Excellent Article in The Maui News on 10/16/08

Quotes from: http://www.mauinews.com/page/content.detail/id/509833.html
"State Supreme Court to hear Superferry appeal;
Legality of state’s environmental exemption key issue"
By EDWIN TANJI, City Editor October 16, 2008

WAILUKU - "Maui leaders who questioned allowing the Hawaii Superferry to operate before an environmental impact statement is completed said Wednesday they are pleased that the Hawaii Supreme Court has agreed to review the issue...

Three Maui state senators who voted against the exemption for the Superferry said they are particularly interested to see how the Supreme Court will rule on the constitutionality of the law approved in a special legislative session in October 2007.

"Shan, Kalani and I felt that the whole process was wrong," said Sen. Roz Baker, who represents the South Maui and West Maui district. "We knew there was great sentiment on Maui that all of the law should have been followed and we felt the Department of Transportation erred in doing it the way it did."

She was joined by Sens. J. Kalani English and Shan Tsutsui in saying that the law approved in a special session after a Maui circuit judge blocked the ferry service appeared to be an exemption for a special interest that violated the constitution.

But when legislators were briefed by the state attorney general last year, Baker said they were told it did not.

The fact that the Supreme Court agreed to hear the case "is a sign that it's a more significant issue that needs to be addressed," English said.

"They are saying it's a major issue that the Supreme Court must decide. It's the right court to give finality to these issues," he said.

Wailuku attorney Isaac Hall, who is representing Maui Tomorrow, the Sierra Club and the Kahului Harbor Coalition in the appeal, said the key issue is whether the special legislation granting an exemption from environmental laws is constitutional.

He noted that the order signed by Chief Justice Ronald Moon grants the transfer to the Supreme Court from the state Intermediate Court of Appeals both on the grounds that the case raises a question of fundamental public importance and because there is a novel legal issue to be addressed.

Hawaii Superferry officials and the state attorney general's office did not respond to requests for comment Wednesday...

"It's interesting, " Hall said. "The order to accept the appeal is signed by him (Chief Justice Moon), but is joined by all of the justices."

The case is to be scheduled for oral arguments, but the timing is not yet known, he said.

For Hall, there is another factor that has strong personal interest. In ruling in favor of the injunction based on the original Supreme Court decision, Cardoza granted attorney's fees and costs to Hall. The state and Hawaii Superferry appealed that order, which is part of the new case going to the Supreme Court...

English said he objected to the legislation for what he sees as a special interest and he appreciates the court's decision to consider the issue.

"Our constitution does prohibit special interest legislation and I think that's going to be one of the main issues," he said.

English said if the Supreme Court were to allow the environmental exemption for a business, "I have a number of programs and projects that I can call by their generic names and ask for approval."

...Bowie was hopeful that the Supreme Court would invalidate the exemption law, which should result in reinstating the injunction until an environmental impact statement is accepted...

One of the factors will be that the Superferry has been operating, which will provide data on issues such as whether passengers are transporting prohibited products and substances. Bowie said a task force required by the exemption law has been conducting risk assessments that she said "show a lot of weaknesses in the inspection system."

...Until the Supreme Court takes up the appeal, the Superferry will also continue to operate, Bowie noted, which will provide more information on the safety of the vessel. When the ferry first began regular operations in December 2007, there were severe difficulties with the docking system in Kahului Harbor from the heavy winter swells and the ferry itself incurred damage that put it into dry dock for two months.

'It's October. The whales are back and the swells are back. It's going to be an interesting time,' she said."


Aloha, Brad