Environmental attorneys for 1,000 Friends of Kaua‘i may have stumbled upon a statute to make the Hawai‘i judiciary rethink its barring of certain arguments against Hawaii Superferry. That’s at least the hope, according to documents drafted by attorneys Greg Meyers
Environmental attorneys for 1,000 Friends of Kaua‘i may have stumbled upon a statute to make the Hawai‘i judiciary rethink its barring of certain arguments against Hawaii Superferry.
That’s at least the hope, according to documents drafted by attorneys Greg Meyers and Dan Hempey, who filed a motion Nov. 13 appealing a September ruling by Circuit Judge Randal Valenciano.
Valenciano said in his ruling that 1,000 Friends couldn’t rely on the argument that the Hawai‘i Superferry needed an environmental assessment, stating the statute of limitations had expired.
As a result of that ruling, 1,000 Friends of Kaua‘i could have relied on two other arguments: one, whether the Superferry posed a nuisance; and two, whether the Superferry’s proceeding with service was constitutional.
The group decided instead to save money and hold off for the Maui ruling, or possible legislative special session.
They then asked the County Council to consider adopting an ordinance calling the arriving cars a nuisance, as, according to HRS 46-17, the county could trump the state in such an instance.
Under that law, the council of any county can adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance, it continues that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall prevail.
Though there has been no official timeline offered by Superferry officials as to when resumption is planned for service to Kaua‘i, Maui will soon see Superferry visitors, as Monday’s green light issued by Circuit Judge Joel August means cars will be allowed to unload from the ferry at Kahului Harbor in Maui without time restraints.
August had earlier ruled that vehicles must de-ferry at a rate of two-per-minute, but then changed that decision and ordered the state to provide traffic management at the pier.
August is the same judge who restricted in August an order arising from a suit filed by an environmental group in Maui concerned over possible traffic congestion from the Superferry, according to electronically-retrieved court documents.
In an earlier interview, Hempey said that should the Maui case force an environmental assessment, and should that befollowed by a special legislative session to undo that ruling — allowing the Superferry to operate while an environmental assessment is underway — he would likely be headed back to court.
Though at the time, Hempey was talking about the Hawaiian Supreme Court, and now 1,000 Friends is appealing in the Fifth Circuit, the group was able to save legal fees as Maui did legwork for a decision on a law that was ultimately undone by the Legislature. Hempey and Meyers’ motion also questions the relevance of the statutes of limitations under the Hawaiian Environmental Protection Act, as unlike with nuisance claims where it is necessary to demonstrate a balance of harms, under HEPA violations, harm is presumed.
