Showing posts with label closed class of one. Show all posts
Showing posts with label closed class of one. Show all posts

Thursday, April 16, 2009

Motion for Reconsideration: Act 2's "Large Capacity Ferry Vessel" is in fact an illusory closed class of one in context

Well, the thing looks rehashed, rushed and hastily written. Of lesser importance they misspell Bulgo as Bugo on page 8.

But of mention here. On page 11 they try to contest that "large capacity ferry vessel" under Act 2 is not an illusory closed class of one. They say "there are already dozens of large capacity ferry vessels that have been built, acquired, and put into active service worldwide."

On pages 19-20 in Footnote 4 they list a number of foreign ferries that transport at least 500 hundred people and 200 cars, but none of them would be legally allowed to operate between 2 U.S. ports. None of the ferry vessels they list in their Motion for Reconsideration of Act 2 would qualify as an Act 2 large capacity ferry vessel to operate in the U.S. other than the two intended ferry vessels under the one company covered here.

I'll state it again, there are 3 ferry vessels owned by the State of Washington that would qualify, but none of them are available for redeployment to Hawaii and they are not open ocean designs anyway. In fact, Act 2 should have referenced general classes of Coast Guard approved open ocean ferry designs. The Cat ferry vessel operating between Maine and Nova Scotia was made outside the U.S. and so cannot operate between 2 Hawaiian ports. That only leaves 2 large capacity ferry vessels able to operate in Hawaii during the life of Act 2, the Alakai and Huakai. Of these five vessels listed here, all of them took 2 years or more to build. If a new vessel had been started to be built as soon as Act 2 was passed, the new vessel would not have been finished in time before Act 2 would have sunset. "Large capacity ferry vessel" is in fact an illusory closed class of one and a part of special legislation that attempted to unconstitutionally reauthorize the funding and use of improvements to state land.

Imua! Hawaii Supreme Court!


Atty. Charley Foster of Kaua'i put the following links up to the Motion for Reconsideration and the Legislative leadership's amicus brief to that:

Thursday, April 16, 2009


...Motion for Reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy. For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow)...

The Senate Majority Caucus Tweeted:

Hawaii State Legislature today (4/16) filed an Amicus brief in the Superferry Reconsideration. Here's the brief http://tinyurl.com/cftoef

Tuesday, March 31, 2009

Best of this Blog

When I think back on it, I think this post was the best out of almost 500 that I did on this blog.

The post seems simple enough, but after searching the U.S. DOT database on all ferries in the U.S. and finding, "102 can transport at least 500 people at a time." I then had to Google every single one of those 102 ferries to find the ones that could transport at least 200 vehicles. It took many hours to determine, "Of those 102 ferries, only 5 operating in the U.S. can also transport at least 200 vehicles."

It was a useful effort, though, because it gave me a unique look into the total ferry operating environment in the whole U.S. Plus it nailed down the "closed class of one," which no one else had done publicly up to that point in time.

Hawaii DOT officials would do well to understand the whole ferry industry such as this in determining what should actually be studied in the new Chapter 343 EIS and what is realistic for Hawaii. Hulls A615 and A616 are not realistic for Hawaii as commercial concession vessels.

It sure would have been nice to have been paid as well as Belt Collins was to do this better work than what they have done on the subject matter.

Aloha, Brad

Wednesday, March 18, 2009

Blast from the past...

One of my first posts on this blog and what inspired this whole research project:

Monday, October 1, 2007

Open letter to the Kauai Superferry Protestors


This is an open letter to the Superferry Protestors of Kauai.


What you have done thusfar is outstanding.

A lot of Americans have long sense lost faith in what the will of the people can accomplish, but not you on Kauai.

Linda Lingle, her minions, and the U.S. Coast Guard can do all kinds of things to try and intimidate and misuse the "law."

Ultimately, in America, the law is what the reasonable will of the people say it should be.

On Kauai, you are the people. If a 1000 or more of you show up at Nawiliwili harbor to protest (like you did to the assembly hall when Lingle came to speak to you), and the state or Coast Guard try to actually arrest 1000 of you, then we will see a sea change on this issue.

A 1000 or more people on Kauai IS THE REASONABLE WILL OF THE PEOPLE! What they espouse will become the law. If Lingle tries to contest that, what happened to the Provincial government in British Columbia on this same issue of fast ferries, will happen to Linda Lingle, her party, and any minions she tries to further in the political process.

Mauians can try to work within the court system, but Kauai, you are the REASONABLE WILL OF THE PEOPLE, you are what the law should be.

Aloha, Brad

Also, the best original series of posts from this blog were:

Justices: Please tell us how it is a "closed class of one"



'Public Need' was Never Established as Fact



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



Where are the Act 2 Section 4 Quarterly Reports?



The Rapid Risk Assessment Did Not Adequately Respond to the Requirements of Act 2 Section 4



Act 2: A Closed Class of One (Part 1)



Act 2: A Closed Class of One (Part 2)



Act 2: A Closed Class of One (Part 3)



Act 2: A Closed Class of One (Part 4)



How many people have actually ridden HSF and what's the trend?


And the actual Supreme Court Decision:

ACT 2 STRUCK DOWN AS UNCONSTITUTIONAL


And what another blogger astutely noticed in all of this, with my response on his blog:

GUARD DOG AND YAPPERS


Aloha, Brad

Friday, March 6, 2009

HB 1171...with audio of midnight hearing testimony

The House Finance Committee today at first did not post the new version and committee report of HB 1171 to the Legislative website, but has now. The bill is a different bill now. It is also intentionally incomplete and will require dates being added later. Legislative sausage is exactly what this thing is. Interestingly enough, there are still unconstitutional aspects of Act 2 left intact and even strengthened with this revised bill.

Re: Testimony audio on HB1171. I'll leave it up for [only] about a week because it's a pretty big file to store:

--Larry

For the person who argued Act 2 before the State Supreme Court, this testimony either misrepresented or is shockingly ill-informed on Act 2's content:

The Deputy AG Ginoza misstated herself at least three times in this testimony. One, she started to say that the EIS comment period began on Feb. 23, and that we are in the 45 day comment period, which Formby corrected. Two, she implied that the Governor does not have the authority from Act 2 to add further EO mitigation conditions beyond EO 07-10, when Act 2 actually says that the Governor or Legislature can add further mitigation conditions, even though the Governor has not added anything from the RRA and OTF reports, which she could do at any time. Three, at the end of the tape Ginoza incorrectly said:
1)
"Session ends in mid-July", wrong, Session ends the first week of May, Act 2 sunsets in mid-July.
2) Said "say the EIS is not accepted until August 1st," that cannot happen because Act 2 will have already sunset and if the EIS is not accepted by the sunset in mid-July, then the Act 2 EIS is a moot document.
3) Said "Act 2 contemplates that once the EIS is done, the large capacity ferries can operate," wrong, Act 2 clearly states that the EIS has to be accepted by the OEQC (and not just done) to be legally effective.
4) Said "It doesn't mean that just because the EIS wasn't completed before the end of mid-July that that's the end of the story," wrong, the Act 2 EIS has to be ACCEPTED OR NOT BY OEQC by the mid-July Act 2 sunset date.

In listening again to the audio of this testimony, I find further omissions and misstatements by the Deputy AG. In particular, in referring to Act 2, Section 18, regarding the repeal of Act 2, the Deputy AG verbally leaves out that the repeal is "on the earlier of" 45 days following sine die or acceptance of the final environmental impact statement. This is significant in that Act 2 can sunset before the EIS is completed or accepted, if it's preparers are behind schedule, as they have been for many months now. By the Deputy AG's above 4 point closing statement, she seems to be assuming that the sunset could be "on the latter of" the two requirements.

In listening to the many misstatements in this audio and also thinking back on the arguments before the Supreme Court, I have my doubts as to whether the Deputy AG has actually read and completely assimilated Act 2 in its entirety. This testimony would have been better given by just Formby who clearly has read and assimilated all of Act 2, or AG Bennett who drafted it. I find it interesting that AG Bennett did not formally defend before the SC nor is he testifying on his own work.

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.


I now look for the Supreme Court to wait until mid-May to rule on Act 2. Let all of these shenanigans clear out before they make their ruling.


Aloha, Brad

Thursday, March 5, 2009

Update on SB989 and HB1171...and more

Last reported here, SB989 to extend the sunset date of Act 2 by a year was to be heard by the Hawaii Senate ENE and TIA committees. That was done on Feb. 19, 2009, and the measure was deferred (not acted upon). Believe written testimony helped on that. On Feb. 25th, the measure was re-referred to a combined Senate committee of ENE/TIA/JGO, meaning on a tight schedule nothing was happening on SB989 in the Senate.

Later that same day, Feb. 25th, the companion bill HB1171, was pulled out of the House TRN/EEP, FIN committees (by Speaker Say who has a close connection to HSF) that it had been referred to from the beginning of the session and re-referred the bill to only the FIN committee. TRN/EEP have chairs unsympathetic to the bill.

The hearings on HB1171 were held in the FIN committee on March 3rd and a committee decision was deferred and voted on March 4th, actually the morning of March 5th. The FIN hearing started at 10:00 am on the 4th and lasted until at least 5:00 am on Mar. 5th. The committee had to deal with a lot of bills, this one actually being one of the lesser important ones. After a long night the exhausted Reps passed HB1171 unanimously. There was good written testimony submitted for both the March 3rd and 4th/5th hearings.

Larry Geller has a good report on this all-nighter FIN committee hearing. Makes me think of the image of a sausage factory...sausage factory of laws. Also reminded me of college students cramming overnight because they got behind on their studies in hopes that they will actually retain something good out of the incident. It is amazing that Legislators actually make laws on extreme sleep deprivation. I got nothing against sleep deprivation, but making laws with it?

Anyway, apparently HB1171 can now go to the House floor for a vote and then pass over to the Senate for further consideration. My two letters of testimony on HB1171 are below.

One of the guys on Maui asked for some feedback on an article he is writing. Here was my feedback and it applies to Act 2, SB989, and HB1171, and the arbitrary standard of a "large capacity ferry vessel":

A couple of things I'll point out. After reading a proforma income statement that Dick did on public information from HSF, in the Fall of 2007, I looked at that same information and did some sensitivity analysis varying the number of people, and cars, and fuel price. The results of that were in a series of posts I did on HSF's expected Break Even Analysis. The most significant thing I found is that mainly depending upon the fuel price, HSF's breakeven point is at about half their capacity (for people and vehicles) or higher. But, and this is the key point, HSF needs to be running at half capacity every day, and if they are a true viable going concern, they cannot afford to be down for any more than about 2 weeks a year, if even that. So far they have not been able to do that. If they continue as they have been, they will always be an annual money loser, in the summer only have they made money. Even if they add a second vessel, they will still be a money loser based on the average of less than half capacity and too many down days. This assumes no government service contracts.

The second point is that the reason for the above is HSF's powerplant of 4 diesel engines onboard powering the 4 waterjets. The fuel that these 4 diesel engines burn are the key variable that give HSF less operational/financial flexibility (higher loads needed) to cover their daily costs. When I did the survey of all ferries in the United States that meet the "large capacity ferry vessel" definition, the vast majority of ferries in the U.S. utilize half the engine power or less of HSF. Half the engine power would also mean half the fuel, half the greenhouse gas emissions, slower speed and greater financial flexibility for a commercial ferry. As it stands, per passenger HSF at a minimum burns twice the fuel and puts out twice the emissions of an interisland passenger jet (per passenger). The difference is because of the excessive engine power.

One last point. Invariably HSF will continue to be unviable as I believe in the end even the state and federal government won't be able to pay indefinitely for it's discretionary services. If there is to be a viable interisland ferry service in Hawaii, it would have to be utilizing at least half the engine power of the Alakai, probably not carrying personal use cars, operate at slower speeds, and people would have to be satisfied with a 4+ hour ride rather than a 3 hour ride interisland. There is a reason statewide interisland ferries have been attempted and failed in Hawaii many times in the past (as with Seaflight, et.al.).

Believe the above is too much to properly evaluate for a lawmaker fighting back exhaustion and sleep deprivation, but here were my two letters on HB1171.

Testimony for FIN 3/4/2009 4:15:00 PM HB1171:

Honorable Committee Members:

"Sometimes ya just gotta know when to cut your losses."

Respectfully request no referral for HB 1171 out of committee, no arbitrary extension of Act 2, and no further action on HB 1171.

Do any of you really believe HSF is a viable interisland going concern? Just check out the average loads it's had for the past 6 months. They have been pathetic. At the same time Hawaiian, Go!, and Young Brothers have been doing good steady business over the past 6 months and beyond.

There will be other opportunities for viable interisland ferry service here in Hawaii, but HSF and Act 2 will not be what fosters it.

Respectfully request no referral, no vote out of committee for HB 1171.

Testimony for FIN 3/3/2009 6:00:00 PM HB1171:

Honorable Committee Members:

This proposal to extend the sunset date of Act 2 by a year is not entirely unexpected as it was mentioned in the final report of the Lingle-DOT controlled Oversight Taskforce Committee. But, why are not any of the other recommendations of the OTF Final Report included in this bill for which the Lingle Administration is again lobbying the Legislature?

Consistent with the 'closed class of one' nature of Act 2 and DOT's exclusive operating agreement with HSF, this measure changes the playing field in mid-course to benefit one company to the detriment of any other potential 'large capacity ferry vessel' company, just so DOT can have the convenience of more time to finish the Act 2 'EIS.' Contrary to DOT's testimony, this bill does NOT add to the public's time to comment on the Act 2 'EIS.'

The saga and tangled web that they weave continues to develop. Meanwhile the unfunded expenses of this total project are quickly approaching $10 million dollars overbudget, at the same time that Hawaii schoolkids are asked to do with less in the schools. By the way, where are the rest of the Lingle Administration's budget cut proposals that the Legislature asked of her more than a month ago?

HSF has actually already proven itself unviable and will continue to be so because the vessel's operational design is not properly matched to the distances and conditions between the Hawaiian Islands.

Enough is enough. The Legislature should stop assisting the Lingle Administration with this private concession boondoggle. The Lingle Administration has already been given everything they need for this project to succeed or not on it's own.

We call upon the Representatives to make a statement of righteousness and reject this unnecessary bill HB 1171. We respectfully request that you take no further action on HB 1171.

Aloha, Brad

Wednesday, February 18, 2009

Somehow Missed Senate Bill 989 and House Bill 1171

Did not do a keyword search for 'Act 2.' Thankfully, Chad Blair did:

From: http://triangle.bizjournals.com/triangle/othercities/pacific/stories/2009/02/16/daily40.html

...Two measures moving through the Hawaii Legislature, Senate Bill 989 and House Bill 1171, would amend special legislation approved in 2007 that has allowed Superferry to continue interisland operations.

...The special legislation, called Act 2, will sunset 45 days after the end of the Legislature’s 2009 session on May 7.

SB 989 and HB 1171, part of Gov. Linda Lingle’s legislative package, would extend that deadline until June 2010.

...The comment period on the draft EIS, prepared for the state by Belt Collins, Hawaii, and published Jan. 8, ends Feb. 23.

Once the comments are incorporated, the draft EIS will be submitted to the state Office of Environmental Quality Control between May 25 and June 19, followed by publication of a final EIS by June 30.

SB 989 is tentatively scheduled for a hearing in Senate committee Thursday. HB 1171 has not yet been scheduled...

Additional recent PBN article on related subject matter: Hawaii Superferry, Kamehameha Schools top list of lobbyists

SB989: http://www.capitol.hawaii.gov/session2009/lists/measure_indiv.aspx?billtype=SB&billnumber=989

Atty.Gen. and DOT Testimony on SB989: http://www.capitol.hawaii.gov/session2009/Testimony/SB989_TESTIMONY_ENE_2-12-09.pdf

Here is my Testimony on SB989:

Honorable Committee Members:

This proposal is not entirely unexpected as it was mentioned in the final report of the Lingle-DOT controlled Oversight Taskforce Committee. But, why are not any of the other recommendations of the OTF Final Report included in this bill for which the Lingle Administration is again lobbying the Legislature?

Consistent with the 'closed class of one' nature of Act 2 and DOT's exclusive operating agreement with HSF, this measure changes the playing field in mid-course for the benefit of one company and to the detriment of timing for any other potential 'large capacity ferry vessel' company, just so DOT can have the convenience of more time to finish the Act 2 'EIS.' Contrary to DOT's testimony, this bill does NOT add to the public's time to comment on the Act 2 'EIS.'

The saga and tangled web that they weave continues to develop. Meanwhile the unfunded expenses of this total project are quickly approaching $10 million dollars overbudget, at the same time that Hawaii schoolkids are asked to do with less in the schools.

HSF has actually already proven itself unviable and will continue to be so because the vessel's operational design is not properly matched to the distances and conditions between the Hawaiian Islands.

Enough is enough. The Legislature should stop assisting the Lingle Administration with this private concession boondoggle. The Lingle Administration has already been given everything they need for this project to succeed or not on it's own.

We call upon the Senators to make a statement of righteousness and reject this unnecessary Bill SB 989.

Mahalo,
Brad