Court appeal hangs over Superferry
Three groups are challenging a law that allowed the ship to begin interisland trips
Honolulu Star-Bulletin
Sunday, August 24, 2008
By Ken Kobayashi
One year after a Hawaii Supreme Court decision that led to a temporary halt of Superferry operations, the interisland service enjoys increased ridership and plans to expand to the Big Island next year.
The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof.
The Superferry survived thanks to the state Legislature, which passed a law that essentially negated the high court's ruling of Aug. 23, 2007. But the Superferry must still overcome a remaining legal hurdle to continue its twice-daily service between Honolulu and Kahului Harbor on Maui. Three environmental groups - the Sierra Club, Maui Tomorrow Inc. and the Kahului Harbor Coalition - have filed an appeal challenging the constitutionality of the law, called Act 2.
If the groups prevail, the Superferry would be not be able to use the Kahului Harbor improvements built for the ferry until a review is completed on the impacts of the Superferry on the environment, a process that could take months.
While state and Superferry lawyers defend the law, one environmental lawyer said the challenge has merit.
"Ultimately, I think the Supreme Court will take very seriously this type of appeal," said David Henkin, staff attorney for Earthjustice, an environmental group not involved in the case.
Tom Fargo, Superferry president and chief executive officer, declined to speculate on what might happen if the Maui groups prevail. "It's impossible for me to comment on a hypothetical situation like that," he told the Star-Bulletin. "Nobody's crystal ball is that clear."
A ruling on the appeal is not expected for weeks, perhaps months.
Environmental Impact
The heart of the legal dispute is whether the state should conduct an environmental review of the Superferry operations before its 350-foot Alakai can bring passengers and cars to Maui.
The high court ruled that the state erred in determining in February 2005 that the Superferry operations were exempt from the review, which must be done under state law prior to the start of the activity.
The high court's unanimous opinion came five days before the ferry's planned inaugural voyages to Maui and Kauai.
The Aug. 23 ruling by the five justices set off a tumultuous week that included Superferry officials moving the start date two days ahead of schedule at a reduced $5 fare; Kauai protesters preventing the Alakai from docking at Kauai's Nawiliwili Harbor; and Maui Circuit Judge Joseph Cardoza issuing a court order on Aug. 27 halting Superferry operations to Maui.
Two months later on Oct. 31, state lawmakers convened in a special session to pass a law that said the "unique and critical importance" of the ferry service warranted a change in the environmental laws. The law required the state to conduct an environmental review of the operations by preparing an environmental impact statement, but also allowed the Superferry to resume operations.
Act 2 was signed two days later by Gov. Linda Lingle.
Cardoza lifted his order Nov. 14. The Superferry's Alakai later resumed sailings to Maui. Sailings to Kauai remained on hold after Coast Guard officials recommended suspending service because of security concerns.
Draft Being Prepared
The environmental impact statement is a keystone of the state's environmental protection laws. For the Superferry, it requires a study of the service's impact on "the economic welfare, social welfare and cultural practices of the community and state" as well as on marine animals and plants, traffic, public safety and control of invasive species.
It also allows the public to express concerns about the proposed projects, according to state law. And it must consider ways to minimize any "adverse effects" and alternatives to the proposed action.
The state is preparing that statement, not only for Superferry operations on Maui, the subject of the legal dispute, but also for Kauai and the Big Island.
State Transportation Director Brennon Morioka said 11 public hearings have been held around the state from March to May and hopes to complete the impact statement by June or July.
A draft statement is scheduled to be completed in October or November, at which time the public will have 45 days to comment on the draft. The state would then address those comments in preparing the final impact statement, he said.
Legislature's Role
The completion of the statement, however, will not resolve the legal dispute, according to Isaac Hall, the three Maui groups' lawyer, who calls the current effort to prepare an environmental statement "bogus."
Hall said that if Act 2 is declared unconstitutional, the state must redo the environmental impact statement because laws require that the state prepare the statement before the operation starts.
"If you prepare an EIS while the action is undertaken, it jeopardizes the validity of the statement," he said. "It's likely you'll tolerate more of the adverse impact of the project."
An environmental impact statement normally takes two or three years to prepare, Morioka said. But he also said the state might be able to rely on some data collected in the current process, which would shorten the time if the state had to redo an impact statement.
Whether the state has to start all over in preparing an impact statement, however, depends on the Maui groups' appeal of the law.
Some legal observers say they face an uphill fight. The rationale is that because the Legislature passed the state laws requiring an environmental review before a project gets under way, the lawmakers are free to change the law.
It's a point emphasized in the state's legal briefs.
"The judicial branch of government construes and interprets the laws that are relevant to disposition of a case, but does not itself legislate or make laws," Deputy Attorney General Dorothy Sellers said.
"The Legislature speaks for the people," she later added.
But the Maui groups cite two state constitutional provisions: Article 1, section 21 and Article 11, section 5. Hall argued that the provisions prohibit state lawmakers from passing a special law to benefit a single business enterprise, particularly when dealing with state lands, site of the Kahului Harbor improvements for the Superferry.
The reasoning is that the Legislature should be passing laws for the general welfare of the public and should not be cutting special deals on behalf of a single business, Hall told the Star-Bulletin.
Although the law refers to a "large capacity ferry vessel company," Hall argued that it's clear that Act 2 deals solely with Superferry.
Henkin said he believes the Maui groups have raised a "very serious claim, one that has a lot of appeal in terms of making sure our environmental laws can be effective in protecting us from unwise decisions ahead of time."
The State's Position
The state responded in its legal brief filed last week that Act 2 does not violate either constitutional provision. Superferry's legal brief incorporated the arguments by the state.
The law did not give anyone an "irrevocable grant" prohibited by Article 1, section 21 because Act 2 specifies it will be repealed on the 45th business day following the end of next year's legislative session or when the environmental impact statement is completed, whichever is earlier, the state argued.
The state also said Act 2 does not provide "special benefits and immunities" for the Superferry alone because the law applies to all large-capacity ferry vessels. The law also did not deal with exercising control over state lands, the state argued. Act 2 simply exempted large ferry vessels from the laws requiring an environmental review before a proposed activity, the state said.
The Maui groups failed to establish that it is "unconstitutional beyond a reasonable doubt (or by any standard)," the state said.
Rise in Ridership
While the appeal has been simmering, Superferry officials are touting an increase in ridership. They celebrated its 125,000th passenger last week and continued to plan for expanding to the Big Island and Kauai.
The Alakai carried 36,600 passengers between Honolulu and Maui in July, about a 40 percent increase from June, according to Superferry officials. The number of vehicles was 9,200, a 36 percent increase over June.
"Ridership is still very good," Fargo said. "I would say we're just about where we expected to be." He said they are targeting May to start service from Honolulu to Kawaihae Harbor on the Big Island using a second ferry, whose construction is about 80 percent complete.
For Kauai, he said, Superferry officials wanted to first establish a reliable track record of service to Maui, hear from Kauai residents and make sure they get reliable information about the interisland operation.
Fargo said they didn't have a firm date for the Kauai service, but said it would be after the state completes its impact statement.
During the now twice-daily trips to Maui, Fargo said, the Superferry has been "very diligent" about complying with environmental laws. No major issues involving violations of the law have surfaced, he said.
"Our goal is to meet and exceed the (environmental protection) standards because we believe them to be important also," he said.
Looking to High Court
But the final word on whether the state's current environmental review is adequate rests with the Hawaii Supreme Court, which a year ago yesterday shocked the state and Superferry officials.
With its ruling issued just days before the Superferry's inaugural voyages, the high court made clear that environmental laws must be followed, regardless of the potential harm to the business.
The appeal is with the Intermediate Court of Appeals, but Hall said he will ask that it be transferred to the high court because the appeal deals with matters of "great public importance" and whichever side loses in the Intermediate Court will likely ask the high court to review the ruling.
Hall said he has until early next month to respond to the arguments by the state and Superferry, the final legal briefs for the case.
He would not comment on whether he has a better chance with the five justices who would be considering the constitutionality of a law that shot down their decision.
Henkin doesn't think so. "I'm confident the justices are not going to be caught up in any kind of personal connection to round 1," he said. "I'm sure they will look at round 2 and give a neutrally fair and dispassionate decision."
WHAT'S THE LAW?
The two state Constitution provisions cited by the Maui groups challenging the state law that allows the Superferry to operate before an environmental impact statement is completed:
Article 1, section 21 - Limitations of Special Privileges
The power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities.
Article 11, section 5 - General laws required; exceptions
Key dates in the superferry legal battle
» Aug. 23, 2007: After hearing arguments earlier in the day, the Hawaii Supreme Court unanimously rules that environmental laws require the state to review the impact of the Superferry operations on the environment. The ruling overturned a 2005 decision by Maui Circuit Judge Joseph Cardoza.
» Aug. 24, 2007: Superferry officials announce they are moving up the scheduled launch by two days, and one-way fares will be reduced to $5 a person and $5 a vehicle.
» Aug. 26, 2007: Superferry's Alakai departs Honolulu to Kahului Harbor and returns, but the afternoon cruise to Kauai is met by protesters in the waters of Nawiliwili Harbor. Alakai returns to Honolulu Harbor.
» Aug. 27, 2007: Cardoza issues an order banning Superferry operations to Maui until the state conducts an environmental review. (The Maui court case does not directly apply to Nawiliwili Harbor, but Superferry and state officials follow the Coast Guard's recommendation in suspending service to Kauai because of security issues raised by the protest.)
» Oct. 31, 2007: The state Legislature passes Act 2, allowing the Superferry to operate while the state prepares an environmental impact statement. Act 2 says, "It is clearly in the public interest that a large capacity ferry vessel service should commence as soon as possible."
» Nov. 14, 2007: Because of Act 2, Cardoza lifts his ban on Superferry operations to Maui.
» Dec. 13, 2007: Superferry resumes service between Honolulu and Maui, although it is later disrupted by high waves and repairs.
» Feb. 29: Sierra Club and two other groups file formal notice that they will appeal Cardoza's ruling. Like all appeals, the case goes to the Hawaii Intermediate Court of Appeals, the state's second-highest court, but the three groups will ask that the appeal go directly to the Hawaii Supreme Court.
» Aug. 18: The state and Superferry file legal briefs defending Act 2.
