INDEX - JUSTICE
www.islandbreath.org ID# 0705-21
SUBJECT: THE LEGISLATURE & THE SUPERFERRY
SOURCE: JOHN TYLER email@example.com
by John Tyler Cragg on 14 October 2007
ON ONE HAND
I have been offering an honest win-win solution to the Superferry mess that needs federal input : Get our federal congressional contingent to step in and get a rider bill introduced to congress to defer any federal loans or get the involved banks to defer the loans, so the Superferry can sit idle while a lawful EIS is done and protects all Hawaii.
Deferment of loan payments are done for college students. It could be done here, and allow all environmental safeguards to not be bargained away at a legislature special session compromise.
Instead, the Special Session can be done to simply grant a State deferment of the $40 million loans here while an EIS is done, which ALL legislators I believe would welcome in this mess.
ON THE OTHER HAND
I was in contact with the reporter that did this article, and one last January. I just submitted her a quote an hour ago, but you may want to email her as well Kaija Wilkinson: firstname.lastname@example.org
She is from the Mobile, Alabama paper where Superferry manufacturer Austral is and JF Lehman's ship yard is.
Her article can be found at
If the Superferry folds, Hawaii state and federal governments could wind up losing millions. The state has provided $40 million worth of harbor upgrades and equipment, and the federal government has approved $140 million in loan guarantees for the ferry.
Lehman, whose J. F. Lehman & Co. owns Mobile shipyard Atlantic Marine, said Wednesday that Hawaii Superferry has paid for its first vessel and continues to make payments on the second. So far, he said, all of the approximately 300 Hawaii Superferry employees are being paid, but he doesn't know how long that can continue.
"Obviously, we're well financed, and we will continue to maintain our core organization as long as there is movement toward resolving this issue," Lehman said.
John Tyler Cragg
director, Kauai based
phone: (808) 635-7062
SUBJECT: THE LEGISLATURE & THE SUPERFERRY
SOURCE: ELAINE DUNBAR email@example.com
by William Aila Jr. on 14 October 2007 in The Honolulu Star Bulletin
When you hear the term "aloha," most think of love, affection and lots of warm fuzzy feelings. That's only half the equation. Aloha also means respect. Respect for this sacred place and its natural and cultural treasures. Respect for our extended ohana who live on different islands with unique resources. Respect for the laws that enable us to preserve our quality of life.
The Superferry is a test of how committed we are to Hawaii and the aloha spirit. Are we prepared to ask the tough questions, engage all of our communities in decision making and ensure that the law applies equally to everyone? Or is expediting a pet project -- one that has already broken the law -- enough for us to abandon aloha?
Superferry officials are putting pressure on legislators to call a special session and gut the fundamental protection for our resources and lifestyles simply so they can begin service earlier -- before a review of environmental and cultural impacts is pau. They are threatening to take their boat elsewhere if they can't get bailed out
of a poor business decision made years ago. A special legislative session for the Superferry would be a giant step backward for Hawaii.
The lawmakers who enacted the Hawaii Environmental Policy Act nearly 30 years ago had the foresight to provide a process to disclose environmental, economic and social impacts of government actions.
This law is a critical tool for decision makers to consider community concerns in crafting the optimal use of public trust resources while mitigating impacts. The public process benefits both the company proposing a project and society as a whole because cooperation and coordination are encouraged and issues that may be of concern are articulated early -- before the project is under way. Without disclosure, the state would blindly take actions without knowing what the future costs or benefits might be.
HEPA is clearly written and its application is straightforward.
Because of this law, Hawaii is better planned, cleaner and more sustainable.
Superferry and the Lingle administration chose to disregard the law and proceed without environmental review. If they were committed to Hawaii's environment and communities, they would have respected the law and its goal of protecting public resources, and completed necessary reviews while other preparations were taking place over the past three years. There was ample time to do this work, but they
chose not to. Das why hard.
Environmental and community groups alerted Superferry and the Lingle administration to the need for this review years ago. When they were rebuffed, they properly pursued enforcement of HEPA through the judicial system and succeeded. The state Supreme Court was unanimous in ruling that Superferry operations must be reviewed. Then the circuit court ruled, after four weeks of testimony, that Hawaii's law is clear: Review must come before the adverse impacts might occur.
Completion of an environmental review must be a "condition precedent" to Superferry operations.
The Superferry's potential effects on the environment and the community are substantial. Maui Circuit Judge Joseph Cardoza, in his ruling, stated that without necessary reviews, there is "the possibility of irreparable injury with respect to the environmental impacts of Superferry operations on natural resources, protected
species, increased introduction of invasive species and causing social and cultural impacts."
During the hearings, Cardoza heard from cultural practitioners who voiced concerns about three truckloads of imu rock being stolen from a Maui stream. Whale experts expressed concern about the Superferry's potential to harm calving whales. They believed slower speeds and different routes would reduce the possibility of fatal whale strikes.
Cutting the heart out of Hawaii's environmental protections to exempt a business that turned a blind eye to the law is no basis for public policy. If the Legislature carves out a unique exemption for Superferry, other businesses also might be inclined to "roll the dice" and flout the law, only to later seek a statutory exemption if they are taken to task.
Moreover, a legislative "fix" will only further inflame the situation on Kauai and reinforce some neighbor islanders' belief that decisions are being foisted upon them by lawmakers in Honolulu. While many support interisland ferry service, most want to be sure our environment and communities are properly protected.
Those of us who have committed ourselves to this place understand the true meaning of aloha. It is a privilege to live and work here and our laws serve an important purpose. They protect our resources and quality of life so that residents and visitors alike can enjoy what makes Hawaii special. No one wants to swim in areas littered with invasive limu or hike through forests to the roar of coqui frogs. Our natural and cultural treasures are worth waiting a couple of months while environmental review is completed and proper mitigation put into place.
We'll find out soon if state leaders understand the true meaning of aloha.
by Christie Wilson on 14 Octoner 2007 in The Honolulu Advertiser
Several state lawmakers are calling for an investigation into how the Legislature found itself in the "awkward" position of salvaging the Hawaii Superferry and $40 million in state-funded harbor projects.
With the Legislature considering possible action to keep the $250 million enterprise afloat, the lawmakers said now might not be the best time to press for answers, but they also have plenty of questions about actions by the Lingle administration that triggered 2 1/2 years of litigation resulting in last week's injunction barring ferry sailings to Maui until an environmental assessment of the harbor projects is done.
Without further legal or legislative intervention, the Hawaii Superferry will not sail.
"Right now we don't want to look for blame or finger-pointing. We need to take the long view of what's the best thing to do on this on a policy basis," said House Majority Leader Kirk Caldwell, D-24th (Manoa). "We're angry that we've been put into this very awkward position of doing piecemeal legislation to help one business survive, although it's one business you could argue that could impact transportation for all the islands."
The Lingle administration insists the right decision was made in granting the ferry-related harbor projects an exemption from environmental review, even though the Hawai'i Supreme Court ruled in August it was improper and ordered the DOT to conduct an assessment.
"Despite what has occurred to date, I do not believe we were incorrect in either the process or application of the exemption determination, as it was consistent with the manner in which we have made and based decisions on such matters," DOT Director Barry Fukunaga said in an e-mail to The Advertiser.
Fukunaga was DOT deputy director of harbors when he granted the exemption in February 2005. Gov. Linda Lingle did not play a role in the decision-making process, according to Fukunaga and Lingle spokesman Russell Pang.
Sen. Mike Gabbard, D-19th (Makakilo), and Rep. Marcus Oshiro, D-39th (Wahiawa), said the Legislature should convene an investigative panel to dig deeper into the administration's actions surrounding the Superferry.
Oshiro said it would be "patently absurd and negligent" for a DOT official to consider the exemption without consulting Attorney General Mark Bennett. As the administration's chief legal counsel, Bennett should have stepped into the decision-making, considering what was at stake, Oshiro said.
"At some point we'll need an explanation of this decision to go ahead without an environmental assessment and allow the Superferry to operate knowing that there was a pending appeal at the Supreme Court," he said.
"I can't imagine legal counsel not advising one's client that they might want to err on the side of caution while awaiting a final decision by the court."
Lingle, at a news conference on Friday, said she is trying to work collaboratively with House and Senate leaders. The governor said she is not aware of any legal advice on the Superferry from Bennett in her files. She also said she has resisted responding to lawmakers who have been critical of her administration's decision-making process.
"There are always going to be a couple of legislators in either house who just feel more comfortable in an attack mode," the governor said. "But that kind of attitude is not going to solve this problem."
NO PROBLEM EXPECTED
Caldwell admits much of the hand-wringing is coming in hindsight. Some of the critics of the administration's handling of the Superferry signed on to a 2004 concurrent resolution encouraging the DOT, the Public Utilities Commission, the federal Maritime Administration and other agencies to expedite processing of permit approvals and other support for the new interisland ferry service.
Caldwell was vice chairman of the House Transportation Committee, headed by state Rep. Joseph Souki, D-8th (Wailuku, Waihe'e, Waiehu), in 2004 when the panel heard DOT's $40 million request for barges, ramps and other facilities to accommodate the 350-foot ferry at Kahului, Kawaihae, Honolulu and Nawiliwili harbors.
"We heard a request for a new form of transportation. Nowhere did anyone even hint there might be a problem with a required environmental assessment," Caldwell said.
The state's environmental protection policy, Hawai'i Revised Statutes Chapter 343, requires an environmental review of projects using state or county lands or funds, but it also allows for exemptions.
There are 10 exemption classes, but the law says it is not enough to simply match a proposed project with an exemption class. The agency proposing the work also must do a cursory consultation with other agencies and affected parties to determine if the project is likely to have significant environmental impacts.
If it is determined the project would not result in major "primary or secondary" impacts, the exemption can be granted. Secondary impacts would include activities that would be facilitated by the project.
In this case, the Superferry operations would be a secondary impact of the $40 million in harbor improvements.
If it appears there might be major impacts, then an environmental assessment must be done, or even a more comprehensive environmental impact statement.
Fukunaga determined that the ferry-related projects fit into the exemption class for "construction or placement of minor structures accessory to existing facilities," according to his February 2005 exemption determination letter to the state Office of Environmental Quality Control.
The DOT consulted with the Superferry, the OEQC, and county planning and public works departments before determining "the installation and result of the minor improvements noted will not produce or create any adverse air quality, noise or water quality impact," the letter said.
Fukunaga said the projects also were reviewed by the DOT's Statewide Planning Office and the Harbors Division's Construction Engineering and Planning staff, who normally undertake determination on the applicable environmental review process for harbor development projects.
He said he did not discuss the exemption with Lingle, her then-chief of staff Bob Awana, or Bennett, although Fukunaga said he did brief then-DOT Director Rod Haraga on the matter.
"I made the final decision on the application of the exemption based on our deliberations and consultations with our staff and those external agencies consulted," he said in his e-mail.
Caldwell said he would be surprised if the DOT didn't consult with other administration officials, in particular the attorney general, before awarding an exemption to a $40 million state project done on behalf of a high-stakes enterprise like the Superferry.
"If there was no legal opinion, that's not good either," he said.
Harbor projects on behalf of Matson Navigation Co., Young Brothers, American Hawaii Cruises and other users that did undergo environmental assessment include $6.5 million in improvements to allow two cruise ships to dock at the same time at Nawiliwili Harbor, and Matson's installation of a mooring dolphin at Kahului Harbor's Pier 1C at a cost of $980,000.
"Before the DOT finalized the (environmental assessment) exemption, they examined the relevant facts," said Lingle spokesman Pang. "Among those relevant facts were the already vast commercial uses of the harbor, the fact that all activities and equipment were appropriate for a commercial harbor and consistent with current uses, and the fact that the activities were to be conducted at an existing pier facility and were consistent with the purpose and reason for which the pier and the harbor were originally developed."
The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition filed court documents March 21, 2005, opposing the exemption and trying to force an environmental review. They argued the harbor improvements and their user, Hawaii Superferry, would likely have wide-ranging impacts such as increased traffic, the spread of invasive species, conflicts with recreational use of the harbor, depletion of Native Hawaiian subsistence resources, and vessel collisions with humpback whales.
Maui Circuit Judge Joseph Cardoza dismissed the complaint on July 12, 2005, ruling the groups did not have standing in the case. The state also argued the court should defer to the DOT's judgment since proper procedures were followed in determining the harbor projects qualified for an exemption, and Cardoza agreed the exemption was in compliance with Chapter 343.
Cardoza is the same judge who last week approved a permanent injunction prohibiting the DOT from allowing the ferry to use the Kahului port facilities.
The Sierra Club and the other two plaintiffs filed an appeal of Cardoza's ruling in the Hawai'i Supreme Court on July 25, 2005.
A related lawsuit filed August 2005 in U.S. District Court in Honolulu questioned whether a federal environmental review should have been triggered by a $140 million loan guarantee granted to the company by the U.S. Maritime Administration for construction of two vessels. Judge Helen Gillmor dismissed the complaint in September 2005 and no appeal was filed.
At the time Hawaii Superferry wrapped up its financing and made other decisions in late 2005 that propelled the project forward, there was no pending legal action or other roadblocks, except for the appeal of Cardoza's July ruling favoring the state and the company.
Two years later, on Aug. 23, 2007, the Hawai'i Supreme Court took up the appeal, not only reversing Cardoza's rulings but deciding the question at the root of the case: whether the DOT exemption of the $40 million in ferry-related harbor projects was correct.
In a decision delivered with unprecedented speed on the same day the Supreme Court heard oral arguments, the five justices unanimously stated the exemption violated Chapter 343, and ordered the DOT to conduct an environmental assessment.
"Stated simply, the record in this case shows that DOT did not consider whether its facilitation of the Hawaii Superferry Project will probably have minimal or no significant impacts, both primary and secondary on the environment," said a full opinion issued by the court Aug. 31.
The DOT and Lingle have criticized the court decision and continue to stand by the exemption.
"The state followed the law and the same procedures that had been applied in previous harbor improvements," Pang said. "Circuit Court Judge Joseph Cardoza agreed that an (assessment) was not needed."
Fukunaga said it appeared the court was asking agencies for something new.
"The Supreme Court ruled that we erred because we failed to take into consideration the secondary impact of the vessel in its operation," he said in his e-mail. "We have not previously applied this standard, as the review was not on a high-speed ferry vessel that the state acquired or operates but on the harbor improvements that we were undertaking."
But the court said that even if the potential ferry impacts were removed from the discussion, the harbor projects alone would not have qualified for an exemption.
The Supreme Court decision came five days before the announced start of Superferry service on Aug. 28.
In the wake of the ruling, Superferry announced it was pushing up its launch date to Aug. 26 and offered $5 fares between Honolulu, Maui and Kaua'i.
The ferry completed voyages to Maui and Kaua'i on Aug. 26. The vessel returned to Maui on the morning of Aug. 27, but later in the day, Cardoza issued a temporary restraining order barring further visits until the conclusion of a hearing to determine whether the ferry could operate during the environmental assessment process.
Protesters on Kaua'i prevented the ferry from making a second call at Nawiliwili, and further sailings have been suspended indefinitely due to safety concerns.
Cardoza heard four weeks of testimony during the hearing, which ended Tuesday when the judge ruled that Chapter 343 clearly requires an environmental review before a project can proceed. He granted the request by the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition for a permanent injunction to keep the ferry tied up at dock until the state conducts an assessment that will include a look at potential impacts of the Superferry operation.
As of Friday, the company had not appealed the injunction to the state's Intermediate Court of Appeals.
The DOT selected Belt Collins to conduct the $1 million assessment.
Hawaii Superferry President and CEO John Garibaldi has said investors are not going to wait indefinitely for the ultimate outcome of the study if the ferry cannot sail in the meantime.
Superferry's chief financier John Lehman last week told the Press-Register in Mobile, Ala., where shipbuilder Austal is located, that the vessel is in high demand because there are few like it anywhere else in the world. He said it could easily find work outside Hawai'i as a military transport or civilian ferry.
by Joan Conrow on 12 October in The Honolulu Weekly
As Hawaii Superferry navigates the Islands’ choppy judicial waters, some of the core issues surrounding its operations have been submerged in a rising debate over the vessel’s pros and cons.
Rep. Hermina Morita (D-14th) is trying to dredge them up again with a formal complaint asking the state Public Utilities Commission (PUC) to suspend Superferry’s certificate to operate in Hawaii’s waters. “People are so emotional over this issue they’re missing the most important thing that is happening in our communities, and this is a lack of confidence in government,” she said.
Morita thinks that loss of faith is grounded in actions taken by Gov. Linda Lingle and her administration to first usher Superferry through the permitting process without an environmental review — and then keep the boat running after the Hawaii Supreme Court ruled those actions were in error.
“We have an administration that is so keen on pushing something through they’re missing what the courts are saying,” Morita said. “All they can say is the courts are wrong.”
Russell Pang, the governor’s spokesman, did not return a call seeking comment.
Besides Morita’s complaint to the PUC, the administration’s actions have prompted several lawsuits and two large protests on Kauai that resulted in 14 arrests and international media coverage of surfers and kayakers blocking Nawiliwili Harbor to keep Superferry out until the court-ordered Environmental Assessment (EA) is in.
Lingle responded to the protests by creating an unprecedented “unified command” of state, county and federal law enforcement agencies to control demonstrators through a federal “security zone” at the harbor.
“It’s so political,” said Morita, whose district includes Kauai’s North Shore and Kapaa. “You’re using military force, police force, to enforce strictly a political decision, and that’s when government is really scary.”
Morita’s complaint, filed Sept. 26 by Kauai attorney Harold Bronstein, asks the PUC to suspend Superferry’s operating certificate until it completes the environmental reviews mandated by state law, its harbors operating agreement and its PUC permit.
The PUC issued an order Oct. 4 stating it would serve Superferry with the complaint and gave the company 20 days to respond. Superferry attorney Lisa Munger did not return a call seeking comment.
In the 21-page complaint, Bronstein cites public documents in laying out the chronology of the ferry’s approval process as it relates to environmental concerns.
The documents cited show that government agencies initially determined that a $143 million federally guaranteed loan to Superferry, and its operations in the Islands, triggered the need for environmental studies.
Yet those same state and federal agencies later allowed Superferry to proceed without conducting any review of how ferry services might affect both the environment and local communities after the Lingle administration determined no review was needed.
“One of the reasons why we did this complaint was to try and get everyone educated about the timetable and what was being said and done about the environmental review,” said Morita, “We want to get the timeline straight.”
That timeline is key to Morita’s contention that the Superferry enjoyed special treatment from the Lingle administration. And that political favoritism, she said, is leading the state along a rocky course that threatens to taint Hawaii’s business climate, weaken its “progressive” environmental laws, jeopardize its citizens and undermine the neutrality of a regulatory agency.
“We’re making such important policy decisions that I don’t want to see our communities being bullied,” Morita said in explaining why she filed the complaint. “I don’t think I would be so bold without Harold. It’s like, can you protect my back?”
Morita and Bronstein previously teamed up to challenge Na Pali Coast tour boats operating in Hanalei Bay, and Bronstein recently won a state Supreme Court decision in a public interest case related to shoreline setbacks.
It took Bronstein nearly two weeks to sift through documents filed with various agencies, including the PUC, the federal Maritime Administration (MARAD) and the state Department of Transportation (DOT), and write the complaint.
The complaint shows that the DOT’s decision to exempt $40 million in Superferry-related harbor projects from environmental review influenced both MARAD and the PUC to take a similarly lenient approach.
“It was kind of like a house of cards,” Morita said, because DOT’s decision was later invalidated by the state’s highest court in an August ruling.
The DOT has since agreed to conduct a statewide EA, which could lead to the need for a broader Environmental Impact Statement (EIS). Lingle is pushing to keep the ferry operating while that process is under way — an issue that is the subject of a Maui Circuit Court hearing now in its fifth week.
Morita’s complaint contends the ferry cannot operate while the EA is conducted because state law requires that environmental studies be completed and accepted prior to implementing an action.
PUC records cited in Morita’s complaint indicate the agency recognized that “issues were raised by some at the public hearings about the impact of the proposed ferry system on the environment,” and that some had suggested that an “environmental assessment be done on the proposed ferry services’ effect on the surrounding environment.”
The PUC also found that the environmental concerns raised by the public were “important issues that should be addressed.” However, the agency stated the issues “need not be addressed in this particular decision and order, since the determination of whether the proposed ferry service and its effect on the harbors and surrounding areas require an environmental assessment is currently being reviewed and addressed by the DOT,” the complaint states.
“The PUC punted to the DOT, but the PUC really had the responsibility of conducting the environmental review,” Morita said. “Because if they (Superferry) didn’t have a license, they wouldn’t need (DOT-funded) harbor improvements. If anything, I hope this opens up that the PUC had the responsibility of conducting this environmental review.”
Morita said the PUC’s deference to the DOT also raises the question of “who is providing oversight of state agencies if regulatory agencies don’t require applicants to follow the law? Where’s your checks and balances? This is what really upsets me, the political influence over a regulatory body that is supposed to be neutral. That stinks.”
Although the PUC did not require Superferry to conduct an EA, it did impose conditions when granting the company a Certificate of Public Convenience and Necessity (CPCN) on Dec. 30, 2004.
“We find it necessary, however, to condition our authorization in this docket upon Applicant’s showing, to the satisfaction of the commission, that Applicant has complied with all applicable federal and state laws, rules and regulations….to the extent applicable to ensure that all such requirements are appropriately addressed,” according to PUC records cited in the complaint.
While Superferry was moving through the PUC process, it also had applied to MARAD for loan guarantees to construct two high-speed ferries. In its December 2004 environmental review of Superferry’s application, MARAD determined that because 78.5% of the project would be funded through $143 million in Title XI loan guarantees “the proposed action is considered ‘Major’,” according to the complaint.
Under the National Environmental Protection Act (NEPA), “major actions” that are undertaken by federal agencies or use federal funds typically require an EA and often an EIS as well.
On Feb. 23, 2005, the DOT issued its exemption determination. A month later, MARAD followed the state’s lead and excluded Superferry from NEPA requirements. In its March 28, 2005 record of that exclusion, MARAD states that during its December 2004 review of the application “there appeared to have been very little, if any, NEPA or state environmental work performed related to the proposed ferry service that would be adequate for MARAD’s responsibilities under NEPA.
“However, since that time,” the record continues, “the State of Hawaii Department of Transportation completed a review of the proposed action…..and determined that the proposed action is exempt from further review.” Based on the state’s decision, “the NEPA program manager has determined that the proposed action is categorically excluded from further NEPA review.”
The NEPA exemption was granted even though the National Marine Fisheries Services and Marine Mammal Commission raised concerns in 2005 about the high-speed ferry’s potential impacts on marine mammals, including the likelihood of collisions with humpback whales, according to an Oct. 4 article in the Honolulu Advertiser.
In a Jan. 25, 2005 letter to MARAD, commission director David Cottingham noted that any federal agency taking action on behalf of the Superferry "has an obligation to conduct appropriate environmental analyses....because a 'may affect' situation is obvious," the Advertiser reported. The commission’s current head, Tim Ragen, also reportedly told the Advertiser that he disagrees with the exemption and the agency was surprised MARAD did not seek a consultation on the project.
A MARAD official testified during the current Maui court hearing that the exemption was warranted because the agency was not providing a direct loan or financing to the Superferry.
Despite the NEPA exemption, MARAD did recommend that the loan guarantee contract include the requirement that Superferry “comply with all applicable environmental rules and regulations,” according to Morita’s complaint.
Superferry officials have repeatedly asserted that the loan guarantees were contingent upon the state exempting the project from environmental review. But MARAD records cited in the complaint indicate the NEPA exemption was tied to the state’s decision, not the actual loan guarantees.
The complaint goes on to report that on or about Sept. 7, 2005, the DOT and Hawaii Superferry entered into a harbors operating agreement. One provision of the agreement states: “In the event a governmental authority or a court of law determines that an environmental assessment or environmental impact statement is required regarding HSF’s operations, HSF will comply with all applicable environmental laws, statutes, rules, regulations, ordinances, orders, directives and guidelines,” including NEPA and the Hawaii Environmental Protection Act, (HEPA) also known as HRS chapter 343.
On Aug. 27 of this year, following the Supreme Court ruling that invalidated the DOT’s exemption, the PUC asked Superferry to address the court order. Hawaii Superferry replied: “HSF is in compliance with all applicable laws, rules and regulations, and the August 23, 2007 order does not change that status,” according to the complaint.
On Aug. 31, the Supreme Court released its full opinion on the case and concluded: “Contrary to the expressly stated purpose and intent of HEPA, the public was prevented from participating in an environmental review process for the Superferry project by DOT’s grant of an exemption from HRS chapter 343.
“The exemption was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts of the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements.
“All parties involved and society as a whole would have benefited had the public been allowed to participate in the review process of the Superferry project, as was envisioned by the legislature when it enacted the Hawaii Environmental Protection Act.”
Following the Supreme Court’s decision, a Maui judge approved a temporary restraining order to keep the boat from servicing that island. But Superferry did travel to Nawiliwili Harbor on Aug. 26 and 27, an action that Morita’s complaint contends was “in willful violation” of HEPA, the harbors operating agreement and the conditions imposed under its PUC certificate.
Following public demonstrations at Nawiliwili Harbor, which prevented the boat from docking on Aug. 27, Superferry voluntarily suspended its service to the island.
Lingle chastised the demonstrators, saying their actions were giving the state “a very bad reputation.” Rep. Fred Hemmings (R-25th) said the protests gave Hawaii “a black eye” and reinforced the perception that the Islands are a bad place to do business.
Morita disagrees. “We do far more damage to our business climate when we send out the message you have to rely on political favors to get things approved, and that’s what this reeks of.”
Two weeks after the protests, Lingle announced she had decided the ferry could return to Kauai on Sept. 26. She went on to say she had formed a “unified command” of state, local and federal law enforcement agencies to ensure that demonstrators would not again prevent Superferry from entering Nawiliwili Harbor.
Andy Bushnell, a retired Kauai Community College history professor, said he could recall nothing similar to such a command in Hawaii’s past — except when martial law was imposed after the Japanese bombed Pearl Harbor. But in that case, he said, the unified command was led by the military and opposed by civilian authorities, who eventually reclaimed their power to govern the Islands.
As part of a plan devised by the “unified command,” the Coast Guard used an emergency rule to create a “security zone” that makes most of Nawiliwili Harbor off-limits to everyone, including fishing boats and canoe clubs, for one hour prior to the ferry’s arrival until 10 minutes after it leaves port. The rule also restricts public demonstrations to Kalapaki Beach, which fronts the Kauai Marriott. Big Island attorney Lanny Sinkin is seeking a restraining order against the security zone in federal court.
On Sept. 20, Lingle visited Kauai to advise residents of the penalties associated with violating the security zone, including state and federal charges and fines, property seizures and investigations by Child Protective Services. More than 1,200 persons came to the meeting, expecting to discuss the ferry’s return. The crowd responded with boos and catcalls when it learned Lingle was firm in her decision to let the ferry run.
The following day, however, Hawaii Superferry announced it had decided on its own, without consulting the governor, to indefinitely suspend service to Kauai. Lingle later agreed it would be prudent to wait for the Maui court decision. But she also began meeting with key lawmakers to discuss calling a special session specifically to help out the Superferry if the court rules it cannot operate until the environmental review is done.
Many lawmakers have supported such a session, but Morita sees it as further politicizing the issue. “The only thing the Legislature could do without gutting the law (HEPA) is to exempt the Superferry from the process,” she said.
And that, Morita said, threatens to undermine Hawaii’s environmental laws, which were considered “groundbreaking” when adopted.
“We were such a progressive state and now we’re regressing,” she said. “We all agree the environment is our economy, but we do nothing to protect it. It’s all lip service.”
Island Breath: Oahu not listening to Kauai 10/6/07
Island Breath: Council HSF Resolution 10/4/07
Island Breath: Recent Superferry News 9/29/07
Island Breath: Superferry Lawsuit Links 9/17/07