Superferry heading to high court -- again

Legislative leaders want to see the Hawaii Superferry succeed so are poised for a special session

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It looks like the Superferry case is headed back to the Hawaii Supreme Court.

The environmental group Thousand Friends of Kauai has agreed to drop its challenge in Circuit Court, inviting a dismissal that will allow it to take up the matter with the state's high court.

"We always expected this case to end up in the Supreme Court," Thousand Friends lawyer Daniel Hempey said.

"This will save our group time and money."

Meanwhile, in a Maui court yesterday, the state transportation director testified in favor of the stalled Superferry as an alternate means of interisland travel. Barry Fukunaga also said the state has begun reviewing bids for an environmental assessment of Superferry operations. The study would likely take eight months, he said.

Fukunaga appeared before Circuit Judge Joseph Cardoza, who has been hearing testimony on whether the 149-passenger Alakai should be allowed to operate while the assessment is under way.

Once Cardoza rules, state lawmakers say, they will decide whether a special session is necessary to get the Superferry back in business.

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Democratic leaders in the House and Senate say they have a majority willing to do something to keep the Hawaii Superferry sailing.

But House Speaker Calvin Say and Senate President Colleen Hanabusa caution that they will not act until after a Maui court rules on a possible injunction against the ferry.

Hanabusa and Say met with fellow Democrats yesterday and Tuesday at the state Capitol. Although no specific legislation was proposed, both said there was a willingness to come in for a special session to write a law that would allow the ferry to sail while the state complies with the Supreme Court order to complete an environmental assessment.

Earlier this year the Senate passed a bill to allow the Superferry to run while an environmental impact statement was done. The EIS is more detailed than an assessment and could take two years to finish, according to state officials. But it would have given the ferry time to get established and collect fares.

"I don't think there has been any deviation (in the Senate) that the ferry should continue to operate while the EIS is done," Hanabusa (D, Nanakuli-Makua) said yesterday.

Another senator, Suzanne Chun Oakland (D, Kalihi-Liliha), said there is "legislative interest in coming up with a solution."

"My sense is that most would not want to stop the Superferry at this point.

"I think most people in Hawaii were looking forward to this, so I hope they do not go away," Chun Oakland said.

Asked if the House would also come back for a special legislative session, Say (D, St. Louis Heights-Wilhelmina Rise-Palolo Valley) said yes.

"I would say there is a sentiment that wants to see the Superferry sail. I would say it is a pretty good sentiment. I would say probably three-quarters of them," Say said.

House Democrats rejected the Senate's call for an environmental impact statement or assessment earlier this year, and Say noted that the delays are hurting the ferry.

"Is there harm to the Superferry, financial harm? Yes. Is there harm to the environment? I really don't know," Say said.

Say worried that if the ferry is blocked and pulls out of Hawaii, the state will be hurt.

"I think if we lose the Superferry, I think we go back to being a backwater," Say warned.

Others yesterday worried that if the ferry leaves, the result will be both lawsuits and the state responsible for an unusable $40 million in Superferry harbor renovations.

"If the court doesn't rule in favor of the ferry, it triggers all kinds of scenarios," said Sen. Bob Bunda (D, Kaena-Wahiawa-Pupukea).

"The question is, Will the state recoup the $40 million? And the answer is, Probably not," he said.

"What was a good thing could be a real debacle," Bunda added.

Kauai group drops suit, will pursue appeal to high court

LIHUE » Lawyers for the environmental group Thousand Friends of Kauai have agreed not to press their case today for a preliminary injunction to keep the Hawaii Superferry from sailing to the Garden Isle.

The two sides will agree to have the case in Kauai Circuit Court dismissed so the group can appeal a ruling to the state Supreme Court.

Last week, Circuit Judge Randall Valenciano decided that the case could go forward but that Thousand Friends' lawyers could not argue that the Superferry and the state Department of Transportation had violated the Hawaii Environmental Protection Act. Valenciano said the group had failed to meet the deadline under the law to file their case.

The two sides finalized the agreement yesterday, Thousand Friends lawyer Daniel Hempey said.

"We always expected this case to end up in the Supreme Court," Hempey continued. "This will save our group time and money."

Superferry spokeswoman Lori Abe said the company was pleased with the agreement. "Hawaii Superferry does not plan on resuming service to Kauai until the hearings on Maui have concluded and a decision has been rendered."

Transportation chief frets over ferry setback

WAILUKU » Stopping the Hawaii Superferry from serving Kahului Harbor while an environmental assessment is conducted would be a setback to providing an alternate form of travel for the public, state Transportation Director Barry Fukunaga said yesterday.

"I've always felt interisland ferry service could be looked at as an alternative for island travel," testified Fukunaga, who previously served as director of the Harbors Division.

"There was a point in time when air carriers were reducing schedules and increasing fares," said Fukunaga. "The limited passenger conveyance was problematic."

Fukunaga testified before Circuit Judge Joseph Cardoza on an environmentalists' request for an injunction to stop the Superferry until an environmental assessment is finished. In August the Hawaii Supreme Court said the study was needed, and sent the case back to Cardoza, who put a temporary block on the ferry operation to Kahului.

The state Department of Transportation began soliciting bids for an environmental assessment and is reviewing submissions, Fukunaga said.

An environmental assessment would likely take eight months to complete, he said.

Fukunaga was pressed to respond to a question posed by attorney Isaac Hall about environmental review provisions found in the operating agreement between the state Department of Transportation and the Hawaii Superferry.

Hall, who represents the three environmental groups that filed the lawsuit, asked if the state had contemplated whether an environmental review might be required.

Fukunaga called the provision a general clause, saying, "The possibility that an issue might arise was considered." He explained that such provisions are traditionally established to address unknown circumstances and conditions beyond control.

The state is tasked with paying back the $40 million in bonds secured for harbor improvements to accommodate the Superferry.

Nearly all of the funds, or $37.5 million, were used for the construction of ramps and barges for Kahului, Honolulu and Kawaihae. The balance, or $2.5 million, was used for shoreside improvements that included electrical and power mechanisms.

Fukunaga said, "We have an obligation to pay that debt but have not received a bill from the Department of Finance."