Post by ferryfast admin on Nov 3, 2007 15:22:06 GMT -5
Thursday, November 01, 2007 12:06 PM
Maui News
www.mauinews.com/news/2007/11/1/02spri1101.html
WAILUKU – Legislation passed during a special session Wednesday may not be enough to float the Hawaii Superferry.
An injunction against the ferry’s entering Kahului Harbor remains in effect, and attorneys for the state and the Superferry would need to ask 2nd Circuit Judge Joseph Cardoza to lift it after passage of a bill to allow it to operate while an environmental assessment is conducted.
Wailuku attorney Isaac Hall, who represented plaintiffs who’ve successfully sought court orders for environmental studies before the ferry sails, said he would argue against dissolving the court’s order barring ferry operations.
Cardoza would need to determine first if the Legislature’s action is constitutional or legal, Hall said.
“We don’t believe that it is,” he said. “Basically, it’s special legislation to bail out one business that is retroactive. It is to overrule the judiciary.”
State Sen. J. Kalani English, who voted against the measure in the Senate along with Maui Sens. Shan Tsutsui and Roz Baker, said questions about the Superferry bill’s constitutionality were raised repeatedly on the floors of the Senate and House.
“You cannot create special legislation to single out one company,” he said, although lawmakers tried to get around that by referring not to the Superferry by name but as a “large-capacity vessel.”
When asked about the potential for a legal challenge, English said, “I think that they have a good case.”
“It might be unconstitutional,” he said. “In my opinion, it’s on shaky constitutional law.”
Irene Bowie, executive director of Maui Tomorrow, one of the plaintiffs represented by Hall, said her organization awaits Cardoza’s decision on whether to lift his injunction against the Superferry.
“We’re saddened that it’s come to this,” she said. “That the judicial system has been set aside and that we have great concerns about the future of Hawaii’s environmental law.”
Bowie said she hoped that precedents will not be set to “risk the future of our environment.”
“We’re disappointed for the environment,” she said.
Ron Sturtz, president emeritus of Maui Tomorrow, said the Legislature’s action marks only “halftime in the game.”
“The governor still has to set appropriate mitigations. We’ll see what she does there,” Sturtz said.
Also, depending on what action Cardoza takes, either side could appeal his ruling to a higher court, he said.
“It’s just a continuing process,” he said. “It’s regrettable that the strong voices of the neighboring islands have not been heard clearly.”
When asked if he thought people on Maui might stage a protest similar to those who used surfboards to block the Superferry at Nawiliwili Harbor on Kauai, Sturtz said that based on what he heard during public testimony, “a large number of people indicated that if the government doesn’t respect the rule of law, then why would they expect the citizens, too?”
Maui law enforcement officials said they would plan to cope with potential protests and security at Kahului Harbor.
“We will be meeting with other law enforcement agencies to share what we need to do to make it safe for everybody,” said Randy Awo, Maui branch chief of the state Department of Land and Resources’ Division of Conservation and Resources Enforcement.
Deputy Chief Gary Yabuta said Maui police would be “remiss as a law enforcement agency” if they did not “prepare for any type of incident.”
Awo said Maui law enforcement officials had already planned to address protests when the ferry Alakai returned to Maui on Sept. 8 to return cars to their owners on Maui and Oahu. There were no reported problems or protests then.
Awo said state enforcement officers will respect everyone’s right to protest, but rules also have to be followed.
“We just want it to be safe for everyone,” Awo said.
Gov. Linda Lingle released a statement that she was glad “the Legislature worked cooperatively to preserve this important transportation alternative for the people of Hawaii.”
Hawaii Superferry President and Chief Executive Officer John Garibaldi said ferry officials hope to resume service within the next two weeks, “although there are several operational, regulatory and legal steps that need to be completed.”
State Rep. Mele Carroll was the only Maui member of the House to vote against the bill Wednesday.
Carroll, who represents residents of East Maui, Lanai and Molokai, held steadfast in opposing the convening of a special session and allowing for the Superferry to sail while an environmental study is being done.
“My message today was that it’s obvious there’s overwhelming support for the ferry . . . but I’m saddened by the process that brought it here,” Carroll said.
She said she supported Cardoza’s ruling that the law requires the ferry service be halted until an environmental assessment is completed.
Carroll said a special session should only have been called if public safety were jeopardized, a situation she argued wasn’t the case with the Superferry bill.
“Why are we doing this for one private entity?” she asked. “I think it’ll set bad precedent.”
Even though the Legislature set conditions for the ferry to operate, Carroll said she believes the state Department of Transportation should be required to adhere to the law requiring an environmental study and that the ferry service should remain halted until the work is done.
State Rep. Joe Bertram III of Kihei said he had planned to oppose the ferry bill, but changed his mind Wednesday and voted “yes” with reservations.
Bertram said he was encouraged by fellow lawmakers who made a commitment to put more teeth into Hawaii’s environmental laws and to support appropriations for more state conservation enforcement officers.
He said many of his colleagues agreed that environmental assessments basically result in “just a list of problems and possible mitigation. But it really doesn’t do anything more. It’s a false front.”
State Rep. Angus McKelvey of West Maui said he agreed “100 percent” with Bertram and also voted “yes” with reservations.
He pointed out the new legislation “is actually stronger than an environmental impact statement,” which he called “simply a disclosure document.” The House bill passed Wednesday requires the ferry to take actions to mitigate any negative impacts to the environment.
McKelvey said he also voted in favor of the bill in part because of the limited transportation options to his constituents in West Maui. He said the ferry could provide service in a crisis in which his district might get cut off from the rest of the island.
State Rep. Joe Souki of Wailuku, who has long supported the ferry as an alternative means of transportation, said he was willing to review the state’s environmental laws and consider making them stronger to address issues and concerns such as the ones brought up by Maui groups opposing the Hawaii Superferry.
Souki said he believed his vote in favor of the Superferry represented Maui’s majority position. He said he received about 6,000 e-mails on the issue, with approximately 95 percent indicating support for the Superferry.
Souki predicted the costs of flying interisland will rise for consumers following Tuesday’s federal court order for Mesa Air Group, the operator of go! airlines, to pay $80 million to Hawaiian Airlines.
“You know what’s going to happen to airfares, it’s going to go up,” Souki said.
He said the vote to support the Superferry operations became even more crucial given the legal disputes with the interisland airlines.
McKelvey said a constituent brought to his attention that interisland airfare prices have been fluctuating during the debate on the ferry bill, proving that the ferry has an effect on costs of air travel between islands.
McKelvey also pointed out that there’s still more work to be done by the governor and the task force charged with coming up with conditions on the ferry.
“It’s not a guarantee. All we’re giving them is an opportunity to try to make them successful,” McKelvey said.
State Rep. Kyle Yamashita, who represents constituents in Upcountry Maui, said most of the people he visited in his district also supported the Superferry and the alternative means of transportation it provides for interisland travel.
He said the controversy surrounding the ferry bill emphasized the need for all residents to take responsibility for the island’s pristine environment by doing things such as washing their cars so as to avoid transporting invasive species between the islands.
He said officials from the state Department of Agriculture pointed out that invasive species can be spread through means other than the ferry.
“It’s really a bigger issue than just the ferry,” Yamashita said.
Dick Mayer, a retired Maui Community College professor, attended more than a month of hearings in Cardoza’s courtroom on the ferry dispute and lobbied local legislators during the special session.
“I don’t think it’s over yet,” Mayer said, pointing out that the Superferry will still need to get a court decision to lift Cardoza’s ruling.
“I was very disappointed the Legislature did not impose stronger minimum conditions to support the environment,” Mayer said.
Leslie Kuloloio, a Native Hawaiian leader who testified for the Maui groups opposing the ferry, said the weight of protecting the island’s natural resources now falls on the state’s lawmakers, given their vote in favor of the ferry.
“It could change our way of life and we need to protect our natural resources,” he said. “I pray we can go forward.”
Support for the Legislature’s action came from Maui Chamber of Commerce President Pamela Tumpap, who said Maui’s business community was “very excited and thrilled” that the Superferry bill was approved by the Legislature.
“It’s really another avenue of commerce for Maui business,” she said. “We’ve had great support throughout our membership to see Superferry operate while an environmental impact statement is conducted. We have advocated so businesses can benefit from this transportation option, which opens up new markets and provides cost-saving options to them.”
Tumpap said Maui’s business community “understands and recognizes there are environmental concerns and supports measures to protect the environment.
“We wanted to see reasonable regulation uniformly applied so that we can continue to allow the Superferry to operate and still address the environmental concerns,” she said.
Mayor Charmaine Tavares, who was traveling, issued a statement saying, “It’s unfortunate that the concerns of the Neighbor Islands did not carry enough weight to sway the state Legislature.
“We fully expect the Superferry organization to live up to its promises and to give full attention to the environmental and logistical issues that will affect our community.
“Not only is this an important issue because of the impact to our island, but it is also essential that our community demonstrates to our youth how we protect and advocate for its interests and still be able to be civil and respectful about differing positions. Many of the sharp reactions we’ve been seeing are born out of deep frustration, but we can help each other maintain civility.”
Staff Writers Brian Perry, Claudine San Nicolas and Melissa Tanji contributed to this report.