Listening to Kauai
image above: aerial view from northeast of Nawiliwili Harbor area
[Editor's Note: The following is a recent editorial letter by Lanny Sunkin published in the Honolulu Advertiser]
by Lanny Sinkin on 6 October 2007 in The Honolulu Advertiser
There is a very strong feeling on the Island of Kauai that their voice is not heard on Oahu.
A petition drive gathered more than 6,000 signatures expressing concern about the potential impacts of the Superferry on Kauai. The Governor refused to accept the petition, until 2,000 people showed up last month to express their frustration with her refusal to listen.
When the Supreme Court ruled that the State had to prepare an environmental assessment (EA) for the Superferry, the people of Kauai thought their concerns would finally be addressed.
Then, however, the Governor and the Department of Transportation (DOT) made up some new law saying that Superferry could continue to operate while preparing the EA. I say "made up" because the existing law provides no such option.
The law in Hawaii states that, when an EA is required, the completion and acceptance of that document is a "condition precedent" to implementing the action being assessed. While sounding a bit legalistic, "condition precedent" means nothing more or less than something that must be done first before anything else is done. You can read the statute for yourself – Hawaii Revised Statutes section 343-5 – and see how clear the law is.
The law makes sense. The idea is to take a hard look at the potential environmental effects of an action before spending public funds or otherwise committing public resources.
The idea that the Superferry could operate while preparing an EA makes no sense. First of all, "condition precedent" cannot mean the same as "concurrent."
More importantly, an environmental assessment is a first step. If the EA shows that there are potentially significant environmental effects, then an environmental impact statement (EIS) is required. Would Superferry then be allowed to operate for years while a study is being conducted to assess how badly Superferry is going to damage the environment? Why should the people of Hawaii play Russian Roulette with potentially damaging environmental impacts, just so a private corporation can make a profit?
Shocked by the Supreme Court decision and trying to save Superferry from the mistakes Superferry and the State Executive Branch made, the Governor and the DOT put forth their position without any legal basis.
For the people of Kauai, the position of the Governor and DOT constituted a betrayal of the public trust. Those charged with enforcing the law were now acting to encourage a private corporation to break the law. The people were left to enforce the law for themselves. So the people of Kauai jumped in the water to prevent the continued operation of Superferry.
To make matters worse, the Governor then formed the Unified Command to crush the opposition from Kauai. Federal, State, and local law enforcement are being marshaled to intimidate and, if necessary, arrest and prosecute people who are trying to enforce the law.
The Coast Guard created a security zone basically declaring marshal law in the Kauai Harbor anytime Superferry is there. Anyone entering the security zone without permission can be imprisoned for ten years and fined $10,000. In order to declare such a zone, the Coast Guard is legally required to determine that the action is necessary to prevent sabotage, terrorism, and subversion. In the court challenge to the security zone, the government tried to characterize people sitting on surf boards in front of Superferry as "subversives" then backed off. The argument is ludicrous, in part because Superferry presents itself as a private profit-making business, not a government enterprise.
The idea that laws meant to be used to prevent terrorism are now used to suppress free speech and prosecute protestors is exactly what many of us thought might happen. The fear-based laws emanating from 9/11 may start out targeting terrorists. They can too easily be misused to target dissent.
The Governor should hardly be surprised that people yelled at her when she came to Kauai.
To make matters even worse, the intimidation by the Governor did not work. The people of Kauai are more determined than ever. They also feel that they are carrying the weight for the entire state that is sitting back and watching the top executive of the state wield raw power in furtherance of an illegal enterprise.
The federal court in Honolulu denied a Temporary Restraining Order sought by those opposed to Superferry continuing to operate.
In denying the TRO, the judge stated that she did not have jurisdiction to review the Hawaii Supreme Court decision requiring Superferry to prepare an environmental assessment.
The Plaintiffs did not ask the judge to review that decision for correctness. The Plaintiffs simply asked the judge to apply that decision. Had she done so, there would have been no choice but to find continued operation of Superferry to be illegal. The court made a mistake of law. That mistake leaves the people of Kauai still unprotected and their voice unheard.
Some of us are doing everything we can to see that the confrontation in the Kauai Harbor never happens. If it does, the results could be one of the darkest days in Hawaiian history.
Lanny Sinkin
Attorney in Hilo
