Tuesday, December 9, 2008

Superferry's interisland service depends on court ruling

HONOLULU ADVERTISER     Tuesday, December 9, 2008

Hawaii Superferry's interisland
service depends on court ruling

Service may be halted if high court rules against law that let ship operate

By Derrick DePledge
Advertiser Government Writer

The state Supreme Court, whose ruling last year led to a three-month shutdown of Hawaii Superferry, will decide whether the interisland service can continue in a new case to be heard next week.

The court will decide whether Gov. Linda Lingle and the Legislature violated the state Constitution last year with a new law that allowed Superferry to resume operation while an environmental review of the project is completed.

A ruling could have an immediate impact on whether Superferry can operate between O'ahu and Maui. It could also influence the separation of powers among the governor, the Legislature and the courts.

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, the nonprofit groups that brought the legal challenge that temporarily stopped Superferry last year, have asked the court to declare the new law unconstitutional.

Arguments before the court are scheduled for Dec. 18.

The Supreme Court ruled in August 2007 that the state should not have exempted the Superferry project from an environmental assessment. A Maui court subsequently halted ferry service to Kahului Harbor, while public protests kept the ferry from returning to Kaua'i.

Lingle called a special session of the Legislature, where lawmakers passed a bill that allowed the ferry to resume operation under conditions designed to protect the environment while an environmental impact statement is prepared. Lingle signed the bill into law, and the Maui court allowed the ferry to return to Kahului Harbor.

Many political observers thought the legal challenges were largely over, but the court's willingness to hear the appeal so soon raises the possibility that Superferry may again be stopped.

"This case is now a case of even greater public importance," Isaac Hall, the Wailuku attorney representing the environmental groups, said in court filings.

violations alleged

Hall's main arguments are that the new law violates two parts of the Constitution: Article I, Section 21, which bars the state from making any irrevocable grants of special privileges; and Article XI, Section 5, which says the Legislature can only exercise power over state lands through general laws.

The constitutional restriction on special privileges, according to the Legislative Reference Bureau, is meant to ensure the state acts on behalf of all people and not for the sake of the elite. The provision limiting the Legislature's power to general laws over state lands is designed to prevent sweetheart land deals for private interests.

Lawmakers, mindful of the constitutional restrictions, were careful not to mention Superferry by name in the new law, and instead described a "large capacity ferry vessel."

But Hall argues that the new law was "conceived, cut and tailored" solely for Superferry, a special law that gave Superferry access through an operating agreement to state land at Kahului and other harbors.

Hall also argues that the new law deprives the environmental groups of a vested right, given by the Supreme Court's ruling last year, for an environmental assessment under the state's environmental review law. The new law removed the large-capacity ferry vessel from under the state's environmental review law and created a similar — although not identical — process to conduct an environmental impact statement by next summer.

Hall argues that the new law "amounts to a legislative and executive revision of judicial decisions."

Lawmakers were guided when drafting the new law by the 1992 U.S. Supreme Court ruling in Robertson v. Seattle Audubon Society. The ruling found that it was not unconstitutional for Congress to change timber harvesting rules in federally managed forests in response to legal challenges by environmentalists, who had argued that the old rules threatened endangered northern spotted owls.

The ruling found that Congress did not direct results in the legal challenges under the old law, but instead replaced the legal standards with new provisions.

Lawmakers in Hawai'i essentially did the same thing with Superferry.

                      State lawyer counters

Dorothy Sellers, the state solicitor general, argues in the state's legal briefs that the governor and lawmakers acted within their authority to create new public policy.

Sellers said the new law is not an irrevocable grant of special privileges for a ferry company because it expires when the environmental impact statement is accepted by the state or, at the latest, by next summer.

The new law is not a special law involving legislative power over state lands, Sellers argues, because the operating agreement is between an executive-branch agency — the state Department of Transportation — and a ferry company. The ferry company also does not have an exclusive right under the agreement and must share state harbors with other users.

Sellers said Hawai'i courts have not addressed the meaning of general law as it applies to Article XI of the Constitution, but the Supreme Court has upheld a legislative act designed to respond to a singular circumstance. In Bulgo v. County of Maui in 1967, the court found that it was constitutional for the Legislature to pass a law tailored for Maui calling for a special election to replace the chairman of the board of supervisors, who had died shortly after re-election and had not begun his new term.

Sellers also argued that the environmental groups have no vested right to an environmental assessment for Superferry under the state's environmental review law because the August 2007 Supreme Court decision was not the final judgment in the case.

The appeal, Sellers said, is "an assault on the inherent, essential power of the Legislature to speak for the people and to revise the public policies of the state as the Legislature determines necessary."

Last year, lawmakers were not enthusiastic about returning in special session to help Superferry but agreed because of the potential benefits of interisland ferry service. Lawmakers found that the ferry was an alternative mode of transportation that could help move people and cargo between the islands and could be an asset in disaster relief.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she believes the Legislature acted properly. She wishes, however, that the state House, Lingle and Superferry had agreed with the Senate and supported an environmental review of the project before the court ruled that such a review was required.

Hanabusa predicted that justices would decide the appeal based on an Article XI test of whether the new law is general or special.

              'a major problem'

If the court were to issue a broad ruling limiting the Legislature's power, Hanabusa said, lawmakers may have to consider asking voters to amend the Constitution.

In 2006, for example, voters approved a constitutional amendment that allowed the Legislature to define what constitutes the continuous sexual abuse of a minor under 14. The court had ruled that a law defining continuous sexual abuse was a violation of the right to due process because jurors were not instructed that they had to be unanimous about which specific acts amounted to continuous abuse.

"If the Supreme Court comes back and says that we don't have the right to make exceptions to the law, for whatever reason, then we're going to have a major problem," Hanabusa said.

Irene Bowie, the executive director of Maui Tomorrow, said the environmental groups deserve a real environmental assessment of Superferry, not what their attorney has described as a "pseudo-process that falls far short" of the state's environmental law.

"I think that this has been an illegitimate process. I don't think there's any real results that we'll come away with on this," Bowie said of the new law. "We would absolutely like to see this done over again in the proper way."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.

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