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The Honolulu Advertiser

Updated at 6:38 p.m., Monday, August 27, 2007

Temporary restraining order halts Superferry

By Christie Wilson
Advertiser Neighbor Island Editor

WAILUKU, Maui — A Maui judge today issued a temporary restraining order effectively halting Hawaii Superferry service to the Valley Isle until a hearing can be held Wednesday to determine whether the company can continue operations in the absence of an environmental review by the state.

The ferry is in only its second day of commercial voyages between Honolulu, Maui and Kaua'i. In granting the TRO request, 2nd Circuit Judge Joseph Cardoza said he would allow the ferry to sail back to Maui to pick up stranded passengers and transport them to their port of origin. After that, the state Department of Transportation is barred from allowing the Superferry to use state facilities at Kahului Harbor, including loading barges and ramps, staging areas and roads.

Because the court case involves concerns about ferry-related impacts only at Kahului Harbor, the order does not prevent the Superferry from operating between O'ahu and Kaua'i.

A Superferry spokeswoman said today's Maui and Kaua'i legs were sold out. The 350-foot vessel can carry more than 850 people and 250 vehicles, but the company projects an average load of 400 passengers and 110 vehicles.

In the wake of Thursday's Hawai'i Supreme Court ruling that the state was wrong to have exempted ferry-related improvements at Maui's Kahului Harbor from the state's environmental review law, the company pushed its start date up and launched yesterday, offering $5 fares. It was supposed to begin service tomorrow.

The Supreme Court ruling stemmed from an appeal of an earlier decision by Cardoza dismissing a complaint filed against the Department of Transportation by the Maui Tomorrow Foundation, the Sierra Club and the Kahului Harbor Coalition. Cardoza had ruled the groups did not have standing to bring the complaint.

The higher court reversed that decision, and went further by ordering an environmental review of the harbor improvements.

The DOT spent $40 million installing barges, ramps, fencing and utilities for the ferry at the Honolulu, Kahului, Nawiliwili and Kawaihae harbors. State attorneys have argued the projects are exempt from Chapter 343 of the Hawai'i Revised Statutes, which establishes an environmental review system. The state says the ferry is no different from cruise ships and other harbor users that have expanded service at DOT harbors without any environmental scrutiny.

Attorney Isaac Hall, representing the three Maui groups, said the law requires that the secondary and cumulative impacts of a project and what it would facilitate be considered, not just the project itself.

HRS Chapter 343 states that "an environmental assessment shall be required for actions that propose the use of state or county lands or the use of state or county funds." The assessment determines whether projects are likely to have a significant effect on the environment, and if the answer is yes, a more thorough environmental impact statement is required.

If the environmental assessment determines a "finding of no significant impact," preparation of an EIS is not required.

The review process can take months, and if it is determined that a full EIS is needed, the process likely will take several years given the controversial nature of the harbor improvements and Hawaii Superferry service.

The push for a full-scale environmental review has come largely from Neighbor Island residents, who say the potential impacts include traffic congestion around the ports, rapid spread of invasive species, ferry collisions with humpback whales, and pressure on local fishing and recreational resources when people transport their vehicles to other islands.

Unlike yesterday's inaugural voyage to Kauai, no protests greeted the ferry when it made its second commercial arrival at Kahului Harbor at 9:19 a.m. today.

However, an hour earlier, 2nd Circuit Judge Joel August amended an order he issued Thursday regarding traffic measures to be taken by the DOT to ease congestion around the busy intersection at the Hawaii Superferry site.

The entrance and exit to the site are located on a short north spur of Pu'unene Avenue that feeds onto Ka'ahumanu Avenue, the main thoroughfare through Central Maui.

The judge had required the DOT to reconfigure and restripe both sides of Pu'unene Avenue at the intersection before ferry service began. At the time of the order, the Superferry was slated to start today, but after Thursday's Hawai'i Supreme Court ruling in the separate case, the company rushed to launch service yesterday, two days ahead of schedule.

Not satisfied that the DOT had finished the work in time, August today added new instructions that only two cars per minute be allowed to exit the ferry property, and that four police officers be posted to direct traffic.

With only two cars allowed onto Pu'unene Avenue at a time, it took 55 minutes to get the nearly 90 disembarking vehicles onto the public road, even though at times the street was empty.

It was not necessary for police to direct traffic on Ka'ahumanu Avenue, but officers were clearly needed to manage outbound ferry vehicles and the heavy Monday morning flow into the First Hawaiian Bank branch that shares the north Pu'unene spur with the ferry.

Download a PDF of the temporary restraining order.

Download a PDF of the motion for temporary restraining order.