Ferry back in court

It is believed a judge will lift his injunction with a new law, but when remains unclear

STORY SUMMARY »

The state administration's job in crafting environmental restrictions on the Hawaii Superferry will determine whether opposing groups agree to lifting a court injunction blocking its operation.

Gov. Linda Lingle says the state expects to go to Maui Circuit Court on Monday seeking to have Judge Joseph Cardoza lift his order barring the ferry from operating until an environmental assessment is completed.

Meanwhile, Lingle says she and her staff will work through the weekend developing the detailed conditions under which the Superferry can sail.

But Ron Sturtz, president emeritus of Maui Tomorrow, one of the environmental groups that sued to block the ferry service, says that if the group does not like the conditions Lingle sets, then it will fight to keep the injunction in place.

"She has an opportunity to make some meaningful mitigation here," Sturtz said in a telephone interview from Maui. "If she does that, then we will have to carefully look at what those are and see if we're going to live with them or not."

Senate President Colleen Hanabusa says she expects environmental groups to challenge the constitutionality of the new bill -- passed by the Legislature in special session this week -- and one legal expert says Cardoza is likely to at least listen to their concerns.

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The state plans to go to Maui Circuit Court on Monday and ask Judge Joseph Cardoza to lift his injunction barring the Hawaii Superferry from sailing while an environmental study is conducted.

Now that lawmakers have approved a measure allowing the ferry to resume operations, Gov. Linda Lingle says it is her goal to work through the weekend to have the bill signed by Monday and have an executive order ready listing the conditions under which the vessel can sail.

While many acknowledge the new law would give Cardoza little choice but to lift the injunction, how long that might take is still up in the air.

"I would assume that the judge would probably lift the injunction," said Senate President Colleen Hanabusa, an attorney. "At the same time, I would also assume that plaintiffs' attorneys are going to challenge the constitutionality of the bill."

Ron Sturtz, president emeritus of Maui Tomorrow, one of the environmental groups that successfully sued to initially stop the ferry, said the group would not automatically oppose the lifting of the injunction.

"I can't say that until I see what the governor does. She has an opportunity to make some meaningful mitigation here," he said by phone from Maui. "If she does that, then we will have to carefully look at what those are and see if we're going to live with them or not."

The group is concerned with protecting whales from injury and preventing the spread of alien species, he said.

"If she in fact does a really good job, we could consider alternatives to litigation," he said.

Rallies on 3 islands protest ferry measure WAILUKU » A protest on three neighbor islands is scheduled to take place tomorrow opposing the special legislation that allows the Hawaii Superferry to operate pending an environmental assessment, Maui Tomorrow Executive Director Irene Bowie said. The protest is scheduled to take place from 1 to 3 p.m. on Kauai, Maui and the Big Island. Bowie said on Maui the protest will take place in front of the state courts building on Main Street in Wailuku. Bowie said participants will speak on themes including respect for the judicial system and against the passage of special-interest laws. Star-Bulletin staff

Jon Van Dyke, an environmental law professor at the William S. Richardson School of Law, said he also expects the environmental groups to attempt to present additional arguments.

"I would expect that he would set up a schedule to have hearings on the situation under the new law, and each side would have a chance to come in and make their arguments," Van Dyke said. "Citizen groups might still have some arguments that they would want to make, and the judge would, I'm sure, be willing to consider."

Cardoza heard four weeks of testimony before ruling Oct. 9 that the Superferry could not sail to Maui until an environmental assessment was completed.

That ruling came after the Supreme Court's August decision that said an assessment should have been performed before the state proceeded with $40 million in harbor improvements to accommodate the ferry service.

The Legislature completed a six-day special session this week to change the law, allowing the service to resume under certain conditions while a more comprehensive environmental impact statement is prepared.

Attorney General Mark Bennett said he will ask the Maui court to rule quickly.

"I'm sure that the judge is going to give the other side a chance to respond to the motion," Bennett said. "But the other side knows the motion is coming, they know what the bill says and they've known for quite some time, so they've had an opportunity to formulate whatever arguments they want to formulate."

Still, both he and Lingle acknowledged that anything is possible.

"The point is, to the judge, your injunction was placed because you believed that the law said this," Lingle said. "Now the law has been changed, and on the basis of this law -- which exempts this operation and allows it specifically to operate while the EIS is being performed -- we will ask him to lift the injunction."