Embattled Hawaii Superferry Subject to Temporary Restraining Order

Despite legal challenges by Maui environmental groups, the Hawaii Superferry (“Superferry”) has nearly sold out for its recent maiden voyages. However, operations at Kahului Harbor were recently suspended on August 27.

Under Hawaii’s environmental law (HRS Ch. 343), an environmental assessment is triggered, inter alia, by actions that propose the use of state or county lands or the use of state or county funds. However, application of Hawaii’s environmental law is not required where it is determined to be exempt by the accepting state agency.

The State Department of Transportation (“DOT”) declared the actions proposed by the Superferry were exempt; therefore, no environmental assessment was required. The Sierra Club, Maui Tomorrow Inc, and the Kahului Harbor Coalition sued the Department of Transportation, the Hawaii Superferry and its directors in Maui’s Second Circuit trial court claiming, inter alia, that the DOT’s determination that improvements to the Kahului Harbor are exempt was erroneous. See Sierra Club v. Hawaii Dept. of Transportation, 2nd Cir. Ct., Civ. No. 05-1-0114. Circuit Court Judge Joseph Cardoza granted the Defendants’ motions to dismiss and final judgment was entered in favor of Defendants on July 12, 2005. Plaintiffs appealed.

While the case was on appeal, the legislature attempted to subject the Superferry to the state’s environmental laws despite the DOT’s determination with two bills: HB702 (2007) and its companion SB1276 (2007). On February 9, 2007, HB702 met its demise when it was referred to the committee on transportation where it languished. On March 9, 2007, SB1276 met a similar fate when it was referred to three House committees on crossover: transportation, energy and environmental protection, and finance.

On August 23, 2007, the Hawaii Supreme Court issued a 5-0 decision holding the following:

[T]he July 12, 2005 judgment of the circuit court of the second circuit in this case is reversed. The Hawai`i Department of Transportation's determination that the improvements to the Kahului Harbor, on the Island of Maui, are exempt from the requirements of Hawai`i Revised Statutes (HRS) chapter 343 (Supp. 2004) was erroneous as a matter of law, and we therefore instruct the circuit court to enter summary judgment in favor of Plaintiffs-Appellants the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition on their claim as to the request for an environmental assessment.

See Sierra Club v. Hawaii Dept. of Transportation (Civ. No. 05-1-0114), No. 27407 (Haw. S. Ct., Aug. 23, 2007. Listen to oral arguments here.

The Supreme Court remanded the case back to the circuit court for “such other and further disposition of any remaining claims as may be appropriate” while retaining “concurrent jurisdiction to enter an opinion and judgment that will follow.” After the Sierra Club decision, the Superferry moved up its launch date raising the ire of Kauai County protesters.

On August 27, 2007, Plaintiffs were back in the trial court, where Judge Cardoza granted Plaintiffs’ ex parte temporary restraining order halting the Hawaii Superferry operations at Kahului Harbor. At that hearing, the court will determine whether the Superferry can continue operations in the absence of an environmental review by the state.

In a separate case, Maui Tomorrow Inc., Friends of Haleakala National Park Inc., Kahului Harbor Coalition and the County of Maui are suing the DOT and its directors, challenging a 2006 final environmental assessment (“EA”) prepared for the Kahului Harbor master plan. See Maui Tomorrow v. Dept. of Transportation, 2nd Cir. Ct., Civ. No. 06-1-0027. The Plaintiffs argue, inter alia, that the EA should have included Superferry operations. In that case, Judge Joel August ruled that the DOT's finding of no significant impact was insufficient, specifically regarding traffic issues. On August 27, 2007, Judge August instituted interim remedies while the case is pending in his court, including added traffic controls, police officers, and a requirement that no more than two vehicles per minute be permitted to leave the Superferry area.