POSTED: 14 OCTOBER 2008 - 9:00pm HST

State Supreme Court to hear Superferry law challenge

image above: Ad for Superferry altered by Juan Wilson

High court takes ferry appeal
by Christie Wilson on 14 October 2008 in The Honolulu Advertiser

Groups seek end to law that let ship run before environmental review.

The Hawai'i Supreme Court yesterday agreed to hear an appeal seeking to invalidate a state law that allowed Hawaii Superferry to begin operation last year without an environmental impact statement.

The court said it was transferring the case from the lower Intermediate Court of Appeals and would schedule oral arguments because it involves a matter "of imperative or fundamental public importance." A date for arguments was not announced.

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition requested the transfer as part of their appeal of a Maui Circuit Court ruling in November that upheld the new law known as Act 2.

The last time the three groups were allowed to present oral arguments before the Supreme Court, they won an uncommonly swift judgment that brought a halt to Hawaii Superferry service.

In that August 2007 ruling, the court said the state Department of Transportation violated environmental laws by not conducting a study of the potential impacts of the new interisland ferry and $40 million in ferry-related port improvements.
A subsequent monthlong trial before Maui Circuit Court Judge Joseph Cardoza resulted in an injunction that prevented the state from allowing Hawaii Superferry to use Kahului Harbor until an environmental impact statement could be completed, a process that could have taken several years.

Company officials said the decision would kill the $250 million enterprise, and the Legislature and Gov. Linda Lingle moved quickly to convene a special session that resulted in Act 2, which exempts "large capacity ferry vessels" from the environmental statute known as Chapter 343. The statute requires an environmental review before a project can proceed.

With Act 2 in place, essentially voiding his earlier ruling, Cardoza dissolved the injunction, rejecting arguments that the new law is unconstitutional because it is "special" legislation designed for the sole benefit of Hawaii Superferry.

The three groups appealed, and yesterday's action by the Hawai'i Supreme Court means they will get another chance to argue that Act 2 is unlawful.

Wailuku attorney Isaac Hall, representing the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, said "it's encouraging" the court accepted the case on the grounds that it involves an issue of importance and at the discretion of Chief Justice Ronald T.Y. Moon.

"If the court rules that Act 2 is unconstitutional, then the injunction should be reinstated until a real EIS is done pursuant to Chapter 343," Hall said.
Hall also has argued that Act 2 interfered with a court order, violating the balance of power among the three branches of government, and that elected leaders disregarded their public trust duties under the state constitution to protect Hawai'i's fragile environment and the traditional and customary rights of Native Hawaiians.

The Advertiser was unable to contact state Attorney General Mark Bennett or Hawaii Superferry to comment.

In previous court hearings, Bennett argued that Act 2 is not special legislation because language in the law states that it applies to any "large capacity ferry vessel company," not just Hawaii Superferry.

The ferry resumed service between Honolulu and Maui on Dec. 13 and is operating under more than 40 state-imposed conditions meant to address environmental concerns that include the potential for collisions with humpback whales, the spread of invasive species, and depletion of Native Hawaiian subsistence resources by ferry passengers taking their vehicles and boats to the Neighbor Islands.

In the meantime, the DOT is conducting an environmental study.

see also:

Island Breath: RRA show violations on Maui 9/13/08
Island Breath: HSF Task Force fails
Island Breath: Maui judge allows HSF to sail
Island Breath: Special Session Passes Act 2
Island Breath: Maui Judge Rules on HSF