madison and I was fortunate to have been given a tennis scholarship. I spent a lot of time playing tennis, played a lot of tennis at Kailua High School and Kailua Intermediate.
Q: Then law school?
A: I chose a law school that was in the middle of Washington, D.C., in the ghetto of Washington, D.C. … At Antioch we were practicing public law that serviced the disadvantaged in Washington, D.C. — the poor, the elderly and the law that would go along with that. … That exposed me to a lot of issues that I was interested in. Civil liberties issues, human rights issues.
Q: When did environmental law come into play?
A: That was an issue that I became involved with as soon as I started practicing law with Brook
(Hart). I had already been involved in the Kawainui Marsh issue and because of the Kawainui Marsh issue, I was contacted by Marilyn Bornhorst, who at that time was a City Councilwoman. … She wanted to put together a nonprofit that would be patterned after a nonprofit in Oregon called
Oregon’s Thousand Friends. Oregon, then as now, was a leader in creating a landuse
policy that included protecting what the people in Oregon thought was their natural resource heritage. … They put together a land use statutory system, but it was new and it required certain land use plans to be developed by different jurisdictions.
(Former Oregon Attorney General) Henry Richmond helped put the land use statutory system together and was concerned that it wasn’t being followed, so he created Oregon’s Thousand Friends and successfully brought lawsuits after leaving the attorney general’s office to enforce this land use system in Oregon. Marilyn Bornhorst was aware of that and with her leadership, we put together Hawaii’s Thousand Friends, (of) which I was the president.
Q: What significant land use issues did the Hawaii’s Thousand Friends focus on?
A: This was when the Sandy Beach Initiative arose. … The question was whether or not housing
development would take place across from Sandy Beach. There had to be a vote on it eventually
because at first the permit was granted for that development and then the community got organized and had the largest election victory in the history of the state because people voted to protect the area. That was something that was real important for me.
Q: When did the notion of an environmental court take shape for you?
A: For me it was four or five years ago, because there was a conference organized on Maui when I
was a Circuit Court judge and I was asked to participate. It was put on by the group that really was
the force behind the environmental court — that’s Jan Dapitan, and she was in charge of a nonprofit, Keep America Beautiful’s chapter in Maui.
So her group was pushing the idea and it took a while; like any new idea in the Legislature, it takes a number of years. In this last legislative session things came together. State Rep. (Chris) Lee and state Sen. (Mike) Gabbard were really wonderful in providing leadership, and the Chief Justice (Mark Recktenwald) helped make it a workable idea.
Q: How did you go about structuring the environmental court?
A: The development of the legislation wasn’t something that I actually participated in, and the folks that did participate, and the reason they put the legislation together the way they did, has a a lot to do with what is happening to our natural resources.
The genesis of that is Jan Dapitan as well as Denise Antolini, professor at the University of Hawaii
law school, who is very aware of what’s happening, broadly speaking, to our environment.
The purpose, and it’s in the statute, is to recognize that we’re facing environmental problems that
need to be addressed that aren’t being addressed, and in order to take care of these very pressing
issues we need to have a court that can address land, air, water, the environment.
Q: Could you give me examples of cases that have come through the court system that would have benefited from being heard in the environmental court?
A: Cases like the Superferry. It was an important court case decided by the Supreme Court that
would have probably started off in environmental court.
Q: What would have been the difference?
A: Hindsight is probably not possible with respect to cases that have already come before the court. The future of the environmental court is anticipated to be one in which there is a consistent gathering of information before judges that will have a history of the subject matter.
That would mean that there would be a level of consistency with respect to technical issues.
Technical issues might pertain to things such as erosion issues; issues dealing with the use or
misuse of resources in parks; misuse in terms of illegal harvesting. It could also involve issues
dealing with improper land use practices, issues that deal with taking of species illegally.
Q: Is there going to be a point where you assess how the environmental court is progressing?
A: It’s the development of a new process and new institution, and consistent with that we have a
working group that will look at operational issues as well as issues having to do with the needs of the judges to handle additional caseloads. To understand the environmental court to me is a process that is a credit to Hawaii.
To understand it I think there are two basic concepts to keep in mind, one of which is our geographic location. We are the most remote land mass on Earth. That implies a lot. It means we need to take care of our resources because we aren’t going to get a lot of help when we are the most remote land mass on Earth.
The importance of us geographically is that we have this identity that is so valuable, and I think it’s an identity that is valid, and that is the ideal environment on Earth. Look at where we are and we can see the weather pattern here is one of the best on Earth. But we don’t share it with a lot of land. …So from a geographic point of view it’s helpful to consider that concept and understand the environmental court because we do have a treasure here.
The second thing to understand is the cultural aspect of it. … Locally, we are connected to the land and the water through an indigenous culture. We’re lucky we have a living indigenous culture in Hawaii that has a beauty to it that we are all proud of. Beauty of connection to the land. Beauty of connection to the ocean. That’s reflected in music, dance, reflected in the knowledge that comes from those that understand the sort of connection to, I guess you could say, a spiritual way of life that comes through the land, comes from connection to the ocean.
… (The environmental court) can be something that really does help us take care of, in a way that is
fair and balanced, help us take care of the core of what makes our lives in Hawaii special.