The Act 2 Citations Creating a 'Closed Class of One'

These are ALL of the citations within Act 2 that lend themselves toward creating the "closed class of one" requirement for special legislation. That state lands were used to award special benefits and that public necessity was never established as studied fact in this case complete the legal argument that this was special law and not general law. There are a few additional glaring citations not directly related to "closed class of one" that I have included. I am putting the citations up in order now, and will analyze them, particularly as to timing in a later post, soon.

PART I SECTION 1. (a) ...The legislature also finds that it is clearly in the public interest that a large capacity ferry vessel service should commence as soon as possible...

PART I SECTION 1. ...The legislature also finds that it would be desirable and appropriate for the department of transportation to prepare or contract to prepare an environmental impact statement regarding commercial harbor improvements undertaken to accommodate a large capacity ferry vessel company and its operations...

PART I SECTION 1. ...The legislature further finds that it would be appropriate for:
(1) An oversight task force to study the State's actions regarding the establishment of the operations of any large capacity ferry vessel company as a whole, and the impact of any existing or proposed large capacity ferry vessel operations...

PART I SECTION 1. (b) ...during the period in which any required environmental review and studies, including environmental assessments or environmental impact statements, are prepared, and also following their completion:
(1) A large capacity ferry vessel company and large capacity ferry vessels may operate...

PART I SECTION 1. (b) ...
(2) Agreements with respect to the operations of a large capacity ferry vessel company, including a large capacity ferry vessel company operating agreement, entered into between the State and a large capacity ferry vessel company, may be enforced as written or as executed or re-executed...

PART I SECTION 1. (c)
(1) Due to the unique nature and critical importance of the inter-island ferry service industry to the people of our state, the construction and use of harbor improvements to facilitate this new type of inter-island ferry service is to be governed by this Act, and not by chapter 343, Hawaii Revised Statutes...

PART I SECTION 1. (d) The purpose of this Act is to facilitate the establishment of inter-island ferry service and, at the same time, protect Hawaii's fragile environment by clarifying that neither the preparation of an environmental assessment, nor a finding of no significant impact, nor acceptance of an environmental impact statement shall be a condition precedent to, or otherwise be required prior to:
(1) The operation of a large capacity ferry vessel company pursuant to any certificate of public convenience and necessity approved by the public utilities commission;
(2) The operation of a large capacity ferry vessel company and large capacity ferry vessel between any port or harbor in Hawaii pursuant to any written operating agreement;
(3) The construction, use, or operation of any improvements at Kahului harbor and any other harbor in the state relating to the operation of a large capacity ferry vessel company or large capacity ferry vessel;
(4) The appropriation or expenditure of any funds, the use of state lands, the issuance of any permits, or the entering into of any agreements; or
(5) The taking of any other necessary or appropriate actions for the purpose of facilitating any matter covered by paragraphs (1) to (4)...

PART I SECTION 1. (e) The purpose of this Act is also to amend all relevant existing laws to provide that, while any environmental review and studies, including environmental assessments or environmental impact statements, are prepared and following their completion:
(1) A large capacity ferry vessel company and large capacity ferry vessels may operate;
(2) Agreements with respect to such operation, including the operating agreements, entered into between the State and a large capacity ferry vessel company may be enforced, executed, or re-executed...

PART II SECTION 2. As used in this Act, unless the context otherwise requires:
"Large capacity ferry vessel" means any inter-island ferry vessel that transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state...

PART II SECTION 3. Notwithstanding chapters 205A, 269, 271G, and 343, Hawaii Revised Statutes..., and further notwithstanding that environmental assessments and environmental impact statements have not been prepared or completed, or have been completed and an environmental impact statement is not accepted, is found unacceptable, or a finding of no significant impact has not been made:
(1) A large capacity ferry vessel company shall have the right to operate and the right to utilize Kahului harbor improvements and other improvements and facilities on any island, pursuant to and subject to any and all agreements and contracts with state entities...
(2) All state harbor improvements, projects, and facilities available for or to be utilized by the large capacity ferry vessel company may be completed and utilized for any purpose agreed to and authorized by appropriate state entities;
(3) A large capacity ferry vessel company and the appropriate state entities may proceed pursuant to and subject to all executed tariffs, agreements, and contracts between the company and the state entities, whether the tariffs, agreements, and contracts may have previously been found to be in violation of chapter 343, Hawaii Revised Statutes, or any other law and may re-execute the same, including an operating agreement, in the same general form as previously executed;
(4) The operation of large capacity ferry vessels...is declared to be a required public convenience and necessity;
(5) A certificate of public convenience and necessity issued to a large capacity ferry vessel company shall not be revoked or modified on the basis that environmental assessments or environmental impact statements have not been prepared or completed; and
(6) The construction, use, or operation of any facilities or improvements authorized by any agreement between a large capacity ferry vessel company and a state department, board, commission, or agency shall not be subject to or require any county permits or approvals,
notwithstanding the fact that the non-preparation or non-completion of environmental assessments or environmental impact statements, the lack of acceptance of an environmental impact statement, or the lack of a finding of no significant impact, would otherwise have barred, delayed, been a condition precedent to, or interfered with the same.

PART II SECTION 4. (a) As a condition precedent to the rights conferred by section 3 of this Act, any large capacity ferry vessel company seeking to operate pursuant to this Act shall comply with the following conditions:
...(3) Any other conditions or protocols the governor deems necessary and appropriate...without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law.

PART II SECTION 4. (b) Any large capacity ferry vessel company authorized to operate pursuant to this Act shall execute an agreement with the State, in a form acceptable to the attorney general, by which the large capacity ferry vessel company shall expressly agree to abide by any conditions or protocols established pursuant to this section.

PART II SECTION 4. (c) The governor, by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law, may amend the conditions and protocols established under this section...In addition, the governor, by means of an executive order, and without regard to chapter 91, Hawaii Revised Statutes, or any other provision of law, shall also impose additional conditions and protocols on a large capacity ferry vessel company's inter-island operations to mitigate significant environmental effects that the governor determines, in the governor's judgment, are likely to be caused by such inter-island operations.

PART II SECTION 4. (c) The governor shall also review and determine the efficacy and appropriateness of all conditions or protocols established pursuant to this section and report to the legislature at the end of each fiscal quarter of the State on the efficacy and appropriateness of all conditions or protocols established pursuant to this section and the costs incurred by the State in establishing and maintaining the enforcement activities required under this section.

PART II SECTION 4. (d) The legislature reserves the sole right to:
(1) Review the adequacy of any conditions or protocols imposed or amended by the governor under this Act; and
(2) Impose, by law, any other conditions or protocols it deems necessary and appropriate to further protect the state's environment or communities...

[What about resource depletion and transport on the vessel of reef fish, limu, maile, and mokihana? Not mentioned in the Governor's conditions or protocols.]

PART III SECTION 6. Nothing in this part shall be deemed or construed to impose a condition precedent to any activity authorized under parts I, II, or IV of this Act.

PART III SECTION 8. The department of transportation shall prepare or contract to prepare an environmental impact statement for the improvements made or to be made to commercial harbors throughout the state that require the expenditure of public funds to accommodate the use thereof by a large capacity ferry vessel company and the secondary effects of those operations on the state's environment, including the operation of the large capacity ferry vessel company.

PART III SECTION 10.(a) (4) A project description which shall include the following information...:
...(D) Use of public funds or lands for the action...

PART III SECTION 10.(a) (11) All probable adverse environmental effects which cannot be avoided. Any adverse effects such as water or air pollution, urban congestion, threats to public health, or other consequences adverse to environmental goals and guidelines established by environmental response laws, coastal zone management laws, pollution control and abatement laws, and environmental policy...

PART III SECTION 11.(g) The draft and final statements shall be prepared by the department and submitted to the office. The draft statement shall be made available for public review and comment through the office for a period of forty-five days...The department shall respond in writing to comments received during the review and prepare a final statement.

PART III SECTION 12.(f) A non-accepted statement shall be revised by the department to address the concerns of the office. The revision shall take the form of a revised draft environmental impact statement document which shall fully address the inadequacies of the non-accepted statement and shall completely and thoroughly discuss the changes made. The requirements for filing, distribution, publication of availability for review, acceptance or non-acceptance, and notification and publication of acceptability shall be the same as the requirements prescribed by this part for an environmental impact statement submitted for acceptance. In addition, the revised draft statement shall be evaluated for acceptability on the basis of whether it satisfactorily addresses the findings and reasons for non-acceptance.

PART IV SECTION 13. (a) There is established under the department of transportation, a temporary Hawaii inter-island ferry oversight task force. The department of transportation shall be responsible for administering the work of the temporary Hawaii inter-island ferry oversight task force, providing a facilitator, and submitting reports to the legislature and governor. The goal of the temporary Hawaii inter-island ferry oversight task force shall be to study the State's actions regarding the establishment of the operations of any large capacity ferry vessel company as a whole and to examine the impact, if any, of the operations of any existing or proposed large capacity ferry vessel company...

PART IV SECTION 15. Any previously made appropriation or previously authorized expenditure of funds for any inter-island ferry operations of a large capacity ferry vessel company, or for improvements or operating expenses to accommodate its provision of inter-island ferry service, shall be approved and authorized to the extent they are needed to effectuate the provisions of this Act.
Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this Act.
Any state harbor improvement or state or county facilities previously made or made available to facilitate or support the operation of a large capacity ferry vessel may be used by any large capacity ferry vessel company or any other person to effectuate the provisions of this Act.
Any certificate of public convenience and necessity previously issued to a large capacity ferry vessel company may be used to effectuate the provisions of this Act.
Any tariffs issued for the purpose of facilitating the provision of service by a large capacity ferry vessel may be used to effectuate the provisions of this Act.
Any agreements between the department of transportation or the state and a large capacity ferry vessel company previously entered into for the purpose of facilitating the provision of service by a large capacity ferry vessel may be used to effectuate the provisions of this Act.

PART IV SECTION 18. This Act shall take effect upon its approval; provided that this Act shall be repealed on the earlier of:
(1) The forty-fifth day, excluding Saturdays, Sundays, and holidays, following adjournment sine die of the regular session of 2009; or
(2) Upon acceptance of the final environmental impact statement as provided in this Act;
and
Provided further that:
(1) The final environmental impact statement by the department of transportation that is accepted by the office of environmental quality control under this Act shall be and remain effective for all purposes under the laws of this state, notwithstanding the repeal of this Act; and
(2) Section 16 of this Act shall not be repealed when this Act is repealed.

Next will analyze the above cites with the official documents referenced herein, with available large capacity ferry vessel industry information, and with the logistics of the calendar as to how this can be nothing other than a "closed class of one."

Aloha, Brad