A nonprofit preservation group that helped save Irwin Park from becoming a parking garage more than a decade ago will receive more than $135,000 in attorney fees and costs from the state.

The Hawaii Supreme Court upheld an award for legal expenses to Scenic Hawaii earlier this year for successfully opposing a court bid by Aloha Tower Development Corp. to allow the construction of the two-level garage at the downtown park near Aloha Tower.

The high court granted the award under the private attorney general doctrine that allows groups to recoup their legal expenses for prevailing in litigation on behalf of the public.

The doctrine is an exception to the general rule that each side in civil litigation bears its own legal expenses.

The high court’s ruling, according to Scenic Hawaii attorney John Hoshibata, expanded the doctrine.

The first time the justices approved an award under that doctrine was in their landmark 2009 decision striking down a state law that sought to clear the way for the Hawaii Superferry.

But when Scenic Hawaii filed its court opposition in 2001, the group did not know that it would be able to recover any fees.

The organization, however, felt the preservation of the park was important enough to risk waging the costly and lengthy court battle.

"If there was no resistance, I really believe we would be looking at a parking (garage) at Irwin Park," John Whalen, one of the founders of Scenic Hawaii, said.

Whalen said with the money from the award, Scenic Hawaii will continue to seek to preserve the park.

He said the group has already written to Hawaii Pacific University offering support and assistance in restoring the area.

The park currently features tree-lined parking stalls and grassy areas.

Three-year wait

The park was created when Helene Irwin Fagan, daughter of William Irwin, a sugar planter and philanthropist, donated land to the Territory of Hawaii in 1930 on condition that it create and maintain it as a public park.

The parking stalls were placed there under emergency war power laws during World War II but never removed, according to Whalen.

The park was placed on the state Register of Historic Places in 1999. Two years later, the state’s ATDC sought to eliminate the condition for a public park to clear the way for the garage.

Scenic Hawaii and four other nonprofit preservation organizations, including The Outdoor Circle and Life of the Land, intervened and opposed ATDC’s request.

Circuit Judge Gary Chang denied the request in 2002, issued a written ruling in 2008 and awarded $135,637 in fees and costs in 2010 to Scenic Hawaii, the lead preservation organization responsible for paying for their lawyer.

The state appealed the award, warning that applying the doctrine liberally will "dramatically" increase costs to taxpayers.

State attorneys said the state has hundreds of pending cases in litigation. The doctrine, they said, should only be applied in "exceptional" cases.

Last year, the Intermediate Court of Appeals reversed the award.

But in its unanimous ruling issued in August, the Hawaii Supreme Court found that the doctrine applied in the case.

The 32-page opinion written by Associate Justice Simeon Acoba held that the court case "vindicated the important public policy of preserving public parks and historic sites."

It also said Scenic Hawaii’s early intervention in the case was essential in view of ATDC’s bid to revoke the park status.

The ruling also held that a "significant number of people" will benefit from the use of the park and its preservation as a historic site.

In addition, the decision cited "the general precedential value of this case in enforcing the dedication of land for public parks and as historic sites."

Expanding usage

Isaac Hall is the Maui lawyer who represented the Sierra Club and two other groups that successfully challenged the state’s attempt to permit the Superferry operations.

He was the first to obtain a court award for legal expenses under the doctrine.

The high court awarded about $147,000 in fees and costs, he said.

Hall said he was "grateful" the Hawaii courts adopted the doctrine and are now willing to apply it "on a more regular basis."

"The adoption and application of the private attorney general doctrine in the State of Hawaii is essential if we have any chance of protecting the unique resources that exist here," Hall said.

Deirdre Marie-Iha, deputy solicitor general with the attorney general’s office, said it’s too soon to say whether the Scenic Hawaii decision will have a broader impact.

She said she does not know how many other requests under the doctrine are pending.

But she said the application of the doctrine should be "rare" because only certain types of cases would qualify.

She noted the doctrine does not apply to cases against the state in federal court.

Hoshibata, Scenic Hawaii’s attorney, said the court’s decision is the "continuing evolution of widening the doors of the private attorney general doctrine."

He said the doctrine now applies to groups seeking to protect places of cultural and historic value.

Hoshibata said the state now knows that if its interest in representing agencies differs from the public’s interest, the attorney general’s office should appoint a lawyer to represent the public to reduce the need for private groups to intervene.

He said if the state hasn’t learned a lesson from the high court’s ruling, the state deserves to be paying legal expenses.

Talks with HPU

Whalen said Scenic Hawaii would not have been able to afford the litigation if it wasn’t for two benefactors who donated money to the organization to preserve the park.

Founded in 1996, the group has about 135 members and more than 400 on its mailing list, but no paid staff. Its programs include annual landscape awards, landscaping and beautification projects and tree planting in public parks.

He said with the award, the group is considering a monetary gift to Hawaii Pacific University to help restore the park.

HPU took control of Aloha Tower Marketplace last year.

"I think it’s actually a great fit to have the restoration of the park with HPU," Whalen said.

HPU spokesman Todd Simmons said the school supports the idea of the green space but is still going through the process of planning for the park.

He said HPU owns the parking rights, but ATDC controls the use of the land.

Whalen said the case is the only time Scenic Hawaii has been involved in litigation.

Although it was a daunting decision to enter the litigation, he said the group was driven by the qualities of the park, the importance of green space in downtown Honolulu and the issue of whether restrictions on donations could be later lifted.

He said the group is grateful to the law firm of Bronster Hoshibata for taking the case.

Hoshibata said the group had paid for his fees and will get the money from the award when the state Legislature approves payment for court judgments next year.

Scenic Hawaii will also get 10 percent annual interest dating back to Chang’s 2010 judgment, which amounts to about $46,000, he said.

Hoshibata said he also has a pending request with the high court for about $38,000 for legal expenses for handling the appeal.

He said one significance of the high court’s ruling is that more preservation groups that don’t have much money will start asking private lawyers to take cases.

"When we intervened, there was nobody we knew of looking out for the interest of what the state should have been looking out for, i.e., the public interest," Hoshibata said.