Claiming that Hawaii Superferry profits do not trump federally mandated environmental requirements, attorneys filed an opening brief in the Intermediate Court of Appeals this week.

Attorneys argued in the brief that Kaua’i should enjoy the same constitutional protections afforded to everyone else in the state.

Dan Hempey and Greg Meyers, attorneys for 1,000 Friends of Kaua‘i, filed the appeal of two September 2007 rulings greenlighting the Hawaii Superferry despite its lacking an Environmental Assessment.

Hawaii Superferry had claimed it would face financial strain if forced to stop operations while completing the EA.

The appeal was in response to 5th Judicial Circuit Judge Randal Valenciano’s ruling against allowing 1,000 Friends of Kaua‘i — a local activist group — to use presumptions of irreparable harm in their arguments against the Hawaii Superferry’s operation to and from Kaua‘i without an EA.

The appeal also was in response to Valenciano’s Sept. 6, 2007, denial of a temporary restraining order against the Hawaii Superferry, which the judge based on a 120-day statute of limitations. The group 1,000 Friends and Superferry disagree as to what triggered the 120 day rule for the EA.

The group 1,000 Friends argued over which date they believed would have triggered the four-month clock, with Valenciano ruling in favor of the state’s suggestion it was Feb. 23, 2005, the day DOT exempted the harbor improvements from an EA.

In 2005 the Department of Transportation individually exempted the improvements to each of the four harbors that would receive the Superferry, stating that the individual harbor improvements would have no significant impact on the environment.

On Aug. 31, 2007, the Hawai‘i Supreme Court ruled that (environmental regulations) “keep applicants or agencies from escaping full environmental review by pursuing projects in a piecemeal fashion.”

The 1,000 Friends of Kaua‘i brief states that “the court should protect the public and enforce (the Hawaiian Environmental Protection Act), even against violators who can show that they cleverly approved a statewide project in severable subparts, or who may lose a lot of money if the environmental laws are applied to them.”

Hempey and Meyers argued to the Intermediate Court of Appeals that the harbor improvement exemption was invalid and therefore there was no trigger date, but also said if there were a trigger date, it would have been Aug. 26.

That was the date the Superferry arrived in Nawiliwili Harbor, the same day in which, according to witness testimony, an endangered monk seal and turtles were spotted in the area, court documents state.

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(Story Source: Amanda C. Gregg, Kauai Garden Island News)
(Photo Source: LA Times)

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