Tuesday, November 6, 2007

New ferry law faces court fight

New ferry law faces court fight

Critics still oppose Gov. Lingle's rules that will allow the boat to sail again


The Hawaii Superferry inched closer to sailing yesterday after Gov. Linda Lingle signed a bill allowing the boat to operate before an environmental study is completed.

Gov. Lingle's conditions allowing the ferry to operate

» PDF: Letter to Senate & House

» PDF: Executive Order No.07-10

But it could be headed for the doldrums because opponents on Maui said they would object to a circuit judge lifting his order blocking the Superferry from going to Kahului Harbor.

Isaac Hall, attorney for three environmental groups that won the court order, said conditions to be imposed by the state administration on the Superferry to protect the environment are not acceptable.

Lingle yesterday released a list of conditions the boat must follow to protect the state's environment and marine life.

On Maui the judge who originally banned the boat was again considering the issue -- this time on whether his order should be lifted.



Maui environmental groups opposing new conditions imposed on the Hawaii Superferry by Gov. Linda Lingle plan to object to a judge clearing the way for the ferry to operate in Kahului Harbor.

Conditions for sailing

Here are some of the conditions that Gov. Lingle says the Hawaii Superferry must abide by.

» Conduct agricultural screenings and inspections of passengers and all vehicles, including visual inspections of engines, interiors, undercarriages, wheel wells, trunks, and beds of pickup trucks.

» Require passengers to declare all plants, fruits and seeds, and permit inspections of such items by the Department of Agriculture.

» Ban the transport of rocks, soil, sand, dirt or dead coral, except for soil or dirt in potted plants inspected and cleared for transport by the Department of Agriculture.

» Prohibit the transport of iwi, human bones.

» Conduct complete traffic studies and implement a vehicle movement and management plan for each port of operation as directed by the Department of Transportation.

The state attorney general and the Superferry jointly filed a motion in Maui Circuit Court yesterday to lift a preliminary injunction because of legislation passed last week authorizing the ferry to operate while an environmental impact statement is done.

The two also filed a motion asking Maui Circuit Judge Joseph Cardoza to shorten the usual time for a hearing on lifting the injunction. A hearing about shortening the time is scheduled at 10:30 a.m. tomorrow. Legal observers said a state judge usually has about 18 days to respond to a request to lift a preliminary injunction.

On Friday, Lingle signed a bill to allow the ship, Alakai, to sail under certain operating conditions, and she came up with 40.

But three groups that sued to block the ship's operation, Maui Tomorrow, Kahului Harbor Coalition and the Hawaii Sierra Club, said Lingle did not do enough.

Last week, Lingle met with environmental protection groups, scientists, representatives of the Hawaii Superferry and the Office of Hawaiian Affairs about the service.

Slow whale crossing

Irene Bowie, executive director of Maui Tomorrow, said Lingle "chose not to hear us."

Although Lingle called for limiting the Superferry's speed to 25 knots during the winter whale season, Bowie said the speed should have been lowered to 13 knots (15 mph) and for a longer period.

"It is regrettable that the governor gave the appearance of cooperation with all parties but in the end did not provide the substance necessary," Bowie said in a written statement.

Attorney Isaac Hall, representing the three Maui groups, said his clients felt the conditions announced by Lingle were unsatisfactory and did not protect the environment.

Hall said the conditions were nothing more than those already agreed to by Superferry officials and would not protect Maui from irreparable harm as determined by Cardoza in an earlier ruling.

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

Cardoza, responding to the Supreme Court decision, ruled on Oct. 9 that Hawaii law was clear in requiring the Superferry to prepare an environmental assessment prior to operating at Kahului Harbor.

Hall said the state Legislature in passing special legislation last week to assist the Hawaii Superferry retroactively enacted a law that was unconstitutional.

"The intent is to overrule two judicial decisions: one of the Hawaii Supreme Court and Judge Cardoza," Hall said.

Superferry President John Garibaldi said his company could meet the conditions.

"The Hawaii Superferry believes that the operating conditions outlined by the governor are reasonable and fair under the current circumstances," he said.

In a news conference yesterday at the state Capitol, Lingle said she tried to work out conditions that would both protect the environment and still allow the Superferry to operate.

In previous discussions, Superferry officials have said that the business model calls for the ship's travel times to be relatively competitive with airline transportation.

The Alakai can cruise at 37 knots, or more than 42 mph. Opponents say a speed over 13 knots, or almost 15 mph, increases the risks of hitting a whale.

Lingle says even at slower speeds, Hawaii records an average of one whale strike a year.

"No matter how stringent the conditions are, the truth of the matter is that there is a whale collision just about every year in Hawaii," she said. "It is not unique; it is not something that happens once a decade. It usually happens every year.

"We are going to try to do our best to make sure the marine life is protected -- it is not unusual that a marine mammal gets hit," Lingle said.

A biologist who testified in the recent Maui court case that blocked the Hawaii Superferry from sailing said there have been an average of 4.8 whale strikes a year in Hawaii waters in the five past seasons.

Lingle's speed conditions and call for two whale spotters are similar to what the Superferry had already proposed.

Farmers in the loop

One new item called for by Lingle is for the Superferry to hold talks with local farmers about reducing shipping costs for carrying produce from farm to market.

"I expect them to have discussions with people in the farm bureau and to truly review their own business plans," Lingle said.

The signing of the bill and the conditions set forth by Lingle also upset Superferry supporters, such as Sen. Sam Slom (R, Hawaii Kai-Diamond Head).

"I must admit I remain concerned, and disappointed, about all of the meetings and importance continually given to individuals and groups such as Sierra Club, Maui Tomorrow, Pacific Whale Foundation and others, dedicated to scuttling the Superferry, as well as the additional conditions imposed on Superferry by the governor after talking to these anti-Superferry people," Slom said.