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Mark M. Murakami

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Mark Murakami practices in the firm’s Appeals, Business & Commercial Law, Construction Law, Land Use & Eminent Domain, Litigation & Dispute Resolution, Real Estate, and Wills, Trusts & Estates practice groups. His focus is on complex commercial disputes, land use negotiation and litigation, environmental, and general civil litigation. He has appeared in all federal and states courts in Hawaii, most of the administrative boards and commissions, and is licensed in the U.S. Supreme Court, Ninth Circuit Court of Appeals and Court of Federal Claims. He is rated “BV” by Martindale-Hubbell, receiving a rating of 4.4/5.0.

Mark is the 2025 President of the Hawaii State Bar Association (HSBA). Hawaii’s attorneys selected Mark for this leadership role in a statewide election in late 2022. He subsequently served as the 2023 Vice President and 2024 President-Elect. Founded in 1899, the HSBA is a mandatory professional organization for active and inactive licensed attorneys in Hawai. Its mission is to unite and inspire Hawaii’s lawyers to promote justice, serve the public and improve the legal profession. Mark was first elected by his peers to the 21-person HSBA Board in 2012 and was elected Treasurer from 2014 to 2017.

Mark has been appointed to a leadership position in the American Bar Association Section of Litigation. He will serve as Co-Chair for the Real Estate, Condemnation & Trust Litigation Committee and will be responsible for programming and publications for the nationwide membership.

Mark has been elected as the Hawaii member of Owners’ Counsel of America (OCA), an exclusive association of the nation’s leading eminent domain lawyers. Eminent domain is the legal process by which the government acquires private property for public uses, most often by forcing the owner to sell it. Membership in OCA is by invitation-only, and limited to a single member in each state. Members are selected for their experience and dedication in defending the constitutional rights of private property owners in eminent domain, inverse condemnation, regulatory takings, and other property rights matters.

Mark was elected a Fellow of the American College of Real Estate Lawyers (ACREL). Admission to the College is by invitation only to lawyers who are distinguished real estate practitioners and who have contributed to the improvement of real estate law through a combination of speaking, writing, teaching, and serving on relevant boards and commissions. Founded in 1978, the College is comprised of more than 1,000 lawyers distinguished for their skill, experience, and high standards of professional and ethical conduct in the practice of real estate law.

Mark was awarded the CRE (Counselor of Real Estate) credential by The Counselors of Real Estate, an international association of experienced real estate practitioners including appraisers, lawyers, and brokers, who provide expert advisory services to clients on complex real property and land-related matters. Membership in The Counselors of Real Estate is selective and is extended by invitation only, attesting to the practitioner’s expertise and proven competence in his or her chosen area of real estate.

Mark once again was selected by his peers for inclusion in the 2025 Edition of The Best Lawyers in America® for his work in Commercial Litigation, Eminent Domain & Condemnation Law, Land Use & Zoning Law, Litigation-Land Use & Zoning, Real Estate Law, Trusts & Estates, Litigation-Real Estate, and Litigation-Trusts & Estates. He was also named the Best Lawyers® 2013 Lawyer of the Year Eminent Domain & Condemnation Law. Mark has been selected by Super Lawyers for over 10 years.

Mark was the Valedictorian of the Class of 1999 from the University of Hawaii at Manoa, William S. Richardson School of Law where he served as Articles Editor of the University of Hawaii Law Review. He has received numerous academic awards, including: Dean’s Scholar, Porter Scholastic Award (2 times); Awards for highest grade in Property I, Torts I, Contracts I, Corporations, and Professional Responsibility; Kono Award for Academic Achievement; Phi Delta Phi Professional Responsibility Award; HSBA Real Property and Financial Services Section Award.

He is also a graduate of the U.S. Coast Guard Academy in New London, Connecticut. He served for 13 years on active duty before joining the U.S. Coast Guard Reserve in 2005. During his time on active duty, he served on three different Coast Guard cutters, including command of a patrol boat in California. He spent four years assigned to the Fourteenth Coast Guard District Legal Office, prosecuting courts-martial, litigating cases in federal court as a Special Assistant U.S. Attorney, and advising Coast Guard officials on maritime, criminal, environmental and international law issues.

Mark has been awarded the Legion of Merit, the Defense Meritorious Service Medal, two Meritorious Service Medals, the Joint Service Commendation Medal, two Coast Guard Commendation Medals and four Coast Guard Achievement Medals. He retired in July 2022 as a Captain, culminating thirty years of active duty and reserve commissioned service.

To view his blog on federal litigation and maritime law, in and around Hawaii and Oceania, please visit: www.hawaiioceanlaw.com.

Mark was born on Maui and raised in Kailua, Oahu. He is a graduate of Kailua High School and was active in the Castle Performing Arts Center.

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News Flash – the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound.  FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway).  My post on the Ninth Circuit's decision here.

The Question Presented is:

Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.

Briefly summarizing the Ninth Circuit decision:

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received.  The government's brief in opposition is here.  The government's question presented was a little different:

Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.

The U.S. Supreme Court handed down its decision in McDonald v. City of Chicago today.  The opinion is here (it is a whopper, so don't reflexively print) and my resource page with briefs, news and analysis is here. 

Most important element first:  Slaughterhouse was NOT overruled.  Justice Alito, writing for the majority said:

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’claims at the Court of Appeals level. Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Fear of the unknown.  Reversing Slaughterhouse, despite its ill conceived rationale, would thrust constitutional law into a state of flux.  Better the devil you know? [That being said, this is why we have courts].  More to follow after I've read.

 

The Ninth Circuit just issued an unpublished decision in a Jones Act case.  Not precedential, and pretty sparse analysis, but it does set out the standards for surviving summary judgment motions for Jones Act seamen.  The case is Ili v. American Seafoods Co., LLC and can be found  here.

Facts:  seaman on a fishing vessel is injured near the end of his sixteen hour shift.  He claims unseaworthiness under common law and Jones Act negligence.

Issue:  were there issues of disputed fact warranting a jury trial on the seaman’s claims?  As is the case in all civil litigation in federal courts, claims cannot be summarily decided upon disputed facts.  Facts are found by juries (or judges) after a trial.

Jones Act Claim

Ili’s Jones Act claim has four elements: (1) the employer’s duty to provide a safe work environment to its seaman employee; (2) breach of that duty; (3) the employer’s awareness of the unsafe condition; and (4) a causal link, however slight, between the breach and the seaman’s injury.

The parties did not dispute that Ili was a Jones Act seaman and that we was injured after working sixteen hour shifts, seven days a week for months on end, rather seaman’s employer challenged whether shift length can be a condition amounting to unseaworthiness and whether the long shift caused seaman’s injury.

Employer put on evidence that fishing industry custom is 12, 14 and 16 hour shifts.  Custom, citing to the great Learned Hand, does not show a LACK of negligence and the court found that such long shifts could be negligence.  As such, the issue needed to be tried, not summarily disposed.

Unseaworthiness Claim

Ili’s unseaworthiness claim has four elements: (1) seaman status triggering the warranty of seaworthiness; (2) an injury arising from the condition of the ship or its crew; (3) the unseaworthiness of that condition; and (4) proximate causation between the unseaworthy condition and the injury.

The court stated that lack of adequate crew can give rise to an unseaworthiness claim.  Unseaworthiness has a higher standard for claimants to show causation, but the court found that the same facts (long shift) that defeated employer’s summary judgment motion on the Jones Act claim applied to the unseaworthiness claim.

Let a trial be had.

New developments in the antitrust, class action lawsuit pending in Seattle:  an Amended Complaint was filed. (My earlier post on why the court dismissed the original complaint).  The Amended Complaint is available for download here.  (H/T to Joe the Plumber for the tip).

This case stems from the criminal convictions of several officials of a shipping …

If it walks like a duck, talks like a duck (Donald, friend of Mickey?…Ok, just go with it), and quacks like a duck…it must be a duck.

So, if it looks like a yacht, sounds like a yacht, but doesn’t have engines and is in a dry-dock, is it a vessel for the purposes of the maritime lien statute, and more importantly, for in rem jurisdiction?

A new admiralty case from the Eleventh Circuit Court of Appeals answers this question:  YES.  The case is Crimson Yachts v. Betty Lyn II Motor Yacht and can be found here.

Practitioners Note:  This case has a very comprehensive history of the Maritime Lien Act, 46 U.S.C. §§ 31341–31343.

The facts of this case are simple.  Yacht goes into dry-dock for extensive renovations.  After some time and repairs, the owner stops paying.  So, is a high and dry yacht, without engines, props, furniture, generators, etc still a vessel for the purposes of the maritime lien act and in rem jurisdiction?

The court explained the applicable test:

In deciding whether a watercraft is a vessel, “the focus . . . is the craft’s capability, not its present use or station.” Bd. of Comm’rs of the Orleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299, 1310 (11th Cir. 2008). The dispositive question is “whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.” Id. (quoting Stewart, 543 U.S. at 496, 125 S. Ct. at 1118) (quotation marks omitted); Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 300 (5th Cir. 2008); see also Holmes v. Atlanta Sounding Co., 437 F.3d 441, 448 (5th Cir. 2006) (“Under § 3, a ‘vessel’ is watercraft practically capable of maritime transportation regardless of its primary purpose or state of transit at a particular moment(quotations omitted)).

So, despite removal of her engines and the renovations, the yacht remained a vessel.  Ergo, the Maritime Lien statute applied and the dry-dock was entitled to arrest the vessel in rem to satisfy its lien.