Hawaii Superferry foes eager to go to court By Christie Wilson
Advertiser Neighbor Island Editor
With harbor improvements for the Hawaii Superferry reported to be on track, the only apparent threat to the start of the interisland ferry service is two pending court cases with hearings set for next month.
Both challenges involve questions about the need for adequate environmental impact studies on the publicly funded port projects for the new service, which will transport passengers and vehicles between Honolulu, Maui, Kaua'i and the Big Island.
The first of two 350-foot catamarans is undergoing final Coast Guard approval and crew training. Although Hawaii Superferry officials have not announced a launch date, reservations are being taken for Sept. 5 and beyond.
The best hope for the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition to delay Superferry operations rests with an appeal of a July 2005 ruling by Maui Circuit Court Judge Joseph Cardoza.
Cardoza dismissed the groups' lawsuit, which argues that an environmental impact statement is necessary for the $40 million in harbor improvements.
The Hawai'i Supreme Court will hear oral arguments on the appeal Aug. 23, with a decision to be issued at a later date. The ruling will likely be the final word, according to attorneys involved in the case.
"We've been waiting a long time to get an opportunity to try to get the trial court's decision reversed and it couldn't come any sooner. It's down to the wire," said Wailuku attorney Isaac Hall, who is representing the plaintiffs.
"I think the case on the law in the Hawai'i Supreme Court is a strong case. I'm hopeful on that one," he said. "If they did rule in our favor, they could send the matter back to the trial court and order preparation of an environmental impact statement. At that point ... (the ferry) would not be permitted to operate until that's done."
If that scenario plays out, it would take months or even years for such a report to be done.
Deputy attorney general William Wynhoff, who is representing the state Department of Transportation in the lawsuits, did not want to speculate on the possible consequences of a reversal but expressed confidence in the state's case.
"I don't think that's going to happen. We believe that Judge Cardoza's opinion will be found to be correct and will be upheld," he said.
IT'S ALL ABOUT IMPACT
Chapter 343 of the Hawai'i Revised Statutes, which establishes an environmental review system, states that "an environmental assessment shall be required for actions that propose the use of state or county lands or the use of state or county funds." The assessment determines whether projects are likely to have a significant effect on the environment, and if the answer is yes, a more thorough environmental impact statement is required.
If the environmental assessment determines a "finding of no significant impact," preparation of an EIS is not required.
The state has argued that barges, a ramp, fencing and utilities provided for the ferry at the Honolulu, Kahului, Nawiliwili and Kawaihae harbors are exempt from the EIS requirement.
But Hall said, "You can't look at the barges by themselves. You have to look at the projects that they facilitate," such as the ferry, and what the secondary and cumulative impacts of those projects are.
The push for a full-scale environmental review has come largely from Neighbor Island residents, who say the potential impacts include traffic congestion around the ports, rapid spread of invasive species, ferry collisions with humpback whales, and pressure on local fishing and recreational resources when people transport their vehicles to other islands.
Hawaii Superferry's vessel can carry more than 850 people and 250 vehicles, but the company projects an average load of 400 passengers and 110 vehicles.
Lucienne de Naie of Maui Tomorrow, a citizens' planning group, said advocates for an environmental review would be far less concerned if the ferry were to carry only passengers.
"We want to be clear that we are not trying to stop the Superferry. We are reasonable people who are concerned that our state has a long history of poorly planned and poorly thought-out projects that end up coming back to bite us," she said. "... The Superferry is one of these projects. It might be a great idea but it should be planned properly."
'ENTIRELY NEW CONCEPT'
Unlike interisland barges, airlines or cruise ships, the Hawaii Superferry operation "is an entirely new concept. There is nothing arriving day in and day out discharging passengers and cars on different islands," she said. "It's a new function that is not happening on any of our islands."
Superferry officials say they have prepared detailed vehicle-inspection, traffic-flow and whale-avoidance programs to address the concerns.
In the second court case, the Maui Tomorrow Foundation, Kahului Harbor Coalition and Friends of Haleakala National Park are disputing an environmental assessment for a group of projects contained in the Kahului Harbor Master Plan 2025.
The work, already completed and in use, includes a bridge over a drainage canal that will be used by the ferry.
HEARING AUG. 2
In May, Maui Circuit Judge Joel August ruled that the Department of Transportation's environmental assessment of the master plan projects was inadequate with respect to potential traffic impacts. The judge scheduled an Aug. 2 hearing to determine remedies, which Hall said could include not allowing the ferry and others to use the bridge. The judge also may require DOT to do a traffic impact analysis, or limit the number of vehicles going in and out of the area.
How such remedies would affect ferry operations is uncertain.
Wynhoff said the plaintiffs are concerned only with the projects to be used by the ferry, which itself is not a part of the master plan, and that they are attempting to rehash arguments that failed in Cardoza's courtroom.
"These are not 'Superferry' improvements. These projects have been in the works since 2000, well before the Superferry was even a glimmer in anyone's eye," he said.
Despite the pending court cases, it's full-steam ahead as far as Hawaii Superferry officials are concerned.
"Everything is go," said Terry O'Halloran, director of business development for the company, which is not a party in the lawsuits.
The state has largely completed its improvements at the Honolulu, Maui and Kaua'i harbors, and Hawaii Superferry is finishing up tent structures for vehicle-inspection and passenger-waiting areas, lane striping and other work, O'Halloran said.
Floating steel barges built in China that will be used to load and offload vehicles were installed earlier this year at the Kahului and Honolulu harbors and are undergoing weight tests, said DOT spokesman Scott Ishikawa. A movable hard ramp was put in at Nawiliwili.
O'Halloran said the company is satisfied with the improvements. "Everything is in place and the quality of the barges and ramp is excellent," he said.
Ferry service to Kawaihae on the Big Island is not due to start until 2009, and those port improvements will come later, although damage from the October earthquakes has changed plans.
Kawaihae's Pier 1 requires extensive repair and is no longer suitable for the ferry operations, Ishikawa said. A new Pier 4 for the ferry and other large vessels is being designed and will be built on a coral stockpile by January 2009, he said.
Both de Naie and Hall said there are no plans for new litigation should the court cases go against them, and there are no political options left. The ferry already survived failed attempts by a group of Neighbor Island lawmakers to withhold state spending on harbor improvements and to require an environmental impact statement. Resolutions passed by the three Neighbor Island councils urging an EIS review also failed to ground the ferry plan, as did public protests and petition campaigns.
But Rich Hoeppner, who founded People for the Preservation of Kaua'i as a result of the ferry controversy, said he's preparing to make a last stand.
"It isn't over until it's over. We can't do much until they come up with a start date, but in the meantime, there's only one thing they are going to understand and that's legal action," he said.
Hoeppner said he has hired noted California environmental law attorney Stephan Volker to pursue a lawsuit challenging Hawaii Superferry on the basis of federal endangered species and marine mammal protection laws.
Reach Christie Wilson at cwilson@honoluluadvertiser.com.
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