Tuesday, October 9, 2007

Judge rules against Hawaii Superferry

Posted on: Tuesday, October 9, 2007

Judge rules against Hawaii Superferry

Share your thoughts on the ruling
 •  Superferry protesters applaud Maui judge's ruling
 •  No decision yet on special session for ferry
 •  Garibaldi: decision is great loss for the state
 •  Hawaii Superferry: A timeline

Advertiser Staff

Hawaii news photo - The Honolulu Advertiser

Maui Circuit Judge Joseph Cardoza ruled today that the Hawaii Superferry cannot operate during the state's preparation of an environmental assessment.

AMANDA COWAN | The Maui News via AP

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Hawaii news photo - The Honolulu Advertiser

Personnel man the 350-foot, high-speed Hawaii Superferry today before a highly anticipated decision on the vessel's fate came from a Maui courtroom.

RICHARD AMBO | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser

A Maui judge's ruling today against the Superferry came at the end of a monthlong hearing on a request for a preliminary injunction filed by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

RICHARD AMBO | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser

Attorney Isaac Hall, representing the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, updates the media today on Maui after winning an injunction against the Hawaii Superferry.

CHRISTIE WILSON | The Honolulu Advertiser

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WAILUKU, Maui — The future of the Hawaii Superferry was thrown into doubt today when a Maui judge ruled the ferry will not be allowed to operate while the state prepares an environmental assessment of its impacts.

An environmental assessment could take several months to complete.

Hawaii Superferry President and CEO John Garibaldi has said such a ruling would essentially kill the company's plans for doing business in Hawai'i. He said the company has been racking up weekly costs of $650,000 and cannot afford to keep its 350-foot, high-speed ferry tied up at dock while the state conducts the assessment.

State House and Senate leaders said this morning that a special session is likely now that a Maui judge has ruled that Hawaii Superferry cannot operate while the state conducts an environmental assessment of the ferry's impact on state harbors.

Garibaldi told reporters he was "very upset for the people of Hawai'i" to be denied ferry service.

Maui Circuit Judge Joseph Cardoza said his ruling was based on Chapter 343 of the state's environmental law which, he said, clearly states an environmental assessment must be done before a project can proceed.

In his ruling, Cardoza also said the Hawaii Department of Transportation's 22-year operating agreement with the Hawaii Superferry is invalid. That would appear to mean the vessel is prohibited from using port facilities statewide.

In response to the argument the Superferry is no different from barges, cruise ships or airplanes, Cardoza said the ferry is clearly a new technology and a new chapter in transportation in Hawai'i.

In a preamble to announcing his ruling, Cardoza acknowledged the ferry debate has divided the state. "I hope today will serve as a moment of reflection for all of us and recognition of the need for having this community work together. We can have different views but we do not need to have a divided community just because we have different views.

"If we remain divided as a community, these problems will not go away."
State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), and state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), plan to meet with Gov. Linda Lingle this afternoon about a special session.

Hanabusa and Say said they would likely ask the governor for some time to process the court's ruling and to discuss options with their caucuses.

"Now we're in almost the worst possible situation, in that we're going to, as a Legislature, have to make the decision on whether we're going to overrule the third branch of government because there is great public sentiment in favor of Superferry," said Hanabusa, who watched the court proceedings over the Internet in the office of one of her aides.

Say, who has supported the Superferry, said: "I hope we can come up with creative ideas in trying to address this. I'm very optimistic that maybe something will come about.

"For me, when you have a crisis, that's when you're supposed to rise to the occasion."

Hawaii Superferry protesters celebrated Cardoza's ruling.

"I'm so happy right now," said Andrea Noelani Brower.

Brower, 22, was born and raised on Kaua'i and was one of the dozens of protesters who jumped into the water in August in an effort to prevent the Superferry from docking at Nawiliwili Harbor.

The protests help prod the Superferry to postpone its Kaua'i trips.

"I'm ecstatic," Brower said following today's ruling by Maui Circuit Judge Joseph Cardoza. "I really don't think there was any other way he could rule. The law made it completely clear that no action was to go forward until the correct environmental review had been completed."

Cardoza's ruling came at the end of a month-long hearing on a request to halt ferry service filed by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

The groups' concerns include increased traffic around ports, the potential spread of invasive species and collisions with humpback whales. It was not immediately known if the Hawaii Superferry and the state will file an appeal of Cardoza's ruling to the Intermediate Court of Appeals.

Attorneys for the company and the state Department of Transportation argued there is an overriding public interest in immediately relaunching the Hawaii Superferry's catamaran.

In final arguments before the judge yesterday, Hawaii Superferry attorney Lisa Munger said state law, the Legislature, the Lingle administration, the federal government and the state Public Utilities Commission all endorsed the ferry by approving financing, permits and other support. She listed those who appeared in court to testify in favor of the interisland service, including business people, civil defense officials and regular folks who were looking forward to the convenience of ferry travel.

She questioned the motives of ferry opponents, saying the request for an injunction had nothing to do with making sure environmental studies were conducted.

"We're here today because the plaintiffs want to stop or punish the Hawaii Superferry while the Department of Transportation prepares an environmental assessment," Munger said.

Attorney Isaac Hall, representing the Sierra Club and the other two groups, said it was common sense and clear from the start that the ferry would have impacts on marine mammals, traffic, rural communities and invasive species.

He said the state Supreme Court issued an emphatic ruling Aug. 23 that struck down a DOT environmental exemption for the harbor improvements. Hall said the speedy ruling, issued the same day oral arguments were heard, showed the court wanted to give the plaintiffs time to seek a restraining order to halt the ferry before its scheduled launch date.

He said allowing the ferry to run while the assessment is conducted would violate state environmental laws and make it more difficult to impose operating conditions on the company, short-changing his clients' concerns.