Friday, October 26, 2007

HI Superferry: Possible Legal Courses of Action

INDEX - DEVELOPMENT
http://homepage.mac.com/juanwilson/islandbreath/body.html
SUBJECT: SUPERFERREY PLANNING
SOURCE: ANDY PARX POSTED: 25 OCTOBER 2007 - 7:30pm HST
PNN News Analysis: Making a federal case out of it.
by Andy Parx on 25 October 2007 - Opponents may be making a federal case of the idea the Legislature can just pass a state law to let the Hawai`i Superferry (HSF) sail without an EIS and other permitting.Any law the State could pass during it’s special session would violate no less than four major national environemenal acts. But Harbor’s Chief Mike Formby has failed to even provide any paperwork or evidence of any specific exemptions nor has he claimed any exist. And he has flatly refused to answer any question on the SF and Federal law.There’s an acronymic array of Congressional dictates that Governor Linda Lingle has already violated even before the legislature conspired to outrageously exacerbate the suspension of the rule of law- NEPA, CZMA, MMPA, ESA....Seems the Feds control coastal zones in this country and have quite a system for doing it. It’s called the Coastal Zone Management Act. (CZMA). Exemptions are rare other than for the military and even they must be sponsored by a federal agency and file for an exemption with a written project.The neither the state nor the Superferry have one of these exemptions.Another is the National Environmental Protection Act which requires environmental impact studies too And it can’t be changed by a state law.So how did the state do this?- it seems like a lot of these acts would require states to write their laws to comply. As a matter of fact they do.The CZMA – the trickiest thicket of State convolutions and contortions- has a specific Federal sign- off system for individual state laws which are required to determine the nuts and bolts of regulation and permitting. .Hawai`i State law- HRS 205- dictates a specific process for obtaining Special Management Area (SMA) Permits, to be issued by the counties. Most shoreline activists consider it a great law and, of course it complies with the CZMA.HRS 205 say the counties issue SMA permits. Not unexpectedly, the Kauai Planning Department has confirmed there is no permitting paperwork for the SF and no exemptions are recordedOK, the pea was in the Federal shell and it moved to the state shell which gave it to the county shell. Didja see that?But unbeknownst to all but the most observant gamer, the Legislature changed State’s shell. While no one was looking a piece of legislation called HRS 266-2 hit state law books.That measure gives the state power of “approval” over “county permitting” when it comes to “harbors”.So let’s see- where exactly is that pea? The State takes the Fed’s environmental protection pea and loans it to the county which doesn’t really have it because the state can magically “disappear” the pea without shifting it back to the Feds or actually having it themselves if the Feds were to ask for it backPoof- no matter which shell you pick, guess what? No pea... kinda of like quantum theory. Better luck next time, Wendell.Maybe youze’ll have better luck wit’ that “Red Queen” game down the block on toidy-toid street.The Kaua`i Planning Department will not return any more calls or discuss anything to do with local Superferry permitting matters. The county’s only response to a flurry of calls over a week’s span was “266-2” and the name and email address for Formby. Formby also cites 266-2 and has refused to discuss any federal implications or provide federal exceptions for the state or state exemptions for the counties.It may be that it’s because the CZMA is quite clear- there are few if any exemptions and none for private enterprises or even states. They must be applied for by federal agencies and those agencies even have to go through a similar process including public hearings and other examinations of data.But though the CZMA violations are the most complicated the others are relatively simple. It is unfathomable with all the legal defenses- and all the people who base their opposition to the ferry on misconduct and malfeasance by the HSf and the state- no one has sought a Federal injunction, especially since the state has been found in violation of 343- the law written to comply with the NEPA NEPA? Oh- it’s the National Environmental Policy Act of 1969, http://www.nepa.gov/nepa/regs/nepa/nepaeqia.htm the bible of the EIS and it’s processes It sets out the basic laws states must follow in order comply with Federal law. It says that all state EIS laws are invalid without Federal approval through a detailed review process of state EIS laws.Federal courts have constituently and famously opined that states must follow the Federal standard if a state legislature or court doesn’t follow the NEPA..It’s one of the most likely reasons for the Hawai`i Supreme Count ruling as it did. The state laws they were imposing- HRS 343, 205 and others- were based on federal laws that the State legislature can’t change without Federal approvalThe Marine Mammal Protection Act (MMA) requires those who even plan on approaching marine mammals get permits to do so. To touch one is the same as killing one as far as penalties if you don’t have a permit to “take” them. They don’t even give those to all the scientists that apply.There is no such permit.And the MMA parent law, the Endangered Species Act (ESA), requires an EIS if there are threats to them and also require permission before action.No one in Hawai`i government has provided any evidence of any such application much less permits or actual approval regarding any compliance with the four laws listed here and all those asked have refused to discuss the matter despite repeated PNN attempts to secure them.[Although there is reportedly $10,000 sitting around to pay lawyers in the People for the Preservation of Kaua`i coffers, PKK honcho Rich Hoepner has refused to speak with PNN on this and a number of matters.PNN has not received any communication with any attorney currently involved with the case regarding the possibility of filing a Federal case or obtaining an injunction to prevent the legislature from illegally changing the law, as it plans to do next week according to legislators themselves and all media reports.]HRS 205 http://www.capitol.hawaii.gov/hrscurrent/Vol04_Ch0201-0257/HRS0205/HRS_0205-.htm
HRS 343 http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/hrs0343/hrs_0343-.htm
HRS 266-2 http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0266/HRS_0266-0002.HTM
CZMA http://coastalmanagement.noaa.gov/about/czma.html#section6217
NEPA of 1969 http://www.nepa.gov/nepa/regs/nepa/nepaeqia.htm
MMPA of 1972 http://www.nmfs.noaa.gov/pr/laws/mmpa/
ESA http://www.fws.gov/endangered/policy/index.html#ESA
Hawaii Supreme Court ruling:
http://www.state.hi.us/jud/opinions/sct/2007/27407.htm
Maui Judge Cardoza’s ruling:
View the Order Granting Plaintiffs' Motion to Enforce Judgment Requiring Environmental Assessment by Prohibiting Implementation of Hawaii Superferry Project, for Temporary, Preliminary and/or Permanent Injunction for the case involving The Sierra Club v. The Department of Transportation of the State of Hawai`i (2CC05-1-0114(3))
http://www.courts.state.hi.us/attachment/43C062D78B180B07EBE773EC5C/mauisfruling100907.pdf
NEPA of 1969:(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,(ii) the responsible Federal official furnishes guidance and participates in such preparation,(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.

2 comments:

MauiBrad said...

SUBJECT: KAUAI PLANNING DEPARTMENT
SOURCE: ANDY PARX

POSTED: 6 OCtober 2007 - 5:30pm HST

Superferry skipped SMA permitting process

State, Superferry skipped SMA permitting process for dock facility developments

by Andy Parx on 6 October 2007

Lihu`e (PNN) -- The State DOT- Harbors Division (DOT –H) apparently exempted the Superferry facility from the SMA permitting process, though the law gives them only final “approval” powers, not exclusion from Federal, State and county law.

Via email, Mike Formby, Deputy Director of the DOT-H Friday staked out the State’s right to ”plan, construct, operate, and maintain any commercial harbor facility... without the approval of county agencies” as stated in HRS 266-2(b)

No mention is made in the law regarding exemption from permitting processes

Formby also detailed the scheme under which the State undertook development of the Superferry Harbor Facilities, HRS 266-2(b) notwithstanding

“Under the Operating Agreement with HSF, DOT was unable to provide existing passenger facilities to HSF in the neighbor islands and allowed HSF to construct such facilities which were, by contract, subject to sharing agreements with other users since the facilities were public purpose facilities on non-exclusive use state piers.” Formby wrote. “While the Operating Agreement required HSF to comply with all laws, HSF proceeded with the construction, operation and maintenance of the facilities on state piers on behalf of DOT under HRS 266-2(b), meaning they would not require approval of county agencies.”

The law cited does not allow the state to pre-empt the SMA permitting process and only grants approval authority to the state, not authority over the permitting process. It does not exclude or exempt harbor projects from filing for and obtaining the federally mandated Shoreline Management Area (SMA) permit for the development of the Superferry facility in Nawiliwili Harbor and three other harbors in the state.

To forgo the SMA process entirely- which always includes public hearings and sometimes if obviated things like traffic studies and even environmental cultural and social impact studies- violates provisions of the Federal Coastal Zone Management Act (CZMA) which mandates the state-directed but county-processed SMA permitting processes described in Hawaii’s SMA law (HRS205) and the CZMA.

Although the county is usually the approving agency, the state law apparently could give the DOT-H final “approval” authority over the project, although the processing of the SMA permit is not exempted in any way, only the right to “plan, construct, operate, and maintain” a harbors project.

Neither the State nor the county has asserted that an SMA permit for the development of the Superferry Facility in Nawiliwili exists nor was the process for approval apparently followed.

Mr. Formby declined to answer numerous requests for information regarding compliance with the CZMA and SMA laws. He also declined to call PNN despite repeated requests, choosing to communicate via email.

Federal CZMA law regulates all shoreline development through the county-processed SMA Rules and Regulations document and the state implements it through HRS205.


On the Web:
The coastal Zone Management Act of 1972
http://coastalmanagement.noaa.gov/about/czma.html


HRS 266-2
http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0266/HRS_0266-0002.HTM

Other information:

HRS 2662(b):

(b) Notwithstanding any law or provision to the contrary, the department of transportation is authorized to plan, construct, operate, and maintain any commercial harbor facility in the State, including, but not limited to, the acquisition and use of lands necessary to stockpile dredged spoils, without the approval of county agencies.

Mike Formby’s email:



As the County advised, DOT, under HRS 266-2(b) is "authorized to plan, construct, operate, and maintain any commercial harbor facility in the State...without the approval of county agencies." Under HRS 205A-22, the county planning commission is the "authority" who adopts the guidelines for the review of development proposed in the SMA area. Development includes "construction, reconstruction, demolition, or alteration of the size of any structure." The SMA permitting process is established and adopted by each county.

Under the Operating Agreement with HSF, DOT was unable to provide existing passenger facilities to HSF in the neighbor islands and allowed HSF to construct such facilities which were, by contract, subject to sharing agreements with other users since the facilities were public purpose facilities on non-exclusive use state piers. While the Operating Agreement required HSF to comply with all laws, HSF proceeded with the construction, operation and maintenance of the facilities on state piers on behalf of DOT under HRS 266-2(b), meaning they would not require approval of county agencies.

MauiBrad said...

SUBJECT: KAUAI PLANNING DEPARTMENT
SOURCE: ANDY PARX

POSTED: 29 SEPTEMBER 2007 - 8:30pm HST

No explanation yet for lack of SMA permit

by Andy Parx on 28 September 2007

Lihu`e (PNN) -- The Kauai Planning Department (PD) today could not produce any Shoreline Management Area (SMA) or zoning permits for the Superferry development in Nawiliwili.

Designated SMA planner Mike Lauretta was “away from his desk” all day and refused to return frequent calls.

PNN was able to confirm some information from five PD staff who are not authorized to speak publicly. for the PD.

PNN confirmed that are no exemptions in the local ordinance or official rules and regulation- either Departmental or for SMA- and that Hawai`i Revised Statute (HRS) 205, which governs the SMA, does not exclude anyone from complying .

HRS205 puts the counties in charge of SMA permitting, repeating details in federal law and giving guidelines but leaving nuts and bolts of decision making to the various counties.

The federal Coastal Zone Management (CZM) Act ultimately governs coastal activity has some exclusion areas for military bases and activity but not commercial ventures..

Any SMA permitted development (spending at least $125.000) must go before the Planning Commission which must have a public hearing and provide the public with at least three chances to testify on a request for an “after-the-fact” permit- which is usually a “rubber stamp” on Kaua`i. No such violations have ever prosecuted locally.

Planning Director Ian Costa was off island and unavailable Thursday and Friday and was expected to return a call Monday Deputy Planning Director Imai Aiu did return from off-island late Friday did not reply to a request for comment today.

The Superferry facility at the harbor may also require other zoning as well as Public Works permits such as class IV, building and others.

An informed but as yet unconfirmed report from Maui today said there was no SMA permit on Maui either

SMA projects generally also require a state Conservation District Use permit.