INDEX - JUSTICE
www.islandbreath.org ID# 0715-14
SUBJECT: CORDOZA HEARING ON HSF INJUNCTION
SOURCE: DAVID WARD email@example.com
POSTED: 14 NOVEMBER 2007 - 5:20pm HST
by Joan Conrow on 14 November 2007 in www.kauaieclectic.blogspot.com
Thanks to a live courtroom feed by Akaku — and despite my neighbor’s loud lawn mower — I was able to hear Maui Circuit Judge Joseph Cardoza’s reasoning today when he dissolved the injunction that prevented Hawaii Superferry from accessing Kahului Harbor.
In short, Cardoza found his injunction had been rendered moot by Act 2 — the special legislation that allows the ferry to run while an environmental review is under way. He also found that the new law has “no constitutional infirmities” that make it invalid.
The judge chided Maui attorney Isaac Hall for some of the comments he made while arguing against the motion to lift the injunction, saying “such arguments have no place in an orderly society.” And he said that Hall’s arguments suggesting citizens might engage in civil disobedience if the injunction is lifted “carried no weight in this court.” (See my earlier post for more details.)
However, it looks like Hall may be able to get attorney fees and court costs from Hawaii Superferry because he did originally prevail, even though Superferry got the law changed and ended up the victor. Although Cardoza didn’t grant the fees, he said he doesn’t think the new law “sweeps away” Hall’s right to receive them. However, Hall will have to file a motion to claim them.
Finally, Cardoza granted a motion dismissing outstanding claims in the case, which clears the way for Hall to appeal his ruling.
In his preamble, Cardoza noted that “issues related to cultural values .... (and) conflicts between changing lifestyles and old and new Hawaii have been festering for a long time in this community and the court agrees they need to be addressed.”
If the comments posted in the Akaku chat room by those waiting to hear the judge’s decision —
things like round up all the env and send to guantanamo ..... turn Kauai into a concentration camp for activists ....bring in blackwater ....sink da boat ... bring in the torture....hope the superferry hits a iceberg…. Kauai had better watch out…. we’re coming over there whether you like it or not…. I’m ready to ram some surfers….. take mil from HI and you got china…. it’s gonna be ugly when the riot gear comes out…this is what Democracy looks like, go back to church if you don't like name calling — are any indication, those festering issues have already erupted into a putrid, oozing mess
by Juan Wilson on 14 November 2007
The hearing resumed late at 2:21pm. There were three motions Judge Cordoza ruled was to rule on. If the judge ruled in favor of the HSF supporters, the Superferry would be free to use Kahalui harbor on Maui for operations.
The judge noted the 31 October Special Session of the legislation and the 2 November 2007 signing by the Governor. This law specifically targeted "large capacity ferry vessels" to allow them to operate during an environmental assessment (EA) .
The judge went on to delineate the three separate branches of government. The judge said he was not authorized to create legislation, but to follow the laws passed by the legislation. If a law is constitutional it must be enforced.
The judge's decision to enact a restraining order against the Superferry was based on Chapter 343 of the Hawaii legal Statutes.
The Special Legislation law was designed to allow the operation of a "large capacity ferry vessel" (LCFV). The law declared the LCFV to be a public convenience and necessity. It would not need to have a completed EA.
The arguments of the environmental groups, represented by Isaac Hall, argued that the Special Session law was unconstitutional.
At 3:00pm today the judge concluded that the law passed by the legislation is not unconstitutional. The injunctive relief of a restraining order was lifted. The Superferry was allowed to sail again.
The judge did allow Isaac Hall and his clients to procede to try recover their costs and fees from the plaintiff, since they prevailed in court, prior to the Special Session.
Sorry about date mix-up. Last week I understood the hearing on Maui would go forth on November 13th, not the 14th.
SUBJECT: CORDOZA RULING STILL STANDS
SOURCE: LANNY SINKIN firstname.lastname@example.org
POSTED: 7 NOVEMBER 2007 - 2:30pm HST
Judge Cordoza hearing set for next week
image above: Attorney General Mark Bennett makes his case in Wailulku Courtroom 11/8/07
by Lanny Sinkin on 7 November 2007
The hearing before Judge Cardoza today is itself evidence that supports the constitutional challenge to the Superferry Bill.
The motion presented by the State and joined by the Hawai'i Superferry, Inc. asked the judge to shorten the time for the filing of the opposition to the motion to lift the injunction. The only reason for the motion was to allow Superferry to operate.
The very motion confirms that the Superferry Bill is specifically written to affect the outcome of a finally decided case and is written to provide special privileges and immunities to one private company. Both those characteristics make the bill unconstitutional.
The State also tried to get Judge Cardoza to withhold his findings of fact and conclusions of law prepared for the earlier decision entering the injunction. The State's argument was that the law had changed.
Judge Cardoza properly responded that he could not make any decisions based on the new law because that is the matter on which he will hold a hearing next Wednesday. So he will issue the findings and conclusions very soon.
During that argument, Isaac Hall argued that the findings and conclusions were relevant to the attorney's fees that the court awarded to the prevailing plaintiffs in the case and, therefore, should not be withheld.
The Attorney General responded by basically arguing that the changed law meant Isaac might not be entitled to attorney's fees for winning the case.
That exchange again demonstrates how bizarre the State's position is. Regardless of any change in the law, the plaintiffs did prevail at the Supreme Court and in Judge Cardoza's enforcement action and are entitled to attorney's fees for those successes. To argue that changing the law can change the factual situation that the plaintiffs prevailed is to claim changing the law changed history. The argument is actually an argument that the new law changed the law to be used in the decided case, i.e. again confirms that the Superferry Bill is an unconstitutional attempt to change the law in a decided case.
Again, when a case is pending and the Legislature changes the law applicable in the case, the court is required to apply the new law to the pending case. The Legislature can also pass a law that applies a different law to similar cases in the future. What the Legislature cannot do is go into a final decision and change the law upon which that decision was made in order to change the outcome of that particular case. Such power would place the Legislature as a super-court. That's why the constitutional violation is a separation of powers violation.
Attorney General Mark Bennett had at his side Deputy Attorney General Wynhoff, the same person who called all the judges involved in the Superferry cases to encourage them to consider their jurisdiction to act in favor of Superferry as broader than they otherwise might. We have argued that those contacts were legally inappropriate and created the appearance of impropriety calling into question the objectivity of the judges so contacted.
One interesting debate will be Isaac's announced intention to put on evidence that the conditions adopted by the Legislature and the Governor do not mitigate the possibility of irreparable harm found by Cardoza in his decision entering the injunction.
The legislation is clear to me that the only body that can review the adequacy of the conditions and protocols adopted by the Governor is the Legislature, i.e. that judicial review of the adequacy of those measures is foreclosed. The actual wording of the bill, page 17, is "The legislature reserves the sole right to: (1) Review the adequacy of the conditions or protocols imposed or amended by the governor under this Act."
What that means to me is that Judge Cardoza is foreclosed from making any determination as to whether the possibility of irreparable harm he found in his decision is in any way mitigated by the conditions and protocols adopted by the Governor. That situation means that the Court is required to assume, in evaluating the constitutionality of the legislation, that there is the possibility of irreparable harm to the environment. That assumption further makes sense because the Legislature is free to change or alter those conditions and protocols in the next session and could, under the law, remove all of them.
That presumption that the law permits the possibility of irreparable harm to the environment triggers two specific provisions of the Constitution as being violated – the one requiring the State to protect and conserve natural resources and the one guaranteeing to every individual the right to a clean and healthful environment.
So you have a law that confers special privileges and immunities upon a single private business, allows that business to inflict irreparable harm to the environment, and makes all that possible by altering the outcome of a final judicial decision. How many ways are there to spell unconstitutional?
So the Democrats who passed the law must have hoped that the law would be found unconstitutional. They hope to have the best of both worlds -- they got to pass a law responding to the "massive public support" manufactured by the Superferry, to pass the law as crafted by the Governor and Attorney General to give them what they wanted, and then to sit back and let the citizens get a court to declare the law unconstitutional.
Once that happens, the legislators can say "Well we gave the Governor what she and Superferry wanted and it failed to pass judicial muster. That's the Governor's fault, not ours." Superferry rides off into the sunset with the Legislature unscathed by the encounter.
Such is politics.
SUBJECT: CORDOZA RULING STILL STANDS
SOURCE: JUAN WILSON email@example.com
POSTED: 8 NOVEMBER 2007 - 10:30am HST
by Juan Wilson on 7 November 2007
The evil forces swirl aroud the circuit court in Maui once again. We must pray Judge Cordoza can hold against them.
At 10:55am the Judge ruleds that the hearing to recind the restraining order be on 13 November 2007 rather than on November 25th (the normal time to respond to this request).
This compromise is a split down the middle.
See it live on www.Akaku.org now.
SUBJECT: CORDOZA RULING STILL STANDS
SOURCE: JUAN WILSON firstname.lastname@example.org
POSTED: 6 NOVEMBER 2007 - 10:00am HST
Governor signs bill for ferry to sail
image above: Superferry illustration from its websit
by Harry Eager on 6 November 2007 in The Maui News
Gov. Linda Lingle has signed Act 2, which could get the Hawaii Superferry moving again. But while the ferry Alakai may be a high-speed vessel, the legal system takes longer to change course.
On Oct. 9, 2nd Circuit Judge Joseph Cardoza ordered the ferry not to use Kahului Harbor until an environmental assessment is done. But the written findings of fact, conclusions of law, and decision and order have not been completed.
Deputy Attorney General William Wynhoff said Monday that formally the state cannot ask a court to dissolve an injunction that has not been issued. That did not prevent the state Department of the Attorney General from submitting a motion to dissolve Cardoza’s order on Monday, but the state could risk more delays.
The state, Hawaii Superferry and its opponents – the Sierra Club, Maui Tomorrow and Kahului Harbor Coalition – will be back in Cardoza’s 2nd Circuit courtroom at 10:30 a.m. Wednesday to discuss how soon to argue about keeping or dissolving the injunction.
Wynhoff said the state does not contest that the injunction is valid, only that the paperwork is not processed yet because there remain some issues of fact unsettled.
Along with his motion to dissolve the injunction, Wynhoff filed a request to speed up the process.
Rules of procedure give parties in a lawsuit 18 days to respond to motions.
Attorney Isaac Hall, who represents plaintiffs seeking environmental studies before the Superferry sails, said Monday he will object to hurrying along the hearing.
“It’s a substantial motion,” he said. “There are substantial objections” to both the new law and to the conditions imposed by Lingle to mitigate environmental impacts.
“I don’t know what the judge is going to do . . . but I don’t see any reason for rushing through the process,” he said.
In a letter transmitting an executive order setting conditions for ferry service, Lingle listed 40 provisions that Hawaii Superferry must comply with. Wynhoff’s memorandum says Superferry has complied or agreed to comply with all of them.
Therefore, Wynhoff argues, the Circuit Court must dissolve its injunction, as the law it was based on is no longer in effect.
What was against the old law up to November 2nd is no longer illegal.
He cites a Maui case involving UFO Parasailing in which a court threw out a state law designed to prevent parasail business off Kaanapali during whale season.
The U.S. Congress changed the law, and the state court then vacated an injunction based on the old law. The parasailers were stopped from operating during whale season.
In this instance, the state is trying to allow a business to resume, but Wynhoff says the legal argument is exactly parallel.
The conditions imposed by the governor – which can be changed based on actual experience – do not differ greatly from the operating plans that Superferry had proposed to follow.
Among the changes are a ban on transporting rocks, soil, dirt or dead coral (with limited exceptions where Department of Agriculture permits are issued).
This prohibition would head off what Wynhoff called an “unfortunate incident,” when three pickup trucks of rocks were loaded on Maui for transport to Oahu.
The state Department of Land and Natural Resources’ Division of Conservation and Resources Enforcement intercepted the rocks and confiscated the trucks. It was suspected that the rocks were destined to line an imu.
Another condition, not anticipated in Superferry’s original plans, is a ban on transporting human bones, or iwi. Also, fishing nets are banned, and the company must notify passengers that valid hunting licenses are required to hunt. Also, lobsters, opihi and crustaceans are prohibited.
These restrictions will address claims that Oahu city dwellers will flood the Neighbor Islands to plunder its rocks, shellfish and wild pigs.
The ferry company already had plans to survey and intercept plant materials (unless inspected and cleared by the Agriculture Department). The governor’s conditions also require passengers to declare whether they are carrying any plants or “other biological medium.”
An apparently large change is a directive imposing a speed limit within the Hawaiian Islands Humpback Whale National Marine Sanctuary during whale season.
However, Superferry says it planned to stay out of the sanctuary during whale season, except in unusual circumstances.
Lingle’s condition restricts speed within the sanctuary to 25 knots. Hall’s expert witness, Greg Kaufman of the Pacific Whale Foundation, had insisted that anything over 13 knots was too fast. (The ferry’s cruising speed is 37 knots, or about 42 mph.)
The governor also sets whale season as Jan. 1 to April 30, a later start and an earlier finish than Hall’s experts had called for.
The governor also directs the completion of traffic studies. The state Transportation Department was already under such an order from 2nd Circuit Judge Joel August for Kahului, but now Superferry or the state will have to provide traffic counts and projections at all ports of call.
Some of the governor’s provisions are conditional, such as to “consider adding a cultural briefing on Hawaii’s cultural and natural resources as part of its onboard education program.”
Another condition was to have Superferry ask the National Marine Fisheries Service (NMFS) to provide trained whale spotters for the bridge. Superferry already had planned to have two dedicated whale spotters of its own.
Even before the Superferry bill was passed, the NMFS’ parent, the National Oceanographic and Atmospheric Administration, had said it didn’t have any spotters to lend, but the governor now asks that graduates of Alu Like’s Marine Stewardship Program be used to “monitor marine life.”
Lingle spokesman Russell Pang said that idea came from the Office of Hawaii Affairs, one of several places where Lingle sought suggestions for mitigation. (See list below.)
In her message, Lingle said she knows not everyone will be happy with the conditions, “but the decisions I have made clearly represent a good faith effort to include meaningful conditions that don’t seriously hamper the ferry’s chance to succeed.”
Irene Bowie, executive director of Maui Tomorrow Foundation, said the group “is extremely disappointed with Governor Lingle’s executive order.”
“When we agreed to meet with the governor last Thursday, we went in good faith to discuss meaningful mitigation measures. We gave her a list of 12 conditions we felt were absolutely necessary,” Bowie said. “Today we feel the governor chose not to hear us. . . Most disappointing is the dismissal of conditions to slow Hawaii Superferry down to 13 knots in 100-fathom waters during the winter months.
“We will now go forward in asking that the injunction preventing Hawaii Superferry from using Kahului Harbor remain in place,” she said.
Jeff Mikulina, director of the Hawaii chapter of the Sierra Club, said the governor’s restrictions were insufficient to protect the environment, pointing out that the governor’s speed limit in whale areas is about half of what environmentalists recommended.
“We think that’s exposing not only the whales to fatal strikes, but passengers could be subject to injury if they strike a whale,” Mikulina said.
Also, he said he would have preferred vehicles boarding the ferry be subject to an undercarriage wash to reduce the risk of them carrying invasive species.
“We were hoping at least the conditions would be at least extra cautious during this period while they do the environmental review, but it appears they fall a bit short,” he said.
Superferry President John Garibaldi, who was traveling on the Mainland, issued a statement saying: “We appreciate Governor Lingle’s and the Legislature’s timely action of signing into law a bill that allows Hawaii Superferry to operate while the state conducts an environmental impact statement.
“Hawaii Superferry believes that the operating conditions outlined by the governor are reasonable and fair under the current circumstances,” he said.
The state’s motion says it is settled law that a legislature can change a law, in the words of the Hawaii Supreme Court, “to meet the needs and demands of changing times and legislate accordingly.”
That addresses the objection that the special session of the Legislature, under the prodding of the executive branch, had usurped the prerogatives of the judicial branch. The Hawaii Supreme Court in August overruled the 2nd Circuit Court and said that an environmental assessment must be undertaken.
Hall then argued, successfully, after a monthlong hearing, that the assessment had to precede the resumption of ferry operations.
Act 2 specifically allows the operation of a “large-capacity ferry” to proceed simultaneously with an environmental study of the ferry’s sailings.
The state memo also sought to deal with objections that Act 2 gutted or set aside Act 343, the state’s environmental review statute.
The state has in the past “often acted to exempt specific projects or categories from the environmental review process,” the memo says.
The memo cites the purchase of the Waiahole water system, a 1998 law passed to make it easier to restore Hawaiian fishponds, and the legislation that finally enabled the completion of the H3 highway on Oahu.
That leaves the constitutional question. Hall says this remains unsettled, because, as he told Cardoza, the people have a right to a public review process of the impacts.
The Wynhoff memo says the Circuit Court must grant a legislative act an assumption of constitutionality. The plaintiffs could pursue a constitutional appeal, it admits.
But, it says, the court cannot delay granting the motion to dissolve while the appeal to the higher court is pursued.
CONDITIONS FOR SUPERFERRY
Highlights of specific conditions for Hawaii Superferry include requirements to:
Post two whale lookouts and request the National Marine Fisheries Service to help identify whale observers, such as graduates and members of Alu Like’s Marine Stewardship Program. The lookouts would be onboard to monitor marine life and warn the ship’s crew in time to prevent collisions.
Avoid operating within the Hawaiian Islands Humpback Whale National Marine Sanctuary or in waters less than 100 fathoms deep from Jan. 1 to April 30, except in instances that are in the interest of the safety or comfort of passengers.
Observe a speed limit of no more than 25 knots if the ferry were to travel in the marine sanctuary.
Stay at least 500 meters from any sighted whales.
Agree to use radar, night-vision equipment and bow-mounted cameras to detect whales and avoid collisions. (The night-vision equipment would affect the Oahu-Kauai trip, since the Oahu-Maui voyages are scheduled during the day.)
Document and report any whale collision or whale approach of less than 100 meters from the vessel.
Conduct agricultural screenings and inspections of passengers and all vehicles, including visual inspections of engines, interiors, undercarriages, wheel wells, trunks and beds of pickup trucks. Vehicles that are excessively muddy or that have prohibited items will be turned away, or the prohibited items taken away.
Notify passengers in advance that all vehicles, camping, hiking, hunting, diving, snorkeling, fishing and boating equipment should be thoroughly washed and free of debris.
Ban living plants and propagative plant parts, such as roots and root stock, that are not accompanied by a state Department of Agriculture certificate of inspection.
Require passengers to declare all plants, fruits and seeds, and permit inspections of such items by the Department of Agriculture.
Consider establishing a special transport rate for agricultural products.
Prohibit the transport of logs, cut trees, and tree limbs.
Ban the transport of rocks, soil, sand, dirt, or dead coral, except for soil or dirt in potted plants inspected and cleared for transport by the Department of Agriculture.
Ban the transport of opihi, lobster or other crustaceans, and fishing nets of all kinds.
Prohibit the transport of iwi, or human bones.
Provide passengers with information concerning restrictions on the use of cultural and natural resources, including hunting and fishing rules and camping permit requirements.
Consider adding a cultural briefing on Hawaii’s cultural and natural resources as part of its onboard education program.
Comply with all state water pollution laws, rules and regulations, and refrain from discharging wastewater into the ocean.
Conduct complete traffic studies and implement a vehicle movement and management plan for each port of operation as directed by the state Department of Transportation. The traffic studies will be used to adjust vessel arrival and departure schedules as necessary to lessen the impact of arriving cars on local traffic.
Employ trained staff to manage traffic entering and exiting each port terminal facility, and post security guards or off-duty police officers to direct traffic and control signals to minimize traffic problems.
Cooperate with any risk assessment conducted by or authorized by the departments of Transportation and Agriculture.
SUBJECT: SUPERFERRY SPECIAL SESSION
SOURCE: SHANNON RUDOLPH email@example.com
POSTED: 1 NOVEMBER 2007 - 9:30pm HST
by Brian Perry, Claudine San Nicolas and Melissa Tanji
on 1 November 2007 in The Maui News
Legislation passed during a special session Wednesday may not be enough to float the Hawaii Superferry.
An injunction against the ferry's entering Kahului Harbor remains in effect, and attorneys for the state and the Superferry would need to ask 2nd Circuit Judge Joseph Cardoza to lift it after passage of a bill to allow it to operate while an environmental assessment is conducted.
Wailuku attorney Isaac Hall, who represented plaintiffs who've successfully sought court orders for environmental studies before the ferry sails, said he would argue against dissolving the court's order barring ferry operations.
Cardoza would need to determine first if the Legislature's action is constitutional or legal, Hall said. "We don't believe that it is," he said."Basically, it's special legislation to bail out one business that is retroactive. It is to overrule the judiciary."
State Sen. J. Kalani English, who voted against the measure in the Senate along with Maui Sens. Shan Tsutsui and Roz Baker, said questions about the Superferry bill's constitutionality were raised repeatedly on the floors of the Senate and House.
"You cannot create special legislation to single out one company," he said, although lawmakers tried to get around that by referring not to the Superferry by name but as a "large-capacity vessel."
When asked about the potential for a legal challenge, English said, "I think that they have a good case."
"It might be unconstitutional," he said. "In my opinion, it's on shaky constitutional law."
Irene Bowie, executive director of Maui Tomorrow, one of the plaintiffs represented by Hall, said her organization awaits Cardoza's decision on whether to lift his injunction against the Superferry.
"We're saddened that it's come to this," she said. "That the judicial system has been set aside and that we have great concerns about the future of Hawaii's environmental law." Bowie said she hoped that precedents will not be set to "risk the future of our environment."
"We're disappointed for the environment," she said.
Ron Sturtz, president emeritus of Maui Tomorrow, said the Legislature's action marks only "halftime in the game."
"The governor still has to set appropriate mitigations. We'll see what she does there," Sturtz said.
Also, depending on what action Cardoza takes, either side could appeal his ruling to a higher court, he said.
"It's just a continuing process," he said. "It's regrettable that the strong voices of the neighboring islands have not been heard clearly."
When asked if he thought people on Maui might stage a protest similar to those who used surfboards to block the Superferry at Nawiliwili Harbor on Kauai, Sturtz said that based on what he heard during public testimony, "a large number of people indicated that if the government doesn't respect the rule of law, then why would they expect the citizens to?"
Maui law enforcement officials said they would plan to cope with potential protests and security at Kahului Harbor.
"We will be meeting with other law enforcement agencies to share what we need to do to make it safe for everybody," said Randy Awo, Maui branch chief of the state Department of Land and Resources' Division of Conservation and Resources Enforcement.
Deputy Chief Gary Yabuta said Maui police would be "remiss as a law enforcement agency" if they did not "prepare for any type of incident." Awo said Maui law enforcement officials had already planned to address protests when the ferry Alakai returned to Maui on September 8th to return cars to their owners on Maui and Oahu. There were no reported problems or protests then. Awo said state enforcement officers will respect everyone's right to protest, but rules also have
to be followed. "We just want it to be safe for everyone," Awo said.
Gov. Linda Lingle released a statement that she was glad "the Legislature worked cooperatively to preserve this important transportation alternative for the people of Hawaii."
Hawaii Superferry President and Chief Executive Officer John Garibaldi said ferry officials hope to resume service within the next two weeks, "although there are several operational, regulatory and legal steps that need to be
State Rep. Mele Carroll was the only Maui member of the House to vote against the bill Wednesday. Carroll, who represents residents of East Maui, Lanai and Molokai, held steadfast in opposing the convening of a special session and allowing for the Superferry to sail while an environmental study is being done.
"My message today was that it's obvious there's overwhelming support for the ferry . . . but I'm saddened by the process that brought it here," Carroll said.
She said she supported Cardoza's ruling that the law requires the ferry service be halted until an environmental assessment is completed. Carroll said a special session should only have been called if public safety were jeopardized, a
situation she argued wasn't the case with the Superferry bill. "Why are we doing this for one private entity?" she asked. "I think it'll set bad precedent."
Even though the Legislature set conditions for the ferry to operate, Carroll said she believes the state Department of Transportation should be required to adhere to the law requiring an environmental study and that the ferry service should remain halted until the work is done.
State Rep. Joe Bertram III of Kihei said he had planned to oppose the ferry bill, but changed his mind Wednesday and voted "yes" with reservations. Bertram said he was encouraged by fellow lawmakers who made a commitment to put more teeth into Hawaii's environmental laws and to support appropriations for more state conservation enforcement officers.
He said many of his colleagues agreed that environmental assessments basically result in "just a list of problems and possible mitigation. But it really doesn't do anything more. It's a false front."
State Rep. Angus McKelvey of West Maui said he agreed "100 percent" with Bertram and also voted "yes" with reservations. He pointed out the new legislation "is actually stronger than an environmental impact statement," which he called "simply a disclosure document."
The House bill passed Wednesday requires the ferry to take actions to mitigate any negative impacts to the environment. McKelvey said he also voted in favor of the bill in part because of the limited transportation options to his constituents in West Maui. He said the ferry could provide service in a crisis in which his district might get cut off from the rest of the island.
State Rep. Joe Souki of Wailuku, who has long supported the ferry as an alternative means of transportation, said he was willing to review the state's environmental laws and consider making them stronger to address issues and concerns such as the ones brought up by Maui groups opposing the Hawaii Superferry.
Souki said he believed his vote in favor of the Superferry represented Maui's majority position. He said he received about 6,000 e-mails on the issue, with approximately 95 percent indicating support for the Superferry.
Souki predicted the costs of flying interisland will rise for consumers following Tuesday's federal court order for Mesa Air Group, the operator of go! airlines, to pay $80 million to Hawaiian Airlines.
"You know what's going to happen to airfares, it's going to go up," Souki said.
He said the vote to support the Superferry operations became even more crucial given the legal disputes with the interisland airlines.
McKelvey said a constituent brought to his attention that interisland airfare prices have been fluctuating during the debate on the ferry bill, proving that the ferry has an effect on costs of air travel between islands.
McKelvey also pointed out that there's still more work to be done by the governor and the task force charged with coming up with conditions on the ferry.
"It's not a guarantee. All we're giving them is an opportunity to try to make them successful," McKelvey said.
State Rep. Kyle Yamashita, who represents constituents in Upcountry Maui, said most of the people he visited in his district also supported the Superferry and the alternative means of transportation it provides for interisland travel.
He said the controversy surrounding the ferry bill emphasized the need for all residents to take responsibility for the island's pristine environment by doing things such as washing their cars so as to avoid transporting invasive species
between the islands.
He said officials from the state Department of Agriculture pointed out that invasive species can be spread through means other than the ferry. "It's really a bigger issue than just the ferry," Yamashita said.
image above: Everybody Drives scene from Superferry TV Ad
Dick Mayer, a retired Maui Community College professor, attended more than a month of hearings in Cardoza's courtroom on the ferry dispute and lobbied local legislators during the special session.
"I don't think it's over yet," Mayer said, pointing out that the Superferry will still need to get a court decision to lift Cardoza's ruling. "I was very disappointed the Legislature did not impose stronger minimum conditions to support the
environment," Mayer said.
Leslie Kuloloio, a Native Hawaiian leader who testified for the Maui groups opposing the ferry, said the weight of protecting the island's natural resources now falls on the state's lawmakers, given their vote in favor of the ferry.
"It could change our way of life and we need to protect our natural resources," he said. "I pray we can go forward."
Support for the Legislature's action came from Maui Chamber of Commerce President Pamela Tumpap, who said Maui's business community was "very
excited and thrilled" that the Superferry bill was approved by the Legislature.
"It's really another avenue of commerce for Maui business," she said. "We've had great support throughout our membership to see Superferry operate while an environmental impact statement is conducted. We have advocated so businesses can benefit from this transportation option, which opens up new markets and provides cost-saving options to them."
Tumpap said Maui's business community "understands and recognizes there are environmental concerns and supports measures to protect the environment.
"We wanted to see reasonable regulation uniformly applied so that we can continue to allow the Superferry to operate and still address the environmental concerns," she said.
Mayor Charmaine Tavares, who was traveling, issued a statement saying, "It's unfortunate that the concerns of the Neighbor Islands did not carry enough weight to sway the state Legislature.
"We fully expect the Superferry organization to live up to its promises and to give full attention to the environmental and logistical issues that will affect our community.
"Not only is this an important issue because of the impact to our island, but it is also essential that our community demonstrates to our youth how we protect and advocate for its interests and still be able to be civil and respectful about differing positions. Many of the sharp reactions we've been seeing are born out of deep frustration, but we can help each other maintain civility."
Island Breath: Superferry still restrained 11/1/07
Island Breath: Legislature OK's HSF Bill 10/31/07
Island Breath: HSH Informaton Briefings 10/25/07
Island Breath: When the Superferry Returns 10/19/07
Island Breath: The SuperConspiracy 10/18/07
Island Breath: Close of Maui Case 10/10/07
Island Breath: Kauai charges not made 10/4/07
Island Breath: Council HSF Resolution 10/4/07
Island Breath: Recent Superferry News 9/29/07
Island Breath: Superferry Lawsuit Links 9/17/07