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The Honolulu Advertiser
Posted on: Thursday, September 13, 2007

Ferry can resume Kauai route Sept. 26

 •  Ferry testimony focuses on whales, piggybackers
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By Derrick DePledge and JOAN CONROW
Advertiser Staff Writers

Hawaii news photo - The Honolulu Advertiser

Protesters greeted the Hawaii Superferry upon its approach Aug. 26 to Kaua'i's Nawiliwili Harbor. If protesters disrupt Superferry operations again the Alakai is set to return to Kaua'i Sept. 26 officials warn that the response will be much swifter and sweeping than last month.

DENNIS FUJIMOTO | The Garden Island

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Gov. Linda Lingle yesterday issued a firm warning to protesters on Kaua'i, saying they would be arrested and prosecuted if they break the law and disrupt the Hawaii Superferry during its expected return to Nawiliwili Harbor in two weeks.

Federal, state and local authorities have cleared the Superferry to resume service between O'ahu and Kaua'i starting Sept. 26. The Alakai will be temporarily restricted to operating during the day instead of the original evening arrival and departure schedule at Nawiliwili Harbor, until authorities decide it is safe.

The daytime restriction could pose conflicts for space with other harbor users, such as cruise ships, but is intended to better protect public safety if protesters again choose to go into the water and block the ferry.

Lingle, state Attorney General Mark Bennett and Coast Guard Rear Adm. Sally Brice-O'Hara cautioned protesters that the state and federal response would be much swifter and sweeping than when protesters first delayed and halted the ferry last month.

"It's not our desire or preference to arrest or prosecute people, but no one should mistake the restraint that was shown initially as a lack of resolve on our part to make certain that vessel is allowed to travel safely and that we protect public safety overall," the governor said at an afternoon news conference at the state Capitol.


The Coast Guard has used an emergency rule to create a federal security zone at the harbor to protect the Alakai, along with a designated protest area off Kalapaki Beach. The security zone is in effect for one hour prior to the ferry's arrival and 10 minutes after the ferry's departure. A separate federal security zone exists 100 yards around the ferry.

The state also will set up barricades and other crowd-control measures around the harbor to deter protesters, including closing off portions of a public-access road along the jetty.

Brice-O'Hara said the Coast Guard was caught by surprise by the protests last month.

"None of us were prepared for that level of passion and determination to halt the Superferry's transit," she said. "Absolutely, that was not something that we were expecting and we were very measured in our response. These weren't terrorists, but quite honestly, the Coast Guard is used to reaching in the water and pulling the hand of someone who desperately wants to be rescued.

"Now we have people who want to make a statement."

Lingle said she plans to visit Kaua'i before Sept. 26 for public talks on the Superferry's return.

The Lingle administration believes the state Supreme Court's ruling requiring an environmental assessment for the Superferry only applies to Kahului Harbor on Maui and that the ferry has a legal right to go to Kaua'i.

A Maui court has issued a temporary restraining order against the Superferry for Kahului Harbor and is hearing arguments about whether it should be allowed to resume service to Maui while the state conducts the environmental assessment.

A Kaua'i court has denied a temporary restraining order for Nawiliwili Harbor and has scheduled a Monday hearing date on whether ferry service can proceed during the environmental review, which will involve all four harbors that the Superferry plans to serve.

Court rulings on Maui or Kaua'i over the next two weeks could influence the Sept. 26 target date for ferry service to Kaua'i.


On Kaua'i yesterday afternoon, about 75 people gathered for a rally at the historic County Building, where the County Council was meeting, and later engaged the governor's liaison and Mayor Bryan Baptiste.

Andrea Brower, who was born and raised on Kaua'i and who had joined protesters in the water to blockade the Alakai, said young people like her "don't feel represented by government. We will get in the water again. It's the young people, and we ask you to hear our voice."

Some on the County Council, which had passed a nonbinding resolution in January 2005 calling for an environmental review of the Superferry, said they were disappointed by Lingle's announcement. "I'm very disappointed about the decision because I don't think the courts have announced whether the Superferry is a legitimate operation or not," said Councilwoman JoAnn Yukimura.

Yukimura addressed the rally, saying: "I want to thank you all for your concern about the island. Kaua'i has always shown itself to be a separate kingdom. I want to ask you all to really take personal responsibility for your actions and to do things without violence and to do things with respect for everyone."

Councilman Tim Bynum said he had called on Superferry not to return to Kaua'i until the legal disputes are clarified.

"I'm disappointed the governor's statement focuses on the rights of the Superferry," he said, "but doesn't say anything about the outstanding legal action."

Bynum also urged the group "to be really cognizant of the image we portray and this time around, make sure the world sees us acting in a calm and dignified manner."

Baptiste, who had participated in Lingle's news conference by telephone, told the group that there are people from the business community and others on Kaua'i who support the Superferry. "Believe it or not, there are other people who want the Superferry," the mayor said.


Lingle described the collaboration between federal, state and local authorities on the Superferry as a "unified command." The Republican governor, who had campaigned on making the Islands more friendly to business, also made it clear that authorities, not the Superferry, set the date for a return to Kaua'i.

"The unified command made this decision, Superferry was informed of it (Tuesday)," Lingle said. "There was no option. We didn't ask them their opinion of it. I think it's fair to say they would prefer to go earlier. Every day they don't go it costs them money. But as I told you in the beginning, our No. 1 priority was public safety, and that was a date that we collectively felt comfortable with."

Superferry likely would be unable to offer service to both Maui and Kaua'i during daylight hours, so that restriction would have to be reviewed if the Maui court rules in Superferry's favor. Superferry also likely would have to evaluate its financial status if either court determines that ferry service should be halted during the environmental review.

"We're just monitoring what's happening on Kaua'i and Maui and will make a decision as we go along," said John Garibaldi, Superferry's chief executive officer.

Lingle said at her news conference that the Superferry may not survive in the Islands if it has to wait an estimated eight months for an environmental assessment or longer if the findings are challenged before operating again. The review could also lead the state to require a full environmental impact statement, which could take a few years.

"Superferry will be out of business by then," Lingle said. "I don't think there's anybody who doubts that. And I don't think a majority of people in the state want to see that happen."

Meanwhile, Bennett, the attorney general, said he has spoken with state Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), about the possibility of a special session of the state Legislature on the Superferry.

Lawmakers could consider a bill allowing the ferry to resume service while the state does the environmental review, essentially bypassing the courts.


Senate leaders have been discussing a special session privately, but mostly in the context of how they would respond if Lingle were to use her powers and call them back. State House and Senate leaders have so far not been inclined to come back for the Superferry on their own.

A special session to help the Superferry could be politically explosive. The House refused to hear a Senate bill last session that Neighbor Island senators believed would have allowed the Superferry to launch while an environmental review on harbors was being done. House leaders would have to explain why that option should be given now, especially after it was fought by both Superferry and the state during session.

Many environmentalists may also object since they had to turn to the courts after failing to get the Lingle administration and the Legislature to order an environmental review.

A special session for the Superferry also may be a precedent for other developers who want to avoid unfavorable court decisions. Lawmakers were criticized in 2006 for a bill that was seen as helping the developers of the Hokuli'a luxury home project on the Big Island, which had been halted in court by environmentalists. But Hokuli'a developers and environmentalists settled the lawsuit during session and the bill died.

Some lawmakers believe the Legislature should help the Superferry after approving $40 million in harbor improvements for the project.

"If the courts rule that they can't do it, then there should be a special session," said state Sen. Will Espero, D-20th ('Ewa Beach, Waipahu). "I support the Superferry."

Advertiser staff writer Christie Wilson contributed to this report.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.

Correction: Kaua'i Mayor Bryan Baptiste’s first name was misspelled in a previous version of this story on the Hawaii Superferry.