Setback for Superferry

A state Supreme Court ruling has put a cloud over the launch of the interisland service

A Hawaii Supreme Court decision left legal questions swirling last night about the Hawaii Superferry.

While more than 16,000 people have taken a preview tour, environmentalists and Hawaii Superferry officials differ on whether the vessel will be able to start operation Tuesday as planned.

Superferry officials say the ferry will start operation as scheduled, noting they have complied with regulations.

Environmentalists including Maui Tomorrow applauded the Supreme Court's decision to require the state to prepare an environmental assessment for harbor improvements to accommodate the Hawaii Superferry.

They have been critical of the state's role in pushing through the approval process for the Superferry.

Still pending is what Gov. Lingle's administration will do in the face of the court's decision.

Also pending is what Maui Circuit Judge Joseph Cardoza will do in light of the court reversing his decision and his interpretation of the justices' order.

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FL MORRIS / FMORRIS@STARBULLETIN.COM The Hawaii Superferry went for a trial run Tuesday from Koko Head to Waianae. This is the passenger walkway from the terminal to the ferry. A Hawaii Supreme Court ruling yesterday that said an environmental assessment is required for the vessel left critics and supporters debating whether the Superferry can begin service Tuesday as scheduled.

By Gary T. Kubota
gkubota@starbulletin.com

The ruling left critics and supporters debating whether it can begin service Tuesday.

The justices reversed a Maui Circuit Court ruling and ordered the case sent back.

Hawaii Superferry spokeswoman Lori Abe said the business was disappointed by the decision but hopes and intends to serve the people of Hawaii by providing interisland travel and transportation on Tuesday's planned start date.

State transportation spokesman Scott Ishikawa said state officials are withholding comment until they talk with legal counsel.

Maui Tomorrow, one of the groups that won the court appeal, said the ruling means the Superferry cannot start interisland operation as planned.

Isaac Hall, an attorney for the groups that sued the Superferry, 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.

Maui Tomorrow spokesman Ron Sturtz said officials with the Hawaii Superferry were granted a public utilities permit with the understanding that they were in compliance with environmental laws.

"They're not in compliance. ... Under the law, they can't sail -- clear and simple," Sturtz said. "This is now a new ballgame, and we'll know in the next few days how it shapes up."

Maui Tomorrow, the Kahului Harbor Coalition and the Sierra Club appealed a 2005 ruling by Maui Circuit Judge Joseph Cardoza that an environmental assessment was not required for the Hawaii Superferry.

During the oral arguments yesterday morning before the Supreme Court, the state acknowledged that harbor improvements for the Superferry would amount to $40 million, including $10 million for work at Kahului Harbor on Maui.

After the court session, Deputy Attorney General William Wynhoff said the funds were being applied to extending existing facilities, and these kinds of improvement are exempt from the requirement of an environmental study.

Wynhoff said no other ship is being required to do an environmental study, and the Superferry has established an inspection plan for every car and vehicle.

Sturtz said Maui Tomorrow has argued for the past couple of years that an environmental study was required by the state for the Hawaii Superferry.

He said Councils of Maui, the Big Island and Kauai each passed resolutions last year calling for an environmental study for the Superferry.

"Nothing happened. ... What you have is a very frustrated public," he said.

Sturtz said Maui Tomorrow and other plaintiffs such as the Kahului Harbor Coalition and Sierra Club will probably hold discussions with Judge Cardoza to figure out how to implement the Supreme Court's decision.

Sturtz said the rapidity of the decision indicates the justices understand the urgency of the issue and that action should be taken promptly.

Abe said that 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 company complied with and, in many instances, exceeded Hawaii and federal environmental regulations," she said.

She said overwhelming community support for Hawaii Superferry has been reflected by the sold-out community previews of the ship, Alakai, held recently on Maui, Oahu and Kauai.

"More than 16,000 people from around the state have toured the Alakai and shared our excitement for Hawaii Superferry," she said.

Meanwhile, Sturtz and other critics said they are also pleased with a separate court decision by Maui Circuit Judge Joel August to establish benchmark dates requiring the state to lessen traffic problems from the Superferry.

August has ruled that the state 2025 master plan is inadequate so the state should provide "interim remedies," including the re-striping of the intersection near Pier II to accommodate the additional traffic before Tuesday.

The judge also is requiring the state to manually control the traffic lights at the intersection one hour before docking and two hours after docking.

The ruling calls for state officials to provide sufficient parking at Kahului Airport for Superferry customers.

August is requiring the state at a Nov. 8 status session to provide him an assessment of the Superferry traffic flow and the installation of equipment to bring the traffic flow to an acceptable level.

Wynhoff said the state is planning to comply with August's requests.

"We're working as we speak to implement it," Wynhoff said.