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The Honolulu Advertiser
Posted on: Thursday, November 15, 2007

Judge lifts injunction on Hawaii Superferry

 •  Special legislation? Judge didn't think so
StoryChat: Comment on this story

By Christie Wilson
Advertiser Neighbor Island Editor

Hawaii news photo - The Honolulu Advertiser

A Maui court has cleared Hawaii Superferry to resume service, but attorney Isaac Hall says foes are "not going to stand by and take this."

JOAQUIN SIOPACK | The Honolulu Advertiser

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WAILUKU, Maui Hawaii Superferry is expected to announce a relaunch date by week's end, after yesterday's court ruling that cleared the new interisland ferry to sail.

Hawaii Superferry President and CEO John Garibaldi described the lifting of a Maui court injunction that had kept the ship from using Kahului Harbor as "a new beginning for us."

The company will take about two weeks to rehire 250 furloughed workers and gear back up to provide service between Honolulu, Maui and Kaua'i, Garibaldi said. The only other pending requirements are notifying the state Department of Transportation, the Coast Guard and other regulators of the company's plans to resume operations, he said.

The ruling by Maui Circuit Judge Joseph Cardoza wrapped up for now at least a 2 1/2-year legal challenge that nearly scuttled the $250 million enterprise and ignited a bitter public debate that exposed deep geographic, racial, cultural and political divisions within the state.

Wailuku attorney Isaac Hall, who represents three groups that pushed for an environmental review before the ferry could operate, called the outcome of yesterday's hearing "a temporary defeat." He indicated he would appeal Cardoza's decision, which validates a new state law allowing the ferry to operate while an environmental review is conducted.

The judge rejected Hall's request to keep the injunction in effect while the appeal is pursued.

"This is far from over," Hall said after the hearing. "This has led to the building of a huge coalition between Hawai'i, Kaua'i and Maui."

He said there will be political consequences for lawmakers "who let us down" by approving legislation that essentially overturned court decisions requiring environmental studies before the ferry could resume service.

"A strong coalition has formed and it's not going to stand by and take this," he said.

Hall also clarified statements he made during court arguments that if the injunction were dissolved, "the only way left to secure justice is in the water." The comment was a reference to events on Kaua'i in which protesters jumped into Nawiliwili Harbor to keep the ferry from docking during the two days in late August it was running.

Hall said he was not attempting to encourage similar protests on Maui, but wanted to emphasize the degree of anger and frustration among some in the community who feel their concerns have been ignored by the state and the Superferry, and have now seen their court victories erased by political maneuvering.

"There are some social impacts to ramming a project down the throats of Hawai'i's people ..." he said. "People on the street are not happy with what is happening with the Hawaii Superferry."

DISTURBED BY REMARKS

State Attorney General Mark Bennett told Cardoza he was "deeply disturbed" by Hall's remarks "threatening this court that the only way to secure justice is to jump in the water. To come before this court and say, 'Judge, you'd better not dissolve the injunction because people are going to get hurt' is an outrage."

Cardoza said Superferry opponents who break the law "run the risk of alienating the community against the importance of protecting the environment" and addressing other issues such as the spread of invasive species and preserving Native Hawaiian resources.

And just as he had done in issuing the injunction Oct. 9, Cardoza acknowledged the underlying issues fueling some of the opposition to the ferry.

"The court recognizes that issues related to cultural values and conflicts between old Hawai'i and the modern world and a changing lifestyle are very serious issues that warrant a painful and open discussion," he said.

He said the conflicts have been "festering for a long time in this community and existed long before the Superferry became an issue."

Gov. Linda Lingle issued a statement saying she was pleased with the ruling and that the judge "recognized that the Legislature and our administration worked cooperatively, within the boundaries of our state constitution, to pass a law that preserves an important interisland transportation alternative for the people of Hawai'i."

"As the interisland ferry service resumes, we will continue to work closely with environmental, cultural and agricultural organizations, the counties, the community and Hawai'i Superferry officials to ensure specific conditions are followed to minimize the impact on Hawai'i's natural and cultural resources," Lingle said.

CHALLENGE FILED IN 2005

The court case was initiated when Hall's clients, the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition, filed a legal challenge to a state Department of Transportation determination in February 2005 that $40 million in ferry-related projects at four ports were exempt from Hawai'i's environmental protection law, known as Chapter 343, and did not require environmental studies.

When Cardoza dismissed their complaint in July 2005, the three groups appealed to the Hawai'i Supreme Court. In a decision released Aug. 23, the higher court said the exemption was improper and that an environmental assessment was required.

A day later, the Superferry announced it would launch Aug. 26, two days ahead of schedule, and offered $5 fares. On Aug. 27, Cardoza issued a temporary restraining order halting further voyages to Maui.

The order was followed by a four-week trial to determine whether the ferry could operate during the environmental assessment process. The judge heard testimony on issues such as the potential for ferry collisions with humpback whales and the spread of invasive species, concerns about ferry passengers bringing their vehicles to Maui and depleting Native Hawaiian subsistence resources, as well as the economic, civil defense and transportation benefits offered by the ferry service.

On Oct. 9, Cardoza ruled that Chapter 343 requires an environmental review before commencement of a project, and he replaced the temporary order with a preliminary and permanent injunction that prevented the ferry from visiting Kahului Harbor pending an assessment.

Lingle and the Legislature moved quickly to convene a special session to pass a bill that would allow the ferry to resume operations during the review. Lingle signed the measure, known as Act 2, on Nov. 2 and attached 42 conditions meant to address some of the environmental concerns related to ferry operations.

LAW CALLED ILLEGAL

During his arguments yesterday and in a court memorandum, Hall said Act 2 is unconstitutional on a variety of levels. He said the governor's proclamation convening the special session was illegal because it interfered with a court order, and that the new law violated the balance of power among the three branches of government.

Hall also said that by passing Act 2, elected leaders violated their public trust duties under the state constitution to protect Hawai'i's fragile environment and the traditional and customary rights of Native Hawaiians.

"Act 2 is correct about one thing and one thing alone, and that is that Hawai'i has a fragile and unique environment ... ," Hall told the court. "Instead of protecting these resources, our attorney general travels over here from O'ahu to argue that they should be destroyed to protect Hawaii Superferry."

He said the Legislature and the governor established the operating conditions without benefit of the four weeks of testimony heard by Cardoza, who determined the high-speed ferry, which transports passengers, vehicles and cargo, is a new mode of transportation in Hawai'i that poses the risk of irreparable harm if allowed to operate before an environmental assessment can determine whether mitigation is needed.

By allowing the governor to determine the 42 conditions attached to the law, Hall said the Legislature also had improperly delegated its legislative powers.

Cardoza disagreed, explaining that in drafting the bill, the Legislature set forth standards and procedures to be followed by the governor. "That type of delegation is permissible," he said.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.

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