POSTED: 9 NOVEMBER 2007 - 10:45pm HST

Kauai  Council can stop Superferry with “political will”

Use of the Public Nuisance Law
by Andy Parx on 9 November 2007

(PNN) -- Lihu`e -- No matter what happen in court regarding the Hawai`i Superferry (HSF ), county councils across the state can stop it under a state law that preempts any other according to “1000 Friends” Attorney Daniel Hempey.

HRS § 46-17 says the Kaua`i County Council can pass an ordinance “regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance.”

“The statute says County nuisance law trumps State law if the County law offers greater protection to the public” Hempey said. “Dumping several hundred cars, trucks and busses onto Kauai every day would tend to produce a lot of new noise, dust, smoke, vibration and odor.

According to HSF a maximum of 560 cars will congregate in Nawiliwili, near Lihu`e each day at evening rush hour.

“If that doesn’t constitute a public nuisance, what does” said HSF opponent, Fred Dente ”What’s the council waiting for”.

In the case of the Kaua`i county council that remains a mystery. After three days no all councilmember have failed to responded to a requests for comment.

Kaua`i State Senator Gary Hooser, who has fought to prevent the HSf from operating until an “EIS” is done, says there’s lots of ways the council could engage the issue if there’s a political will to do so . The public nuisance law is just one of them.”

Hempey agrees saying “This may be an area where new County legislation on the issue could effectively block the Superferry's exemption from environmental law - by limiting the number of registered vehicles transported to Kauai on any given day.”

HRS § 46-17 “Regulation of certain public nuisances” says “(n)o such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply,

Whether the council has a member with the political will to establish home rule remains to be seen. Many see the pressure being on Councilperson and former mayor JoAnn Yukimura who has testified numerous time against the HSf running without an EIS, even traveling to Honolulu to personally testify at the recent Act 2 hearings.

The other possibility may be rookie Councilperson Tim Bynum who has been somewhat outspoken on the issue and is thought by many political insiders to have his eye on the Mayor’s office in three years.

Hempey indicated that it may not be that hard to find at least four if not seven votes.

“This type of ordinance would be consistent with the prior vote of the Council, that asked for an EA before the Superferry operates. It would also send a message to those on Oahu who simply ignored the Kauai Council's earlier unanimous vote” in a 2005 Resolution supporting an EIS before the HSF pulls into the port of Kauai.

The council’s next full meeting isn’t scheduled until Nov 21 and it normally takes about a month minimum to pass an ordinance. But the council does have emergency powers that provide for a much shorter term- a matter of days- to pass an ordinance making it effective while the bill goes through it’s normal process.

In a separate case from the injunction forbidding HSf operations currently before Maui Judge Joseph Cordoza and the precipitating Supreme Court ruling, another Maui Circuit Judge, Joel August, ruled on Aug. 23 that the HSf must move cars out at a rate of only two per minute at Kahului Harbor and put in place many other site specific traffic restrictions that remain in place today. Although Act 2 requires a traffic study for Nawiliwili, that will not be required to be completed or even initiated any time soon .

How an increase in the time cars sit idling awaiting egress might increase any nuisance is another issue the county councils may consider.

The Kaua`i County Council can be reached by emailing them at , or calling 241-6371

[Editor's Note: the following article was provided by terh Surfrider Foundation and shows another constraint on the operation of the Superferry]


Superferry still under Maui traffic order
by Christie Wilson on 9 November 2007 in The Avertiser

WAILUKU, Maui — Even if a Maui court injunction is lifted next week, allowing the Hawaii Superferry to resume sailing to Kahului Harbor, there remains a separate court order on traffic control that would present "a very big, big problem" for the ferry, said a state attorney.

The order by Maui Circuit Judge Joel August required that only two vehicles per minute to exit from the ferry site on the north end of Pu'unene Avenue, about 20 yards from one of the island's busiest intersections.

When the company's 350-foot catamaran, Alakai, came to Maui on Aug. 27 — the last time it sailed to Kahului — it took 55 minutes to get the nearly 90 disembarking vehicles onto public roads instead of the 20 minutes predicted by ferry officials.

At an informal hearing yesterday to revisit the traffic issue, Deputy Attorney General William Wynhoff said the state Department of Transportation and the Hawaii Superferry could live with other conditions set by August, which include posting staff to regulate traffic.

However, he said, the two-vehicles-per-minute rule "is clearly not doable at all" and would pose "a very big, big problem" for the company.

August said he is willing to be flexible and allow trained personnel to manage the traffic flow — as long as they aren't Hawaii Superferry employees. He said he would be "nervous" if they were, because their main concern might be "keeping customers happy" and getting passengers rolling as quickly as possible without regard to other motorists.

The judge's order will remain in effect at least until Nov. 19, when a hearing will be held to consider changes. It's not known whether the ferry will have resumed service by then. Hawaii Superferry officials said they would not comment on when the vessel might sail again.
The company is awaiting a ruling by Maui Circuit Judge Joseph Cardoza on its motion to dissolve an injunction issued Oct. 9 that halted ferry operations at Kahului until the DOT performs an environmental review of ferry-related harbor projects. A hearing on that matter is scheduled for Wednesday.

Although Gov. Linda Lingle and the Legislature last week passed a state law, known as Act 2, allowing the company to operate during the review, the ferry cannot relaunch until the injunction is lifted.
The case before Cardoza stems from a legal challenge of the DOT's exemption of the harbor projects from Hawai'i's environmental review law.

August's case was initiated by the Maui Tomorrow Foundation, the Kahului Harbor Coalition and Friends of Haleakala National Park, who disputed an environmental assessment of a group of projects contained in the DOT's Kahului Harbor Master Plan 2025. One of the projects already completed is a bridge over a drainage canal that will be used by vehicles going to and from the ferry.
Superferry still under Maui traffic order

The judge ruled in May that the assessment was inadequate with respect to potential traffic impacts.

On Aug. 23, August issued an order establishing traffic-control measures that were to be in place before the ferry's initial start date of Aug. 28. The measures included reconfiguring the Pu'unene Avenue intersection, posting police officers to direct traffic during ferry visits if needed, and making space available for ferry customers at the Kahului Airport overflow parking lot, about two miles from the harbor.

A Hawai'i Supreme Court ruling also issued Aug. 23 threw out the DOT exemption of the ferry-related harbor projects, and in anticipation of Cardoza's injunction halting ferry service, the company moved up its launch date to Aug. 26 and offered special $5 fares.
Worried the DOT would not have enough time to comply with his order on traffic mitigation, August added the two-vehicles-per-minute rule.

Wynhoff yesterday wondered whether the rule was meant as a punitive gesture, since the Hawaii Superferry "jumped the gun and we didn't stop them from jumping the gun and everyone's now unhappy that we didn't."

The judge said he meant only to prevent a "chaotic" situation.
The ferry can carry 866 passengers and 282 cars, but company officials estimate an average of 400 passengers and 110 vehicles per trip. At Kahului Harbor, 267 vehicles a day are expected to travel through the ferry site, either loading or unloading from the vessel or dropping off or picking up passengers.

A DOT traffic impact study maintained there would be only a marginal increase in traffic on nearby streets and that no mitigation was necessary, and Wynhoff noted the reconfiguration of Pu'unene Avenue has drawn complaints from motorists.

August pointed out the restriping was recommended by the DOT's traffic expert, Dick Kaku, although Kaku's first recommendation was that nothing be done until it is determined that a traffic problem exists.

The judge and the attorneys at yesterday's hearing also said they aren't sure how Act 2 would affect the traffic-related case, since one of the conditions attached to the law requires traffic impact studies at four ports where the ferry plans to sail.




POSTED: 1 NOVEMBER 2007 - 8:00pm HST

Anti Superferry lawyers fail to deliver

by Andy Parx on 1 November 2007 for Parx News Network

Lihu`e -- (PNN) -- Despite the cheerleader media coverage of the newly passed “law”, the Superferry’s future remains under a permanent injunction as issued by Judge Cordoza before the special Hawai`i Legislative session.

Despite claims to have “fixed” the law, Cordoza’s ruing was also based on higher statues.

Any ruling must address not only Hawai`i Constitutional provisions but many Federal laws as well. If Cordoza decides, he could even remand it back to the Supreme Courts before the ferry can legally run.

Cordoza said in his ruling “Plaintiffs have demonstrated the possibility of irreparable injury with respect to the environmental impacts of Hawai`i Superferry operations on natural resources, protected species, increased introduction of invasive species and causing social and cultural impacts. “

A “law” passed by a legislature can change that ruling. Cordoza said, HRS 353-5 was not accommodated But that was only the low hanging fruit.

Article X, Section 1 of Hawaii’s Constitution says the state “shall conserve and protect Hawaii's natural beauty and all natural resources , including land, water, air, minerals and energy sources.”

This law called the Hawai`i Environmental Protections Act (HEPA) is based on the NEPA the national law that created 50 state regulations.. They not only contain much identical language but NEPA provides for federal approval of any state laws- with a designated process to do so- or deviation from what has developed into EIS standards

The only legal activity seeking to squelch the new law so far has been the media-ignored filing of a suit by Big Island Attorney Lanny Sinkin who is challenging the new law based on state Constitutional issues with a “quo warrento” tort filed directly with the Supreme Court.

The press has failed to account for not covering this attorney , who, as widely reported, previously filed a suit on the same matter and has filed another.

Official statements from all other attorney’s in the matter have all failed to indicate the basis of any challenge and have allowed the entire Honolulu media to portray the whole matter as a blank check for the Superferry to operate, mentioning court challenges only as a ridiculed last gasp by “protesting ‘environmentalists’”.

Many on Kaua`i say they wonder what news even is in Hawai`i these days.

The current lawyers refuse to challenge anything or say what they are going to do, if anything. Statements from Maui Tomorrow and Sierra Club attorney Isaac Hall on Maui say absolutely nothing about the new law being unlawful and the two supporting organizations are currently issuing press begging Governor Lingle to put some more so-called restrictions on the expedition..

Kaua`i Lawyer Dan Hempy has seemingly dropped out of the fight after failing to even file an appeal of what’s been often called rookie Judge Randall Valenciano’s “bizarre” no-standing rule. Hempy made a non-committal vague statement in the Kaua`i Garden Island Thursday but otherwise, nothing.

The PPK, as reported last week, is funding Hempy and has shut most the anti-Superferry community out discussing the legal case, despite having publicly raised funds for the Kaua`i Case and hiring Hempy



POSTED: 25 OCTOBER 2007 - 7:30pm HST

PNN News Analysis: Making a federal case out of it.

by Andy Parx on 25 October 2007 for Parx News Network

Opponents may be making a federal case of the idea the Legislature can just pass a state law to let the Hawai`i Superferry (HSF) sail without an EIS and other permitting.

Any law the State could pass during it’s special session would violate no less than four major national environmental acts.

But Harbor’s Chief Mike Formby has failed to even provide any paperwork or evidence of any specific exemptions nor has he claimed any exist. And he has flatly refused to answer any question on the SF and Federal law.

There’s an acronymic array of Congressional dictates that Governor Linda Lingle has already violated even before the legislature conspired to outrageously exacerbate the suspension of the rule of law- NEPA, CZMA, MMPA, ESA....

Seems the Feds control coastal zones in this country and have quite a system for doing it. It’s called the Coastal Zone Management Act. (CZMA). Exemptions are rare other than for the military and even they must be sponsored by a federal agency and file for an exemption with a written project.

The neither the state nor the Superferry have one of these exemptions.

Another is the National Environmental Protection Act which requires environmental impact studies too And it can’t be changed by a state law.

So how did the state do this?- it seems like a lot of these acts would require states to write their laws to comply. As a matter of fact they do.

The CZMA – the trickiest thicket of State convolutions and contortions- has a specific Federal sign- off system for individual state laws which are required to determine the nuts and bolts of regulation and permitting. .

Hawai`i State law- HRS 205- dictates a specific process for obtaining Special Management Area (SMA) Permits, to be issued by the counties. Most shoreline activists consider it a great law and, of course it complies with the CZMA.

HRS 205 say the counties issue SMA permits. Not unexpectedly, the Kauai Planning Department has confirmed there is no permitting paperwork for the SF and no exemptions are recorded

OK, the pea was in the Federal shell and it moved to the state shell which gave it to the county shell. Didja see that?

But unbeknownst to all but the most observant gamer, the Legislature changed State’s shell. While no one was looking a piece of legislation called HRS 266-2 hit state law books.

That measure gives the state power of “approval” over “county permitting” when it comes to “harbors”.

So let’s see- where exactly is that pea? The State takes the Fed’s environmental protection pea and loans it to the county which doesn’t really have it because the state can magically “disappear” the pea without shifting it back to the Feds or actually having it themselves if the Feds were to ask for it back

Poof- no matter which shell you pick, guess what? No pea... kinda of like quantum theory. Better luck next time, Wendell.

Maybe youze’ll have better luck wit’ that “Red Queen” game down the block on toidy-toid street.

The Kaua`i Planning Department will not return any more calls or discuss anything to do with local Superferry permitting matters. The county’s only response to a flurry of calls over a week’s span was “266-2” and the name and email address for Formby.

Formby also cites 266-2 and has refused to discuss any federal implications or provide federal exceptions for the state or state exemptions for the counties.

It may be that it’s because the CZMA is quite clear- there are few if any exemptions and none for private enterprises or even states. They must be applied for by federal agencies and those agencies even have to go through a similar process including public hearings and other examinations of data.

But though the CZMA violations are the most complicated the others are relatively simple. It is unfathomable with all the legal defenses- and all the people who base their opposition to the ferry on misconduct and malfeasance by the HSf and the state- no one has sought a Federal injunction, especially since the state has been found in violation of 343- the law written to comply with the NEPA

NEPA? Oh- it’s the National Environmental Policy Act of 1969, the bible of the EIS and it’s processes It sets out the basic laws states must follow in order comply with Federal law. It says that all state EIS laws are invalid without Federal approval through a detailed review process of state EIS laws.

Federal courts have constituently and famously opined that states must follow the Federal standard if a state legislature or court doesn’t follow the NEPA..

It’s one of the most likely reasons for the Hawai`i Supreme Count ruling as it did. The state laws they were imposing- HRS 343, 205 and others- were based on federal laws that the State legislature can’t change without Federal approval

The Marine Mammal Protection Act (MMA) requires those who even plan on approaching marine mammals get permits to do so. To touch one is the same as killing one as far as penalties if you don’t have a permit to “take” them. They don’t even give those to all the scientists that apply.

There is no such permit.

And the MMA parent law, the Endangered Species Act (ESA), requires an EIS if there are threats to them and also require permission before action.

No one in Hawai`i government has provided any evidence of any such application much less permits or actual approval regarding any compliance with the four laws listed here and all those asked have refused to discuss the matter despite repeated PNN attempts to secure them.

[Although there is reportedly $10,000 sitting around to pay lawyers in the People for the Preservation of Kaua`i coffers, PKK honcho Rich Hoepner has refused to speak with PNN on this and a number of matters.

PNN has not received any communication with any attorney currently involved with the case regarding the possibility of filing a Federal case or obtaining an injunction to prevent the legislature from illegally changing the law, as it plans to do next week according to legislators themselves and all media reports.]

HRS 205

HRS 343

HRS 266-2


NEPA of 1969

MMPA of 1972


Hawaii Supreme Court ruling:

Maui Judge Cordoza’s Ruling

Maui Court Transcripts

NEPA of 1969:

(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.



POSTED: 19 OCTOBER 2007 - 7:30pm HST

Harbor Chief Formby OKs Ferry cruises

by Andy Parx of 18 October 2007

(PNN) Lihu`e--Harbor's chief Mike Formby has told PNN "there is no legal impediment to the Superferry's operation outside Kahului... The Court limited it's decision voiding the operating agreement to Kahului"

PNN's questions and Formby's answers were.

PNN- "In light of the operational agreement voiding, does the DOT have a
comment on the SFerry's proposed trips this weekend, re: the "clouding" (in
your words) of the issue as to whether Cordoza's ruling essentially voided
it for all harbors in the state, Honolulu included"

Formby: "There is no legal impediment to the Superferry's operation outside Kahului."

PNN- "I assume I'm safe in saying the SF can load and unload
passengers at Honolulu Harbor despite there being no valid operational
agreement in effect since the DOT has "determined" the op. agreement is
only invalid for Kahului harbor"

Formby: The Court limited it's decision voiding the operating agreement to Kahului.



POSTED: 10 OCTOBER 2007 - 7:30pm HST

Harbor Division bans Superferry statewide
by Andy Parx on 10 October 2007 for Parx News Network

Lihu`e (PNN) -- The Lingle administration was forced to stop the Superferry statewide when yesterday’s Maui court ruling invalidated the “operational agreement” between the State and the Superferry for Maui's Harbor Mike Formby, Harbors Division spokesperson, said today.

In a KITV interview he said even though the ruling covers only Maui it will invalidate the agreement statewide. Formby previously told PNN that the State’s exemption from county permitting requirements were dependant on the agreement. (See PNN 10/6)

In an explanation for why there was no required federally-mandated, county-administered shoreline permits Formby previously said:

“Under the Operating Agreement with HSF, DOT was unable to provide existing passenger facilities to HSF in the neighbor islands and allowed HSF to construct such facilities which were, by contract, subject to sharing agreements with other users since the facilities were public purpose facilities on non-exclusive use state piers.” Formby wrote. “While the Operating Agreement required HSF to comply with all laws, HSF proceeded with the construction, operation and maintenance of the facilities on state piers on behalf of DOT under HRS 266-2(b), meaning they would not require approval of county agencies.”

Formby did not immediately respond to requests for further information on what the state intends to do about county permitting exemptions that now appear to be voided.

For more information see PNN SMA series on or 10/6 9/27 9/28 10/2)



POSTED: 6 OCtober 2007 - 5:30pm HST

Superferry skipped SMA permitting process

State, Superferry skipped SMA permitting process for dock facility developments

by Andy Parx on 6 October 2007

Lihu`e (PNN) -- The State DOT- Harbors Division (DOT –H) apparently exempted the Superferry facility from the SMA permitting process, though the law gives them only final “approval” powers, not exclusion from Federal, State and county law.

Via email, Mike Formby, Deputy Director of the DOT-H Friday staked out the State’s right to ”plan, construct, operate, and maintain any commercial harbor facility... without the approval of county agencies” as stated in HRS 266-2(b)

No mention is made in the law regarding exemption from permitting processes

Formby also detailed the scheme under which the State undertook development of the Superferry Harbor Facilities, HRS 266-2(b) notwithstanding

“Under the Operating Agreement with HSF, DOT was unable to provide existing passenger facilities to HSF in the neighbor islands and allowed HSF to construct such facilities which were, by contract, subject to sharing agreements with other users since the facilities were public purpose facilities on non-exclusive use state piers.” Formby wrote. “While the Operating Agreement required HSF to comply with all laws, HSF proceeded with the construction, operation and maintenance of the facilities on state piers on behalf of DOT under HRS 266-2(b), meaning they would not require approval of county agencies.”

The law cited does not allow the state to pre-empt the SMA permitting process and only grants approval authority to the state, not authority over the permitting process. It does not exclude or exempt harbor projects from filing for and obtaining the federally mandated Shoreline Management Area (SMA) permit for the development of the Superferry facility in Nawiliwili Harbor and three other harbors in the state.

To forgo the SMA process entirely- which always includes public hearings and sometimes if obviated things like traffic studies and even environmental cultural and social impact studies- violates provisions of the Federal Coastal Zone Management Act (CZMA) which mandates the state-directed but county-processed SMA permitting processes described in Hawaii’s SMA law (HRS205) and the CZMA.

Although the county is usually the approving agency, the state law apparently could give the DOT-H final “approval” authority over the project, although the processing of the SMA permit is not exempted in any way, only the right to “plan, construct, operate, and maintain” a harbors project.

Neither the State nor the county has asserted that an SMA permit for the development of the Superferry Facility in Nawiliwili exists nor was the process for approval apparently followed.

Mr. Formby declined to answer numerous requests for information regarding compliance with the CZMA and SMA laws. He also declined to call PNN despite repeated requests, choosing to communicate via email.

Federal CZMA law regulates all shoreline development through the county-processed SMA Rules and Regulations document and the state implements it through HRS205.

On the Web:
The coastal Zone Management Act of 1972

HRS 266-2

Other information:

HRS 2662(b):

(b) Notwithstanding any law or provision to the contrary, the department of transportation is authorized to plan, construct, operate, and maintain any commercial harbor facility in the State, including, but not limited to, the acquisition and use of lands necessary to stockpile dredged spoils, without the approval of county agencies.

Mike Formby’s email:


As the County advised, DOT, under HRS 266-2(b) is "authorized to plan, construct, operate, and maintain any commercial harbor facility in the State...without the approval of county agencies." Under HRS 205A-22, the county planning commission is the "authority" who adopts the guidelines for the review of development proposed in the SMA area. Development includes "construction, reconstruction, demolition, or alteration of the size of any structure." The SMA permitting process is established and adopted by each county.

Under the Operating Agreement with HSF, DOT was unable to provide existing passenger facilities to HSF in the neighbor islands and allowed HSF to construct such facilities which were, by contract, subject to sharing agreements with other users since the facilities were public purpose facilities on non-exclusive use state piers. While the Operating Agreement required HSF to comply with all laws, HSF proceeded with the construction, operation and maintenance of the facilities on state piers on behalf of DOT under HRS 266-2(b), meaning they would not require approval of county agencies.




POSTED: 29 SEPTEMBER 2007 - 8:30pm HST

No explanation yet for lack of SMA permit

by Andy Parx on 28 September 2007 for Parx News Network

Lihu`e (PNN) -- The Kauai Planning Department (PD) today could not produce any Shoreline Management Area (SMA) or zoning permits for the Superferry development in Nawiliwili.

Designated SMA planner Mike Lauretta was “away from his desk” all day and refused to return frequent calls.

PNN was able to confirm some information from five PD staff who are not authorized to speak publicly. for the PD.

PNN confirmed that are no exemptions in the local ordinance or official rules and regulation- either Departmental or for SMA- and that Hawai`i Revised Statute (HRS) 205, which governs the SMA, does not exclude anyone from complying .

HRS205 puts the counties in charge of SMA permitting, repeating details in federal law and giving guidelines but leaving nuts and bolts of decision making to the various counties.

The federal Coastal Zone Management (CZM) Act ultimately governs coastal activity has some exclusion areas for military bases and activity but not commercial ventures..

Any SMA permitted development (spending at least $125.000) must go before the Planning Commission which must have a public hearing and provide the public with at least three chances to testify on a request for an “after-the-fact” permit- which is usually a “rubber stamp” on Kaua`i. No such violations have ever prosecuted locally.

Planning Director Ian Costa was off island and unavailable Thursday and Friday and was expected to return a call Monday Deputy Planning Director Imai Aiu did return from off-island late Friday did not reply to a request for comment today.

The Superferry facility at the harbor may also require other zoning as well as Public Works permits such as class IV, building and others.

An informed but as yet unconfirmed report from Maui today said there was no SMA permit on Maui either

SMA projects generally also require a state Conservation District Use permit.

see also:
Island Breath: News of September 26 9/26/07