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The Honolulu Advertiser
Posted on: Wednesday, October 10, 2007

Hawaii Superferry decision based on law

 •  Special session Hawaii Superferry's only hope

By Christie Wilson
Advertiser Neighbor Island Editor

Hawaii news photo - The Honolulu Advertiser

Circuit Judge Joseph Cardoza

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Hawaii news photo - The Honolulu Advertiser

Pacific Whale Foundation President Greg Kaufman, left, and Maui Tomorrow President Judith Michaels congratulate attorney Isaac Hall after the Hawaii Superferry ruling in Wailuku.

MATTHEW THAYER | The Maui News via Associated Press

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A Maui judge yesterday ruled the Hawaii Superferry cannot resume service until an environmental assessment of ferry-related harbor projects is done.

In granting an injunction requested by three groups to prohibit the 350-foot ferry from visiting Kahului Harbor, Circuit Judge Joseph Cardoza said state law clearly requires an environmental assessment before a project can proceed.

He also said "there is a real possibility of irreparable damage to the environment, to the way of life in this community" if the vessel sails before the study is done.

Cardoza's comments, witnessed by an overflow courtroom crowd of more than 100, climactically ended a monthlong hearing. However, Hawaii Superferry attorney Lisa Munger indicated the company would seek a swift appeal of the ruling in the state's Intermediate Court of Appeals.

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition had sought the injunction, citing concern about potential ferry impacts that include increased traffic around ports; the potential spread of invasive species; depletion of Native Hawaiian subsistence hunting, fishing and gathering grounds; and collisions with humpback whales.

Hawaii Superferry President and CEO John Garibaldi testified during the hearing that an adverse ruling would essentially kill the company's plans to do business in the state. After Cardoza's decision, Garibaldi offered only a brief comment, saying he was disappointed "but who I really feel very, very sorry for and very upset for is the people of Hawai'i."

Attorney Isaac Hall, representing the Sierra Club and the two other groups, said the state and the company should blame only themselves for "putting their heads in the sand" and ignoring the potential impacts of the high-speed ferry.

The judge also invalidated the state Department of Transportation's 22-year operating agreement with the Superferry, signed in September 2005. That would appear to prevent the ferry from using ports statewide and could raise the issue of the state's liability.

The operating agreement established each party's responsibilities for providing facilities, payments and other contractual obligations.

Superferry officials have said the company's investment is close to $300 million, including two $85 million ferries.

In a preamble to his ruling, Cardoza recognized the divisive statewide debate over the Superferry, which promised a convenient alternative to air travel between Honolulu and Maui, Kaua'i and the Big Island.

Despite ruling against the Superferry, Cardoza agreed the ferry would serve the public interest by providing a new way to travel between the Islands.

The ferry was largely welcomed by O'ahu residents, but many on Maui and Kaua'i were wary of what the ferry would bring to their islands.

"I hope today will serve as a moment of reflection for all of us and recognition of the need for having this community work together. We can have different views but we do not need to have a divided community just because we have different views," Cardoza said.

"If we remain divided as a community, these problems will not go away."

The four weeks of testimony leading up to yesterday's ruling featured 29 witnesses, some who spoke on the potential environmental threats posed by the vessel and others who talked of the ferry's importance to commerce, transportation, civil defense and the traveling public.

But in the end, it came down to a matter of law.

Hall had argued from the start that the state's environmental protection law, Chapter 343 of the Hawai'i Revised Statutes, is clear and unambiguous about the need for prior review of projects that may impact the environment.

Cardoza said although he agreed early in the case to hear testimony on the ferry's positive and negative impact, he based his decision on the "clear and concise" instruction found in Section 5 of Chapter 343 that says: "Acceptance of a required final (environmental) statement shall be a condition precedent to implementation of the proposed action."

"Precedent" in this instance means prior.

"In ruling today, I will note that this court's obligation is to apply the law as it is written. It isn't this court's right to rewrite our laws. Indeed, as our Hawai'i Supreme Court has often said, it is the court's obligation to follow the laws enacted by the Legislature and approved by the executive branch of government."


That an environmental assessment is required of ferry-related harbor projects, including a study of their user, Hawaii Superferry, was not in dispute at the Maui hearing. The Hawai'i Supreme Court had put that issue to rest in an Aug. 23 order overturning the Department of Transportation's February 2005 exemption of $40 million in state-funded projects from the provisions of Chapter 343.

Hall said guidelines within the law alone were enough to keep the ferry tied up at port while the environmental review is done, and Cardoza agreed.

But Hall also argued a second point, that allowing the ferry to run before an environmental assessment is done could result in irreparable harm to marine mammals, Maui's rural communities, motorists and others.

On that point, Cardoza also agreed.

Hawaii Superferry attorneys had presented testimony downplaying the likelihood of harm. Other witnesses detailed the economic, financial and public-interest consequences of not allowing the ferry to immediately resume service to Maui.

Some of those possible consequences included the loss of 270 ferry jobs, default on vessel construction loans backed by a $140 million federal loan guarantee, and the absence of ferry revenue to help pay for the port improvements at Kahului, Honolulu, Kawaihae and Nawiliwili.

Cardoza said he was well aware of the "tremendous economic impact" an adverse ruling would have on the Hawaii Superferry, its employees, the state and Hawai'i residents. However, the judge said, environmental laws are intended to ensure that financial losses "would not outweigh the interests of the environment whenever the two clash, as they often do."

Addressing the argument that the 350-foot ferry should not be treated any differently than the whale-watch boats, cruise ships, freighters, container ships and barges that ply Maui's waters, Cardoza said the Hawaii Superferry "represents a new chapter" in Hawai'i's transportation history.

The vessel is different from anything else operating in Hawai'i because it will allow passengers to drive on and drive off with their vehicles, Cardoza said, and because it travels at 37 knots, or 43 mph.

"In the court's view, the Hawaii Superferry does represent new technology. The new technology involves creating a situation where there is greater mobility in the state and that is an advantage, and some might argue a disadvantage. People and their property and their cars and trucks will be able to move more easily throughout the state. ... The Hawaii Superferry is also a high-speed ferry and that's new technology to the state of Hawai'i."

It is the ferry's speed that most concerns experts who study endangered humpback whales and enforce laws protecting them. Many experts recommend speeds of about 13 knots in waters inhabited by humpbacks.

Evidence presented during the hearing indicated that although there is debate about whether a vessel's size and speed increase the risk of hitting a whale, they are significant factors in whether the animal survives the collision.

Cardoza said Maui is "blessed to have endangered species in our waters" and other "gifts" such as cultural traditions and natural resources. He acknowledged the "tremendous amount of work" the company has done to address environmental concerns by consulting with experts and establishing a whale-avoidance policy and vehicle-screening procedures.

But the judge said the chance for "irreparable harm" remained in the absence of an environmental study that could identify problems and possible solutions.

Cardoza also addressed ferry critics who claimed the new interisland service would provide easy access to the Neighbor Islands to criminals, the homeless and others who may take advantage of a community's resources.


People have the right to move freely within the state, the judge said, and one community cannot shut itself off to others. "That's not an option in terms of closing off a community to another segment of the community. It's not an option to tell people they can't travel from one island to another."

In one of several pleas for conciliation, Cardoza said the ruling against the state and the Hawaii Superferry "should not be a moment of joy or celebration but rather a time when all of us must commit ourselves to generating an environment that will work for the good of our society."

The court case stemmed from a March 2005 complaint filed by the three groups objecting to the state's exemption of the ferry-related harbor projects.

Cardoza dismissed the complaint in July 2005, saying the groups lacked standing in the case and that the state had followed proper procedures under Chapter 343 in granting the exemption. His ruling earlier cleared the way for the company and the state to proceed with their plans.

The groups appealed the dismissal, eventually leading to the Supreme Court decision in their favor two years later.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.