Court blasts ferry’s environmental pass

The state was wrong to let the ship skip an impact test, judges say

STORY SUMMARY »

A week after ordering an environmental assessment for the Hawaii Superferry, the Hawaii Supreme Court issued its formal opinion in the case, saying the state was too narrow in its interpretation of the law.

Justices said the exemption from an environmental assessment excluded the public from participating in the process. State Department of Transportation officials have argued that the project was entitled to the exemption because improvements to Kahului Harbor were minor.

The 104-page opinion said the exemption was "erroneously granted" and that the department "considered only the physical improvements to Kahului Harbor in isolation and did not consider the secondary impacts on the environment" that could result from the Superferry.

Environmental groups applauded the opinion. A Transportation Department spokesman said the opinion, which was released yesterday afternoon, was being reviewed.

Meanwhile, authorities continued talks on safety and security plans to allow the Superferry to resume trips to Kauai. Service has been suspended indefinitely because of protesters in the water at Nawiliwili Harbor who have thwarted attempts by the ferry to dock.

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The state Department of Transportation interpreted the law too narrowly in granting an exemption to harbor improvement projects to accommodate the Hawaii Superferry at Kahului Harbor, the Hawaii Supreme Court said.

A formal, 104-page opinion by the court was released yesterday as talks continued between public safety officials on how to allow the Superferry to make trips into Nawiliwili Harbor on Kauai, where protesters in the water have thwarted the vessel's attempts to dock.

The court's opinion gives some insight into its Aug. 23 ruling that ordered the state to conduct an environmental assessment of the project, saying the study should have been done before the project proceeded.

Still to be determined is whether the Superferry can resume operations while the assessment is being conducted.

A temporary restraining order preventing the ferry from servicing Maui is in place until at least Sept. 11, the day arguments are expected to conclude before Maui Circuit Judge Joseph Cardoza on whether a longer-term injunction is needed.

At issue is whether $40 million in harbor improvements should have been subjected to an environmental review before commencing.

The Supreme Court opinion, written by Associate Justice James E. Duffy Jr., noted that in passing the Hawaii Environmental Protection Act of 1974, the Legislature "expressly emphasized" the importance of public participation in projects such as the Superferry.

"Contrary to the expressly stated purpose and intent of HEPA," the opinion states, "the public was prevented from participating in an environmental review process for the Superferry project by DOT's grant of an exemption to requirements of (state law)."

The Transportation Department said it believed that the exemption from an environmental assessment was allowed because the improvements were minor and were simply modifications of existing structures already in place.

State officials also have argued that it is unfair to single out the Superferry for an environmental assessment when other harbor users such as cruse ships and barges are not subjected to the same scrutiny.

The high court disagreed.

"The exemption was erroneously granted," the opinion states, "as DOT considered only the physical improvements to Kahului Harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements."

Transportation Department spokesman Scott Ishikawa said officials were carefully reviewing the 104-page opinion.

Ron Sturtz, a spokesman for Maui Tomorrow, one of the environmental groups that sued to force the environmental study, also reserved comment yesterday afternoon, saying he had not yet had a chance to thoroughly review the opinion.

Jeff Mikulina, director of the Sierra Club Hawaii Chapter, which also is a party in the lawsuit, said the opinion "underscores the need for environmental review in this case."

He said the opinion "does trigger a review for the entire project, and that's what we've been saying all along." However, it will be up to Cardoza to interpret the opinion.

"We believe they need to look at all aspects of Superferry statewide because of the public dollars they spent at Kahului Harbor and the other harbors, for that matter," Mikulina said.

Meanwhile, public safety authorities, Superferry officials and the Coast Guard are continuing talks on safety and security issues related to allowing the ferry to service Kauai through Nawiliwili Harbor.

Although there is no court order specifically banning the Superferry's operations to Kauai, protesters in the water delayed the ferry from docking on its first day of service there and forced it to turn back to Honolulu on its second day.

Superferry officials suspended service indefinitely until the safety and security issues could be ironed out.

"We're still working closely together with those involved and just looking for the safest and most reasonable course of action at this point," Coast Guard spokesman Lt. John Titchen said yesterday. "The Coast Guard, the state and the county will move forward with a safety plan for Nawiliwili Harbor in as timely a manner as we can."

On its Web site the Superferry said it would be suspending operations to Kauai until at least Wednesday.

Kauai Mayor Bryan Baptiste, speaking for the first time on the matter, said the county considered the Superferry to be under the state's jurisdiction.

"Our concern about the matter is the safety of our people," he said through a spokeswoman. "We hope for civility from people on both sides of this issue."

Judge lets ship retrieve riders left on Valley Isle

WAILUKU » Maui Circuit Judge Joseph Cardoza has amended his temporary restraining order to allow the Hawaii Superferry's passengers and their vehicles to return to their home port.

Cardoza said yesterday that the amendment allows the Superferry to make a single stop at Kahului Harbor to pick up passengers and their vehicles who were on the voyages on Aug. 26-27 and return them to their home port.

Cardoza has asked Hawaii Superferry officials to notify him of the voyage 24 hours in advance.

Cardoza issued a temporary restraining order on Monday that barred the Superferry from interisland service at Kahului Harbor but required it to provide return transportation for passengers.

But the order did not mention the return of the passengers' vehicles carried by the Superferry.

The amended order was good news for Steve Gilbert, who has been unable to return to Oahu the same way he went to Maui.

Gilbert, who arrived on Sunday with the Superferry from Oahu, said he was not about to allow his custom-made motorcycle to be parked in a shipping lot and be shipped without him.

He said Cardoza's court order sounds like what he needs to get his motorcycle safely back to Oahu.

"It looks like everything is going to work out," he said.

Superferry spokeswoman Lori Abe said last night that officials with the interisland service had not selected the day for the single trip to Kahului Harbor.