POSTED: 15 SEPTEMBER 2007 - 8:30am HST

image above: Unified Commander Linda Lingle. Image by Juan Wilson. Click on it to enlarge.

Legislature could save Superferry, Lingle says

[Edior's Note: This is a pathetic bit of public relations on the part of HSF Corporation. What they and Lingle are really fishing for is to overturn Hawaii's laws on protection of the environment. God help us if they do. Crippling the Environmental Assessment regulations will open Kauai up to uncontrolled development like we have never seen.]

by Richard Borreca on 15 September in The Honolulu Star Bulletin

The Hawaii Superferry would be crippled by a court ruling stopping operations pending an environmental study, Gov. Linda Lingle says.

"At some point they have to operate, or they will not be able to survive," Lingle said yesterday in an informal meeting with reporters at the state Capitol.

"If the court on Maui ruled that they could not operate during the entire time the EA (environmental assessment) is being prepared, that would be an important factor in deciding whether or not to have a special session. It would probably be the key factor," Lingle said.

The Supreme Court ruled last month that the state must do an environmental assessment of $40 million in Superferry-related improvements to prepare the harbors in Honolulu, Kahului and Nawiliwili for the 350-foot ship. A Maui judge has blocked trips to the Valley Isle pending hearings on whether the ship can operate while the environmental study is done.

A Kauai judge is also considering a preliminary injunction request to stop trips to the Garden Island.

State officials had previously said no assessment was needed, causing environmentalists to sue.

Lingle and legislators have previously speculated that the Legislature could pass a law allowing the ship to operate while an environmental assessment was being completed.

In its last session, the Senate approved a bill that would have allowed the ferry to run while an environmental impact statement, a more thorough two-year review, was completed. But the bill was not heard by the House.

Superferry officials have declined to say how much longer they can remain in business without revenue.

The ship is expected to resume operation between Honolulu and Kauai on Sept. 26, but ferry officials said they also needed the revenue from Maui to make a profit.

Senate President Colleen Hanabusa said yesterday that she met with Superferry officials Monday and was told that the ferry could continue for only six weeks without paying passengers.

"They told me they have the staying power of a month or a month and a half," she said.

Hanabusa said there has been no agreement about going back into session to adjust state law.

"I have no sense that we were going to do anything in particular and definitely did not have a sense that we would call ourselves back into session," Hanabusa said.

Jeff Mikulina, president of the Hawaii chapter of the Sierra Club , one of three groups that sued to require the environmental assessments, said the state should not exempt the ship.

"It would be shortsighted and inappropriate. It always seems when a company or a developer ignores our law and then gets nailed, the first thing they want to do is change the law," Mikulina said.

[Editor's Note: the following high-lighted material is a truly alarming point of view by the Governor of Hawaii. She is in effect saying that the Hawaiian Supreme Court is not the last recourse in the evaluation of the law. It's actually a popularity contest judged by the Governor herself. This is a prelude to frightening future if Lingle has her way]

Lingle, however, said it is a responsibility of government to make sure that court rulings are acceptable to the public.

"The court is not the last say," Lingle said. "It is the opinion of the court at that time. I don't think anybody should feel that there is anything wrong with the Legislature passing a law to overturn what a court said.

"The court has to interpret the law as it see it, but if it results in something the elected people feel is not in the best interests of the public, it is not just their right, but their responsibility to make it OK," Lingle said.

House members are also undecided about returning for a special session devoted to helping out the Superferry.

House Speaker Calvin Say issued a written statement declining to take a position. "Any comment at this time on a special session for the Superferry is premature. The state administration has not yet contacted me about a special session."


Making It Right
by Lanny Sinkin on 15 September 2007

Arguing for a possible special session of the Legislature, the Governor is reported to have said the following:

Lingle, however, said it is a responsibility of government to make sure that court rulings are acceptable to the public.

"The court is not the last say," Lingle said. "It is the opinion of the court at that time. I don't think anybody should feel that there is anything wrong with the Legislature passing a law to overturn what a court said.

"The court has to interpret the law as it see it, but if it results in something the elected people feel is not in the best interests of the public, it is not just their right, but their responsibility to make it OK," Lingle said.

Lets us be clear what the Governor means by "to make it OK."

First of all, what is "it"?

The Governor and the Director of the State Department of Transportation incorrectly permitted Superferry to invest tens of millions of dollars in preparing to provide service in Hawaii without requiring an environmental assessment (EA).

That decision resulted from either pressure by the U.S. Maritime Commission (see note 1), bias toward business on the part of the Lingle administration, an incorrect reading of the law by the Department of Transportation, or incompetence.

After the Lingle administration error, County Councils on three islands passed resolutions calling for an environmental impact statement (EIS) to be prepared, state legislators tried to pass a law correcting the erroneous executive branch decision and got blocked by one legislator, and thousands of citizens petitioned their government for redress of the grievance they had that the potential environmental impacts of Superferry were not to be examined.

Basically, history demonstrates that what was "not acceptable to the public" was the erroneous determination by the Lingle administration that an EA for Superferry was unnecessary.

In the face of all this public opposition and even though suits were filed to compel the preparation of an environmental assessment, the Maritime Commission decided to go ahead with the loan guarantees and Superferry decided to go ahead and invest in the project. The Superferry took the risk that the suits would ultimately be successful. That was their business decision. In this case, the opposition and law suits made the investment speculative. Businesses make risk assessments all the time and either reap the benefits or pay the consequences of their assessments. The risks are higher in speculative investments.

Then the case reached the Hawaii Supreme Court. The Court reached perhaps the fastest decision in Court history and declared an EA necessary by law. That decision almost certainly brings Superferry to a halt until the EA is prepared. (see note 2).

Now the Governor feels terrible about having made the initial mistake. So does Mr. Fukunaga, Director of the Department of Transportation. They both want to do their part to "make it OK." Clearly "it" is their mistakes.

Mr. Fukunaga wants to rush through an EA. He is reported to have said:

"The ferry service is highly desired and environmental review is needed to enable its operation, the DOT must accomplish the EA (environmental assessment) in the shortest time possible to avoid the loss of the ferry operator," Barry Fukunaga, director of the state Department of Transportation, said in the request for an exemption to procurement law.

The law requires an objective environmental analysis in an EA. The analysis determines whether there are significant potential environmental impacts or not. If not, the process ends. If so, the process continues with an EIS.

For Mr. Fukunaga, however, the EA is just a formality to be completed "to enable [Superferry's] operation" and to be done quickly "to avoid the loss of the ferry operator."

As the administrator delegated to approve or reject the EA, Mr. Fukunaga disqualified himself by demonstrating a bias and a preconceived determination. To make "it" okay by disrespecting the law is not really pono. To subvert the law to cover your own mistake is even less pono. To ask permission to hand pick the consultant to prepare the EA, bypassing normal bidding processes, is hardly appropriate under the circumstances.

The Governor wants to "make it OK" by having the Legislature pass an apology bill. That bill would apologize to the Superferry for the erroneous decision of the Lingle administration by permitting Superferry to operate while an EA is prepared. The proposal is itself an admission that following the law would mean Superferry cannot operate without an EA (see note 2).

The whole purpose of the environmental laws is to force decision-makers to take a hard look at potential environmental impacts before making a commitment to an action. To pass a law that makes an exception solely because government officials made an error puts human error correction at a higher priority than environmental protection. That should be an interesting debate.

Look to the future. What if the EA decides that there are potentially significant environmental impacts? In Maui, attorney Isaac Hall has already put on sufficient evidence to reach that determination. Will Superferry then be allowed to operate while the EIS is prepared, i.e. while there are known potentially significant environmental impacts that have not been assessed and mitigated? How much apologizing will be enough?

Maybe the Legislature should consider a simple apology resolution expressing the regret of the State of Hawaii that a mistake by the state's executive leadership contributed to increasing the risk of Superferry's speculative investment. Such a resolution would not blow a hole in the existing environmental laws, would not permit the continued operation of what is now clearly known to be an environmental threat, and would not force the State of Hawai'i to fall on its sword for the mistakes of a few.

No one needs to fall on their sword. People, however, do need to step up to their responsibilities when mistakes are made. Then real ho'oponopono can take place. Perhaps ho'oponopono practitioners on Kaua'i will perform that service by bringing together the Maritime Commission, Governor Lingle, Mr. Fukunaga, Coast Guard leadership, and Superferry leadership with the people of Kaua'i to heal the wounds and end this matter once and for all.

Lanny Sinkin

Note 1:
The Maritime Administration provided a statement to the Honolulu Advertiser on Septermber 5, 2007 that included the following sentence: "As a condition to Closing, the Maritime Administration required that the State provide written confirmation, in form and substance satisfactory to MARAD, that an Environmental Assessment and/or Environmental Impact Statement for the port infrastructure would not be required." (emphasis added). That statement is quite different than a condition that all environmental requirements by the State have been met. The statement appears to be an attempt to preempt state environmental law. Imposing the condition is an illegal act outside the authority of the Maritime Commission.

Note 2:

The court in Maui is hearing evidence on the environmental impacts of Superferry to determine whether Superferry will be allowed to operate while an EA is prepared. This hearing turns the law upside down. The hearing has put the burden on the opponents of Superferry to demonstrate that there will be significant environmental impacts. That is exactly what an EA is for. The proper process would be: state holds scoping hearings to identify issues; state prepares draft document for public comment; state prepares final EA; state agency accepts or rejects final EA by either finding no potentially significant impacts (ends process) or potentially significant impacts (requires preparation of an EIS); state final action is subject to judicial review; in court, opponents of decision not to require EIS put on evidence of potentially significant environmental impacts. In the Maui court, the process is exactly reversed. The burden placed on the opponents is unfair and illegal.

State law clearly requires the completion of an EA prior to any decision to take the action in question. The requirement to prepare environmental documentation prior to operation of Superferry is found in section 343 of the Hawaii Revised Statutes.

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.
(emphasis added). For Superferry, the "earliest practicable time" was years ago.

§343-5(c) -- If an EA is required, the law is explicit about the timing:
Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action.
(emphasis added)

When an EA is required, the EA must be finished and accepted by the appropriate authority before the project is allowed to go forward.
Allowing the Superferry to operate while an EA is prepared would be illegal. If the court in Maui finds otherwise, the Supreme Court will be highly likely to correct the court's ruling.


Ferry needs to run to pay debt, fed says
by Gary T. Kubota on 15 September 2007 in The Honolulu Star Bulletin

A federal Maritime Administration official says that if the Hawaii Superferry defaults on its loan, U.S. taxpayers could lose $140 million.

Jean McKeever, the office's assistant administrator for business and work force development, said the Maritime Administration issued the Superferry a loan guarantee of $140 million, and the first semiannual payment of $3 million is due in November. McKeever said the Hawaii Superferry has to operate to pay off the debt.
McKeever testified yesterday on behalf of the Superferry, whose operation was halted in late August by a judge's order following a Hawaii Supreme Court decision that the state must do an environmental assessment for Superferry-related improvements at Kahului Harbor.

Maui Circuit Judge Joseph Cardoza extended yesterday his order halting operation and planned to continue the hearing through next week.

Cardoza halted the operation under a temporary restraining order carrying a maximum period of 20 days ending tomorrow. Yesterday, Cardoza converted the order into a preliminary injunction that covers the length of the hearing, which is scheduled to last through Friday.

McKeever also said the Superferry, because of its speed and cargo capabilities, is entering into an agreement that would allow it to be used as a military sea lift in the event of a national emergency.

Attorney Isaac Hall, representing groups critical of the Superferry, argued that Cardoza should disqualify McKeever's testimony about the financial impact of a Superferry loan default because the hearing's purpose was to evaluate its environmental impact.

But Cardoza said that in the interest of time, he was allowing McKeever's testimony, and made no ruling as to Hall's objection to the financial impact of a defaulted loan.

Under cross-examination by Hall, McKeever said no vessel in the sea-lift program has been called up to be used in a national emergency in the past 10 years.
McKeever said the Superferry is supposed to maintain assets of $58 million from the closing of its loan to the delivery of its second ship. She said the Superferry also had an escrow fund of $6.5 million in the event of default on payments.

McKeever said her office's worry was that the Superferry as a startup business does not have any other assets except the Superferry to generate income to pay debts.

Rob Parsons, environmental coordinator under former Mayor Alan Arakawa's administration, testified that he felt the Superferry should have prepared an environmental impact statement.

Parsons said he had expressed his opinion, including worries about the introduction of alien species to Maui, during state Public Utilities Commission review of the Superferry.

Leslie Kuloloio, a native Hawaiian and member of the Protect Kahoolawe Ohana, said he was worried that people from other islands would take resources from Maui that people rely upon for survival and their culture.



POSTED: 14 SEPTEMBER 2007 - 7:00am HST

image above: HSF execs (l to r) Terry White, John Lehman, Jon Garribaldi and Tig Krekel

Superferry considers pulling out of Hawaii
by Derrick DePledge on 14 September 2007 in The Honolulu Advertiser

Hawaii Superferry executives have told the state Senate they need to know within the next six weeks whether they can operate or they may have to leave the Islands.

Superferry executives and state and federal officials have warned of the financial consequences of delaying ferry service but had not publicly described a timetable.
"My understanding is that they have staying power for a month — outside, a month-and-a-half," said state Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), who spoke with Superferry executives recently at a meeting in her state Capitol office.

A Superferry spokesman declined to elaborate last night but did not dispute the six-week timetable.

In an earlier court declaration on Maui, John Garibaldi, the Superferry's chief executive officer, said ferry service was intended to be the "source of substantially all of our revenues. Without revenues, Hawaii Superferry will be unable to pay its current operating expenses (payroll and outside contract services, fuel, maintenance and other expenses), make the payments on the debt it has incurred to build the ferries and will be unable to furnish any return on the investments that have been made in Hawaii Superferry."

In Maui court today, Superferry attorneys are expected to call a witness from the federal Maritime Administration, which has backed ferry construction with $140 million in loan guarantees, about the financial impact of a delay. The Maritime Administration has previously warned the court about the threat of a default that could expose the federal government to paying the debt.

Hanabusa said yesterday in an interview that she hopes to meet with state Attorney General Mark Bennett this weekend to discuss in detail the possibility of a special session of the state Legislature on Superferry. Hanabusa and Bennett have already spoken informally.

Hanabusa and state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), said they would likely not call a special session on their own. Gov. Linda Lingle would have to use her powers to call lawmakers back to the Capitol and, several sources said, there likely would have to be an outline of a Superferry compromise that Senate and House leaders could take to their caucuses.

Hanabusa acknowledged that environmentalists and others who have challenged Superferry in court may be angered by even the talk of a special session, but she believes lawmakers and the Lingle administration should have the conversation.
"I think, before it gets out of hand, we at least at the very minimum owe everyone a discussion," Hanabusa said.

Among the issues is whether a special session should be called before courts on Maui and Kaua'i rule conclusively whether the Superferry can resume ferry service while the state conducts an environmental assessment required by the state Supreme Court.

The Maui court has held hearings all week and the Kaua'i court has scheduled hearings starting Monday.

Hanabusa said a starting point for a compromise may be a Senate proposal opposed by Superferry and the state and rejected by the House last session that would have allowed Superferry to launch ferry service while an environmental impact statement was done on state harbors.

Several other Senate and House leaders said yesterday that it is premature to talk about a legislative compromise until the courts rule. Some lawmakers, including some who favor the Superferry project, also said they would oppose a special session as a bad precedent for handling controversial development projects.

State Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), who had offered the Senate proposal that was rejected last session, said circumstances have changed since the Supreme Court's ruling.

"The purpose of that bill was to make them do an EIS," Hooser said. "What's being talked about now is a bailout."

Hooser said if a special session is called, he would likely insist on a full environmental impact statement as a condition of allowing Superferry to resume service. He said Superferry executives have from the beginning used arguments about financial pressure as leverage in talks with the state.

"If we go down that path, we have to look at the costs on both sides," he said. "We can't just look at the money the Superferry is going to lose. We have to look at the other side of the situation and what it's going to cost the environment."
State House Majority Leader Kirk Caldwell, D-24th (Manoa), who supports Superferry, said the question should be left to the courts. He said he might consider a special session to address broader questions of state environmental policy, but believes it would be "bad public policy" to come back solely for Superferry.

Caldwell said that while many have described the Superferry's situation as a mess that has damaged the state's image, he sees it as an example of democracy. "The executive and legislative branches had their chance. Now, the judiciary branch has its chance," he said.

But state Sen. Robert Bunda, D-22nd (North Shore, Wahiawa), said a special session is appropriate and that many lawmakers have favored the project, backing $40 million in state harbor improvements for the ferry. "I would do it. I think the law needs to be clear," Bunda said. "I think now is just as good as later.
"You have Superferry ready to rock and roll."

A special session would likely have wide public interest and could force lawmakers into politically difficult votes. Already, in street protests, letters to newspapers and Internet discussion boards, the Superferry fight has shown how some in the Islands are frustrated by growth and territorial about protecting the Neighbor Islands from urbanization.

Hanabusa said the debate has become so fevered that some people are not going to be satisfied no matter the outcome. She also said she has heard criticism about a leadership void over the past few weeks as people have reacted to the court rulings and protests.

Lingle attempted to step into that void Wednesday with a warning to protesters on Kaua'i not to interfere with the ferry after authorities cleared it to return to Nawiliwili Harbor on Sept. 26 unless the courts rule otherwise.

Hanabusa said she called Bennett, the attorney general, to broach the subject of a special session or other state options because she said there had been no discussions between the Lingle administration and the Legislature.

"The people who want no Superferry are not going to be happy even with the fact that you and I are having this discussion," Hanabusa said. "And the people who want Superferry are not going to be happy that we're not saying firmly that we're going to do it."

Former Haleakala head urged Superferry EIS
by Christie Wilson on 14 September 2007 in The Honolulu Advertiser

The former head of Haleakala National Park urged federal officials in March 2005 to request that Hawai'i conduct an environmental impact statement of the Hawaii Superferry to examine ways to prevent the spread of fire ants, stinging nettle caterpillars, Himalayan raspberry and other invasive species that could threaten the park's delicate ecosystems.

Donald Reeser, who retired in July 2005 after 18 years at Haleakala, told the chief of the Maritime Administration that he was most concerned about "the obvious deficiency" in the number of state Department of Agriculture inspectors, who already were struggling to keep pests from arriving via international, national and interisland air and sea routes.

"It is certainly true the Superferry would not be the only means of transport for such interisland invasions via vehicles," Reeser's letter said. "The point is that the Superferry would increase vehicular transport and that all forms of both trans-Pacific and interisland transportation are in serious need of better measures for prevention of transport of invasive species."

Maritime Administration acting Chief Counsel J. Patrick Wiese responded in a July 15, 2005, letter that the agency was not supplying direct funding or a loan to the Hawaii Superferry, but a $140 million loan guarantee for construction of the company's two 350-foot catamarans.

Wiese said an environmental review was not necessary for the loan guarantee.

"However, recognizing the importance of the environmental issues, the Letter Commitment (to Hawaii Superferry) provides that the closing is preconditioned on the State of Hawaii having given all governmental and environmental clearances."
Wiese also said the agency understood that a Maui court case to force the state Department of Transportation to conduct an assessment of ferry-related improvements at Kahului Harbor had been dismissed and that the company had taken "significant steps to address many of the concerns you have raised. ..."
The DOT granted the harbor projects an exemption from environmental review laws a month after Hawaii Superferry was told by the Maritime Administration that the loan guarantee was conditional on a confirmation that no environmental assessment was required.

The Hawai'i Supreme Court on Aug. 23 ruled the state erred in granting the exemption and ordered the DOT to perform the review. Maui Circuit Judge Joseph Cardoza issued a temporary restraining order three days later that has halted ferry service to Kahului Harbor.

Reeser spoke of the letters during testimony yesterday in a Maui Circuit Court hearing on whether the ferry should be allowed to operate while the DOT conducts the assessment. He was called as a witness by attorney Isaac Hall, representing Maui Tomorrow, the Sierra Club and the Kahului Harbor Coalition. Hall is trying to persuade Cardoza that irreparable damage would be done if the ferry resumes service before an environmental study.

The ferry is expected to carry an average of 400 people and 110 vehicles per load, and it is the interisland movement of vehicles that has most environmentalists concerned.

Hawaii Superferry President and CEO John Garibaldi said outside the courtroom Wednesday that the company's vehicle inspection policy goes beyond what is required of other maritime shippers that transport vehicles in the state.
"We've been been a leader in that. We've had an environmental commitment from day one," he said.

As required of all interisland transporters, the ferry will not allow plants or plant parts on board without a certificate of inspection from the state Department of Agriculture. The ferry also is not allowing the transport of soil.
The company is requiring that vehicles be free of dirt, and ferry staff will conduct random inspections of vehicles and baggage at check-in.

During yesterday's hearing, Reeser said "alien species are the park's No. 1 problem" and that the Superferry would create another avenue for their spread.
"Haleakala is one of the best, if not the best, example of a Native Hawaiian original ecosystem that's left, and the ecosystem is very vulnerable to alien species, so we are very much concerned about what might be brought in on the Hawaii Superferry ... ," he said.

Reeser said he registered his concerns with the Public Utilities Commission in late 2004, and met with Garibaldi and other company officials in early 2005, but he felt his worries were ignored.

The retired park superintendent said he was particularly concerned because it had been a struggle to get the DOT to address the alien species threat during an EIS of Kahului Airport expansion projects years earlier.

see also:
Island Breath: News of September 13th 9/13/07
Island Breath: News of September 12th 9/12/07
Island Breath: News of September 11th
Island Breath: News of September 10th 9/10/07
Island Breath: Superferry Concerns 9/10/07
Island Breath: KOH Petition to USCG 9/5/07
Island Breath: HSF Slice & Swath Technology 9/5/07
Island Breath: News of Oahu animosity 9/5/07
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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