2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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action; and(3)the feasible action to be taken to reasonably protect native Hawaiian rights if they are found to exist. KaPa'akai at 47. 16. Runoffs from the Hokuli'a project into the adjacent pristine coastal waters polluted the waters. 17. This pollution interfered with members of the public's use and enjoyment of the pristine waters. 18. This pollution affected the marine life immediately after the runoffs. 19. Plaintiffs have proven by a preponderance of the evidence that the State and County Defendants violated their duties as public trustees by not protecting the adjacent coastal waters from pollution. ORDER IT IS HEREBY ORDERED,ADJUDGED AND DECREED: 1. As to Count II, State Defendants,DOH, Bruce Anderson, and State of Hawaii, and County Defendants, Christopher Yuen,Dennis Lee, and County of Hawaii,breached their public trust duty to Plaintiffs and other members of the general public who use or would use the pristine waters off the Hokuli'a property. . . 8-8-03 Order, pp. 12-13, COL Nos.13-19, Order,R at 63: 20534-35. This error was brought to the attention of the Circuit Court in the NOTICE OF SUBMISSION OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE TRIAL ON COUNTS H AND V; EXHIBIT "A" filed September 30, 2002,p. 6, Proposed COL No. 2,R at 42: 14100. Point of Error No. 20-: The Circuit Court erred in ordering injunctive relief in light of the foregoing points of error: "72. Absent a court order, Oceanside will proceed with construction of its agricultural subdivision contrary to state land use requirements,making a prohibitory injunction necessary. 73. Absent a court order,the County Planning Director will continue to grant approvals pursuant to the Development Agreement, and contrary to state land use requirements." Count IV Order,p. 30, COL Nos. 72, 73,R at 66:21413A266. This error was brought to the attention of the Circuit Court in the Memorandum in Support of the County's Motion to Amend 2d Amended Judgment,p. 18,R at 86:27822. Point of Error No. 21 : The Circuit Court erred in awarding attorneys' fees and costs under a Private Attorney General ("PAG')theory, and equally apportioning them between the County and Defendant-Appellee/Cross-Appellant Oceanside: 4. Collectively,the three judgments following the three phases of trial cumulatively enhanced the capability of community residents and groups to insist on the enforcement of their rights as articulated by the Legislature and other laws 24