Superferry Update

Words by Lanny Sinkin

For those who do not know, the Mau’i court ruled that Superferry could not operate in Mau’i waters until the State of Hawai’i completed its environmental assessment. At least one judge has now said the law is the law. That is refreshing given the rampant lawlessness and legal erroneousness we have been seeing of late.

The Mau’i ruling can be appealed and Superferry says that they are going to. I guess they like their lawyers because they will be paying for a fruitless appeal.

The Mau’i ruling also does not foreclose Superferry going to Kaua’i.

The tide has turned, however. I think that public perception of Superferry and the Unified Command forcing their way into Kaua’i after the Mau’i ruling would tend to correctly perceive who the law breakers are.

Today I filed an emergency appeal of the Federal Court’s denial of a Temporary Restraining Order against the Coast Guard’s security zone. Given that the Mau’i ruling is going to be appealed and does not apply to Kaua’i, I believe that the Ninth Circuit will still consider the case an emergency appeal. We shall see.

In the meantime, the stalwarts who pursued the litigation resulting in the Mau’i decision are part of the front line that stood its ground; the people jumping into the water on Kaua’i being the latest group to move up.

There was another front opened up today from within the sovereignty movement that I will share with this list shortly.

Congratulations to everyone who managed to get a lasso on the Superferry beast and slow it down enough to show it the way out of Hawai’i.

I think that the basic arguments against a special session and/or special interest legislation for Superferry is:

1. Two and a half years ago, the Marine Mammal Commission and the National Marine Fisheries Service expressed concerns that Superferry was not consulting with federal agencies regarding the potential impacts of Superferry on marine mammals and on endangered species. (Two law suit waiting to be filed, if necessary). Superferry blew off the federal concerns with their standard “We have a plan.” Had Superferry stopped to consider just the marine mammal impacts at that time, the subsequent history might have been different.

2. The story I am told about the Maritime Administration is that Superferry told the Maritime Administration that the State of Hawai’i was not going to require any environmental work to be done regarding Superferry operating in Hawaiian waters.

Skeptical of that story, the Maritime Administration told Superferry that they would have to provide a letter from the State of Hawai’i saying that Superferry did not have to perform any environmental assessment before a final decision on granting the loan guarantees would be made.

Superferry then turned around and told the State of Hawaii Department of Transporation that the Maritime Administration loans depended on the State not requiring an environmental assessment, which is not what the Maritime Administration said at all.

While saying that this information did not influence his decision, the Director of the Department of Transportation essentially confirmed that he understood the Maritime Administration to have made an exemption from preparing an EA a pre-condition on the loan guarantees.

If true, this version of the story would reveal Superferry to have manipulated the process to influence the Department of Transportation to exempt Superferry operations from being subject to a State environmental assessment.

Perhaps someone else knows more about this story.

3. Whether point 2 is true or not, what is true is that Superferry knew in 1975 that there was environmental litigation pending, i.e. the appeal from the Mau’i dismissal. The possibility existed back in 2005 that the Supreme Court would reverse the Mau’i court and find an EA to be required. Superferry chose to take that business risk. Their failure is a garden variety business failure that happens every day when companies are wrong in their risk assessment. Just because Superferry happens to be bigger than most business failures does not mean that they deserve special treatment not given to other businesses who make the wrong decision.

This history argues for the existing situation being in good part Superferry’s kuleana. After evading federal scrutiny of its environmental impacts, despite federal agency notice, and manipulating the state process to evade state requirements, Superferry finally got caught by the coalition that brought the Mau’i suit and the Hawai’i Supreme Court. If true as presented here, then Superferry has no one to blame but Superferry and asking the public to absorb Superferry’s environmental impacts after such a history is completely unfair.

4. The Governor and the Department of Transportation have unclean hands. The Governor and the Director of the Department of Transportation are responsible for the failure to make the correct decision regarding an environmental assessment. Now they want the Legislature to make it alright.

Let us be clear, however, that this legislative approach comes after the Governor tried to illegally use brute force and corrupted the law enforcement agencies at the Federal, State, and local level into joining in a plan that could have resulted in bloodshed in Kaua’i. Now the Governor wants to have a special session to break the rules legally.

Perhaps the Governor should answer a few questions first:

1. Given that the Supreme Court ruling, requiring preparation of an environmental assessment, triggered other portions of the law, such as the section requiring preparation of that assessment before any further operation by Superferry, and given that the Director of the Department of Transportation announced his opinion that Superferry could operate while preparing an environmental assessment, why did the Governor not request an opinion from the Attorney General to clarify the matter, rather than relying on the legal opinion of the Director of Transportation? Because she knew she would not like the Attorney General’s answer?

2. Given that there was at least a true difference of opinion on the legality of Superferry continuing to operate, why did the Governor risk Superferry acting in violation of the law, rather than requesting Superferry to stand down until the law was decided? Why was Superferry’s avoiding bankruptcy more important the her oath to uphold the law?

3. Given that there was at least a true difference of opinion on the legality of Superferry continuing to operate, why did the Governor put the lives of people on Kaua’i at risk to ensure Superferry’s continued operation?

4. Given that the Governor and the Director of Transportation were wrong on the law, does the Governor feel any remorse or urge to apologize to the people whose lives she put at risk?

5. Given that the Governor and the Director of Transportation were wrong on the law, does the Governor now realize that she was leading Federal, State, and local law enforcment into taking actions that would have made them all personally liable for every injurious act committed against those trying to actually enforce the law?

6. Given that the Governor responded to a legal ruling by marshalling law enforcement agencies to break the law, why should the Legislature follow her lead in deciding what the law should be?

As for the Legislature, how many dollars does a company have to lose through bad business decisions before they qualify for the law to be changed to save them from their own mistakes?

These are a few preliminary thoughts about a special session. I am sure the creative juices flowing through the throngs rejoicing at the Mau’i ruling will come up with many more.

Lanny

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