POSTED: 18 OCTOBER 2007 - 7:15am HST

Hawaii Superferry bill shields state on liability

image above: Bumper sticker from

[Editor's Note: The Hawaii Legislature is at the precipice of a cliff. Apparently it is poised to jump. They are considering letting the Superferry run without restrictions while an EIS is underway. Ass covering, fear and greed seem to prevail. It will be informative to watch them self destruct, but I'm afraid the lesson learned is that Oahu is doomed. We are truly on our own and under siege. If the Supreme Court does not act quickly and decisively, we will have a unitary executive takeover of our state (read fascism). We will need to stop the destruction of our islands with our bodies.]

By Derrick DePledge on 18 October 2007 in The Honolulu Advertiser

Any new operating agreement between the state and Hawaii Superferry should contain an "explicit and comprehensive indemnity clause" to shield the state from any liability caused by court actions that prevented the ferry from operating for the past two months, according to the latest draft of legislation to help the Superferry.
The threat of possible lawsuits by Superferry executives has been a subtext in the debate over the project's future. The draft, which is being reviewed by the state Attorney General's office, attempts to insulate the state from lawsuits while allowing Superferry to resume service while a full environmental impact statement is conducted.

State Rep. Marcus Oshiro, D-39th (Wahiawa), the chairman of the House Finance Committee, said lawmakers are trying to ensure the bill covers "all past, present and future liabilities for the state. That's a very, very important provision of this bill," he said.

State House Democrats discussed the draft in caucus yesterday and, like state Senate Democrats on Tuesday, said there is tentative agreement on the draft and consensus to go into special session. Gov. Linda Lingle would likely call lawmakers back into session starting Wednesday if the agreement holds.

Senate Democrats want to hold informational briefings on the Neighbor Islands before a special session. House Democrats would not be formally involved, although some House lawmakers could attend on their own. The briefings, if held, would be to hear public comment on the draft and any suggested amendments.
"The draft, that I think all of you have today, was very, very much supported by the members of our caucus," state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), told reporters last night.

While the outline of the draft and several key components have been described over the past several days, yesterday was the first time lawmakers shared the complete text of the legislation.

The draft finds that ferry service would provide an innovative alternative for interisland travel and further the Legislature's goal of sustainability because it would produce less carbon emissions than air travel. Ferry service could also move cargo and agricultural products between the Islands faster and could foster diversified agriculture by allowing Neighbor Island farmers to get products to the O'ahu market sooner. The ferries also could be used to quickly move workers, equipment and supplies during natural disasters or other emergencies.
The draft also finds that the immediate operation of ferry service is in the public interest.

The draft would allow Superferry to operate during an environmental review that could take one to two years. It would restore the operating agreement between the state and the Superferry for Kahului Harbor on Maui — and allow the Superferry to use other harbors — and make clear that the lack of an environmental review would not jeopardize the Superferry's operating certificate from the state's Public Utilities Commission.

The Lingle administration would impose operating conditions on the Superferry to — at a minimum — protect whales and other marine mammals, prevent the spread of invasive species, and preserve cultural and natural resources. The administration should also consider placing state agricultural inspectors and conservation enforcement officers on each ferry voyage.

Earlier suggestions that the administration's conditions not be subject to judicial or administrative review are not in the latest draft.

Lawmakers would also reserve the right to add conditions to protect the environment or communities during next session or later.

Superferry would have to agree to follow the conditions in exchange for being allowed to resume service.

Asked whether the conditions would be any different than what Superferry has already volunteered to do on its own, state House Majority Leader Kirk Caldwell, D-24th (Manoa), said he hoped they would more extensive. "I think we're hopeful that the governor will add additional conditions and not just the ones found on the Superferry Web site," he said.

The draft also creates a 13-member oversight task force of state, county, Superferry, business and environmental leaders that would monitor ferry operations and give monthly reports to the Legislature starting in December. A final report would be due before the 2009 session. The original suggestion was for a 17-member task force that would only give one final report to the Legislature.

The state auditor would conduct a performance audit of the Lingle administration's handling of the Superferry, including the February 2005 decision by the state Department of Transportation to exempt the project from an environmental assessment. The draft urges the governor and the director of the state Department of Transportation to waive any attorney-client privilege with the attorney general so the auditor would have access to all relevant information.

The state Supreme Court ruled in August that the exemption was in error and that an environmental assessment is necessary. A Maui court ruled last week that Superferry could not use Kahului Harbor until the environmental review was completed.

The draft being considered by lawmakers would overturn the Maui court's decision. But lawmakers, concerned about precedent, would help the Superferry with the new legislation and not by amending the state's environmental review law.
John Garibaldi, the Superferry's president and chief executive officer, and Tig Krekel, the vice chairman of J.F. Lehman & Co., the project's main investor, continued to meet privately with senators yesterday. Krekel said that what they had heard so far about the draft sounded encouraging.

"We just want to communicate to you guys that, really, the Legislature has just done a marvelous job in dealing with a very complex situation," Krekel told reporters.

For a 995k PDF of the current draft of the proposed legislation click here:



POSTED: 17 OCTOBER 2007 - 7:15pm HST

Update from yesterday's trip to Capitol

by Keone Kealoha on 17 October 2007

I was able to speak with Dick Mayer today from Maui and they (Dick, Isaac Hall) have prepared a draft of conditions which they (Dick, Isaac, Rich H and a local group of concerned citizens) will be presenting to Sen. Hanabusa tomorrow at 2pm. This is a very good thing.

Isaac Hall, being the sole attorney for the three Maui groups, is perfectly positioned to be the spearhead to the Legislature for the environmental concerns.
I would suggest that we begin contacting O’ahu and Big Island groups and organizations that will be able to rally behind the documented conditions specifically and the talking points in public hearings. While Kauai and Maui groups are important, I think we have these already.

What we need are new players that have name recognition at a state level. Rotary Clubs, Lyons, Business Groups, corporations, neighborhood associations, etc. At this point if we are all saying the same things to the Senators I believe we will have a stronger chance at getting their ear and holding the line.

Of course every one has to do what feels right to them and this is just a suggestion on how we might leverage the voice of the many into a singular call.

We’ll all get a copy of the draft following the meeting with Hanabusa tomorrow.
Malama pono kakou. Imua, imua, imua.



POSTED: 17 OCTOBER 2007 - 7:15pm HST

Re: Update from yesterday's trip to Capitol


Mahalo to you and guy for representing kauai and taking our message to the 'powers that be'. when I talked story with rep. and sen.staffers yesterday while sharing concerns, several of them mentioned 'two kauai guys were here earlier' sharing the same concerns. most remarked that it was good to hear from folks. they also mentioned that phones were the most effective and apreciated form of communications. The emails were indeed overloaded and staff were not able to open and read the majority of them.

Talking with ya last night on the way home from band practice, we shared the disappointment and frustration of the situation. How could a 'special' session undue the hard work that groups and individuals have pursued over that last several years. The elation of turning back the big boat on the night of the 27, the news of judge cardoza's ruling, the feeling of achievement went out the window like the smoke of ya's biddie.

I was bummed most of this morning and appreciated katie's e.mail of perspective and encouragement. this helped shape the response to your email. My first reaction is to try and rally a phone campaign to urge an open process for the special session. How can we be denied the opportunity to provide testimony in support or otherwise to this proposed legislation. I also feel strongly that we, the opposition, need to be considered in the equation, just as the board of the HSF is included.

My growing anger and resentment of these decisions being made have helped to fuel the thought of calling for direct actions if the people are shut out of this process. i wonder what type of support statewide is there for multiple actions/demonstrations at key locations to help highlight the travesty and miscarriage of justice that the governor's requests have born. what does a statewide response to authoritarian leadership looklike in your neighborhood?

My response to your v.mail about compromise points included a menu of options for superferry to decide on. inclusive of the speed and whale collision issues and the traffic/invasive species issues that cars represent. i think while the environmental hazzards of the operations are unknown(during the EA/EIS) the frequency of voyages should be reduced. less voyages-less impacts. to clarify:
the package should present options for the HSF to decide on what is most important- speed? Cargo? schedule and frequency of voyages?

option A- let ferry run as planned but no cars and greatly reduced speeds
option B- let ferry run with cars but only every other day and reduced speeds
option C- defer payments so that financial hardship is reduced while EA is conducted.

HSF can run w/o limits when EA/EIS process is complete we need to present the non-negotiables as well. Such as reduced speeds, selected routes during whale seasons, Depleted Uraniuim issues,vehicle restrictions.

In summary, we will be successful if we keep the public process issue up front. this is a critical issue-due process has not occured and the neighbor island voices have been bullied by Oahu's vocal majority. We can advocate for the hard earned position of plaintiffs with standing and lobby hard for appropriate restrictons on operations. give them options and let HSF make the call if they want to pull out of the hawaii market.

We can also enhance our chance of success if we revive the activist network to plan, coordinate and execute a call for direct actions against any decisions that don't include the public's invlovement(online polls don't count!). Our superferry resistance community has grown since the ALAKAI's open house in august. the fact that the delay in services resuming to maui and kauai has not detered our resolve to stop the superferry from running before conducting an EA/EIS; in many ways this delay and continued government arrogance has strengthened our cause. statewide we are a growing body and a committed movement. hard to deny that!

I apologize for the rambling nature of this post and any duplicates you may recieve. i agree that time is of the essence. i look foward to more thought out strategic responses from others. My 'recactions' sometimes does not serve my 'response' well. please continue to share with others and grow this 'response team'. thnx for including me in the loop. Mahalo again for serving kauai's best interest and visiting with our 'leaders' on oahu. keep up the good work! malama



POSTED: 17 OCTOBER 2007 - 7:15pm HST

Hawaii High Speed Ferry

Aloha Governor Lingle:

I am a member of an ahupua`a based group, Malama Moloa`a on Kauai. I am also a farmer, a grandmother, and was on the first ship out of the state of Hawai`i after statehood. My thrice-great grandfather jumped ship in Honolulu and was a Kingdom of Hawai`i national during the time of the Great Mahele. I also had had the honor to be raised on the island of Midway in the 1950's, as the daughter of a Navy pilot. My best friends and playmates were some of the endemic species and seabirds listed below. I feel I must speak for the endangered species who have not been previously considered by the Hawaii High Speed ferry project.

There is inadequate environmental information concerning mitigation to potential impacts by the proposed new high speed mode of roll-on, roll-off (RORO) inter-island transportation proposed by Hawaii High Speed Ferry, Inc., aka the Hawaii Superferry (HSF) to Hawai`i state- and federally-listed Endangered Species. Potential state-wide impacts, outside the harbor infrastructures, are significant, vary by island and must be considered individually and cumulatively.

Endangered Species of Hawai`i are offered protection under the National Environmental Policy (NEPA) act as well as the Hawai`i Environmental Policy Act (HEPA). No initiation of service can be made without National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 et seq.) considerations, including Habitat Conservation Plans (HCP) and Incidental Take Procedures (ITP) for every potentially impacted endangered species; low income and cultural impacts; cumulative impacts; and project alternatives and potential impacts to critical habitat areas and environmentally sensitive areas.

Section 102(2) of the NEPA contains "action-forcing" provisions that ensure that federal agencies act according to the letter and the spirit of the law prior to any impacting action. The HSF is a major federal project due the federal funding received by the HSF through the United Stated Department of Transportation Maritime Administration (MARAD) Title XI loan of $139,731,000.00 to Hawaii Superferry, Inc., Austal USA LLC, for 2 105-Meter High-Speed passenger RORO vehicle ferries, secured January 21, 2005. Total project cost is expected to be $178,003,065.00.

In the Report entitled "Hawaii Superferry - Commitments and Actions to Address Environmental Concerns", prepared for Hawaii Superferry, Inc. by CH2M Hill February 2007, there are no comments by the State of Hawai`i, Department of Land and Natural Resources to potential impacts to threatened and endangered species of Hawai`i or the inter-island spread of invasive species, like mongoose, coqui frogs and fire ants. There is no list of potentially impacted endangered species, either by state or by island, and no consideration of mitigations.

Where are the responses of state and federal wildlife agencies to the statewide potential impact of the Hawaii High Speed Ferry? We cannot seem to find them anywhere.

Where is the provision for on-going monitoring of the wildlife impacts of the HSF?

We have also not been able to find a response by the United States Fish and Wildlife Service, Endangered Species Division, Marine Mammal Division or the Migratory Bird Branch in regards to potential impacts by the HSF to federally-listed threatened and Endangered Species, marine mammals and migratory birds found in Hawai`i.

We are requesting immediate, formal participation by federal environmental agencies considering potential impacts by the Hawaii High Speed Ferry to federally listed threatened and endangered species and it's potential to spread invasive species throughout the state of Hawai`i, causing further extirpation and extinction of protected species. Mitigation of impacts may include simple measures such as light shielding, and route timings, but need to be made by qualified wildlife agencies, not the HSF company or the legislature, before initiation of any impacting actions, as is the intent of NEPA.

NEPA consideration of potential impacts to threatened and endangered Hawaiian species must include: `Alae `ula, Hawaiian moorhen, (Gallinula chloropus sanvicensis); `Alae ke`oke`o , Hawaiian coot, (Fulica alai); `Ae`o, Hawaiian stilt, (Himantopus mexicanus knudseni); Koloa maoli, Hawaiian duck, (Anas wyvilliana); Nene, Hawaiian goose, (Branta sandvicensis); `Ua`u, Dark rumped petrel, (Pterodroma phaeopygia sandwichensis); `A`o, Newell's shearwater, (Puffinus auricularis newelii); `alala, Hawaiian Crow, (Corvus hawaiiensis); Band-rumped storm petrel, (Oceanodroma castro); Manu o ku, White tern, (Gygis alba rothschildi); `io, Hawaiian hawk, (Buteo solitarius ); Short-tailed albatross, (Phoebastria albastrus); `akohekohe, Crested Honeycreeper, (Palmeria dolei); Nihoa Millerbird, (Acrocephalus familiaris kingi); Kauai Nukupu`u, Kauai nukupu`u, (Hemignathus lucidus hanapepe); Maui Nukupu`u, Maui nukupu`u, (Hemignathus lucidus affinis); `O`o `a`a, Kauai `O`o, (Moho braccatus); `O`u o`u (Psittirostra psittacea); Palila, palila, (Loxioides bailleui); Maui Parrotbill, (Pseudonestor xanthophrys); Po`ouli, po`ouli, (Melamprosops phaeosoma); oloma`o, Molokai Thrush, (Myadestes lanaiensis rutha); kama`o, large Kauai Thrush, (Myadestes myadestinus), puaiohi, small Kauai Thrush, (Myadestes palmeri); ilio holo i ka uaua, Hawaiian monk seal, Monachus schauinslandi); kohola¯, Humpback whale, (Megaptera novaeangliae ); Sperm whale, (Physeter macrocephalus); Blue whale, (Balaenoptera musculus); Fin whale, (Balaenoptera physalus); Sei whale, (Balaenoptera borealis); North Pacific right whale, (Eubalaena japonica); Olive ridley turtle, (Lepidochelys olivacea); Leatherback turtle, (Dermochelys coriacea); Loggerhead turtle, (Caretta caretta); Honu `ea, Hawksbill turtle , (Eretmochelys imbricate); Honu, Green sea turtle, (Chelonia mydas); and the `Ope`ape`a, Hawaiian Hoary bat, (Lasiurus cinereus semotus);

The following birds are offered protection under the Migratory Bird Treaty Act: Eurasian Skylark, (Alauda arvensis); House Finch, (Carpodacus mexicanus); Northern Cardinal, (Cardinalis cardinalis); Kolea, Pacific Golden Plove, (Pluvialis fulva); Band-rumped Storm-Petrel, (Oceanodroma castro);
White-tailed Tropicbird, (Phaethon lepturus); Wandering Tattler, (Heteroscelus incanus); Bristle-thighed Curlew, (Numenius tahitiensis); Pueo, Hawaiian Shorteared Owl, (Asio flammeus sandwichensis).

The Hawaiian archipelago is home to 22 species of breeding seabirds, three of which are endemic to the islands. Presently 75 % of known Hawaiian seabirds are extinct or threatened with extinction and listed on the Federal Endangered Species List (USFWS 1985). Island seabird populations have been declining worldwide. Seabirds within the Hawaiian archipelago are vital to a well-balanced marine ecosystem. The following sea birds are found in Hawaiian waters: Moli, Laysan albatross, (Phoebastria immutabilis); Black footed albatross, (Phoebastria nigripes); `A, Brown booby,(Sula leucogaster); `A, Masked booby, (Sula dactylatra); `A or Mahi, Red-footed booby, (Sula sula), `Iwa, Great frigate, (Fregata minor); Black noody, (Anous stolidus pileatus); Noio koha, Brown noddy, (Anous minutus); Blue noddy,(Procelsterna cerulean); `Ou, Bulwer's petrel,, (Bulweria bulwerii); Bonin petrel , (Pterodroma hypoleuca); Christmas shearwater, (Puffinus nativitatis); `Ua `u kani, Wedge-tailed shearwater, (Puffinus pacificus), `Ewa `ewa, Sooty tern, (Sterna fuscata); Koa e `ula, Red-tailed Tropic Bird, (Phaethon rubricauda); Koa e ke`o, White tailed Tropicbird, (Phaethon lepturus dorotheae) and must be considered.

Potential impacts to federally-listed threatened and endangered plant and algae species by introduction of invasive species of plants and animals is monumental and must be considered on a island basis due to the unique biological diversity of each island and cumulatively to the entire state. We have not been able to find any mitigation considerations for endangered plant species or the transfer of invasive weed seeds and invasive algae.

Preparation for inter-island ferry service was begun in FY 1996. Different types of vendors were being considered as late as 2001. In the Report to the Twenty-Second Legislature of the State of Hawaii Regular Session 2002, Senate Concurrent Resolution SCR 20, SUBJECT: REPORT ON THE STATUS OF THE STUDY ON THE FEASIBILITY OF AN INTER-ISLAND FERRY SYSTEM FOR HAWAI'I, the State of Hawaii Department (HDOT) advised the legislature that the state was considering passenger as well as roll on/roll off (RORO) passenger vehicle, truck and bus service and with freight loaded on the vehicles. The inter-island ferry service was being approached as a business arrangement with the operator, where the HDOT would provide the facilities required and the operator(s) would be a lessee, responsible for the ferry vessel, its funding, maintenance and operation.

The HDOT began recommending environmental permitting requirements as early as 2002 with the HSF:
In working with these inter-island ferry proponents, HDOT has also advised them of the regulatory requirements for such operations, including the permits and approvals for the use and lease of port facilities, and the requirements that need to be met in the areas of environment, safety, utility (PUC), security, ADA, etc.

HSF received major Title XI funding through the United States Department of Transportation Maritime Administration (MARAD). MARAD had reservations about the lack of environmental scrutiny: On March 28, 2005 MARAD, in granting their Categorical Exclusion stated:
Based on the information available at that time, 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. ..
But based their Categorical Exclusion on the Hawaii state Categorical Exemption issued by Hawaii Department of Transportation (HDOT), qualifying that:
MAR-820 recommends that the loan guarantee contract contain the requirement that Hawaiian High Speed Ferry (HSF) Corporation comply with all applicable environmental laws and regulations.

Serious consideration needs to be given to the validity of the MARAD Categorical Exclusion that was based on the Hawaii State Department of Transportation Categorical Exemption, since the ruling No. 27407 of the Hawaii Supreme Court on August 31, 2007, invalidates the state Categorical Exemption.

It is time for the Hawai`i Public Utility Commission (PUC) to reconsider their deferral of environmental review. The HSF has not shown that it
"has complied with all state and federal laws, rules and regulations".
No NEPA considerations have been made, as required by law. The "Certificate of Public Convenience and Necessity" based on PUC deferral of environmental review must be revoked as soon as possible, pending adequate environmental review by authorized wildlife agencies.

The Hawaii High Speed Ferry, Inc. has operated as an errant vendor of our ports, and has not followed recommended environmental procedures. Improvements to our port facilities are not wasted can perhaps be better used by a vendor that would be environmentally more respectful of state and federal laws and not cause so much trouble and litigation encumbrances. Perhaps an inter-island passenger ferry system would be a more environmentally sensitive start. If the speed of the proposed HSF and the invasive species transfer by vehicle transport are the most critical issues, has any compromise been considered by HSF? Is this the kind of privatization of our port services that we, as a state, really need? Do we really need a Super- fast, Super Ferry?

Many companies operate with consideration to HEPA and NEPA; those that do not should not be offered special consideration. The Hawaii High Speed Ferry, Inc. cannot be allowed to begin operation without NEPA considerations. HEPA must not be overturned or compromised. The State of Hawai`i cannot risk federal enforcement of NEPA. Please follow the letter and intent of HEPA and NEPA and protect the endangered species of Hawai`i.

Thank you for your time considering the Endangered Species of Hawai`i. Mahalo for considering Environmental Justice in regards to HEPA.


Hope Kallai
Malama Moloa`a

see also:
Island Breath: Can the Superferry be Stopped? 10/14/2007
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


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