WAILUKU, Maui — The Hawaii Superferry and the rest of the state will have to wait at least one more week to learn whether the new interisland transport has clear sailing to return to Maui.

Maui Circuit Judge Joseph Cardoza yesterday scheduled a hearing for 8 a.m. Wednesday to consider whether to dissolve an injunction that has kept the company's high-speed catamaran from calling at Kahului Harbor without an environmental review of ferry-related port projects.

Although Gov. Linda Lingle and the Legislature last week approved a new law that essentially overturned Cardoza's Oct. 9 order granting the injunction, Hawaii Superferry cannot relaunch while the order officially remains in effect.

Company president and CEO John Garibaldi has said he hoped the ferry would resume operations by Nov. 15, but there was no word yesterday from the company on when service would actually begin.

At yesterday's hearing to set a date for deciding whether to dissolve the injunction, state Attorney General Mark Bennett asked the judge to shorten the time allowed by court rules to schedule a hearing. The rules state that a hearing on a motion must be held 18 days after the motion is filed, with the opposing side given 10 days from the filing date to respond in writing.

The state filed its motion to dissolve the injunction on Monday.

Bennett said that in view of the new law, known as Act 2, the Hawaii Superferry has "the undeniable right to operate." The governor and lawmakers made it known by their actions and the language in Act 2 that it was in the public interest to get the ferry running immediately, he said.

Hall, representing three groups that requested the injunction, opposed shortening the period, noting the state filed its motion to dissolve the injunction only this week and that he would be denied adequate time to prepare a response. Hall said that although government leaders expressed a desire to get the ferry running as soon as possible, none indicated there was a critical emergency to justify a speedier than normal court hearing.

Bennett said Hall should have anticipated passage of Act 2 and already been at work on his response.

"The goal of Mr. Hall in this case is he wants the Superferry to die the death of a thousand cuts. He believes the longer he can delay getting the injunction lifted, the more likely it is that the Superferry will go out of business, notwithstanding the fact that as of Friday, when Act 2 was signed, Superferry had the undeniable right to operate," Bennett said.

SERVICE HALTED AUG. 27

Hall told Cardoza the state and the company once again were trying to deny his clients due process, just as the state tried to do by exempting the harbor projects from an environmental review requiring public participation. Hall is representing the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition.

The groups' challenge of the exemption resulted in a Hawai'i Supreme Court decision in August ordering the review. That ruling led to a temporary restraining order that halted ferry service to Maui on Aug. 27, one day after the ferry's first official voyages. The restraining order was later replaced by the injunction.

"What we have seen in this case is the state and Hawaii Superferry want to speed through everything that they do," Hall said. "They want to speed through the whale sanctuary and strike whales just for their economic benefit. They want to speed through the process of inspections, jeopardizing our farmers through lack of inspections and invasive species being introduced to our islands. They want to speed through the legislative process so that they can get a new law stripping us of rights the Hawai'i Supreme Court gave us through a final judgment. We need to slow down and look at this thoughtfully and deliberately."

The attorney also indicated he plans to argue on Wednesday that the injunction should remain in place because Act 2 is unconstitutional. Hall said the law does not adequately protect the environment from the possible impacts of ferry operations.

Hall pointed out that in granting the injunction, Cardoza ruled the Hawaii Superferry represents a new mode of transportation in the Islands that carries a risk of irreparable environmental harm from collisions with humpback whales, the spread of invasive species, increased traffic around ports, depletion of Native Hawaiian subsistence resources and other concerns.

"The constitution of the State of Hawai'i has unique principles that are different from the United States Constitution. The Hawai'i Constitution requires the governor and the Legislature to protect our fragile environment. If Act 2 doesn't protect our fragile environment, this injunction cannot be dissolved," he said.

'NO LONGER ILLEGAL'

In the state's motion filed Monday, Deputy Attorney General William Wynhoff anticipated Hall's claim of unconstitutionality, saying that legislative acts are presumed to be constitutional. He said it is Hall's burden to prove "beyond a reasonable doubt" that Act 2 threatens the environment, not merely that ferry operations might result in the possibility of irreparable harm, as Cardoza found. Hall must also prove the constitutional "defect" is clear and unmistakable.

Hall can pursue his constitutionality claim through additional litigation, Wynhoff said, but the court in the meantime cannot deny or delay granting the motion to dissolve the injunction.

"Just as this court reversed its prior ruling in response to the mandate of the Hawai'i Supreme Court, this court is now required to dissolve its injunction in response to the Legislature's directive changing prior law. ... "

Wynhoff said that with the passage of Act 2 and the company's compliance with conditions attached to the law, "it is no longer illegal or improper for Hawaii Superferry to operate during the environmental process."

In scheduling the hearing for Wednesday, Cardoza said it is not unusual for such hearings to be held before the 18-day deadline. He said he gave Hall until Tuesday morning to file his response.

Reach Christie Wilson at cwilson@honoluluadvertiser.com.