by Dick Mayer on 10 September 2007

On internet:
Hawaii Superferry injunction hearing live today

Aloha, beginning Monday morning you can watch the Hawaii Superferry injunction hearing
before Judge Cardoza "live" on streaming video on the internet starting shortly after 9am.

or follow the directions at

Perhaps, it will be also cablecast "live" on Akaku Maui Channel 53.

Best wishes, Dick




POSTED: 10 SEPTEMBER 2007 - 7:00am HST
Maui, Kauai, the law & the SuperFerry

image above: The entrance to Kauai Judiciary Building. Inside the door is "Homeland Security".

by Rayne Regush on 9 September 2007

QUESTION #1: Is HRS 343 so ambiguous that the Maui court must decide whether the ferry can operate before the EA is conducted?  Isn't it implicit in the law that actions should not commence until a study is completed. 

Briefly, nowhere in either HRS 343 or the EIS Rules does it say that a project may proceed while an Environmental Assessment is done.  However, HRS 343-5(c) says:

Whenever an applicant proposes an action specified by subsection (a) that requires approval of an agency and that is not a specific type of action declared exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required.

Two conditions are established here: 1) that the HSF constitutes an "action", and 2) the EA shall be prepared "at the earliest practicable time."  In its opinion, I believe the HSC addressed each of those conditions, and in a footnote at the bottom of p. 89, the Court rather cryptically noted that it wasn't ruling specifically on the PUC approval for the HSF as a putative "action", because they were not requested to do so by either the plaintiffs or the defendants (check this for accuracy).

A plain language interpretation of the remainder of this section certainly argues against the law's intent being that an action may commence prior to completion of an EA, in that the "earliest practicable time" hardly applies to commencing operations, particularly for a large, complex project for which extensive planning has been involved.

Later in §343-5(c), the law is explicit with regard to actions for which an EIS is required:

Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action.

Common sense, as well as my own understanding of the intent of the law, dictates that if the EIS must be completed prior to commencing an action, and if you can't know for sure whether an EIS is required without first doing an EA, it's pretty twisted logic to conclude that the project can commence before the EA process is complete.
QUESTION #2: Is the Maui lawsuit harbor specific, even though ferry operations are statewide? Is Nawiliwili Harbor excluded or included?

Regarding the application of the HSC ruling to harbors other than Kahului, it seemed pretty clear to me in their opinion that the Court held the restriction of the DOT exemption to limited harbor activities was erroneous as a matter of law, and that DOT needed to consider ALL effects, direct, indirect and secondary, pursuant to §11-200-12, Hawaii Administrative Rules:

In considering the significance of potential environmental effects, agencies shall consider the sum of effects on the quality of the environment, and shall evaluate the overall and cumulative effects of an action.

In determining whether an action may have a significant effect on the environment, the agency shall consider every phase of a proposed action, the expected consequences, both primary and secondary, and the cumulative as well as the short-term and long-term effects of the action.

Over the 33 years that the law has been in effect, different people have read it different ways.  Questions of law -- the distinction between intent and interpretation -- is before the court now.



POSTED: 10 SEPTEMBER 2007 - 6:45am HST
Kaua'i residents want to protect island

by JoAnn Yukimura on 9 September 2007 in The Honolulul Advertiser

Two and a half years ago, the Kaua'i County Council unanimously passed Resolution 2005-15 stating that it was the council's intention not to stop the Hawaii Superferry, but "to protect the land and people of Kaua'i against degradation of the environment and social fabric by encouraging a proper planning process that would prevent or mitigate possible negative impacts ... "
The council went on to request that the state Department of Transportation Harbors Division require an EIS prior to Superferry operation, or that the Superferry "itself voluntarily engage in such a process and live out its commitment to responsible planning and socially conscious corporate action."

In the 1960s, people began to realize that when we overlooked or ignored environmental factors (which now includes cultural and social factors), we would often hurt ourselves, others or our community often unintentionally, often out of ignorance. For example, DDT was used to kill vermin and mosquitoes to stop disease or harmful insects, but it entered the food chain and ended up killing useful species and contaminating mothers' breast milk.

Furthermore, we would often overlook ways in which we could lessen negative impacts and make the project much better and less harmful. The National Environmental Protection Act and the Hawai'i Environmental Protection Act (the federal and state EIS laws, respectively) were passed to correct this.

This is what many Kaua'i people are requesting decisionmaking that considers and mitigates for environmental impacts that could harm our land, people, culture, tourism industry or economy. The Superferry is the only form of interisland travel that would allow drive-on/drive-off travel, and that has huge implications in terms of invasive species, drugs and stolen goods, overloading of our parks and depletion of cultural resources such as fish, limu and maile.

For example, a coqui frog invasion would severely damage visitor and real-estate industries.Other invasive species (miconia, fireweed, bee mites) could cause even worse environmental and economic damage. As New Zealand has shown, there are ways to greatly minimize the risk of invasive species, and such practices should be a condition of any Public Utilities Commission or DOT permission for operation. This is the value of the EIS process.

Why would people from O'ahu (or other visitors) want to visit Kaua'i if we were just like Honolulu?

Our wealth as a state lies in our diversity. That is why we are trying to keep Kaua'i Kaua'i.

Furthermore, O'ahu's infrastructure is designed to accommodate a million people; our infrastructure on Kaua'i is not built for large numbers. So we on Kaua'i need to assess the effect of an "H-4" highway to Kaua'i and either prepare for large numbers or say "no."

The Superferry would like everyone to think that few Kauaians oppose the Superferry without an EIS. As one who has the privilege of representing the people of Kaua'i, I can tell you that the opposition to Superferry without an EIS runs deep. It includes insurance agents, government workers, tourism industry people, ministers, Realtors, teachers, business people, lawyers, physicians, students and many others.

There are those, of course, who welcome Superferry with open arms, and I respect and honor them. But those opposing the Superferry on Kaua'i are not a small minority. Most who oppose the ferry simply want to protect the place that they love. Most rightfully shun and condemn violence. All want our government to uphold the law not only against protesters but in regard to the Superferry.

The Hawai'i Supreme Court has issued a well-reasoned decision on the state's EIS law. It is clear to me to me that the EIS law covers Nawiliwili Harbor and that a proper environmental review needs to be done before Superferry operations can legally take place.

However, if there is any doubt, the governor and the mayor, who have sworn to uphold the law, should take the initiative to seek legal clarification of th e law before allowing the Superferry to operate into our harbor.

To use the force of government the Coast Guard and the police to allow the Superferry to proceed into Nawiliwili Harbor without first obtaining such a legal determination would be a dismal failure of leadership that would put our people at terrible risk.

Mayor Bryan Baptiste and Gov. Linda Lingle have the power to keep people safe without using the police or Coast Guard by convincing Superferry managers to seek a clear statement of the law before operating.
If the safety of our people (Superferry passengers and employees, police and Coast Guard personnel and protesters) is paramount, let's settle this issue in the courts and not on the waters.

JoAnn A. Yukimura is a Kaua'i county councilmember and former mayor of Kaua'i.



POSTED: 9 SEPTEMBER 2007 - 9:15am HST
Superferry potential disaster for bees

image above: threatened honey bee queen in hive

by  Ann Goody RN PhD on 7 September 2007

The Big Island is now the last place on earth that queen bees are safely bred free of the veroa mite and the virus that is killing the majority of wild bee hives in the United States and rest of the world. No other place can supply queen bees to repopulate hives which are required to pollinate our food supply. People are not seeing the big picture about Superferry. IF autos that might contain even one infected bee arrive on the island the breeding colonies for queens will be put at risk. The mite is aggressive and now considered by the Dept of Ag to be widespread on Oahu and Maui.

Please consider getting the word out, as soon as possible, that any and all transport of autos on a rapidly moving barge will permit the bees to get to the Big Island. This is a matter for every person in the country who likes to eat!

see also:
Island Breath:Bee Population Collapse 6/8/07



POSTED: 7 SEPTEMBER 2007 - 8:00am HST
Concern on illegal HSF cargo confirmed

image above: Imu pit rocks being prepared for large alumni luao at Punahou School in Honolulu

by Lucienne DeNaie on 5 September 2007

For your information, Sierra Club on Maui was alerted about several truckloads of ala rock (special lava rock used for imu pit cooking) that had been "harvested" on Maui beaches and was waiting to go back to O'ahu when the Superferry was halted.

An anyonmous caller told us the trucks were parked at the Superferry lot in Kahului Harbor. We called the Division of Conservation and Resources Enforcement (DOCARE). It has primary responsibility for resource enforcement in the State.

DOCARE went down and checked and found the claim was true and are citing the vehicle owners for removing the rocks. So our concerns about misuse of resources and contraband on the Superferry are not unfounded.


POSTED: 7 SEPTEMBER 2007 - 8:00am HST
Concerns about whale and mongoose

[Note from Elaine Dunbar: I just got this from a friend who wishes to remain anonymous.]

by Anonymous on 5 September 2007

Fast ferries slice through the waters around the world — the Mediterranean, the English Channel and Hong Kong harbor, to name a few. But Hawaii is different. The islands are a major calving ground for humpback whales, which are protected under the Endangered Species Act and which tend to be killed by fast ferries more than by slower ships.

Environmentalists are also concerned that the many vehicles the boat can carry will allow mongooses, which have severely depleted Oahu's bird population, to stow away and be carried to Kauai, which has none.

I live on Kauai. Every year I look forward to going to the waters edge during whale season. Whales can be seen throughout the entire day. There are whale watching trips during this time that "guaranteed" the visitor that if they do not see a whale on the trip, they will get a full refund.

The ferry says that they are going to have crew specifically just to watch for whales. This is a very large Ferry. I have been on boats, and the next thing I know a whale is right next to me. I fortunately was not on a boat that was 450 foot long, going 40 miles an hour, carrying cars (up to 286), along with 866 passengers. I was on a 45 foot boat with 4 passengers. We were able to give the whales the space and privacy that they deserved.

Kauai has many beautiful birds, and lots of wild chickens too. Mongooses are not something that we need to be transported here. What an entirely new disaster that would create.

I do think that it would be wonderful to put my car on a boat and go to Oahu. I would not have to rent a car and economically this would be better for me.

However, these are very selfish reasons. I need to think of the generations to follow. For that reason, until the Environmental study gives the green light, I am going to have to say no to this one.

click at right to comment Island Breath Blog
you may have to look through blog archive for dated articles

see also:
Island Breath:Navy & Superferry 9/6/07
Island Breath: HSF Swath & Slice 9/5/09
Island Breath: Latest HSF News 9/5/07
Island Breath: Round Four Prep 9/4/07
Island Breath: Maritime Administration & EIS 9/3/07
Island Breath: Support from Oahu's DMZ 8/30/2007
Island Breath: DMZ - Stop the Strykers 7/2/07
Island Breath: Maui Case & Timeline 8/29/07
Island Breath: A Hawaiian's View 8/29/07
Island Breath: We Win Round Three 8/28/07
Island Breath: Plea to Reps and TRO 8/27/07
Island Breath: Rounds One & Two 8/23/07
Island Breath: Boycott the Superferry 8/17/07
Island Breath: Superferry Preparations 8/10/07
Island Breath: Hui-R Superferry Meeting 7/26/2007
Island Breath: Not So Super Ferry 7/24/07
Island Breath: Superferry Invasion 7/22/07
Island Breath: Superferry Noise 7/18/07
Island Breath: Superferry Delayed 5/25/07
Island Breath: Still No Superferry EIS 3/31/07
Island Breath: Superferry EIS Effort 3/25/2007
Island Breath: Superferry EIS Bill hearings 2/26/07
Island Breath: Superferry Promotion 2/24/07
Island Breath: Superferry Launched 1/28/07
Island Breath: Superferry in Trouble
Island Breath: Superferry Reference
Island Breath: Superferry Resistance
Island Breath: Superferry & Military
Island Breath: Superferry History
Island Breath: Stop the Superferry
Island Breath: Superferry Meetings
Island Breath: Superferry Redux
Island Breath: Superferry Problems

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