High court rules against Superferry

The Maui News
Friday, August 24, 2007

By BRIAN PERRY, Assistant City Editor

HONOLULU – Only hours after hearing oral arguments Thursday, the Hawaii Supreme Court ruled unanimously that the state was wrong to bypass an environmental study for Hawaii Superferry improvements at Kahului Harbor "as a matter of law."

The court's ruling sends the matter back to 2nd Circuit Judge Joseph Cardoza, but it was unclear Thursday night whether that would affect the planned launch of Superferry service Tuesday.

The high court instructed Cardoza to enter a judgment in favor of plaintiffs Sierra Club, Maui Tomorrow Foundation and the Kahului Harbor Coalition on their request for an environmental assessment. Except when there is a finding of no significant impact, an environmental assessment could determine a need for a more detailed environmental impact statement.

The high court also said it will retain jurisdiction to issue a further opinion and judgment on the environmental issue.

Maui environmentalists who've demanded further environmental study on impacts of the Superferry operation were ecstatic with the Supreme Court decision, coupled with a ruling in 2nd Circuit Court mandating further traffic-mitigation measures by the state Department of Transportation.

Their Wailuku attorney, Isaac Hall, said he will seek an injunction to prevent the service from starting.

State law prohibits the ferries from entering into service at island harbors while an environmental study of their potential impacts Ð including increased traffic, conflicts with marine species and potential to transport invasive species Ð is pending, he said.

''The order does not automatically stop or prevent the Superferry from using those facilities, but in our view they're going to be breaking the environmental law if they do,'' Hall said

He said he plans to ask state transportation officials to voluntarily halt the ferry. If they decline, he said, he would seek an injunction from a Maui judge preventing the Superferry from going into service.

State transportation spokesman Scott Ishikawa said Thursday night that the department is withholding comment on the Supreme Court order pending a review of the decision.

Critics of the Superferry were pleased, to say the least.

"I"m thrilled," said Irene Bowie, executive director of Maui Tomorrow. "I'm pleased the justices on the Supreme Court had the wisdom to require an environmental assessment so that all these issues can be looked at before the Superferry goes into operations."

Those issues include concerns that the ferry could cause traffic jams in Central Maui, spread alien invasive species and collide with humpback whales during their winter visits to Hawaiian waters.

In a statement released Thursday night, Hawaii Superferry officials expressed disappointment with the Supreme Court's ruling.

"For more than three years, Hawaii Superferry has met all the requirements of the state Department of Transportation, including provisions pertaining to environmental review," the statement said. "The company complied with, and in many instances, exceeded Hawaii and federal environmental regulations.

"The same careful attention to regulatory compliance and overall responsiveness has been applied to the protection of whales, safety and security issues, community and harbor users, prevention of the spread of invasive species, and traffic management."

Ron Sturtz, president emeritus of Maui Tomorrow, attended the court hearing in Honolulu and said the court's ruling within hours of oral arguments is "unprecedented."

"They see this as such a clear case and as something that requires immediate action," Sturtz said. "On behalf of the people of Maui, I'm pleased.

"We brought this lawsuit because it was clear to us that the Superferry was not complying with environmental laws and doing the proper studies to mitigate damages to harbor users, whales and other marine mammals."

Attorneys for the Superferry and the state told the high court Thursday that members of the public don't have the right to bring lawsuits asking for environmental reviews.

''The state doesn't allow lawsuits by concerned individuals unless they can show harm to them personally rather than the environment in general,'' said Lisa Munger, an attorney for the Superferry, after the hearing. ''The key is, were they harmed by the process?''

The Department of Transportation allowed the high-speed ferry to move forward without the environmental review because officials said it wouldn't be fair to require only the ferry to go through the process without holding other harbor users to the same standard.

The Office of Environmental Quality Control and county governments were consulted before the decision was made, but no public hearings were held.

County councils on Maui, Kauai and the Big Island have passed resolutions calling for environmental studies.

This lawsuit was originally dismissed by Cardoza in July 2005, who ruled that the plaintiffs didn't have standing to challenge the project.

Mayor Charmaine Tavares said she appreciated the court's findings in support of the county's position that an environmental impact statement should be prepared.

"I agree with the Supreme Court ruling and support taking the steps necessary to address the citizens' and the county's concerns," she said. "This new development gives us a chance to assess potential impacts on our island. Moving cautiously is in the best interest of the county, and I am glad the Supreme Court through its actions today affirmed the need for what our citizens and county have sought since the Superferry was first proposed."

Greg Kaufman, chief executive of the Pacific Whale Foundation, said the question of delaying the start of the Superferry operations could have been avoided if the environmental assessment had been done.

"If your trace back to 2005, and had the judge ruled in favor of the environment and ordered an assessment, one would have been undertaken. The way I see it, this is just setting us back to 2005, when the process would have been deferred until an environmental assessment is completed," he said.

"This shows we are not out to obstruct the Superferry but that there are real social, environmental and economic issues that need to be addressed before making a multimillion-dollar commitment."

Maui Sen. J. Kalani English said he thought the court decision vindicated the state Senate, which repeatedly sought to have the Department of Transportation prepare an environmental assessment and EIS if required.

"If you examine the bill we had passed last year, it really pushes the whole point that we need an environmental review. Now the Supreme Court has supported the Senate's position," English said.

"We're not saying stop. We were saying do an environmental impact statement. The department should have done an environmental impact statement before they went through this."

The Senate bill, killed by House Transportation Chairman Joe Souki, would have required an EIS, with the Department of Transportation required to pay for any mitigative measures that the EIS determined would be needed for the Superferry operations.

Sierra Club Maui Chairman Lance Holter said there was a high cost paid by the groups challenging the Transportation Department's decision not to provide even an environmental assessment on harbor upgrades for the Superferry.

"It's really a sad day that the citizens have to force the state to enforce their own laws," he said.

The groups challenging the Department of Transportation decision to exempt environmental studies for the Superferry have paid at least $50,000 in legal fees, he said.

Hawaiian Canoe Club coach Paul Luuwai said he also supported the high court's ruling, although the canoe club itself has taken a neutral position on the Superferry.

"We don't know how the Superferry is going to affect us," said Luuwai, whose paddlers practice in the protected waters of Kahului Harbor.

As a cultural fisherman, Luuwai said he has concerns about competition from fishermen from Oahu and elsewhere for shoreline fishing on Maui. Another unresolved issue is how increased traffic from the Superferry would affect congestion in Kahului.

The canoe club has pledged to cooperate with Young Brothers, the Hawaii Superferry and other harbor users.

"We really want to work with the Superferry and everybody else that uses the harbor to make it work," he said.

The Associated Press contributed to this story. Brian Perry can be reached at bperry@mauinews.com.

Copyright © 2005 The Maui News.

Original article URL: http://www.mauinews.com/news/2007/8/24/02high0824.html

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