After listening to four weeks of testimony, Maui Circuit Judge Joseph Cardoza yesterday ruled Hawaii Superferry can not sail between Honolulu and Kahului Harbor while the state assesses the inter-island service’s environmental impact. State law, he said, clearly requires the
After listening to four weeks of testimony, Maui Circuit Judge Joseph Cardoza yesterday ruled Hawaii Superferry can not sail between Honolulu and Kahului Harbor while the state assesses the inter-island service’s environmental impact.
State law, he said, clearly requires the acceptance of an environmental review prior to the project going forward.
The decision could sink the embattled business and cost taxpayers millions of dollars in unused harbor improvements and guaranteed loans.
Superferry officials testified during the case that the company could not stay afloat financially if forced to remain idle during the environmental assessment — a process expected to take eight months, possibly years, to complete.
Superferry’s “Alakai,” capable of carrying more than 800 passengers and 250 cars, has sat in Honolulu Harbor since late August after just one successful day of operations. Protesters on Kaua‘i and a restraining order on Maui stopped Superferry from making its daily inter-island trips from O‘ahu.
The Hawai‘i Supreme Court on Aug. 23 ruled the state Transportation Department erred in its decision to exempt Superferry from an environmental assessment, which returned the case to Cardoza’s hands.
Superferry attorneys told the judge they would appeal his decision.
In Cardoza’s ruling from the bench, he underscored the gravity of these “very serious issues” and urged both sides to show respect to their fellow citizens.
“We are all in this together,” he said, adding that everyone is tied to the environment.
Superferry President and CEO John Garibaldi released a public statement soon after the court’s morning decision.
“Obviously, we are disappointed,” he states. “While the ruling is a loss for Hawaii
Superferry and our employees, it is a greater loss for the state of Hawai‘i.”
Attorney Isaac Hall, who represented the three environmental groups in their legal challenge to Superferry operations, argued in court that the $85 million high-speed catamaran would cause “irreparable harm” to the environment.
Witnesses testified the 350-foot vessel would endanger marine life, such as humpback whales, and inflict urban wounds on the rural Neighbor Islands. The speculated increase in crime, for instance, was in evidence soon after Superferry’s first trip to Maui when authorities caught individuals attempting to load their vehicles with volcanic rocks taken from the island and return with them to O‘ahu.
The Sierra Club, Kahului Harbor Coalition and Maui Tomorrow have fought Superferry in court for the past two years.
“We expected the decision,” said Jeff Mikulina, director of the Sierra Club’s Hawai‘i Chapter. “Our law is clear. It requires a review in something that may have significant environmental impact before the operation starts. We appreciate the judge’s proactive decision.”
Before announcing his ruling, Cardoza said state environmental law provides “clear and concise direction on what the court must do.”
The judge cited Hawai‘i Revised Statutes Chapter 343-5, which says “acceptance of a required final statement shall be a condition precedent to implementation of the proposed action.”
The need for an assessment was triggered by Superferry’s use of $40 million in state-funded harbor improvements on public lands.
The Supreme Court decided the Transportation Department wrongly exempted Superferry from the environmental study by not considering secondary impacts.
Gov. Linda Lingle has said she may convene a special legislative session that could pave the way for Superferry to resume operations during the environmental assessment.
The state has budgeted $1 million for the firm Belt Collins Hawaii to conduct the statewide study.
“Our challenge is also making sure the Legislature holds firm to their sustainability views and doesn’t gut our three decades-old environmental review law on behalf of one corporation,” Mikulina said.
Rich Hoeppner, a Kaua‘i activist who has worked through legal avenues and organized protests to stop Superferry, said he was glad Cardoza agreed with what he has been saying all along.
“But if the Legislature throws our HEPA law out the window … everything is lost,” he said. “What’s our state without our environmental law? It’s so fragile. And for one private corporation? Again, that’s total insanity.”
Hoeppner, a retired police officer who now chairs People for the Preservation of Kaua‘i, said Superferry operations affect all the islands.
“What if Waikiki gets infected with fire ants? What if a dead whale gets sliced up and washed on shore there? What would that impact be on tourism?” he said. “Hopefully, legislators will have the good sense to say to the governor, ‘No, no, no.’”
The House Majority Caucus will meet at 4:30 p.m. today at the state capitol to discuss the Maui court ruling. The caucus will also be briefed on a meeting yesterday between Lingle, Senate President Colleen Hanabusa and House Speaker Calvin Say.
The caucus is expected to consider any proposed legislation to allow Superferry to operate while the environmental assessment is being done and whether there is support to come in for a five-day minimum legislative special session.
No decision on a special session will necessarily be made tomorrow, a news release states.
After hundreds of protesters on land and dozens in the water blocked the Alakai from docking at Nawiliwili Harbor on Aug. 27, more than 1,000 residents packed the War Memorial Convention Hall three weeks later to voice their opinions when Lingle and her entourage of key state officials visited the Garden Isle to discuss a new Coast Guard security zone rule.
Elaine Bowes, of Kalaheo, said yesterday that Superferry is a “lightning rod for too much development and people not being heard by government.”
She blamed Superferry officials for “only caring about the bottom line.”
“They have the best attorneys and best accountants,” she said. “If they couldn’t figure out what was going to happen ahead of time, they’re either incredibly bad businessmen or incredibly arrogant.”
Superferry officials declined to discuss the future of the company or field additional questions.
Independent polls conducted last week by SMS Hawaii have shown that the public wants an alternative to flying for inter-island transportation and supports Superferry as that option.
But the polls also show a disparity of opinions among the islands. O‘ahu, where the majority of the state’s population resides, seems to favor the Superferry significantly more than Kaua‘i and Maui.
Cardoza said Superferry represents a “new chapter in the state of Hawai‘i,” but the Alakai’s advanced technology may present advantages and disadvantages.
Superferry officials say their voluntary measures will mitigate negative impacts. A whale avoidance policy and boot scrubber at ports, for instance, will reduce the chances of killing humpback whales and spreading invasive species.
But the Alakai’s controversial cruising speed at 42 mph and uncertain secondary impacts linger.
Should the Superferry leave Hawai‘i, taxpayers would be responsible if the company defaults on loans backed up by a $140 million loan guarantee issued by the U.S. Maritime Administration for vessel construction.
The Maui decision could affect local attorney Dan Hempey’s case on behalf of the environmental group 1,000 Friends of Kaua‘i.
“The fact the judge invalidated the Superferry’s master operating agreement with the (Transportation Department), statewide, should prove very relevant to our case,” he said, but noted the implications of a special session.
“An act of the Legislature could effectively derail our case,” he said. “But we’re confident our elected officials value the environment more than profit.”
