POSTED: 12 December 2006 - 3:00pm HST

Kahului judged reverses decision on Superferry

view of Kahalui, Maui, looking north towards harbor

Easing the harbor crunch
15 December 2006 editorial in The Maui News

Although time is short, it is to be hoped that a settlement agreement to allow the rearrangement of Kahului Harbor to accommodate new uses can succeed.
One reason to be hopeful is that harbor conflicts in the past have been successfully jawboned, even when the parties seemed far apart at first. The accommodations for the canoe clubs is an example.

The stakes are bigger this time, at least financially.

Now that 2nd Circuit Judge Joel August has allowed Maui Tomorrow Foundation and Kahului Harbor Coalition to challenge the state’s environmental assessment for the purchase of the Old Kahului Store and old Kahului Railroad Building, the lawsuit could readily snarl harbor redevelopment enough to delay the operation of the Hawaii Superferry in July – at least to Kahului Harbor.

Conceivably, the Hawaii Superferry could regear its schedule to begin with runs to harbors where space is not as much of an issue as it is at Kahului. But the earthquake damage at Kawaihae on the Big Island will likely block that option and reportedly there is a penalty to the state if it fails to provide the facilities on time.

The state’s position is that the changes that required purchase of the two Kahului lots are not only for the ferry and are necessary anyway so that Young Brothers can continue to handle the rapidly expanding volume of interisland cargo through Pier 2, including individual loads that aren’t in a container.

Local businesses have made it clear that they depend on the continuation of less than container load freight service by Young Brothers.

The problem has become trying to pour a quart of cargo into a pint pot. It will require tolerance and flexibility in order to work out a satisfactory solution through settlement talks.

Judge August has said that the community is anxious to see the state keep up with the demands of the island’s only commercial port, and that’s something on which everyone can agree.

[ Note by Dick Mayer: Aloha, Judge Joel August has reversed his previous
decision and is allowing both Maui Tomorrow and the Kahului Harbor Coalition to have standing along with Maui County government. Judge August felt that the
plaintiffs had raised serious issues that were not being addressed and that they should have a forum to present their case.

This is a significant change (and a victory) that will allow the plaintiffs the opportunity to meet with the State Department of Transportation on a much more level playing field. The judge urged the parties to work towards an out-of-court settlement.

We on Maui hope that residents on the other islands also raise concerns about the effects of the Hawaii SuperFerry on their local harbor and surrounding areas. Lets ask our State Senators and Representatives to introduce legislation that will require an EIS for the HSF. They should NOT have an exemption from the Environmental Impact laws (HRS 343).

The article below gives the details of the court action. All the best and Happy Holidays]

Groups can challenge harbor assessment

by Harry Eagar on 12 December 2006 in The Mauai News

Second Circuit Judge Joel August ruled Monday that two of three groups seeking to challenge the state’s environmental statement for improvements at Kahului Harbor do have standing and can pursue their claims.

After making that ruling, he called the attorneys and representatives into his chambers for a discussion about what happens next. Time is pressing, because improvements sought by the state Department of Transportation’s Harbors Division would pave the way for the Hawaii Superferry, which is scheduled to begin operations in July.

Deputy Corporation Counsel Jane Lovell said August urged the parties to “talk to each other” to determine how to “fold in” the new environmental questions into an impact statement already being prepared for the 2030 harbor master plan. The judge offered his help with that.

Attorney Isaac Hall, representing Maui Tomorrow Foundation and the Kahului Harbor Coalition, said the judge’s questions showed August was “pretty concerned” about the Superferry’s impact on traffic on Kaahumanu Avenue.
August said the decision was only about which parties have standing to pursue legal remedies, not about whether the environmental assessment and finding of no significant impact were appropriate. “That is for another day,” he said.

The judge earlier had ruled that the three groups did not have concerns that were connected closely enough to give them a legal entry to challenge the environmental assessment and finding of no significant impact. But when the Harbors Division made a public presentation about how it would shoehorn Superferry into the congested harbor, the judge read about it in The Maui News and started asking questions.

The harbor plans appeared to include items that had not been presented to the court, he said.

August said he was not questioning the statements in the 2025 harbor master plan, which was adopted in 2000. But, he said, “events have overtaken the plan.”
Last week, Barry Fukunaga, the deputy director of transportation for harbors, told the judge that the various master plans are connected, but that the 2025 plan became obsolete faster than expected because of huge increases in cargo moving through Maui’s only seaport.
Thus planning was accelerated.

“I don’t think anyone on Maui wants to see the state not be proactive” about providing an adequate harbor, August said.

Environmental assessments for the harbor include the 2025 plan and another, limited one done when the state decided to buy the old Kahului Store and the old Kahului Railroad Building to provide more space for Young Brothers. Young Brothers is losing space on Pier 2 to accommodate the ferry.

The three original plaintiffs, who later were joined by Maui County, contended that the Superferry changes were so extensive that they warranted a full environmental impact statement, not just a limited environmental assessment and a finding of no significant impact.

The environmental study for the 2030 master plan will be a full environmental impact statement. Fukunaga testified Monday that there are several reasons to do a full study this time. They include the possibility of dredging in the harbor and of asking for federal financial assistance. Either would trigger the full environmental study.

Hall said that should have been done earlier. “That is what environmental analysis is for, to study it before it happens,” he said.

The purchase of the A&B property along Kaahumanu Avenue involves relatively minor work: paving over some grass and closing an internal road, Ala Luina.
The Harbors Division environmental assessment studied only that and did not provide a new traffic analysis.

Fukunaga said much of the work would come under exemptions to the environmental laws, which provide flexibility for daily operations.

But Lovell asked questions about what “closing” Ala Luina, which she called a “major interior artery,” would mean.

It wouldn’t be totally closed, said Fukunaga, because Young Brothers would still have access. There is not much occasion to travel between Pier 2 (Young Brother’s home) and Pier 1 (used by oceangoing freighters, Matson barges and cruise ships), he said.|

But what if there were, Lovell asked. Wouldn’t that mean traveling out Hobron Avenue to Kaahumanu, then re-entering via Wharf Street, or vice versa? Today, such a journey can be made without using Kaahumanu.
That sort of impact on a major highway was what August kept coming back to in his questioning of Fukunaga.

In his decision, August said he concluded that the environmental assessment and finding of no significant impact for the A&B purchase did open the question of new impacts on Kaahumanu Avenue and did appear to change the footprint of the harbor.

Either or both changes seemed to have a close connection to the interests raised by Maui Tomorrow (traffic) or the Kahului Harbor Coalition (recreational use of the harbor).

The judge found, however, that the interest raised by the Friends of Haleakala National Park (movement of alien species) was not closely connected to the proposed changes involved in purchasing and modifying the A&B lots and so did not reverse his finding that the Friends do not have standing to challenge the environmental assessment and finding of no significant impact.
Lovell and Hall said that if mediated discussions were going to work out the dispute, then it would need to happen within a few weeks because Young Brothers is looking to rearrange its operations as early as April in order to be out of Superferry’s way by July.



POSTED: 19 November 2006 - 12:00pm HST

Kahului judged too busy for Superferry

by the Associated Press 18 November 2006 in The Honolulu Star-Bulletin |
Kahului Harbor can't meet all the future demand of cargo ships, cruise ships, the
interisland Superferry and other users, said Maui Planning Director Mike Foley.

The harbor is already too crowded, and there
won't be enough room to accommodate increased traffic brought by barges, ferries, recreation vessels, small boats, fuel imports and storage, he said.

Foley and other officials discussed the stresses on Kahului Harbor at a public meeting last week on the 2030 master plan environmental impact study. About two dozen people attended.

Harbormaster Steve Pfister did not speak, but he has said it will be difficult to find berths for all the vessels that need to arrive at the harbor. Currently three piers are available -- one for ocean-going ships, one for fuel barges and one for interisland barges and the Superferry.

The harbor is so busy at times that low-priority vessels have to move out of the harbor to make way for a more important load.

Foley said some other port would have to be found for commercial marine traffic. He mentioned Mala, Lahaina, Olowalu, Maalaea and Kihei -- proposals that have been rejected for environmental reasons or because of opposition by area residents.

Residents at the meeting suggested creating an offshore station for landing fuel at Maalaea, and more offshore anchorage at Lahaina for cruise ships.

Jim Takayesu, a paddler, said he worried that Young Brothers, the largest interisland cargo service, would suffer from the lack of harbor space. But he also said the state's planning should not delay harbor improvements.

Another public meeting will probably be held early in 2007.



POSTED: 1 November 2006 - 6:00pm HST

Big Island council calls for ferry launch delay

aerial photo of Kahalui Harbor showing main dock and east breakwater

by Kevin Dayton on 1 November 2006 in The Honolulu Advertiser

The Big Island County Council yesterday called for a delay in the launch of the
Hawai'i Superferry until the state and the company planning the project do more to address concerns about the economic, social and environmental impacts of the project.

The 7-1 council vote on a nonbinding resolution means the councils on Kaua'i, Maui and the Big Island have all called for more study before the ferry begins service.

The Superferry's first 340-foot-long vessel would offer three-hour crossings from O'ahu to Kahului Harbor on Maui and Nawiliwili Harbor on Kaua'i starting in July.
A second vessel will enter service in 2009, expanding routes to Kawaihae on the Big Island.

The state is not planning an environmental impact statement for the project, and Hawai'i Superferry Chief Executive Officer John Garibaldi said his company is already doing many of the studies that would go into an EIS.

Garibaldi said his company has done traffic studies, developed a whale avoidance policy to protect marine mammals and worked with environmental experts to avoid spreading invasive species.

"We're doing things already, being an environmentally friendly and conscientious
company," he said. "We continue to talk with council members, we continue to talk with communities and to get feedback from experts in their fields throughout the state of Hawai'i."

Among those favoring an environmental impact statement for the project was Karen Rosen, who cited the financial risk to taxpayers from the project. The state is spending $40 million for barge, ramp and apron systems to be installed at the four Superferry ports, including a barge for Kawaihae.

The federal government also has approved a $140 million loan guarantee for the company to help finance the cost of building the vessels. Safety and social welfare issues also are raised by the Superferry, which is expected to transport the Army's armored Stryker vehicles to the Big Island for training, Rosen said in written testimony.

Gunner Mench, a Kawaihae business owner, opposed the council resolution, calling it an example of "one agency of our government not talking to another."
Mench argued that an environmental impact statement is already planned for Kawaihae Harbor in connection with plans to update the harbor master plan. Mench said demanding another impact statement on the Superferry "is essentially

The council resolution warns that Kawaihae Harbor is already under pressure from the steadily increasing volumes of cargo traffic at the port, with increasing numbers of vessels vying for limited harbor space. Superferry service may trigger a reduction in interisland barge service by tying up space now used by Young Brothers Ltd.

The resolution also raises concern that the Superferry could spread invasive species and kill whales by striking them.

"It seems quite evident that Hawai'i Superferry will have a tremendous impact on many aspects of our environment, and the questions regarding additional tax revenue that will be needed to help support this venture need to be answered," said Kona resident Jeff Sacher in written testimony to the council.

The state and Superferry officials have said they will scrutinize cargo to be sure the service does not help spread invasive species. State and federal authorities determined the ferry was not required to conduct an environmental assessment,
and legal challenges arguing for an environmental review have been rejected by state and federal courts.

However, appeals of those rulings are expected.



POSTED: 29 October 2006 - 7:30am HST

Court halts all Stryker activities

Strykers deployed in Iraq with anti-mine and urban warfare modifications

by Mary Vorsino on 28 October 2006 in The Honolulu Advertiser

The Army says it will comply with a federal appeals court order issued yesterday to stop all "activities associated" with establishing a $1.5 billion Stryker brigade in the Islands.

A temporary injunction barring further Stryker work came nearly a month after the 9th U.S. Circuit Court of Appeals ruled the Army violated environmental laws when it failed to consider other sites to base the 19-ton armored vehicles.

In the 2-1 decision on Oct. 5, the San Francisco-based court said the Army must complete a supplementary environmental analysis to consider alternatives to setting up a brigade here.

Earlier this month, the Army had argued the ruling did not mean all Stryker operations and training would have to stop.

"We're pleased the court recognized the Army's plans to plow ahead with Stryker conversion in Hawai'i before it even looked at other places ... violated both the law and common sense," David Henkin, an attorney for Earthjustice, said yesterday.
Henkin is representing three Hawaiian groups in the suit: Ili'ulaokalani Coalition, Na 'Imi Pono and Kipuka. They asked for the temporary injunction last week.

In its decision to issue the order, the 9th Circuit said yesterday: "We should not permit defendants to render meaningless our holding that they should have considered alternatives to transformation in Hawai'i by allowing them to continue with their implementation plan."

The Army issued a brief news release last night, saying, "We are in receipt of the court order and we are complying."

At one point, Lt. Gen. John M. Brown III, the commanding general of U.S. Army Pacific at Fort Shafter, said halting Stryker training would disadvantage more than 3,900 soldiers in the brigade, who are preparing for a one-year deployment to Iraq.
"Not providing full training for these soldiers before sending them into combat would be irresponsible and criminal," Brown said in a Hawai'i Army Weekly opinion piece.

It is unclear when the Army will be able to resume Stryker operations.

Jennifer Sabas, chief of staff for U.S. Sen. Daniel K. Inouye, a key Congressional supporter of the Stryker brigade in Hawai'i, said the first step is making sure the Army is in compliance with the order. "The Army needs to comply as thoroughly as it can," she said.

"We would be hopeful that the Army's compliance would mean it would be able to resume training operations. We're a nation at war. We have troops that need to be trained."

Henkin contends the order will remain in effect until a federal court judge in Hawai'i reviews the case and places restrictions on Stryker activities.

Over the past five years, the Army has spent thousands of hours and millions of dollars to set up the Stryker brigade in Hawai'i, one of the biggest projects since World War II and often billed as heralding a wholesale transformation in the way soldiers train and fight.

Plans to set up a Stryker brigade at Schofield Barracks include a host of infrastructure and construction projects, totaling about $700 million in current and future work on O'ahu and the Big Island for trails, firing ranges and support facilities.

The three Hawaiian groups filed suit against the Army in 2004, saying the Stryker brigade would prove detrimental to Hawaiian cultural sites and habitats for endangered species.

In April 2005, Hawai'i Chief U.S. District Judge David Ezra ruled against the three groups in the case. Ezra said the organizations had raised their objections too late.

He also said the Army had adequately studied the effects of the project.
The Stryker brigade is part of the Army's 30-year plan to set up more responsive and deployable units. Eventually, the Army wants to station about 328 Strykers on O'ahu.

In July, about 60 Strykers arrived in Hawai'i, with up to 50 more arriving each month since, officials said.



POSTED: 25 October 2006 - 3:30pm HST

Judge may ’reconsider’ his Kahului Harbor ruling

Hawaii State Second Circuit Judge Joel August

by Harry Eagar on 25 October 2006 in The Mauai News

WAILUKU – Second Circuit Judge Joel August said Tuesday that it appears the state may be planning changes at Kahului Harbor without doing a required environmental review.

If so, he told Deputy Attorney General Bill Wynhoff, the court “is going to reconsider the decision it made” on Aug. 17 to deny a petition by three groups challenging the adequacy of the environmental impact statement done to expand the harbor for, among other users, the Hawaii Superferry.

August also allowed the county to intervene in the lawsuit by Maui Tomorrow, the Kahului Harbor Coalition and the Friends of Haleakala National Park.

The three groups contend that the regular runs of the Superferry, which are scheduled to begin in July, will increase the movement of alien pests among the islands and have adverse impacts on traffic around the harbor on Maui.
August was concerned about traffic.

Waving a copy of the Aug. 22 edition of The Maui News, he asked Wynhoff about a map that showed how the Harbors Division plans to help Young Brothers continue to move less-than-containerload (LCL) shipments through Pier 2. The map showed changes to accommodate Superferry traffic that would touch Kaahumanu Avenue at two places.

August said he was “confused” because documents submitted to him did not show any changes to the “footprint” of the harbor. In particular, the documents submitted to the court don’t show changes likely to create secondary impacts on traffic on “a main artery.”

The news article appeared to tell a different story, he said.

Also, The Maui News quoted Barry Fukunaga, state deputy transportation director for harbors, as saying the changes were part of a 2030 harbor master plan. August said he had been told about a 2025 plan but not about any 2030 plan.
“It sure smells of (segmentation) to the court,” the judge said.

Segmentation is not allowed in the environmental review process. It refers to breaking up a big project into small bites to get them through the review process by claiming the effects of each segment would be small.

August said he had a procedural problem. Tuesday’s hearing was to consider the plaintiffs’ motion to reconsider his ruling against them in August and the county’s motion to intervene. It was not a hearing to take evidence.

Therefore, said August, he could not “take judicial notice” of the news account in The Maui News or an editorial on the same subject in The Honolulu Advertiser. But he wanted to know if, in fact, the news stories, and especially the map, originated with the state.

Wynhoff said he didn’t know and hadn’t seen The Maui News story.
The Maui News story was bas-ed on interviews with state transportation officials on Maui and state press releases and maps provided by the Department of Transportation in Honolulu.

Wynhoff repeated the state’s contention that the harbor changes are being done whether the Superferry comes or not and are based on overall increases in harbor activity. He said any rearrangements are “nonexclusive,” as are all deals between the Harbors Division and harbor users.

August set Dec. 7 for a further hearing and said he wanted Fukunaga present to answer questions.

He said he was not taking a position on whether Superferry service would be a good thing or a bad thing, which he described as a political decision.

Instead, he was concerned about the integrity of the environmental review process.

He had understood from documents the court received, he told Wynhoff, that the changes to be made did not involve any “development,” but only internal rearrangements.

The news story, he said, seemed to show that the state was acquiring new property from Alexander & Baldwin (the Old Kahului Store and the Kahului Railroad building) and planning “development” beyond the boundary of the harbor.

Wynhoff said he did not know of any development, although he acknowledged that use of public money to buy land would be a “trigger” for an environmental review.
He said, however, that as far as he knew, those plans were part of the 2030 master plan, for which a review process is to get under way this month.

He said the segmentation issue was not involved because there always will be more changes ahead at the harbor.

August said he had accepted that contention before, but if the news story was accurate “it significantly changes the court’s evaluation in terms of how removed, if you will, the harbor’s changes are from this claim that it will affect traffic.”

Isaac Hall, the attorney for the plaintiffs, said he was pleased with the reopened prospect that “possibly we might get this reconsidered” on the impact arguments.
The state had contended that the county bid to enter the suit was untimely, but August said it was early days yet, since the suit has been going on “only seven months.”

Furthermore, he said, the county has assets in the area, including roadways and utilities, such as water and sewer lines, that have the potential to be affected by the state actions.

Therefore, he said the county can be admitted to the suit “as of right.”
Deputy Corporation Counsel Jane Lovell said she was pleased by that ruling.
Hall asked August he if wanted further briefing from the lawyers on the issue of comprehensive impact statements.

“I think the court has done that for you,” said August.

see also
Island Breath: Superferry Resistance
Island Breath: Superferry & Military
Island Breath: Superferry History
Island Breath: Superferry Meetings
Island Breath: Superferry Redux
Island Breath: Superferry Problems
Island Breath: Stop the Superferry