Post by ferryfast admin on Sept 12, 2007 13:25:12 GMT -5
Ferry remains at legal anchor
By HARRY EAGAR, Staff Writer
www.mauinews.com/story.aspx?id=34013
WAILUKU – Second Circuit Judge Joseph Cardoza on Monday extended until 2 p.m. today (Sept. 11th) the temporary restraining order keeping the Hawaii Superferry away from Maui.
And he indicated he would extend the order day by day during evidentiary hearings, which are scheduled to last all week. The hearings will determine if the Superferry will be allowed to be operated between Maui and Honolulu while a Hawaii Supreme Court-ordered environmental assessment is prepared.
The evidentiary hearings got off to a slow start Monday.
Marine biologist Hannah Bernard testified as an expert witness for the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition. Her testimony took about five hours, interrupted over and over by objections about her qualifications and the way attorney Isaac Hall, representing the plaintiffs defending the temporary restraining order, asked his questions.
Bernard said the maximum safe speed for a ferry in Hawaiian waters would be 10 knots, or about 11 mph.
Hawaii Superferry’s Alakai normally would operate at 40 knots, although only 25 knots in whale waters during the winter whale season.
“It’s not good enough,” said Bernard, who founded the Hawaii Wildlife Fund and has worked on whale-watching boats for the National Marine Fisheries Service and in other roles specializing in protection of marine mammals in Hawaii.
There are 28 marine mammals in the state, all protected and several endangered, including the humpback whale, sperm whale and Hawaiian monk seal. Bernard also testified about the critically endangered hawksbill and leatherback turtles.
She said it is her opinion that it is “very likely” that if the Superferry were allowed to operate during the several months to a year that it would take to complete an environmental assessment, at least one endangered species will be injured.
On cross-examination, lawyers Bruce Lamon, representing Hawaii Superferry, and Deputy Attorney General William Wynhoff, representing the state Department of Transportation’s Harbors Division, asked Bernard to quantify the danger, which she said she could not do.
She repeatedly said that documented cases of vessel-whale collisions are underreported.
In one exchange between Wynhoff and Bernard, the state attorney said: “I think that, as far as I know, virtually every ship in Hawaiian waters is going to go more than 10 knots.”
Wynhoff said the ferry would go fast in “areas in which there are typically not whales at all.”
But Bernard said the whales are found throughout the islands.
“They don’t just go to one spot,” she said. “They sort of come all around the islands. . . . There’s no fences out there. There’s no barricades.”
Superferry officials have said lookouts would watch for whales and that the vessel would alter its routes and slow down during peak whale season.
Bernard cited about half a dozen research publications in support of her opinions, but Hall was unable to get them admitted as evidence.
Wynhoff and Lamon objected that the reports were hearsay, since Bernard had not had a part in producing them. She could refer to them, they agreed, but the whole reports could not be entered into the record unless Bernard were to read them in.
The stack was about 6 inches high, and the length of the evidentiary hearings was already an issue on their second day.
On Friday, Hall had argued that there was no need to take evidence. The Hawaii Supreme Court ruling was enough, he said. The environmental assessment must be done, and state law says the activity under review must cease until it is, Hall argued.
Superferry lawyer Lisa Munger had argued that the high court’s finding is only the first part of a three-part legal test. Evidence on harm must be heard, she said.
On Monday, Hall again tried to get Cardoza to make the injunction permanent until the environmental assessment is done. Cardoza, without commenting further on the issue of balancing interests, said taking evidence is “appropriate” and will continue.
Hall then tried to get the restraining order extended until the conclusion of the trial and the judge’s decision. Wynhoff objected that with Hall’s lengthy witness list, that could amount to a decision “by filibuster.”
Cardoza said he would extend the temporary restraining order each day for another day, unless it did look like the plaintiffs were trying to delay the ferry by extending the court hearings. In that case, he said, he would listen to arguments from the state or Superferry attorneys.
How much it costs Hawaii Superferry each day the boat sits idle is uncertain, but the company has 300 employees – about 25 attended Monday’s trial – and payments coming due on its $95 million loan.
Since part of the argument that the Superferry needs to have an environmental assessment, when other vessels have not, depends on it operating like no other vessel in Hawaii, Bernard had to use studies from other places to support her opinion.
The Canary Islands are the test case. Superferry managers often have cited the record of fast ferries in that Atlantic archipelago as evidence that ferries can coexist with whales – sperm whales in the Canaries.
Superferry opponents also cite the Canary experience. Bernard tried several times to speak about a human fatality during a Canary boat-whale collision, but objections kept striking that from the record.
The crux of Bernard’s testimony came down to speed.
She cited policy in Glacier Bay National Park in Alaska, where the speed limit is 13 knots and 10 knots in special areas.
Wynhoff asked her to look at one of the papers in her packet of unaccepted evidence. Didn’t it show, he asked, that the most strikes occurred between 10 and 12 knots?
Yes, said Bernard, but the graph is not linear. Below 10 knots, there are almost no collisions. “It’s amazing,” she said.
As speed increases, collisions rise, then fall; but the chance of serious or fatal injuries keeps rising.
Wynhoff said it might “sound callous,” but didn’t the figures show that by the time the collision speed reached 17 knots, 90 percent of whales were injured seriously or killed.
Wouldn’t it be the case, he asked, that higher speeds would not result in many additional deaths.
Yes, said Bernard, but the goal is zero collisions.
Hall asked about incidental take permits. Bernard explained that applications are available for an exemption from the National Marine Fisheries Service if you anticipate that your activity (say, fishing) might occasionally result in the death of a whale.
“So if the Hawaii Superferry wanted to kill a whale, it could apply for a permit?” Hall asked.
Yes, said Bernard.
But if Superferry didn’t apply for an incidental take permit (it never has), then if it did kill a whale, that would be illegal?
Yes, said Bernard.
The evidentiary hearing is to resume at 10 a.m. today. The next witness is expected to be Don Reeser, former superintendent of Haleakala National Park.
Harry Eagar can be reached at heagar@mauinews.com.
By HARRY EAGAR, Staff Writer
www.mauinews.com/story.aspx?id=34013
WAILUKU – Second Circuit Judge Joseph Cardoza on Monday extended until 2 p.m. today (Sept. 11th) the temporary restraining order keeping the Hawaii Superferry away from Maui.
And he indicated he would extend the order day by day during evidentiary hearings, which are scheduled to last all week. The hearings will determine if the Superferry will be allowed to be operated between Maui and Honolulu while a Hawaii Supreme Court-ordered environmental assessment is prepared.
The evidentiary hearings got off to a slow start Monday.
Marine biologist Hannah Bernard testified as an expert witness for the Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition. Her testimony took about five hours, interrupted over and over by objections about her qualifications and the way attorney Isaac Hall, representing the plaintiffs defending the temporary restraining order, asked his questions.
Bernard said the maximum safe speed for a ferry in Hawaiian waters would be 10 knots, or about 11 mph.
Hawaii Superferry’s Alakai normally would operate at 40 knots, although only 25 knots in whale waters during the winter whale season.
“It’s not good enough,” said Bernard, who founded the Hawaii Wildlife Fund and has worked on whale-watching boats for the National Marine Fisheries Service and in other roles specializing in protection of marine mammals in Hawaii.
There are 28 marine mammals in the state, all protected and several endangered, including the humpback whale, sperm whale and Hawaiian monk seal. Bernard also testified about the critically endangered hawksbill and leatherback turtles.
She said it is her opinion that it is “very likely” that if the Superferry were allowed to operate during the several months to a year that it would take to complete an environmental assessment, at least one endangered species will be injured.
On cross-examination, lawyers Bruce Lamon, representing Hawaii Superferry, and Deputy Attorney General William Wynhoff, representing the state Department of Transportation’s Harbors Division, asked Bernard to quantify the danger, which she said she could not do.
She repeatedly said that documented cases of vessel-whale collisions are underreported.
In one exchange between Wynhoff and Bernard, the state attorney said: “I think that, as far as I know, virtually every ship in Hawaiian waters is going to go more than 10 knots.”
Wynhoff said the ferry would go fast in “areas in which there are typically not whales at all.”
But Bernard said the whales are found throughout the islands.
“They don’t just go to one spot,” she said. “They sort of come all around the islands. . . . There’s no fences out there. There’s no barricades.”
Superferry officials have said lookouts would watch for whales and that the vessel would alter its routes and slow down during peak whale season.
Bernard cited about half a dozen research publications in support of her opinions, but Hall was unable to get them admitted as evidence.
Wynhoff and Lamon objected that the reports were hearsay, since Bernard had not had a part in producing them. She could refer to them, they agreed, but the whole reports could not be entered into the record unless Bernard were to read them in.
The stack was about 6 inches high, and the length of the evidentiary hearings was already an issue on their second day.
On Friday, Hall had argued that there was no need to take evidence. The Hawaii Supreme Court ruling was enough, he said. The environmental assessment must be done, and state law says the activity under review must cease until it is, Hall argued.
Superferry lawyer Lisa Munger had argued that the high court’s finding is only the first part of a three-part legal test. Evidence on harm must be heard, she said.
On Monday, Hall again tried to get Cardoza to make the injunction permanent until the environmental assessment is done. Cardoza, without commenting further on the issue of balancing interests, said taking evidence is “appropriate” and will continue.
Hall then tried to get the restraining order extended until the conclusion of the trial and the judge’s decision. Wynhoff objected that with Hall’s lengthy witness list, that could amount to a decision “by filibuster.”
Cardoza said he would extend the temporary restraining order each day for another day, unless it did look like the plaintiffs were trying to delay the ferry by extending the court hearings. In that case, he said, he would listen to arguments from the state or Superferry attorneys.
How much it costs Hawaii Superferry each day the boat sits idle is uncertain, but the company has 300 employees – about 25 attended Monday’s trial – and payments coming due on its $95 million loan.
Since part of the argument that the Superferry needs to have an environmental assessment, when other vessels have not, depends on it operating like no other vessel in Hawaii, Bernard had to use studies from other places to support her opinion.
The Canary Islands are the test case. Superferry managers often have cited the record of fast ferries in that Atlantic archipelago as evidence that ferries can coexist with whales – sperm whales in the Canaries.
Superferry opponents also cite the Canary experience. Bernard tried several times to speak about a human fatality during a Canary boat-whale collision, but objections kept striking that from the record.
The crux of Bernard’s testimony came down to speed.
She cited policy in Glacier Bay National Park in Alaska, where the speed limit is 13 knots and 10 knots in special areas.
Wynhoff asked her to look at one of the papers in her packet of unaccepted evidence. Didn’t it show, he asked, that the most strikes occurred between 10 and 12 knots?
Yes, said Bernard, but the graph is not linear. Below 10 knots, there are almost no collisions. “It’s amazing,” she said.
As speed increases, collisions rise, then fall; but the chance of serious or fatal injuries keeps rising.
Wynhoff said it might “sound callous,” but didn’t the figures show that by the time the collision speed reached 17 knots, 90 percent of whales were injured seriously or killed.
Wouldn’t it be the case, he asked, that higher speeds would not result in many additional deaths.
Yes, said Bernard, but the goal is zero collisions.
Hall asked about incidental take permits. Bernard explained that applications are available for an exemption from the National Marine Fisheries Service if you anticipate that your activity (say, fishing) might occasionally result in the death of a whale.
“So if the Hawaii Superferry wanted to kill a whale, it could apply for a permit?” Hall asked.
Yes, said Bernard.
But if Superferry didn’t apply for an incidental take permit (it never has), then if it did kill a whale, that would be illegal?
Yes, said Bernard.
The evidentiary hearing is to resume at 10 a.m. today. The next witness is expected to be Don Reeser, former superintendent of Haleakala National Park.
Harry Eagar can be reached at heagar@mauinews.com.