State Supreme Court to hear Superferry appeal

Legality of state's environmental exemption key issue

The Maui News
October 16, 2008

By EDWIN TANJI, Maui News City Editor

WAILUKU - Maui leaders who questioned allowing the Hawaii Superferry to operate before an environmental impact statement is completed said Wednesday they are pleased that the Hawaii Supreme Court has agreed to review the issue.

"We were very happy," said Irene Bowie, executive director of Maui Tomorrow, one of the three community organizations that opposed allowing the Superferry to run before all environmental risks are assessed.

Three Maui state senators who voted against the exemption for the Superferry said they are particularly interested to see how the Supreme Court will rule on the constitutionality of the law approved in a special legislative session in October 2007.

"Shan, Kalani and I felt that the whole process was wrong," said Sen. Roz Baker, who represents the South Maui and West Maui district. "We knew there was great sentiment on Maui that all of the law should have been followed and we felt the Department of Transportation erred in doing it the way it did."

She was joined by Sens. J. Kalani English and Shan Tsutsui in saying that the law approved in a special session after a Maui circuit judge blocked the ferry service appeared to be an exemption for a special interest that violated the constitution.

But when legislators were briefed by the state attorney general last year, Baker said they were told it did not.

The fact that the Supreme Court agreed to hear the case "is a sign that it's a more significant issue that needs to be addressed," English said.

"They are saying it's a major issue that the Supreme Court must decide. It's the right court to give finality to these issues," he said.

Wailuku attorney Isaac Hall, who is representing Maui Tomorrow, the Sierra Club and the Kahului Harbor Coalition in the appeal, said the key issue is whether the special legislation granting an exemption from environmental laws is constitutional.

He noted that the order signed by Chief Justice Ronald Moon grants the transfer to the Supreme Court from the state Intermediate Court of Appeals both on the grounds that the case raises a question of fundamental public importance and because there is a novel legal issue to be addressed.

Hawaii Superferry officials and the state attorney general's office did not respond to requests for comment Wednesday.

The case arises out of a 2007 Supreme Court ruling that the state Department of Transportation should not be making $40 million in harbor improvements to accommodate the Superferry without an environmental assessment, as required by Hawaii law.

The transportation director waived environmental requirements for the harbor improvements or the Superferry operations in signing agreements with Hawaii Superferry in 2004 to provide the harbor facilities.

The Maui groups filed a civil suit questioning the failure to require an environmental assessment. The complaint was initially denied in 2nd Circuit Court. But the Supreme Court in August 2007 held that an environmental assessment was required before the Superferry should be allowed to operate.

When 2nd Circuit Judge Joseph Cardoza granted an injunction blocking the Superferry's operations, Gov. Linda Lingle called the Legislature into special session to consider a bill that granted an exemption to "a qualifying ferry vessel company . . . capable of transporting large capacities of people, motor vehicles and cargo" to allow it to run while an environmental impact statement is prepared.

After a lengthy hearing, Cardoza upheld the new law on Nov. 14, 2007, and lifted the injunction, opening the way for the Superferry to operate into Kahului Harbor.

"It's interesting, " Hall said. "The order to accept the appeal is signed by him (Chief Justice Moon), but is joined by all of the justices."

The case is to be scheduled for oral arguments, but the timing is not yet known, he said.

For Hall, there is another factor that has strong personal interest. In ruling in favor of the injunction based on the original Supreme Court decision, Cardoza granted attorney's fees and costs to Hall. The state and Hawaii Superferry appealed that order, which is part of the new case going to the Supreme Court.

Tsutsui said that he believed the legal disputes could have been avoided if the state administration and Hawaii Superferry had handled public concerns.

"Most of it was avoidable, we felt. If Superferry had been more cooperative in dealing with the community's concerns and some of the questions, we wouldn't be here. There wouldn't be this cloud over the whole project.

"From a business standpoint, it makes sense to cross your t's and dot your i's before you start putting down your money. And you want to embrace your potential customers, make sure they will accept you."

Tsutsui said the legal problems result from a combination of factors.

"I think the Superferry acted on bad information given to them by the Department of Transportation and ultimately the administration," he said. "But again, businesses need to do their own due diligence and their homework before they make commitments of their funds."

English said he objected to the legislation for what he sees as a special interest and he appreciates the court's decision to consider the issue.

"Our constitution does prohibit special interest legislation and I think that's going to be one of the main issues," he said.

English said if the Supreme Court were to allow the environmental exemption for a business, "I have a number of programs and projects that I can call by their generic names and ask for approval."

Baker said the three Maui senators voiced their opposition to the law to make a statement during the special legislative session.

"The main reason I voted no was that I didn't think that the way the administration had dealt with the whole issue was appropriate. I think it should have gone through the whole process," she said.

Bowie was hopeful that the Supreme Court would invalidate the exemption law, which should result in reinstating the injunction until an environmental impact statement is accepted.

A draft EIS on the harbor improvements to accommodate the ferry operations is expected to be released by the end of October. But it will be subject to comment, and a final EIS still could be subject to legal challenges.

One of the factors will be that the Superferry has been operating, which will provide data on issues such as whether passengers are transporting prohibited products and substances. Bowie said a task force required by the exemption law has been conducting risk assessments that she said "show a lot of weaknesses in the inspection system."

"It validates our position that this is what should have been done right first all along," she said.

Until the Supreme Court takes up the appeal, the Superferry will also continue to operate, Bowie noted, which will provide more information on the safety of the vessel. When the ferry first began regular operations in December 2007, there were severe difficulties with the docking system in Kahului Harbor from the heavy winter swells and the ferry itself incurred damage that put it into dry dock for two months.

"It's October. The whales are back and the swells are back. It's going to be an interesting time," she said.

* Edwin Tanji can be reached at citydesk@mauinews.com.

Original article URL: http://www.mauinews.com/page/content.detail/id/509833.html

Return to Sen. English Home Page - KalaniEnglish.com

 

 

 

 

 

 

Home Bills and Resolutions About Senator English Committees Community Profiles Newsletter Archive News Archive Capitol Web Site Media Photos

Connect with Senator English

OUR DISTRICT