Tuesday, October 9, 2007

LA Times Article

Note: Much of the story is below the photos.
 
latimes.com


From the Los Angeles Times

COLUMN ONE

Superferry sets off the battle of Kauai

Hawaii Superferry
Dennis Fujimoto / Garden Island
Residents of the island of Kauai protest the arrival of the Hawaii Superferry in August. Islanders, in the face of Coast Guard gunboats, formed a floating blockade at the harbor entrance and, after a three-hour standoff, forced the $85-million ferry to turn back to Honolulu.
Longtime residents of the Hawaiian island have found a focus for their resentment of nonstop development and tourism.
By Tomas Alex Tizon,    tomas.alex.tizon@latimes.com
Los Angeles Times Staff Writer

October 9, 2007

LIHUE, HAWAII — The woman in the sun hat wants to crack someone in the jaw. It's been a bad day. Actually, for Kaiulani Huff, it's been a bad few decades.

She has watched as her home, the island of Kauai, changed from a wild garden of secret places to -- in her eyes -- an overcrowded amusement park for rich people.

"Welcome to Disneyland," she says one day while driving around the island. "See the natives. Watch us dance the hula. Clog up our roads. Buy up all the good land. And please, help yourselves to our beaches!"

Development on Kauai has been so unrelenting that Huff's sentiment has become widespread among longtime residents, although until recently it was a quiet simmering.

In late August, with the arrival of the Hawaii Superferry, the first inter-island car-carrying ferry, the simmering boiled over. Islanders, in the face of Coast Guard gunboats, formed a floating blockade at the harbor entrance and, after a three-hour standoff, forced the $85-million ferry to turn back to Honolulu. The protest had turned into a citizen uprising.

The crowd represented a motley army of beach bums and businessmen, lawyers and ex-cops, dopers and doctors, and at least one college instructor -- many of whom discovered for the first time that they shared the same concerns. How many tourists and resorts and subdivisions can a little island take?

"The population is saying, 'Enough already,' " says Dennis Chun, 57, who with his surfboard had helped lead the human flotilla.

At the forefront of that protest was Huff, her face covered in war paint, like her Polynesian ancestors going into battle. Unlike her ancestors, she wore a bamboo sun hat.

Wearing the same hat this afternoon, she drives around the island's north shore in bumper-to-bumper traffic and ends up in another confrontation. She stops her pickup at what used to be a favorite secluded spot, now part of Ha'ena Beach Park. The lot overflows with cars, and the beach swarms with people she doesn't know. At one end, Huff spots an old-timer selling baskets made of coconut leaves. She pulls over to visit with him.

Within seconds, a young couple, cameras dangling, slip into their rental car. The driver backs up, but Huff's truck is blocking the way. The driver tells Huff to move her truck.

"Just cool it, brah," Huff tells him. "This isn't New York. This is Kauai. We'll be leaving in a few."

The driver backs up another several inches. He glares at Huff.

There was a time, when Huff was younger and rowdier, when she might have turned on the impatient driver. Instead she tells herself to breathe. She buys three baskets, moves her truck.

The couple speeds off.

Later in the drive, Huff says she wanted to ask the couple:

Is your ohana from here? Did your family gather at this white-sand beach for generations, before it became a park, before the dune was paved over, before the signs warning of riptides went up? Did your family swim in the warm blue salt water and then race across the road to the cold freshwater pond that formed from the river that flows down from Mt. Waialeale, and then plop down on the sand for hours on end -- with no one else around?

"My family did," Huff says.

She is 45, a striking, pale-skinned, black-maned "island girl" (her label) and a jack-of-all-trades whose list of former occupations includes flight attendant, bank executive, hula dancer and helicopter refueler. Making a living on a tiny island often means taking whatever job comes along.

Now Huff spends most of her time at home, caring for her quadriplegic teenager son (injured in a diving accident), while her husband, a carpenter, works to support the family.

They live in a modest, oft-remodeled rambler inland of Kapaa (population about 10,000) on the east shore, next to a goat pasture. The house sits among other modest homes inhabited mostly by locals.

She's on her way to commiserate with a couple of friends whom she calls Auntie Nani and Auntie Cathy. All three grew up on the island. All remember when the only stoplight was in the middle of a cane field and the airport was a metal shack.

Kauai is the oldest geologically and the most isolated of the four main Hawaiian islands. It is 33 miles long and 25 miles across, and lies farther west than the rest, receiving the brunt of the eastern trade winds. The wind and rain over 5.8 million years carved up mountains more jagged and canyons more cavernous than on the other islands.

Old-timers will tell you nature roughed up Kauai but, to compensate, made it more stunningly beautiful.

The people who lived here tended to be scrappier and more independent by reputation. Kauai was the only island not conquered by Kamehameha the Great (he tried twice) during his campaign two centuries ago to unify the islands.

Kauai was a sleepy, rural, largely undiscovered place until Elvis made it famous in his 1961 movie "Blue Hawaii." Each successive tide after that brought more outsiders.

When Huff was born, a year after the movie, 29,000 people lived here in settlements connected by a single perimeter road.

Now, during parts of the year, there are almost that many visitors on the island each day. The tourists must share space with 60,000 residents. The main road system -- a two-lane perimeter highway -- has remained largely the same, including more than a dozen one-lane bridges.

Huff picks up her aunties, Puanani Rogers, 68, and Cathy Ham Young, 77. The three plan to eat lunch and catch up. Rogers and Ham Young remember the days before Hawaii became a state, and both have had run-ins with newcomers. Rogers has tried unsuccessfully for years to establish an islandwide moratorium on development.

Ham Young is in a legal fight with actor Pierce Brosnan, who owns property in Wainiha Valley on the north shore. Brosnan, according to Ham Young, owns several ponds that divert water from her family's generations-old taro farm. (Brosnan's attorney says the ponds are legal.)

The island roils with stories of the rich buying and closing off easy access to Kauai's prime spots, including long stretches of waterfront. Many of the old dirt roads and foot trails leading to beaches no longer exist or have been legally blocked by new landowners.

All along Kauai's east shore, Huff, with her aunties in the back seat, slows her truck to point out beaches where she used to play and swim. "Private Property" and "No Trespassing" signs hang between swaying palm trees.

All three women lament the predicament of residents who can no longer afford to live here because wealthy transplants have priced them out of the market. According to a county assessment, the median household income of $56,300 can buy a house valued at $183,100. The median price for a single-family home on Kauai has risen to more than $530,000.

"That's why our kids and grandkids have to leave," Rogers says.

On the island's south side, in the Lihue area, big-box stores such as Costco, Home Depot and Big Kmart have taken over immense swaths of land (Wal-Mart built on the other end of town).

On the west side, mini-cities of condos and houses have replaced small farms. Land still zoned for agriculture has been taken over by multi-acre estates and boutique ranches.

Across the island, more than a dozen major construction projects, totaling 4,500 residential units, are underway. Plans over the next two decades would add an additional 12,000 homes and condos; the population is projected to grow to more than 85,000 by 2025.

"Whenever something from the outside comes here, something on the island dies," says Mikala Shofner, 38, who helps run the local Boys & Girls Club.

All the percolating resentment, from all corners of the island, seemed to coalesce with the coming of the Superferry.

It was a natural enough idea for an island chain: a high-speed ferry that could transport people and their cars from Oahu to the outer islands and back at affordable fares.

A fisherman could drive his pickup onto the ferry in Oahu -- the ferry's home base -- and drive off on Kauai three hours later. A lei-maker on Kauai could sell the leis on heavily populated Oahu.

Families on Maui could visit relatives in Honolulu without spending a fortune on airfare and rental cars. More residents, especially those with flexible schedules, could commute shore to shore: Work on Oahu and live, say, on the Big Island.

The Superferry held the potential to transform the way of life in Hawaii, whose islands have each tried to maintain a separate identity and some autonomy.

The Superferry has only one boat for now -- a state-of-the-art aluminum catamaran, 350 feet long with a cruising speed of 35 knots (about 40 mph) -- but another is under construction.

John Garibaldi, chief executive of Hawaii Superferry Inc., says he envisions an initial fleet of three or four ships. If they're built like the first one, each will be capable of carrying 866 passengers and 286 cars per trip.

The plan was to make a daily Honolulu-to-Maui round trip in the morning and Honolulu-to-Kauai in the afternoon. A second ferry would add a daily run to the Big Island. The number of trips would increase as more vessels were added.

The ferry made only two successful trips -- to Maui and Kauai -- on Aug. 26. The next day, Kauai residents blocked the boat, and residents on Maui got a court order to keep the ferry away. Activists on the Big Island are considering similar actions.

"Change is a difficult item," says Garibaldi, 54, formerly chief financial officer of Hawaiian Airlines. His ferry company has powerful allies, among them Republican Gov. Linda Lingle and Democratic U.S. Sen. Daniel K. Inouye. Garibaldi says he believes he also has the support of a silent majority of residents.

On Kauai, where opposition has been most visceral, supporters -- often drowned out in public forums -- have started speaking up. The Kauai Chamber of Commerce put out a tepid statement calling for protesters to obey the law. A few residents have come out swinging.

"The ferry would be the best thing to ever happen to this island," says Jay Trennoche, 62, a retired chiropractor who has lived on Kauai for more than four decades. "From what I've seen of the protesters, they're like, 'Now that I'm on this beautiful rock, let's kick the ladder off so no one else can get on.' "

Trennoche, who plans to start up a hostel, correctly points out that Kauai, like the rest of the state, depends on tourism for revenue. According to Kauai County, the visitor industry generates one-third of the island's income. Hotels alone provide 14% of Kauai's employment.

Says Trennoche: "Whether we like outsiders or not -- and I personally think they've made a hellhole of the islands -- we need them to keep coming."

Rich Hoeppner sits on his lanai, feet up, coffee cup in hand, listening to the sounds of a family of doves outside. He hears it clearly. None of his windows have glass, and none of his doors have locks.

His home, a dodecagon -- a circular structure with 12 sides -- that he built out of redwood and cedar, sits at the edge of the Wailua River Valley, a place where wild pigs still roam.

He is 68, living the retired life he dreamed of during his decades of work as a police officer on the mainland. Imagine that, he says: an ex-cop living in a house with no locks.

"I know how burglars work," he says. "I guarantee you there are professional burglars on Oahu who would come here, find houses like mine, load up their trucks and take the next ferry back before anyone realizes their stuff is gone."

Drive around the island, he says. Check out all the pickups with surfboards piled high in the bed, unlocked and unsecured. "That way of life would be gone" with the Superferry, he says.

Chun, one of the surfers in the human blockade, says much of the passion against the Superferry comes from a larger fear that up until now had no focus. The ferry has become that focal point.

A number of groups have been holding secret meetings to plan for the next time the Superferry tries to dock here. Chun, Hoeppner and Huff all predict a larger protest the next time around.

At her house by the goat pasture, Huff goes about her daily chores, taking care of husband and son, feeding the dogs -- and keeping the war paint and sun hat ready.

Like other islanders, Huff frequently evokes Kauai's history of rebuffing invaders. "Never conquered," she says. "Never will be conquered."

Kauai's history, though, as with most stories that move beyond the merely patriotic, is more complicated. True, Kamehameha the Great never subjugated the Kingdom of Kauai.

But in the end, with time on Kamehameha's side and the threat of his warriors looming, the Kingdom of Kauai acquiesced on its own. The hardy islanders, for all their independence, could not stop the changing times.

tomas.alex.tizon@latimes.com

A Genuine win-win compromise Superferry-EIS proposal

When I was in college, I took out government loans, and got deferred payments until I graduated.  (No money was due until I started earning my money).  Bring the Fed's in who guaranteed the Superferry loan.  With them and/or the help of the US Congress a rider bill can be done to defer loan payments for Superferry.  Do the same thing for the State Loans. 

Superferry then SITS IDLE while the very lawful EA/EIS is done, and no harm is done to the Neighbor islands.  O'ahu will practice aloha and be patient, not grumble about missing a possible "convenience" at the risk of irreparable harm to its neighbors.  Sounds simple, it is.  Not political, just simple.

A Federal and state deferral of loan payments answers all, and takes the pressure off.

Aloha,

John Tyler Cragg

Judge rules against Hawaii Superferry

Posted on: Tuesday, October 9, 2007

Judge rules against Hawaii Superferry

Share your thoughts on the ruling
 •  Superferry protesters applaud Maui judge's ruling
 •  No decision yet on special session for ferry
 •  Garibaldi: decision is great loss for the state
 •  Hawaii Superferry: A timeline

Advertiser Staff


Hawaii news photo - The Honolulu Advertiser

Maui Circuit Judge Joseph Cardoza ruled today that the Hawaii Superferry cannot operate during the state's preparation of an environmental assessment.

AMANDA COWAN | The Maui News via AP

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Hawaii news photo - The Honolulu Advertiser

Personnel man the 350-foot, high-speed Hawaii Superferry today before a highly anticipated decision on the vessel's fate came from a Maui courtroom.

RICHARD AMBO | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser

A Maui judge's ruling today against the Superferry came at the end of a monthlong hearing on a request for a preliminary injunction filed by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

RICHARD AMBO | The Honolulu Advertiser

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Hawaii news photo - The Honolulu Advertiser

Attorney Isaac Hall, representing the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, updates the media today on Maui after winning an injunction against the Hawaii Superferry.

CHRISTIE WILSON | The Honolulu Advertiser

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WAILUKU, Maui — The future of the Hawaii Superferry was thrown into doubt today when a Maui judge ruled the ferry will not be allowed to operate while the state prepares an environmental assessment of its impacts.

An environmental assessment could take several months to complete.

Hawaii Superferry President and CEO John Garibaldi has said such a ruling would essentially kill the company's plans for doing business in Hawai'i. He said the company has been racking up weekly costs of $650,000 and cannot afford to keep its 350-foot, high-speed ferry tied up at dock while the state conducts the assessment.

State House and Senate leaders said this morning that a special session is likely now that a Maui judge has ruled that Hawaii Superferry cannot operate while the state conducts an environmental assessment of the ferry's impact on state harbors.

Garibaldi told reporters he was "very upset for the people of Hawai'i" to be denied ferry service.

Maui Circuit Judge Joseph Cardoza said his ruling was based on Chapter 343 of the state's environmental law which, he said, clearly states an environmental assessment must be done before a project can proceed.

In his ruling, Cardoza also said the Hawaii Department of Transportation's 22-year operating agreement with the Hawaii Superferry is invalid. That would appear to mean the vessel is prohibited from using port facilities statewide.

In response to the argument the Superferry is no different from barges, cruise ships or airplanes, Cardoza said the ferry is clearly a new technology and a new chapter in transportation in Hawai'i.

In a preamble to announcing his ruling, Cardoza acknowledged the ferry debate has divided the state. "I hope today will serve as a moment of reflection for all of us and recognition of the need for having this community work together. We can have different views but we do not need to have a divided community just because we have different views.

"If we remain divided as a community, these problems will not go away."
State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), and state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), plan to meet with Gov. Linda Lingle this afternoon about a special session.

Hanabusa and Say said they would likely ask the governor for some time to process the court's ruling and to discuss options with their caucuses.

"Now we're in almost the worst possible situation, in that we're going to, as a Legislature, have to make the decision on whether we're going to overrule the third branch of government because there is great public sentiment in favor of Superferry," said Hanabusa, who watched the court proceedings over the Internet in the office of one of her aides.

Say, who has supported the Superferry, said: "I hope we can come up with creative ideas in trying to address this. I'm very optimistic that maybe something will come about.

"For me, when you have a crisis, that's when you're supposed to rise to the occasion."

Hawaii Superferry protesters celebrated Cardoza's ruling.

"I'm so happy right now," said Andrea Noelani Brower.

Brower, 22, was born and raised on Kaua'i and was one of the dozens of protesters who jumped into the water in August in an effort to prevent the Superferry from docking at Nawiliwili Harbor.

The protests help prod the Superferry to postpone its Kaua'i trips.

"I'm ecstatic," Brower said following today's ruling by Maui Circuit Judge Joseph Cardoza. "I really don't think there was any other way he could rule. The law made it completely clear that no action was to go forward until the correct environmental review had been completed."

Cardoza's ruling came at the end of a month-long hearing on a request to halt ferry service filed by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

The groups' concerns include increased traffic around ports, the potential spread of invasive species and collisions with humpback whales. It was not immediately known if the Hawaii Superferry and the state will file an appeal of Cardoza's ruling to the Intermediate Court of Appeals.

Attorneys for the company and the state Department of Transportation argued there is an overriding public interest in immediately relaunching the Hawaii Superferry's catamaran.

In final arguments before the judge yesterday, Hawaii Superferry attorney Lisa Munger said state law, the Legislature, the Lingle administration, the federal government and the state Public Utilities Commission all endorsed the ferry by approving financing, permits and other support. She listed those who appeared in court to testify in favor of the interisland service, including business people, civil defense officials and regular folks who were looking forward to the convenience of ferry travel.

She questioned the motives of ferry opponents, saying the request for an injunction had nothing to do with making sure environmental studies were conducted.

"We're here today because the plaintiffs want to stop or punish the Hawaii Superferry while the Department of Transportation prepares an environmental assessment," Munger said.

Attorney Isaac Hall, representing the Sierra Club and the other two groups, said it was common sense and clear from the start that the ferry would have impacts on marine mammals, traffic, rural communities and invasive species.

He said the state Supreme Court issued an emphatic ruling Aug. 23 that struck down a DOT environmental exemption for the harbor improvements. Hall said the speedy ruling, issued the same day oral arguments were heard, showed the court wanted to give the plaintiffs time to seek a restraining order to halt the ferry before its scheduled launch date.

He said allowing the ferry to run while the assessment is conducted would violate state environmental laws and make it more difficult to impose operating conditions on the company, short-changing his clients' concerns.

Hawaii Superferry's woes likely to continue

Hawaii Superferry's woes likely to continue
 •  Lingle, legislators to meet on special session for ferry
StoryChat: Comment on this story

By Christie Wilson
Advertiser Neighbor Island Editor



WAILUKU, Maui — Even if today's Maui court ruling allows Hawaii Superferry to resume service to Kahului Harbor, the company may still face stormy seas.

The statewide debate over the new interisland ferry service has elevated tensions.

Maui groups worried about the potential environmental impact of the Hawaii Superferry so far have prevailed by relying on the state's legal system. But if Maui Circuit Judge Joseph Cardoza sides with the company and the state Department of Transportation, observers say the vessel likely will be met by protests when it reaches Kahului.

"I can tell you the Superferry certainly would not be greeted with open arms. I don't know if people would jump into the harbor and block them," said Karen Chun, a canoe paddler who has long been involved in issues surrounding the state's development of Kahului Harbor.

"There is a level of anger not just directed at the Superferry, but it could be a catalyzing force."

Maui Tomorrow, the Sierra Club and the Kahului Harbor Coalition won a Hawai'i Supreme Court ruling in August requiring the state to conduct an environmental assessment of ferry-related harbor projects. A subsequent restraining order has prevented the vessel from calling at Kahului since Aug. 27.

Following a monthlong hearing, Cardoza is expected to rule today on whether the ban should remain in place during the assessment process.

On Kaua'i, protesters jumped into the harbor to stop the vessel from docking at Nawiliwili on Aug. 27, and heckled Gov. Linda Lingle and other officials at a recent public meeting on the ferry.

The company has decided to suspend Kaua'i service at least until the Maui court ruling. Hawaii Superferry President and CEO John Garibaldi has said the Maui service is the linchpin in the company's business plan, and without it, the ferry likely will be moved out of state.

DIFFERENCE IN PROTESTS

One difference between Hawaii Superferry opponents on Maui and Kaua'i is that the Maui groups leading the charge are long-established organizations that have been involved in a series of land-use, development and water issues. The Kaua'i protests have been somewhat spontaneous and loosely organized affairs, and more difficult to control.

Another difference, according to Chun, is that passions may be less intense on Maui because "we're diluted by a lot of newcomers who don't have the same ties to their cultural roots" as some of the protesters on Kaua'i.

Still, any ferry's return to Maui "won't be as polite as it was last time," said Chun, a member of the Kahului Harbor Coalition.

In the wake of the state Supreme Court ruling, which was announced on a Thursday, the Hawaii Superferry moved up by two days its launch date to Aug. 26, a Sunday. Only a handful of protesters with signs stood outside the ferry exit when the vessel visited Maui that day, and there were no demonstrators when it made its last voyage the following day.

"We knew we were in court, and we thought it was disrespectful and sneaky to move their starting day up. But we knew that come Monday, the judge would issue the temporary restraining order," Chun said.

"Hawaii Superferry really has people feeling like they have been pushed too far. If Superferry is running and it's bringing cars, then there definitely is going to be a lot of outcry. At the very least they'll be met with signs."

Native Hawaiian cultural practitioner Uncle Les Kuloloio said the intensity of the reaction to a court decision will depend on whether the judgment is perceived as "pono," or just and proper.

ISLAND CONCERNS

Kuloloio testified during the court hearing that he was concerned the ferry would allow people to bring their vehicles to Maui and deplete Native Hawaiian subsistence hunting, gathering and fishing grounds.

"For Maui, we like to use the process of law and order. I don't know whether Maui would do what Kaua'i did," he said.

"I'm sure if it goes whatever way it goes and the governor continues to interfere, then yeah. I think she needs to back off," he said. "Local people have a sense of place and a unique sense of emotion about their own island, and for government to step in and use political pressure on everybody on Maui" would be a mistake.

"It's not against the ferry, it's just about putting things into perspective and making things right and trying to build trust back into the system."

Lucienne de Naie of Maui, vice chairwoman of the state chapter of the Sierra Club and a Maui Tomorrow board member, said both groups are committed to using lawful means in any protests they may undertake.

"If we were to have any kind of sign-waving, it would be peaceful, it would have a permit and it would be conducted entirely lawfully," she said.

De Naie was uncertain whether anyone outside the three groups would protest the ferry's arrival. "This is something that has a life of its own," she said.

EMOTIONAL CAUSE

People might be more willing to accept a decision on the Hawaii Superferry's fate delivered by the courts than one devised by politicians, according to de Naie.

"There may be a spontaneous reaction after people felt they were heard by the Supreme Court and then (Hawaii Superferry) bullies the Legislature and the governor to get its way," she said. "Things may be at a more elevated pitch."

The Sierra Club and Maui Tomorrow likely would pursue an appeal to an adverse ruling by Cardoza, she said. "I don't think it's over yet."

The groups have spent $70,000 on legal fees so far and are raising additional funds for the case. De Naie said the two organizations have been so focused on the legal case that they may have neglected to fully educate the public about why they have pursued the legal action.

Emotions are running high on both sides of the issue, and it's not clear if there will be protests by pro-ferry forces in the event Cardoza keeps the ferry out of service.

'FEELING BETRAYED'

De Naie said Sierra Club board members removed their phone numbers from the group's Web site after a stream of harassing calls and death threats that have been reported to police.

It also appears anti-ferry sentiments on Kaua'i have not been defused, according to Andrea Brower of 'Aliomanu, who protested the vessel's visits to Nawiliwili on Aug. 26 and 27. If the company is cleared to operate Maui voyages, it's expected to resume service to Kaua'i.

"It's hard to predict what kind of reaction there will be. It depends on how the Superferry responds to the court decision and if there's a special session in the Legislature. A lot of the emotional response has been based on people feeling betrayed by government," Brower said.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.

Monday, October 8, 2007

Maui Judge: Superferry Ruling Coming Tuesday 10am

Maui Judge: Superferry Ruling Coming Tuesday 10am

Saturday, October 6, 2007

Listening to Kauai

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

Military Conspiracy Over Superferry?--KHNL TV news story


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Military Conspiracy Over Superferry?

Oct 4, 2007 12:53 AM

Andrea Noelani Brower
Andrea Noelani Brower
Paul Thies
Paul Thies



by: Mari-Ela David

HONOLULU (KHNL) - Is there a military conspiracy involving the Hawaii Superferry? That's what some protesters are saying. Wednesday night, they called the Army out on it during a public hearing at Kawananakoa Intermediate School.

The hearing was not on the Superferry, it was on a draft environmental impact statement over a plan to permanently station a stryker brigade in Hawaii. But Superferry protesters claim there is a disturbing connection.

The Army is looking at Hawaii as one of three prime sites for a permanent stryker brigade station. The other two proposed locations are in Alaska and Colorado.

"It is our observation that the people who support these projects will be paid, and those who will be affected most will pay the price," says Ikaika Hussey, an activist with DMZ Hawaii.

During a public hearing, protesters blasted the Army for conspiring with Hawaii Superferry. As evidence, they list an article in Pacific Business News published in March 2005. In it, Superferry Board Chair John Lehman says the ship will be used to transport strykers.

"Lehman told PBN that this logistical plan will make it easier for soldiers to train when the stryker brigade comes to Hawaii. The brigade will be stationed on Oahu and conduct training exercises on the Big Island," says Kauai Superferry activist Andrea Noelani Brower.

"I'm sure the Ferry would like to have some additional business. Who knows if down the road the Army puts a contract out and the Superferry wins the contract, but right now the Army's got its own transportation - boats. The Army wouldn't need the Superferry to the best of my knowledge," says Army Chief Environmental Planner Paul Thies.

Protesters fear Hawaii's environment is at stake.

"The primary armament on stryker vehicles is a gun with ammunition made of depleted uranium," says Brower.

"Weapons in the firing of this installation, on this island, we're in the continental united states, We'll never use depleted uranium. It's a Department of Defense policy, in fact it's above the Department of Defense," says Thies.

The Army will accept public concerns until the end of October, and make a decision by Christmas.

The army does admit a stryker brigade will have significant environmental impacts on Hawaii.

At the meeting, the army had a poster listing those impacts, including soil erosion, wildfires, and threats to endangered species.

Superferry officials could not be reached for comment Wednesday night.

Advertiser Superferry Poll


 
Here is the Honolulu Advertiser's poll.  
 
Here is the question at the website:
What should be done with the Superferry?
 
 Let it sail!!!
No EIS, No SuperFerry
No SuperFerry at all
 
PLEASE pass this on to everyone


Friday, October 5, 2007

Superferry hearing ends; judge to rule on Monday

Superferry hearing ends; judge to rule on Monday

By Christie Wilson
Advertiser Neighbor Island Editor

WAILUKU, Maui — A Maui judge is expected to rule Monday on whether the Hawaii Superferry will be allowed to resume Maui service while the state conducts an environmental assessment of ferry-related harbor projects.

Judge Joseph Cardoza brought the final gavel down this afternoon on four weeks of testimony presented on one side by the company and the state Department of Transportation, and on the other by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

Witnesses for the company and the state have testified about the public need for an interisland ferry service, and about the potential financial impacts if the company is not allowed to resume operations immediately.

The three community groups have presented testimony on the potential environmental impacts of allowing the ferry to sail before the assessment is complete. These include worries about the spread of alien species, collisions with humpback whales, and degradation of Native Hawaiian subsistence fishing, hunting and gathering grounds.

Hawaii Superferry President and CEO John Garibaldi testified yesterday the company will not be able to absorb the financial blow caused by a continued prohibition of service to Maui. He said the company would have to lease the vessel out in order to generate revenue.

If Cardoza rules the high-speed catamaran can go back into service during the months it will take the state to perform the assessment, he may set temporary conditions on ferry operations to mitigate some of the environmental issues.

Attorneys will present their closing arguments at 9:30 a.m. Monday. Cardoza today indicated he would render a decision then.

Museum Links Whale Deaths to Ships

Can this be gotten to Isaac Hall and the Maui Court case asap?  And distributed to lists?


Aloha John,
I thought that this was a pertinent article in relation to the upcoming SuperFerry. Mahalo for continuing to update everyone about the ongoing situation.

(article was published in the University of Santa Barbara's Daily Nexus Newspaper.)

Museum Links Whale Deaths to Ships
By Laura Wiesenberg / Staff Writer

Published Thursday, October 4, 2007

Issue 8 / Volume 88

After weeks of tests, scientists from the Santa Barbara Museum of Natural History announced that ships are to blame for the recent deaths of three blue whales in Southern California waters.

Following the results of two necropsies, the museum's team reported that domoic acid poisoning did not play a role in the deaths of three blue whales found off the Southern California coast. The museum headed the investigation into the deaths of two of the three dead whales, both of which were found in Ventura and Santa Barbara counties. Analysts have since determined that all three whales were struck by vessels in the water.

Museum spokeswoman Easter Moorman said the museum's team explored domoic acid poisoning as a possible explanation for the large numbers of collisions in such a short period of time.

Plankton produce domoic acid during warm months, usually from March to June. According to Moorman, the levels of domoic acid move up the food chain from plankton to larger marine mammals, which is potentially fatal. Previous researchers have documented the effects of domoic acid in dolphins and sea lions. The museum's domoic acid tests are among the first conducted on whales.

"It is a neurotoxin," Moorman said. "It potentially could play a role. With high enough levels, it could impact orientation of whales feeding in the shipping channels."

National Oceanic and Atmospheric Administration Biologist Joe Cordaro said neither of the levels of domoic acid in the whales were significant.

Cordaro said he is uncertain as to whether the rate of whale deaths is increasing. He said it was possible that communities were just reporting the incidents more frequently.

"We have no way of knowing if there's something going on different this year, or if this is the norm and we're just finding out," Cordaro said.

Moorman said the first dead whale was spotted in Long Beach Harbor on Sept. 8.

"It came into the harbor on the bow of the ship," Moorman said. "It is a male, and the team down there took skin samples."

Cordaro said the second dead whale was spotted floating in the Santa Barbara Channel on Sept. 14 and was eventually stranded on Hobson County Beach.

"That whale was also confirmed to have died of a ship strike," Moorman said. "When we necropsied, the vertebrae was basically cut in half. When the vertebrae was broken, it also severed a major vein and the whale bled out."

On Sept. 21, the third whale was seen floating near oil rigs, according to Cordaro. It was towed to Point Mugu as part of a joint effort of the museum, the NOAA and the U.S. Navy. Following a second necropsy performed by the museum's team, the whale's death was also attributed to a ship strike.

"Unfortunately, some of them are feeding right in the shipping lane," Cordaro said. "That's why we believe we've gotten so many ship strikes. It's like a train wreck - big animals in a small area so busy feeding that they aren't aware of the vessels."

No ships have reported hitting a whale, but Cordaro said it is possible for a large ship to remain unaware of a collision. Ships that report an incident are exempt from consequences, but if a strike is traced back to a vessel that did not report the collision, the ship could receive penalties.

According to the museum's Web site, the last known stranding of a blue whale was in Aug. 1996. The frequency of these recent blue whale deaths is a concern for experts.

The NOAA has requested that the coast guard restrict vessel speed to 10 knots in the shipping lanes in order to minimize the force of potential collisions between ships and blue whales. In addition, the agency has asked that any ships that have struck a whale report the incident immediately.

Digital Nexus

God's gifts, hiding everywhere

God's Gifts, They're hiding everywhere.  Check this out when you have a moment, it's touching and true.  Know this for yourself, know it for the kids you teach  =-) Make sure you have speakers/sound available...click:

TURNING FROM OIL TO ORGANICS

TURNING FROM OIL TO ORGANICS:

Evo Morales, Bolivia's first indigenous elected
leader since the Spanish conquest 470 years ago,
has nationalized his nation's oil and gas revenues
to fund a radical shift towards sustainable
agriculture and programs to assist the
impoverished. And he's accomplished all of this in
eight short months in office. Of course the White
House and multinational corporations vehemently
oppose Morales' populist platform, but, for the rest
of us, nationalizing oil and cutting military spending
to fund a country's shift towards sustainability is
truly inspiring. Watch this interview with the Daily
Show's Jon Stewart:

http://www.indecision2008.com/blog.jhtml?c=vc&videoId=103275

Thursday, October 4, 2007

Hawaii Superferry risk to whales raised in 2005


Hawaii Superferry risk to whales raised in 2005
 •  Expert says Superferry route would avoid whale densities
StoryChat: Comment on this story

By Christie Wilson
Advertiser Neighbor Island Editor


Hawaii news photo - The Honolulu Advertiser

A humpback whale leaps out of the water in what is called breaching, as viewed from a whale watching boat in the channel off Maui.

Associated Press library photo

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Two federal agencies raised concerns in 2005 about the Hawaii Superferry's potential impact on humpback whales and other marine mammals and recommended a "consultation" to examine the interisland service.

The National Marine Fisheries Service and the Marine Mammal Commission were especially worried about the likelihood of collisions between the high-speed ferry and humpback whales, according to officials from both agencies who said they had hoped the U.S. Maritime Administration and Superferry executives would work with federal marine biologists to develop measures to reduce the threat.

The Maritime Administration, known as MARAD, approved a $140 million loan guarantee to Hawaii Superferry on Jan. 21, 2005, for construction of two 350-foot catamarans, later determining that no environmental review of the action was required.

The Marine Mammal Commission had sent a Jan. 25, 2005, letter to the Pacific Islands Regional Office of the National Marine Fisheries Service expressing surprise that a "Section 7 consultation" under the Endangered Species Act had not been conducted on the potential effects of the ferry service on humpback whales and monk seals.

The letter from commission Executive Director David Cottingham said the high-speed vessel's "potential for injury of and disturbance to humpback whales and other species is clear," and that any federal agency taking action on behalf of the Superferry "has an obligation to conduct appropriate environmental analyses (under federal laws) ... because a 'may affect' situation is obvious."

Section 7 of the Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service if they are proposing an "action" that may affect listed marine species, which include humpback whales. "Action" is defined broadly to include funding, permitting and other regulatory actions.

The National Marine Fisheries Service sent a letter to MARAD in October 2005 asking whether the maritime agency would be conducting a Section 7 consultation "since we believed there was a threat of ship strikes to protected species," said Chris Yates, head of the service's Office of Protected Resources for the Pacific Islands Region.

According to Yates, MARAD responded in February 2006 that a consultation was not required since the loan guarantee "did not fund, authorize or carry out an action" that would have triggered an environmental review.

Copies of both letters were not immediately available but have been requested by The Advertiser under the Freedom of Information Act.

Yates said in an e-mail to The Advertiser that even if the loan guarantee was a done deal, "had (MARAD) decided to consult, there would have been ample time to analyze the potential effects" of Hawaii Superferry operations on whales and other endangered marine mammals before the start of service.

AGENCY CONCERNED

The company launched service between Honolulu, Maui and Kaua'i on Aug. 26, but suspended voyages the following day due to a Maui court order and anti-ferry protests on Kaua'i.

Tim Ragen, who succeeded Cottingham as head of the Marine Mammal Commission in Bethesda, Md., told The Advertiser last week the agency remains deeply concerned about "the apparent lack of environmental analysis" of the Hawaii Superferry. He disagrees with MARAD's decision to exclude the loan guarantee from the review under the National Environmental Protection Act.

The Marine Mammal Commission is an independent government agency created to provide oversight of the marine mammal conservation policies and programs being carried out by federal regulatory agencies.

"(MARAD) took an action in order to make the loan guarantee. If Hawaii Superferry was able to operate based on that action, then the act itself had consequences that would have been sufficient to initiate a Section 7 consultation," said Ragen, a marine mammal biologist who studied monk seals in Hawai'i during the 1990s.

"That was how we interpreted it and we were surprised there was no consultation."

MARAD officials in Washington, D.C., have not responded to an Advertiser request for comment. But MARAD official Jean McKeever testified Sept. 14 in an ongoing Maui Circuit Court hearing that an environmental review of the loan guarantee was not required because her agency was not providing a direct loan or funding to Hawaii Superferry.

The Hawaii Superferry's potential for whale strikes has been a main topic of testimony in the court hearing, now in its fourth week, to determine whether the company should resume service while the state Department of Transportation conducts an environmental assessment of $40 million in ferry-related projects at Kahului, Nawiliwili, Kawaihae and Honolulu harbors.

WHALE-AVOIDANCE PLAN

Hawaii Superferry officials say they consulted with experts to devise an unprecedented whale-avoidance policy that goes well beyond anything in practice by other interisland cargo or passenger carriers. The policy includes avoiding waters of 100 fathoms (600 feet) or shallower where humpback whales are known to congregate during the winter. When that is not possible due to poor sea conditions, the vessel will slow to 25 knots or less while traversing shallower waters.

The normal ferry cruising speed is 37 knots, or about 43 mph, making it the fastest commercial vessel in Hawaiian waters.

The policy provides an alternate winter route from Honolulu to Kahului that travels north of Moloka'i, instead of the usual route between Moloka'i and Maui within the Hawaiian Islands Humpback Whale National Marine Sanctuary. The company also will post two dedicated lookouts on board to assist the bridge crew in spotting whales.

RISK DISPUTED

Jeffrey Walters, the state's co-manager of the whale sanctuary, has said staying out of waters of less than 100 fathoms when possible during whale season is the most important element of the company's whale-avoidance policy. He said that if the company adheres to its policy, the ferry presents no greater risk to humpbacks than other vessels operating in whale waters during whale season.

Terry O'Halloran, Hawaii Superferry director of business development, said the company has a "great" whale-avoidance policy that goes as far as it can to reduce the collision risk, pending availability of technology such as forward-looking sonar.

O'Halloran was chairman of the advisory council to the national marine sanctuary, but not yet a Hawaii Superferry employee, when the panel voted to support its whale-avoidance policy in May 2005. The council comprises volunteers representing business, tourism, ocean recreation, Native Hawaiian, government, conservation and community interests.

Sanctuary Manager Naomi McIntosh of the National Marine Fisheries Service said that at the time the advisory council voted to support the policy, the panel recognized the need to publicize the company's plans and considered it "a working document to be revised if safer measures were identified." And since it appeared that no environmental review would be legally required, the policy "represented the best that can currently be done to avoid such collisions," she said in an e-mail to The Advertiser.

"While Hawaii Superferry's whale-avoidance policy is a good starting point, the sanctuary believes that it does not go far enough to protect endangered humpback whales in Hawai'i's waters and needs to be strengthened," McIntosh said.

SPEED RAISES FEARS

While praising the company's efforts to address concerns about whale strikes, McIntosh, Yates, Ragen and others remain concerned the big ship will be traveling too fast for its crew to spot whales and avoid collisions, and that the vessel's speed increases the risk of serious injury and death to whales.

Ragen said that "even 25 knots is remarkably fast."

"High-speed ship strikes are a significant issue with North Atlantic right whales and humpback whales, and ship size and speed are a factor. The higher the speed, the more difficult it is to avoid animals, especially in this case when you have a dense congregation of lots of whales," he said.

"This is the kind of issue where everyone would benefit from consultation, which could have identified measures to reduce the risk to whales. The essence of consultation is that you can consult with agencies responsible for protection," according to Ragen. "Anyone can always find a set of experts, but you need objective experts who can look at this from all different perspectives."

EXEMPTION ISSUED

After approving the loan guarantee in January 2005, the Maritime Administration issued a "record of categorical exclusion determination" on March 15, 2005, indicating the loan guarantee did not require further review under the National Environmental Protection Act because it would not result "in a change in the effect on the environment."

Yates said that as far as he knows, MARAD did not make an informal check with his agency on any potential effects before granting the exclusion.

The determination record also notes that when MARAD reviewed the proposed loan guarantee in December 2004, "there appeared to have been very little, if any, (federal) or state environmental work performed related to the proposed ferry service." However, on Feb. 23, 2005, the Hawai'i Department of Transportation issued its own environmental exemption to the "minor" improvements at four harbors to accommodate the Hawaii Superferry.

MARAD cited the state exemption as its other reason for granting the federal exclusion.

The Hawai'i Supreme Court ruled in August the state exemption was a mistake because the Hawai'i DOT considered only the harbor projects alone, without examining the potential impacts of their intended user, Hawaii Superferry.

Yates said that since 2005, the National Marine Fisheries Service "has proactively engaged various parties, including Superferry officials, to express our concern over possible impacts to (Endangered Species Act) listed marine species. Those discussions outlined our concern over the threat of ship strikes to protected species, particularly humpback whales."

"Our contact included meetings and several letters. We outlined our concerns about the continued potential for ship strikes despite the commendable efforts Superferry had already made on its whale-avoidance policy."

NO AUTHORITY TO ACT

Yates also pointed out that despite its concerns, the agency does not have authority to impose itself into the Superferry issue. One federal agency cannot require a consultation with another federal or state agency or a private business that is undertaking an action that may effect the environment, he said.

However, the action may be subject to litigation, and the Sierra Club, Maui Tomorrow, the Kahului Harbor Coalition and Friends of Haleakala National Park challenged the MARAD exclusion in federal court in August 2005. U.S. District Judge Helen Gillmor dismissed the suit in September 2005, ruling that decisions regarding federal loan guarantees by law cannot be contested. She did not rule on whether the exclusion was proper.

Since the National Marine Fisheries Service could not force MARAD into a consultation, the agency approached the Hawaii Superferry about voluntarily applying for a "Section 10" incidental-take permit, which would protect the company from prosecution for illegally injuring or killing marine mammals in the event of a collision.

As a condition of obtaining a permit, applicants must work with the service to develop a conservation plan specifying actions that would minimize the risk of harm and show there would be no appreciable impact on the survival of the species in question.

Yates said a Section 10 consultation with Hawaii Superferry could have been completed by the time the ferry started service, but the company declined to apply for a permit.

When asked about whether the company was considering applying for an incidental-take permit, O'Halloran said the ferry "is leaving all avenues open."

No other vessel operators in Hawai'i have sought incidental-take permits, Yates said.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.