A Supreme Mistake In Ferry Ruling

Larry Price
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Wednesday - September 05, 2007
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The Supreme Court of the State of Hawaii has always been one of the most honorable political bodies in our government. Their decisions have always been imbued with wisdom, and given the impression that justice was served.

It’s with great regret that I point out that the latest decision they handed to opponents of the Hawaii Superferry makes no sense and went far beyond what was being requested. If you recall, in 2005 Second Circuit Judge Joseph Cardoza ruled that three non-profit organizations, the Maui Tomorrow Foundation, the Kahului Harbor Coalition and the Hawaii Sierra Club did not have the standing needed to sue the state.

If the lawsuit had succeeded, it would have required the Department of Transportation’s (DOT) Harbors Division to prepare an environmental assessment before allowing the Hawaii Superferry access to Kahului Harbor. Judge Cardoza rightfully ruled that the organizations did not prove they would be adversely impacted by the lack of an environmental statement. As expected, his ruling was appealed.

In a shocking ruling, the high court ruled the groups had standing, and instructed Judge Cardoza to enter a judgment in favor of the plaintiffs on their request for an environmental assessment. That would in all probability create a need for an environmental impact statement, and that would in turn involve months of analysis and public hearings.

They didn’t stop there. They said that they would retain jurisdiction to issue a further opinion and judgment on the environmental issue. They said this unanimously. This has never happened before.

The big question is who’s pulling the State Supreme Court Justices’ chain.

The opponents’ appeal has been sitting at the Supreme Court for more than a year and a half and yet in all that time they never asked for an injunction, but rather waited until the Superferry hired employees and it’s operation was up and running. Now these three non-profit organizations, in asking for an injunction, say they will suffer terrible harm if the Superferry is allowed to operate while an environmental assessment is being prepared. The obvious question is, “Why didn’t they go to the court during the past year and a half to make their case?

The Supreme Court must know that the legislators had two chances to kill the Supe in the last two sessions and did not! In fact, legislators did the opposite.

They gave the governor authorization to sell $40 million in reimbursable general obligation bonds to finance improvements needed for the Superferry to be able to operate in all of the state’s harbors. The governor could not have done that without their approval. If they had not voted to fund the idea, then the project was dead, right there and then. But they didn’t. Why?

In the last legislative session, there was a bill proposed to require an Environmental Impact Statement. It passed in the Senate but the House refused to hear the bill. Why? If the bill had passed the legislature, the Superferry would have been stopped. The belly-aching Senators had two chances to stop the Superferry and both times took action needed for the Superferry to go forward.

I submit that it is grossly unfair for the plaintiffs to file this lawsuit, not even attempt to seek an injunction or stay for over two years, and then come back to the court an claim immediate and irreparable harm.

Some pundits have suggest that most the Hawaii Supreme Court justices were appointed by a Democrat governor and are part of the state’s dominant political party, one that has demonstrated an unabashed antagonism toward the current Republican governor. If that was true then their ruling would tarnish the integrity of the justices and in the process give the opposition a legal weapon that could stop not only the Superferry, but future investors thinking about starting a business in Hawaii.

Hawaii is the most expensive state in the nation, by far, for doing business for a third straight year according to the Milken Institute’s annual Cost-of-Doing Business Index. The study measured wage costs, taxes, electricity costs and rent for industrial and office space. Wouldn’t it be embarrassing if we had to add a judicial system that was unfairly biased against outsiders doing business in Hawaii.

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