Thursday, November 15, 2007

The Honolulu Papers Report on the Maui Superferry Ruling

Judge lifts injunction on Hawaii Superferry
 •  Special legislation? Judge didn't think so
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By Christie Wilson
Advertiser Neighbor Island Editor

Hawaii news photo - The Honolulu Advertiser

A Maui court has cleared Hawaii Superferry to resume service, but attorney Isaac Hall says foes are "not going to stand by and take this."

JOAQUIN SIOPACK | The Honolulu Advertiser

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WAILUKU, Maui — Hawaii Superferry is expected to announce a relaunch date by week's end, after yesterday's court ruling that cleared the new interisland ferry to sail.

Hawaii Superferry President and CEO John Garibaldi described the lifting of a Maui court injunction that had kept the ship from using Kahului Harbor as "a new beginning for us."

The company will take about two weeks to rehire 250 furloughed workers and gear back up to provide service between Honolulu, Maui and Kaua'i, Garibaldi said. The only other pending requirements are notifying the state Department of Transportation, the Coast Guard and other regulators of the company's plans to resume operations, he said.

The ruling by Maui Circuit Judge Joseph Cardoza wrapped up — for now at least — a 2 1/2-year legal challenge that nearly scuttled the $250 million enterprise and ignited a bitter public debate that exposed deep geographic, racial, cultural and political divisions within the state.

Wailuku attorney Isaac Hall, who represents three groups that pushed for an environmental review before the ferry could operate, called the outcome of yesterday's hearing "a temporary defeat." He indicated he would appeal Cardoza's decision, which validates a new state law allowing the ferry to operate while an environmental review is conducted.

The judge rejected Hall's request to keep the injunction in effect while the appeal is pursued.

"This is far from over," Hall said after the hearing. "This has led to the building of a huge coalition between Hawai'i, Kaua'i and Maui."

He said there will be political consequences for lawmakers "who let us down" by approving legislation that essentially overturned court decisions requiring environmental studies before the ferry could resume service.

"A strong coalition has formed and it's not going to stand by and take this," he said.

Hall also clarified statements he made during court arguments that if the injunction were dissolved, "the only way left to secure justice is in the water." The comment was a reference to events on Kaua'i in which protesters jumped into Nawiliwili Harbor to keep the ferry from docking during the two days in late August it was running.

Hall said he was not attempting to encourage similar protests on Maui, but wanted to emphasize the degree of anger and frustration among some in the community who feel their concerns have been ignored by the state and the Superferry, and have now seen their court victories erased by political maneuvering.

"There are some social impacts to ramming a project down the throats of Hawai'i's people ..." he said. "People on the street are not happy with what is happening with the Hawaii Superferry."


State Attorney General Mark Bennett told Cardoza he was "deeply disturbed" by Hall's remarks "threatening this court that the only way to secure justice is to jump in the water. To come before this court and say, 'Judge, you'd better not dissolve the injunction because people are going to get hurt' is an outrage."

Cardoza said Superferry opponents who break the law "run the risk of alienating the community against the importance of protecting the environment" and addressing other issues such as the spread of invasive species and preserving Native Hawaiian resources.

And just as he had done in issuing the injunction Oct. 9, Cardoza acknowledged the underlying issues fueling some of the opposition to the ferry.

"The court recognizes that issues related to cultural values and conflicts between old Hawai'i and the modern world and a changing lifestyle are very serious issues that warrant a painful and open discussion," he said.

He said the conflicts have been "festering for a long time in this community and existed long before the Superferry became an issue."

Gov. Linda Lingle issued a statement saying she was pleased with the ruling and that the judge "recognized that the Legislature and our administration worked cooperatively, within the boundaries of our state constitution, to pass a law that preserves an important interisland transportation alternative for the people of Hawai'i."

"As the interisland ferry service resumes, we will continue to work closely with environmental, cultural and agricultural organizations, the counties, the community and Hawai'i Superferry officials to ensure specific conditions are followed to minimize the impact on Hawai'i's natural and cultural resources," Lingle said.


The court case was initiated when Hall's clients, the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, filed a legal challenge to a state Department of Transportation determination in February 2005 that $40 million in ferry-related projects at four ports were exempt from Hawai'i's environmental protection law, known as Chapter 343, and did not require environmental studies.

When Cardoza dismissed their complaint in July 2005, the three groups appealed to the Hawai'i Supreme Court. In a decision released Aug. 23, the higher court said the exemption was improper and that an environmental assessment was required.

A day later, the Superferry announced it would launch Aug. 26, two days ahead of schedule, and offered $5 fares. On Aug. 27, Cardoza issued a temporary restraining order halting further voyages to Maui.

The order was followed by a four-week trial to determine whether the ferry could operate during the environmental assessment process. The judge heard testimony on issues such as the potential for ferry collisions with humpback whales and the spread of invasive species, concerns about ferry passengers bringing their vehicles to Maui and depleting Native Hawaiian subsistence resources, as well as the economic, civil defense and transportation benefits offered by the ferry service.

On Oct. 9, Cardoza ruled that Chapter 343 requires an environmental review before commencement of a project, and he replaced the temporary order with a preliminary and permanent injunction that prevented the ferry from visiting Kahului Harbor pending an assessment.

Lingle and the Legislature moved quickly to convene a special session to pass a bill that would allow the ferry to resume operations during the review. Lingle signed the measure, known as Act 2, on Nov. 2 and attached 42 conditions meant to address some of the environmental concerns related to ferry operations.


During his arguments yesterday and in a court memorandum, Hall said Act 2 is unconstitutional on a variety of levels. He said the governor's proclamation convening the special session was illegal because it interfered with a court order, and that the new law violated the balance of power among the three branches of government.

Hall also said that by passing Act 2, elected leaders violated their public trust duties under the state constitution to protect Hawai'i's fragile environment and the traditional and customary rights of Native Hawaiians.

"Act 2 is correct about one thing and one thing alone, and that is that Hawai'i has a fragile and unique environment ... ," Hall told the court. "Instead of protecting these resources, our attorney general travels over here from O'ahu to argue that they should be destroyed to protect Hawaii Superferry."

He said the Legislature and the governor established the operating conditions without benefit of the four weeks of testimony heard by Cardoza, who determined the high-speed ferry, which transports passengers, vehicles and cargo, is a new mode of transportation in Hawai'i that poses the risk of irreparable harm if allowed to operate before an environmental assessment can determine whether mitigation is needed.

By allowing the governor to determine the 42 conditions attached to the law, Hall said the Legislature also had improperly delegated its legislative powers.

Cardoza disagreed, explaining that in drafting the bill, the Legislature set forth standards and procedures to be followed by the governor. "That type of delegation is permissible," he said.

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Yesterday's ruling seemed to herald a restart for the Superferry. Here, a rainbow frames the ship in Honolulu Harbor.


Ferry to get back in the flow

A Maui judge upholds the Legislature's new statute permitting ferries to operate during environmental studies

» Politicians applaud judge's ruling


WAILUKU » "It's a new beginning," says Hawaii Superferry Chief Executive Officer John Garibaldi.

The Superferry could resume operations in a couple of weeks, Garibaldi said yesterday after a Maui judge dissolved his order blocking the high-speed ferry from using Kahului Harbor pending an environmental review.

Garibaldi said his firm has lost about a dozen employees since originally hiring some 300 people in August and that losses during the halt in operation amounted to millions of dollars.

"It's been a very painful process," he said. "It's getting tight financially."

Circuit Judge Joseph Cardoza declined to overturn a new state law enabling large-capacity vessels such as the Hawaii Superferry to skip a previous process of environmental review.

"The obligation of the court is to follow the law enacted by the Legislature," Cardoza said. "This court is not a super-legislature. This court is not a super-executive branch of government."

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition challenged the constitutionality of the new law and are now considering appealing Cardoza's latest decision.

The groups contended that the law is unconstitutional because it provides special treatment just for Superferry.

But the state maintained the law would generally cover large-capacity ferry vessels.

The decision spawned positive reaction from the governor and Democratic legislative leaders who noted the ruling endorsed their work in crafting the law. But Kauai Rep. Hermina Morita said the ruling should be appealed.


WAILUKU » Maui Circuit Judge Joseph Cardoza lifted an injunction yesterday against the Hawaii Superferry, clearing the way for it to resume operation.

Cardoza declined to overturn recent state legislation authorizing large-capacity ferry vessels such as the Superferry to operate in Hawaii during an environmental study.

Attorney Isaac Hall, representing citizen groups Maui Tomorrow, the Sierra Club and the Kahului Harbor Coalition, said his groups might appeal Cardoza's decision to the Hawaii Supreme Court.

"This is far from over," he said.

Hall argued the new law failed to protect the environment as well as customary and traditional native rights, as guaranteed under the state Constitution. He also argued that the new law is unconstitutional because it provided special legislation designed to help the Superferry.

Hawaii Attorney General Mark Bennett said the new law is constitutional because it is a general law affecting large-capacity ferry vessels.

Bennett said the state Legislature also balanced competing policy interests about the environment and use of resources, and the governor established conditions to protect the environment.

The court hearing was tense at times.

Hall warned that if people did not receive justice in the courtroom, they might seek justice in the water blocking the Superferry.

"This has been done ... so wrong that if this court dissolves this injunction, there will probably be those who feel the only way they can secure justice is in the water," Hall told Cardoza.

Hall, interviewed later, said his comments were not a threat, but a social comment on the dissatisfaction of many people on Maui and the formation of a large coalition among residents on Hawaii, Maui and Kauai because of the Superferry.

Bennett said he felt Hall's comments were inappropriate, and he hopes people will conduct themselves in a law-abiding manner.

The Hawaii Supreme Court ruled on Aug. 23 that the state should be required to prepare an environmental assessment about improvements at Kahului Harbor for the Superferry.

Cardoza, responding to the Supreme Court decision, ruled on Oct. 9 that the Superferry had to prepare an environmental assessment prior to operating at Kahului.

The issue has drawn protests on Kauai, where hundreds of demonstrators blocked the Nawiliwili Harbor entrance with surfboards and vessels, and on Maui.

Environmentalists fear the Superferry will be a new entryway for invasive species, while native Hawaiians in rural areas worry visitors in their vehicles will deplete ocean and mountain resources.

Cardoza let stand yesterday his Oct. 9 decision to allow Maui Tomorrow and other citizen groups to receive attorneys fees from Hawaii Superferry, based on them prevailing in their former injunction.

Politicians applaud judge's ruling

Hawaii's Republican governor and Democratic legislative leaders agreed yesterday that a Maui judge's ruling validates their work in passing a law to keep the Hawaii Superferry operating while an environmental impact statement is pending.

"Judge (Joseph) Cardoza recognized that the Legislature and our administration worked cooperatively, within the boundaries of our state Constitution, to pass a law that preserves an important interisland transportation alternative for the people of Hawaii," Gov. Linda Lingle said.

Senate President Colleen Hanabusa said: "It (the ruling) was what I expected.

"I am glad that the law withstood the constitutional challenges, because the Legislature was careful in how it fashioned this remedy," said Hanabusa (D, Nanakuli-Makua). "The fact that Judge Cardoza agrees validates what the Legislature did."

House Speaker Calvin Say said, "It is great news for the people of the state. We are giving the Superferry the chance to show what it can do. I would ask that all parties try and let the Superferry sail and do its best."

"As the interisland ferry service resumes, we will continue to work closely with environmental, cultural and agricultural organizations, the counties, the community and Hawaii Superferry officials to ensure specific conditions are followed to minimize the impact on Hawaii's natural and cultural resources," Lingle said in a written statement.

Reaction from neighbor island legislators was mixed.

Rep. Hermina Morita, who had voted against the bill allowing the ferry to operate while the assessment is done, said she believes the judge's decision should be appealed.

"I don't think the constitutional issues were adequately addressed," said Morita (D, Hanalei-Kapaa).

Rep. Joe Souki, one of the ferry's strongest supporters in the House, was pleased with the outcome.

"I'm very happy with the judge's decision, and let's get this moving on," said Souki (D, Waihee-Wailuku). "Hopefully, the ferry can commence soon so that the public and the businesses can enjoy the ferry."

He said he expected the decision to be appealed.

"I'm hoping that they won't do it," he said. "If they appeal it and if there's an injunction because of the appeal, that would just kill the whole project."

Members of the Kauai organization suing the Hawaii Superferry for violation of environmental laws vowed yesterday to keep fighting.

David Dinner, president of the Thousand Friends of Kauai and co-chairman of the People for the Preservation of Kauai, said the groups will continue to fight the Superferry in court.

"We fully expect the (Maui suit) to end up in the next court," Dinner added.

Dinner said people who want an EIS before the Superferry travels should not lose hope. "I know that they've tried really, really hard, and they may feel discouraged," he said. "We want to give them hope that it's not over."

Star-Bulletin reporters Richard Borreca, B.J. Reyes and Tom Finnegan contributed to this report.