A Kaua'i state lawmaker has filed a complaint with the state's Public Utilities Commission asking the commission to suspend its operating certificate for Hawai'i Superferry until the Superferry shows it is meeting state environmental law.

The commission agreed to award the certificate in December 2004 and set as a condition that the Superferry show it has complied with all federal and state laws, including the state's environmental review law. The commission recognized that questions about the environment were raised during public hearings on the certificate but at the time the state was still reviewing whether an environmental assessment was necessary.

The state Department of Transportation determined in February 2005 that no environmental assessment for state harbor improvements for the Superferry was required. But the state Supreme Court ruled last month that the state was in error and that a review should have been done for improvements at Kahului Harbor on Maui.

State Rep. Hermina Morita, D-14th (Hanalei, Anahola, Kapa'a), said the Supreme Court's ruling should mean that Superferry cannot operate until an environmental assessment is completed.

Superferry declined to comment yesterday on Morita's complaint.

Maui Circuit Court has blocked Superferry from Kahului Harbor while a judge reviews whether ferry service can proceed during an environmental assessment. Environmentalists on Kaua'i have sought a similar order keeping Superferry from Nawiliwili Harbor, which could be decided by a Kaua'i Circuit Court judge today. Superferry has indefinitely suspended service to Kaua'i.

The state is conducting an environmental assessment for all state harbors used by Superferry, a fact Morita believes shows that the Supreme Court's ruling applies beyond Maui. She said Superferry violated the "spirit and intent" of the commission's condition that it comply with all federal and state laws with its voyages to Kaua'i last week.

"The fact is that the necessary permit to operate in Hawai'i is predicated on completing the environmental process," Morita said yesterday. "That's the crux of this whole issue."

Morita, chairwoman of the House Energy and Environmental Protection Committee, had been among the state lawmakers last session who wanted to force Superferry to do an environmental review. She also urged the state last week to halt Superferry service to Kaua'i.

UNDER REVIEW

Lisa Kikuta, chief researcher for the Public Utilities Commission, said the commission would review the complaint. "The commission is considering the important issue that Representative Morita has raised in her complaint," she said.

Questions about whether the Supreme Court's ruling has an impact on Superferry's operating certificate were raised Wednesday in the Honolulu Weekly.

On Kaua'i yesterday, Circuit Court Judge Randal Valenciano heard nearly three hours of arguments in a packed courtroom on a motion seeking a temporary restraining order to halt ferry service to Nawiliwili Harbor.

Valenciano delayed his ruling until this afternoon to give attorneys on all sides a chance to make additional arguments on whether the motion was filed in a timely manner.

Attorneys for 1000 Friends of Kauai, an environmental group, and Rich Hoeppner, a Kaua'i activist, are seeking the order to keep the ferry from coming to the island until a more extensive hearing on a preliminary injunction is held Sept. 17. That hearing would determine whether the Superferry can use Nawiliwili Harbor while the state conducts an environmental assessment.

Attorneys for Hawai'i Superferry and the state attorney general's office argued that the environmentalists failed to file their court action before the statute of limitations had expired.

Superferry attorney Lisa Munger said the environmentalists should have filed their complaint within 120 days of the state's February 2005 determination that an environmental assessment would not be required for some $40 million worth of construction to accommodate the ferry at harbors statewide.

But attorneys Daniel Hempey and Greg Meyers, representing the environmentalists, argued that the clock started running when the Superferry began using the harbor improvements after the Supreme Court ruled the state had erred in allowing the exemption.

Valenciano made it clear he considered the statute of limitations key to determining whether the environmentalists have the right to seek a restraining order based on environmental law. "This is a big issue," the judge said. "Right now I'm having a hard time accepting your argument."

LEGAL INTERPRETATION

William Wynhoff, representing the state attorney general's office, also argued that the Supreme Court's ruling "was specifically and directly linked to Kahului Harbor on Maui," where environmental groups originally had challenged the state's determination, and as a result, the court's ruling does not apply to Kaua'i.

Superferry attorneys also submitted a memo that suggested the environmentalists should not be allowed to come to court at all because they have "unclean hands" for supporting illegal protests against Superferry at the harbor last week.

"Hawai'i Superferry is accusing Kaua'i's 1000 Friends and Rich Hoeppner, a 20-year police veteran, of supporting criminal action," Hempey said in court. "They demand a public apology."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.