Sometimes when you win, you only think you win. The rotund woman needs to finish her aria. And you need to cash the check. Otherwise, that celebratory party you're having may come to an unexpected -- and totally crashing -- halt. Especially when you are litigating against a state.
Why do I say these things? Well, first, because they're true. And, second, because this case definitely brings these lessons home.
You can't parasail on Maui -- anywhere -- for five months. Between December 15th through May 15th. Why? Because humpback whales are, well, humping. As well as caring for the resulting calves. So Hawaii passed a law to protect them by saying that no one gets to parasail around Maui (or the Big Island) for fear that a motor boat right disturb -- or ram -- them. Makes sense, I guess.
But not, of course, to the parasailing companies. Who sue. Claiming that the Hawaii law is preempted by the federal Marine Mammal Protection Act. As to which, parenthetically, they're right. Or so held the district court. Which granted summary judgment to the plaintiffs. And also entered a final, permanent injuction that blocked enforcement of the Hawaii law.
Yay for the parasailers! Huge party! Booze cruise! Whoopee! Right? Oh, yeah, one more thing. Move for attorney's fees as the prevailing party. Icing on the cake!!
Yeah. Normally. But not so fast. Because Hawaii has a little thing called clout. And a couple of senators to boot. So, right after the district court's decision in favor of the parasailers, there's a tiny little clause put into the 1995 Omnibus Appropriations Bill. That basically says: "Nothing in federal law shall be deemed to preempt any Hawaii law relating to the regulation of parasailing on behalf of humpback whales." Hmmmm. Wonder how that got in there?
As a hint, the day after President Bush signs this bill, Hawaii moves to vacate the permanent injunction and Rule 60 the judgment on the basis of the new law. And the district court agrees.
Party over. The parasailers try a couple of additional rounds in the district court (Commerce Clause, etc.), but get crushed. And try again in the Ninth Circuit, but the same thing happens. Sorry, Charlie. That's what happens when the law just so "happens" to change in the meantime. You lose.
Oh, one more thing. You know all those attorney's fees you were entitled to as the prevailing party. Yeah. None of that anymore. Sure, you "won". But then you lost. So that means you lost. No parasailing. And now no money either. Sucks to be you.
So that's the story about why you can't parasail the next time you take that Christmas vacation in Maui. As well as the larger litigation story to be learned about fighting a political entity. When push comes to shove, my friend, they got a lot of different ways to win. Even when you're totally right on the merits.
