For the second time in two years, Hawaii Supreme Court justices hold the fate of the Superferry in their hands, as they consider whether the state allowed the ship's operators to skirt environmental laws.

    Superferry Back In State Supreme Court

   

 

  The State Supreme Court heard legal arguments that could scuttle the Hawaii Superferry again. 12/18/08

 

 

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Three Maui groups are challenging a state law that essentially negated an earlier state Supreme Court decision and allowed the interisland service to resume operations. The justices heard arguments from the plaintiffs and the state yesterday.

Isaac Hall, an attorney for the Sierra Club, Maui Tomorrow Inc. and the Kahului Harbor Coalition, argued that the law, known as Act 2, is unconstitutional because it is “;special legislation”; that benefits only the Superferry.

First Deputy Attorney General Lisa Ginoza argued that the law should be upheld because the Legislature weighed the pros and cons and passed Act 2, which applies to any “;large-capacity ferry vessels”; for the benefit of all people in Hawaii.

But under questioning by Associate Justice Simeon Acoba, Ginoza acknowledged that there's no evidence that Act 2 applies to any other entity.

At the end of the hearing, Chief Justice Ronald Moon said the five-member panel will consider the case, but he did not indicate when the justices would issue a decision.

The ruling could affect whether the Superferry can continue its interisland operations, with daily service between Honolulu Harbor and Kahului Harbor on Maui.

Act 2 permits the Superferry to sail while the state conducts an environmental review of its operations.

In late August 2007, the Supreme Court ruled that the state had to comply with Hawaii laws by forcing the Superferry's operators to conduct an environmental review before the vessel could use state harbor facilities. The 2007 ruling shut down the fledgling Maui service after a few days of service.

In a special legislative session in October 2007, state lawmakers passed Act 2, which allowed the Superferry to resume service while the environmental study was conducted. The Superferry Alakai restarted operations last December.

The central issue before the court now is whether Act 2 applies only to the Superferry, in violation of the Constitution, which requires legislation to apply generally to the public and not for the benefit of a single business.

The state is not conceding that the law pertains specifically to the Superferry. But Hall argued that Act 2 was tailored for the interisland ferry, despite language saying it applies to “;large-capacity ferry vessels.”;

“;Is there any entity that would fit that description except for Superferry?”; Acoba asked Ginoza.

Ginoza replied that there was no evidence before the court of any other entity.

The court also appeared to be wrestling with a 1967 Hawaii Supreme Court decision cited by state attorneys.

The ruling upheld a state law even though it dealt with a specific situation involving the chairman of the Maui board of supervisors, who was re-elected but died before he took office. The law called for a special election to replace him. The high court rejected a challenge that the law was special legislation.

Acoba pointed out that the law also could apply to Kauai and Big Island counties, suggesting the law differed from Act 2.

Ginoza, however, argued that the law was still aimed at replacing the Maui chairman.

“;Even if the Legislature has in mind a particular situation, if there is a proper legislative purpose, a reasonable purpose for that legislation, courts have said that is not an invalid law,”; Ginoza said after the hearing. “;We believe that is what (the 1967 decision) provides.”;

Hall told reporters that if Act 2 is struck down, the Superferry must halt its service until the state starts all over and conducts the environmental review.

He said the current environmental review mandated by Act 2 is not legitimate because it differs from the review mandated by state laws and it is being conducted while the Superferry is operating. An environmental review could take months, if not years, although state officials have suggested it might not take as long as others in the past.

Hall said the state and Superferry should comply with the state environmental laws.

“;That's the problem with special legislation when you say everybody else in the whole state of Hawaii has to comply with (state environmental laws), but not Superferry,”; he said.

The hearing came a day after state legislative Auditor Marion Higa issued a critical report that said Act 2 was aimed at helping only one company and it compromised state environmental laws. The report, however, was not in the court record.

The justices who heard yesterday's arguments are the same ones who issued the unanimous decision in August 2007 halting Superferry operations, except for Associate Justice Steven Levinson, who stepped down from the case because he is retiring Dec. 31. He was replaced in the latest case by Circuit Judge Michael Town.