Kauai judge removes tether on Superferry

Protesters vow to thwart any return to Nawiliwili Harbor

STORY SUMMARY »

LIHUE » A Kauai judge has denied a temporary restraining order, clearing the way for the Hawaii Superferry to return to the Garden Island.

Judge Randal Valenciano gave no reason why he denied the request, and a hearing on the motion for a preliminary injunction remains set for Sept. 17.

Lawyers for the state and Superferry officials applauded the decision but gave no indication when the ship would return to the Garden Isle.

Protesters, meanwhile, say they will be on hand if the Superferry tries to return to Nawiliwili Harbor, and they expect any demonstrations to be peaceful.

The Coast Guard recently declared new security procedures. Officials also have said protesters will be arrested if they cross security lines at the harbor.

Meanwhile, a Kauai legislator has asked the state Public Utilities Commission to step in to keep the Superferry from sailing again.

And a Maui judge will hold a hearing next week to determine whether the Superferry will be allowed to sail to Kahului Harbor without an environmental study.

The ship is scheduled to take a court-ordered Honolulu-Kahului round trip today to pick up vehicles stranded after the Superferry was shut down two days into the new service.

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LIHUE » The Hawaii Superferry, reeling from adverse judicial decisions and the wrath of protesters, won a round in court yesterday when a Kauai judge refused to temporarily ban the boat from Nawiliwili Harbor.

A Circuit Court judge denied a motion for a temporary restraining order yesterday, clearing the latest legal hurdle in the Superferry's planned return to service to Kauai. Superferry opponents requested the TRO as the court considers a more stringent ban.

Judge Randal Valenciano gave no reason for denying the TRO request, but set a Sept. 17 hearing date for a motion for preliminary injunction to keep the Superferry from Kauai as long as it does not have an environmental assessment.

For now the Superferry has no legal restrictions keeping it from the Garden Isle, but the state Public Utilities Commission has been asked to look into the issue.

A TRO on Maui is keeping the ship from returning to regular service on that island. But on Kauai it was about 50 protesters in the water and an additional few hundred on shore that kept the Superferry from docking at Nawiliwili Harbor last week.

The Coast Guard and state officials have been working on a plan to get the Superferry into Nawiliwili Harbor safely.

Superferry officials, in a statement, said they are pleased with the Kauai court's decision, but have set no date for their return.

On Aug. 23 the Hawaii Supreme Court ruled the state Department of Transportation erred when it decided that an environmental assessment was not needed for Superferry-related improvements it made to Kahului Harbor. After the ruling, state officials said they plan to conduct the Superferry environmental study for the whole state. A Maui judge will hold a hearing next week on whether the Superferry can run to Maui while the study is being done. The environmental assessment is expected to take up to eight months.

The environmental group the 1000 Friends of Kauai, which was seeking the TRO, wants the Supreme Court ruling to apply to Nawiliwili Harbor as well as Maui.

But lawyers for the state and the Superferry argued that the ruling applies only to Maui, and that Kauai residents had a chance to challenge the state's decision against an environmental study in 2005 but did not do so.

Valenciano had expressed concern with the jurisdictional issue, asking both sides to prepare briefs on the matter. However, his ruling yesterday specifically mentioned the decision did not take into account whether the 1000 Friends missed their 180-day window of opportunity to challenge the decision. The group's lawyer, Dan Hempey, said yesterday that it "appears that 1000 Friends has survived a serious jurisdictional challenge."

Deputy Attorney General William Wynhoff, who is representing the Transportation Department, both on Kauai and Maui, said, "It was appropriate to deal with the issue in front of him," which was the TRO. The jurisdictional issue will be brought up again, Wynhoff added, when he and lawyers for the Superferry file a motion to dismiss the case next week.

The Superferry, however, might have to answer to another state agency.

State Rep. Hermina Morita (D, Hanalei-Kapaa) filed an informal complaint with the PUC against the Superferry, alleging that the Superferry has not met all the requirements when the PUC granted it its certificate of public convenience and necessity. The certificate is needed for any ship to carry passengers in state waters, and was issued in 2004, before the Transportation Department decided not to require an environmental assessment.

According to Morita's complaint, the PUC's authorization had conditions, including one that required the Superferry to comply with the Environmental Impact Statement Law.

Morita asserts that the Superferry is in violation of the PUC's decision because of the Supreme Court's ruling and the decision to do a statewide study. She asked the PUC on Wednesday to suspend or inactivate the certificate until the study is finished.

Maui round trip to retrieve cars expected to go smoothly

Officials reminded the public yesterday that the Hawaii Superferry will go on a court-approved trip to Maui today so passengers can retrieve stranded vehicles on Maui and Oahu.

The Alakai was to depart Honolulu at 11 a.m. to arrive in Kahului at 2 p.m. today. The vessel will depart at 3 p.m. and return to Honolulu at 6 p.m.

State and Coast Guard boats were to enforce the 100-yard security zone around the vessel during its departure and arrival.

"We will be monitoring and ensuring that people are aware that they need to stay clear of this vessel during its transit, mooring and operations in Kahului and Honolulu," said Coast Guard Rear Adm. Sally Brice-O'Hara yesterday at a news briefing outside the federal building.

Brice-O'Hara said they talked to members of canoe clubs and other commerce within Kahului Harbor to ensure that the trip is an appropriate time to allow about 60 people to retrieve their vehicles from Maui and a couple of dozen people to bring their vehicles back to the Valley Isle.

"So this is something that is good for the people and has been well coordinated with our partners including the Sierra Club," Brice-O'Hara said.

State Transportation Director Barry Fukunaga said the round trip is expected to run smoothly.

"We don't expect any difficulty. We certainly believe that the people of Maui are understanding with the fact that this is a court-monitored activity, and they are working through the legal system to get resolution on this matter," Fukunaga said.

Members of the Sierra Club-Hawaii Chapter supported the trip. "From our end this is something that we are, in essence, giving our blessing to, and it's something that we asked the courts to (do) and the plaintiffs and defense agreed to," said Jeff Mikulina, director of the chapter.