Claiming that Hawaii Superferry profits do not trump federally mandated environmental requirements, attorneys filed an opening brief in the Intermediate Court of Appeals this week. Attorneys argued in the brief that Kaua’i should enjoy the same constitutional protections afforded to
Claiming that Hawaii Superferry profits do not trump federally mandated environmental requirements, attorneys filed an opening brief in the Intermediate Court of Appeals this week.
Attorneys argued in the brief that Kaua’i should enjoy the same constitutional protections afforded to everyone else in the state.
Dan Hempey and Greg Meyers, attorneys for 1,000 Friends of Kaua‘i, filed the appeal of two September 2007 rulings greenlighting the Hawaii Superferry despite its lacking an Environmental Assessment.
Hawaii Superferry had claimed it would face financial strain if forced to stop operations while completing the EA.
The appeal was in response to 5th Judicial Circuit Judge Randal Valenciano’s ruling against allowing 1,000 Friends of Kaua‘i — a local activist group — to use presumptions of irreparable harm in their arguments against the Hawaii Superferry’s operation to and from Kaua‘i without an EA.
The appeal also was in response to Valenciano’s Sept. 6, 2007, denial of a temporary restraining order against the Hawaii Superferry, which the judge based on a 120-day statute of limitations. The group 1,000 Friends and Superferry disagree as to what triggered the 120 day rule for the EA.
The group 1,000 Friends argued over which date they believed would have triggered the four-month clock, with Valenciano ruling in favor of the state’s suggestion it was Feb. 23, 2005, the day DOT exempted the harbor improvements from an EA.
In 2005 the Department of Transportation individually exempted the improvements to each of the four harbors that would receive the Superferry, stating that the individual harbor improvements would have no significant impact on the environment.
On Aug. 31, 2007, the Hawai‘i Supreme Court ruled that (environmental regulations) “keep applicants or agencies from escaping full environmental review by pursuing projects in a piecemeal fashion.”
The 1,000 Friends of Kaua‘i brief states that “the court should protect the public and enforce (the Hawaiian Environmental Protection Act), even against violators who can show that they cleverly approved a statewide project in severable subparts, or who may lose a lot of money if the environmental laws are applied to them.”
Hempey and Meyers argued to the Intermediate Court of Appeals that the harbor improvement exemption was invalid and therefore there was no trigger date, but also said if there were a trigger date, it would have been Aug. 26.
That was the date the Superferry arrived in Nawiliwili Harbor, the same day in which, according to witness testimony, an endangered monk seal and turtles were spotted in the area, court documents state.
“The DOT, however, allowed the Alakai to dock at the state-owned harbor — without first completing the environmental assessment ordered by the Supreme Court days earlier,” according to the brief.
The Supreme Court ruling they were alluding to was an Aug. 23, 2007, decision in which the high court reversed the July 12, 2005, Maui Circuit Court judgment in favor of the Sierra Club and its request of an EA.
That ruling, Hempey and Meyers also argued, should have meant the county of Kaua‘i is similarly protected.
“I don’t think this court wants a situation where every person in the state who want(s) to be protected by an environmental law has to go file their own lawsuit to claim that protection,” Meyers said during the TRO hearing.
The opening brief also claims the Kahana Sunset case, in which the Supreme Court found that multiple actions filed on the same issue were a “redundant waste of judicial resources,” was precedent setting.
Claiming that ruling in favor of the environment on Maui but not on Kaua‘i presents an inequity throughout the state, Hempey and Meyers wrote, “Citizens of Maui were protected from the Superferry, while citizens of Kaua‘i could not enjoin the Superferry, despite the statewide HEPA violation.”
The brief continues, “requiring citizens from each of the different circuits in the state to file suit within the 120 days of agency action — lest statewide environmental protections only being provided to citizens in those circuits in which suit is filed — would undermine the very purpose of HEPA.”
Though the Lingle administration has claimed it was surprised by the Hawaii Supreme Court ruling for an EA in the Maui case, Hempey said, “the fact the DOT wrote four separate letters to exempt four harbors back in 2005 suggests that they were trying to circumvent environmental law all along.”
No timeline for a ruling has been set by the court.
• Amanda C. Gregg, assistant editor/staff writer, can be reached at 245-3681 (ext. 252) or agregg@kauaipubcocom
