Friday, November 9, 2007

Kaua'i County Council can stop Superferry with “political will” and public nuisance law

Sent: Friday, November 09, 2007 3:00 PM
Subject: (PNN) Council can stop Superferry with "political will" and public nuisance law

Council can stop Superferry with "political will" and public nuisance law
by Andy Parx
(PNN) -- Lihu`e -- No matter what happens in court regarding the  Hawai`i Superferry (HSF ), county councils across the state can stop it under a state law that preempts any other according to "1000 Friends" Attorney Daniel Hempey.
HRS § 46-17 says the Kaua`i County Council can pass an ordinance "regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance."
"The statute says County nuisance law trumps State law if the County law offers greater protection to the public" Hempey said. "Dumping several hundred cars, trucks and busses onto Kauai every day would tend to produce a lot of new noise, dust,  smoke, vibration and odor.
According to HSF a maximum of 560 cars will congregate in Nawiliwili, near Lihu`e  each day at evening rush hour.
"If that doesn't constitute a public nuisance, what does" said HSF opponent, Fred Dente "What's the council waiting for".
In the case of the Kaua`i county council that remains a mystery. After three days no all councilmember have failed to responded to a requests for comment.
Kaua`i State Senator Gary Hooser, who has fought to prevent the HSf from operating until an "EIS" is done, says there's lots of ways the council could engage the issue if there's a political will to do so . The public nuisance law is just one of them."
Hempey agrees saying "This may be an area where new County  legislation on the issue could effectively block the  Superferry's exemption from environmental law - by limiting the number of  registered vehicles transported to Kauai on any given day."
HRS § 46-17  "Regulation of certain public nuisances" says "(n)o such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply,
Whether the council has a member with the political will to establish home rule remains to be seen. Many see the pressure being on Councilperson and former mayor JoAnn Yukimura who has testified numerous time against the HSf running without an EIS, even traveling to Honolulu to personally testify at the recent Act 2 hearings.
The other possibility may be rookie Councilperson Tim Bynum who has been somewhat outspoken on the issue and is thought by many political insiders to have his eye on the Mayor's office in three years.
Hempey indicated that it may not be that hard to find at least four if not seven votes.
"This type of ordinance would be consistent with the prior vote of the  Council, that asked for an EA before the Superferry operates.  It  would also send a message to those on Oahu who simply ignored the  Kauai Council's earlier unanimous vote" in a 2005 Resolution supporting an EIS before the HSF pulls into the port of Kauai.
The council's next full meeting isn't scheduled until Nov 21 and it normally takes about a month minimum to pass an ordinance. But the council does have emergency powers that provide for a much shorter term- a matter of days- to pass an ordinance making it effective while the bill goes through it's normal process.
In a separate case from the injunction forbidding HSf operations currently before Maui Judge Joseph Cordoza  and the precipitating Supreme Court ruling, another Maui Circuit Judge, Joel August,  ruled on Aug. 23 that the HSf must move cars out at a rate of only two per minute at Kahului Harbor and put in place many other site specific traffic restrictions that remain in place today.  Although Act 2 requires a traffic study for Nawiliwili, that will not be required to be completed or even initiated any time soon .
How an increase in the time cars sit idling awaiting egress might increase any nuisance is another issue the county councils may consider.
The Kaua`i County Council can be reached by emailing them at , or calling 241-6371
On the Web:
c 2007 Parx News Net (PNN), Andy Parx.