Wednesday, June 18, 2008

Musings: Military Wannabe

The full moon, bright all night and streaming through the windows, finally succumbed, as did the mountain tops, to a dense bank of clouds in the interior.

The sun fared better, heralding its arrival first with a band of gold, then quilted streaks of smoky-pink atop a blue background, followed by puffy white-gray clouds edged in gold. And finally it presented its brilliant silver-white self.

Ran into farmer Jerry, who gave me a brief geology lesson about the landscape I walk through nearly every morning. He also knew the names — `A`ahoaka and Pu`upilo — of two cinder cones I’ve long admired, though the latter is now marred with a large white house, and passed on what he termed an “ecological alert.”

“We won’t be able to see the waterfalls on Makaleha if the albezia keep climbing the mountain,” he warned, noting that the tall trees with their broad canopies are already beginning to obscure the view of Opaekaa Falls.

It seems, however, that we’re starting to get a clearer view of Hawaii Superferry’s intentions when it comes to the military, a subject that has been the topic of many a blog post and comment. The Honolulu Advertiser today is reporting that the company is spending large on lobbyists in an attempt to have the federal government pick up the tab to add ramps to the second ferry, now under construction, to make it more viable for military use.

According to the article:

Lobbyists hired by Superferry approached the U.S. Congress and the U.S. Department of Defense to help pay for a vehicle ramp and other improvements. The ramp would allow the new catamaran to load and unload vehicles at most large piers instead of relying on shore-based ramps and barges.

Superferry paid Blank Rome LLC, a prominent law and lobbying firm, to try to obtain federal money through the National Defense Features program to cover the cost of improvements to its second catamaran under construction at the Austal USA shipyard in Mobile, Ala. The defense program covers the installation of militarily useful features on commercial ships if the owners agree to make the ships available to the military during emergencies.


There are also reports that HSF wants to install a water desalinization and sewage treatment facility, as well as lengthen the second ferry to accommodate large vehicles, in addition to adding the folding ramp system. These features would cost about $5 million and make the fast ferry much suitable to military uses.

The article goes on to say:

Superferry executives had touted the military utility of the catamarans when they were initially describing the project to the state. A September 2004 document from Superferry, obtained by The Advertiser under the open-records law, discussed the growing training needs of the military in the Islands and said the catamarans would have strengthened vehicle decks to handle heavy military vehicles, helicopters, ammunition and other equipment.

I’m sure it’s just a coincidence, but it appears that Superferry’s lobbying firm has experienced the same sort of difficulties as the company itself in filing accurate and timely lobbying reports.

The article notes:

Blank Rome's federal lobbying reports on Superferry for last year and the first quarter of this year have undergone substantial revision. The initial report for the last six months of last year, filed in February, showed less than $10,000 in lobbying income from Superferry. A second report in February raised the figure to $40,000. A third report, filed in May, put the figure at $120,000.

Blank Rome's lobbying report for the first quarter of 2008, filed in April, initially reported $30,000 in lobbying income from Superferry. An amended report, filed in May, raised the figure to $90,000.

The firm explained that the changes were made after the discovery of additional lobbying work on behalf of Superferry and because of the expenses from a subcontractor working with the firm on Superferry.


You may recall that journalist and blogger Ian Lind reported in April that HSF initially disclosed less than 6 percent of the costs incurred in lobbying for special state legislation.

So, you may say, who cares if the Superferry wants to serve the military? Well, as Maui’s Dick Mayer observes, if the company gets its upgrades and leaves Hawaii to use the ferries elsewhere, the State of Hawaii — read, the taxpayers — would be left holding the bag for the $40 million spent to construct the harbor barges.

And that's not counting all the money expended on legal fees, a special session, tugboats, an audit, an oversight task force and harbor security — not to mention undermining the integrity of our courts and all the associated community angst.

51 comments:

Andy Parx said...

Here’s another tidbit from a recent press release about the HSf’s new sales team from their spokesperson Lori Abe:

Yamashiro is responsible for contracting and servicing of all leisure travel and government accounts. This includes overseeing the company’s wholesalers (U.S. inbound, Hawai‘i, and Japanese), travel agencies, corporate, government, and military accounts. http://www.hawaiireporter.com/story.aspx?f1a0fd80-ea0a-401d-be89-17b3dbdbeedf

Joan said...

Thanks, Andy.

It certainly doesn't seem like they'd be putting someone in charge of military accounts unless they anticipated there would be some.

Anonymous said...

Banks get robbed because that's where the money is. Military pork is also easy pickings.

Our military's foundation is paranoia. They don't have enough vessels to conduct a serious war and they know it so they'll backdoor access to other ships to avoid outright seizure if the day ever comes. If Mcthuselah invades Iran maybe we'll see the end of these economic nightmares.

MauiBrad said...

"And that's not counting all the money expended on legal fees, a special session, tugboats, an audit, an oversight task force and harbor security — not to mention undermining the integrity of our courts and all the associated community angst."

Oh, my, that's a nice sum up.

Aloha, Brad

charley foster said...

Except that Act 2 cannot be said to undermine the integrity of the court. Courts make legal decisions based on what the laws say. A court's decision doesn't indicate that the court thinks there ought to be, or wishes there would be, say, an eis. It indicates rather than the court thinks that the law as it is written requires an eis.

If the legislature and executive subsequently respond by writing a new law saying that an eis is not required, it is no way a slap at the court. The court doesn't care. The court is not upset that the legislature passed a new law to accomplish what the court said it could not under the old law.

Indeed, courts sometimes explicitely invite legislatures to revisit laws. For instance, sometimes when a law results in an unintented harsh consequence, a court will say, "our hands are tied in this case, but the legislature ought to look into redrafting the law to avoid such outcomes in the future."

That's not what happened here, of course, but it illustrates my point which is that Act 2 was in no way a contest of wills between the legislature/exec and the courts about whether there ought to be an eis.

For the court to say the law requires an eis is that same as saying, "if you want to proceed without an eis, you're going to have to change the law." There's nothing unusual or inherently controversial about changing a law when the legislature is informed by the court of the old law's consequences in a given fact pattern.

Anonymous said...

foster said; "For the court to say the law requires an eis is that same as saying, "if you want to proceed without an eis, you're going to have to change the law."

or. . . .

"For the court to say the law requires an eis is that same as saying, "the State erred as a matter of law". If it was an individual that "erred as a matter of law" they call it a felony.

charley foster said...

"If it was an individual that "erred as a matter of law" they call it a felony."

Not unless an individual could be convicted of a violation and be sentenced to prison for more than a year, which, of course, is not the case here.

Don't forget, a circuit court agreed with the state that no eis was required before the supreme court overturned that decision. So until the Supreme Court decision was filed the state was operating with court approval.

Anonymous said...

Foster said: "Don't forget, a circuit court agreed with the state that no eis was required before the supreme court overturned that decision. So until the Supreme Court decision was filed the state was operating with court approval."

The circuit court is part of the state so the state was acting with it's own approval. The State supreme court is also part of the state and found the circuit court in error. The admin and lege are part of the state and corrected the error by changing the law and the saw the error was no more and justice once again spread throughout the land and all was pono, she laughed sardonically realizing that anything can be overextended to the breaking point even aloha.

charley foster said...

Um, sure. Whatever. Just so we're clear that changing the law isn't an attack on the credibility of the courts. Whether you dislike the new law or not, or how it came about, is a matter of personal opinion which I'm not going to begrudge anyone.

Ed Coll said...

The attack is not on the credibility of the courts but rather the entire corrupt government process as articulated by Kauai Rep. Mina Morita who correctly stated ""dressed in the facade of the toothless conditions, this is still one ugly bill that reeks the horrors of political favors gone awry and should be haunting this Legislature on how cheap we sold the credibility and respectability of this institution and our moral compass."

It should go without saying that all opinions are personal and I will not begrudge Mina her's in fact I applaud it.

charley foster said...

And that's exactly the kind of opinion I have no quarrel with. It's only the factually incorrect statements such as that the integrity of the courts was undermined or that a law to help a single entity is unconstitutional that I object to. Sure, it's nitpicky, but it's my little contribution to the public debate. If it's any consolation I strongly support the release of Superferry related docs to the newspaper under open records laws.

Ed Coll said...

The courts are subdivisions of the State therefore the lower court that erred as a matter of law as did DOT take a big credibility hit as does the legislature for making bad laws in haste to appease monied interests.

Nothing wrong with picking nits if the purpose is to delouse the corporate body and there are plenty in our court system draining the lifeblood of the public trust.

charley foster said...

Lower courts are overturned by higher courts every single weekday across the country. The fact that appellate review often results in the overturning of the decision of a lower court can't really be said to undermine the integrity of the courts. And anyway I don't think the supreme court's overturning of the 2d Circuit in the Superferry case is what people mean when they assert that the events related to the Superferry somehow undermined the credibility of the courts.

I disagree that nitpicking ought to be limited to the corporate body. I thinks it's appropriate whenever little errors try to worm their way into the public debate.

Ed Coll said...

Are you putting words in my mouth when you assert, "I disagree that nitpicking ought to be limited to the corporate body" or just disagreeing with your own assertion?

I said "Nothing wrong with picking nits if the purpose is to delouse the corporate body". I never said it should be limited to that venue. Additionally why it may be true that "Lower courts are overturned by higher courts every single weekday across the country."

and

"appellate review often results in the overturning of the decision of a lower court can't really be said to undermine the integrity of the courts."

What is your point?

Do you think the 1932 Massie trial right here in Hawaii where "Territorial Governor Lawrence Judd commuted the 10-year sentences of the convicted killers to one hour, to be served in his office" undermined the integrity of the courts? I see the new lawmaking regarding the Superferry in the same light.

charley foster said...

Ed,

I must be putting words in your mouth. I leapt to the conclusion when you said nitpicking was okay "if the purpose is to delouse the corporate body" that you meant in contradistinction to other purposes. My apologies.

As to your Massie example, I don't agree that it undermines the integrity of the courts when an executive exersises executive pardon power to commute a sentence or grant clemency. It's contemplated in constitutions and organic act that grant the power that it will from time to time be used. If it is an egregious example it certainly might besmirch the executive, but in my opinion the court's integrity remains intact.

Ed Coll said...

Charley,

Law is not the ultimate criteria for reality, and in the Massie case the verdict was manslaughter when the historical record indicates it was premeditated murder. The Scottsboro case in Alabama is another clear example. Can you cite any example in the historical record that would besmirch the integrity of the judicial system or by definition can legal system do no wrong? Even Black acknowledges the "right" to revolution and states that the constitution does not confer rights but merely articulates them. What comes after the rule of Law? Perhaps 4GW and asymmetrical power will answer this question sooner rather than later.

charley foster said...

I think Plessy v. Ferguson and Dred Scott v. Sandford besmirched the integrity of the judicial system. I'm not claiming the judicial system is anything more that a fallible human construct. I'm saying that Act 2 in no way undermines the integrity of the courts - and that an executive exercising the power of pardon likewise does not undermine the integrity of the courts. In both cases - even if the acts of the executive in issuing clemency, or the legislature in passing a new law, are highly objectional - the integrity of the court is not implicated.

If you are asserting that the 2d Circuit Superferry decision, later overturned by the supreme court, is up there with Scottsburo or Plessy or Dred Scott, I would personally disagree with you but allow it is a matter of subjective opinion and certainly wouldn't argue with your right to it.

Ed Coll said...

I think the 2d Circuit court took a credibility hit when it "erred". I challenge anyone to read the Hawaii environmental law and with a straight face reach the same conclusion. Twist logic until you would make Zeno proud and delight Alice Little of Wonderland but it is still obvious to the most casual observer (if they read the law for themselves) that an error of such magnitude makes one doubt the "error" was not intentional and political.

The Supreme Court was correct but should not be applauded because it came to the correct conclusion, and you are correct that courts don't care and cannot be slapped in the face regardless of administrative or executive action. Fictitious artificial entities don't have feelings to hurt or faces to slap. Courts like the government they are part of are immune from accountability (short of revolution) As usual it is the victims (public)that are slapped in the face when they see special interests simple change the law to continue doing what was formerly illegal but now with the blessing of the law. The bifurcation between law and justice has grown so wide it is ripping apart.

Additionally I question how is it that an environmental law that took YEARS to craft was rewritten with such haste.

Finally not sure what you mean by "up there with" but Scottsboro and Massie both contain elements of a wrong being turned on it's head into a right as the framer of the Dole Republic laws wrote, "so as to meet the case."

Andy Parx said...

I’m late to this discussion but Charley is leaving out the fact that the SC decision was in fact based not just on 343 but the constitutional protections(which Act 2 violates) and reached a conclusion that there would be “irreparable harm” in proceeding without an EIS. Nothing in Act 2 changed that. But rather than recognizing this Cordoza refused to even hear that much less address that in his ruling and now we are playing “hurry up and wait” since the Intermediate Court has been “reactivated” in the interim and the case can’t even get back to the SC- certainly not before the damage was done.

By the way Lance Collins' briefs before the IC were sent out .by Dick Meyer today.- and essentially that’s what they say.

The credibility of the courts certainly is in question when an illegality is allowed to stand for a long period without re-review by the body that made the original ruling. justice delayed and all that. Cordoza could have stayed his ruling but didn’t.

The credibility of courts and the SC is even diminished further because they can in concept, “reach down” and reestablish dominion over the case but have chosen to remain distant for what many believe are political reasons.

charley foster said...

I'll have to disagree with both Andy and Ed. First, Andy is entirely incorrect when he claims the Supreme Court based any part of its decision on constitutional protections. All one needs to do is read the decision to see that is false.

And I have to disagree with Ed that the face of the statute dictates what the Supreme Court ultimately found. On the contrary, everyone seemed in agreement that if only the impact of the harbor improvements were at issue then the project would pretty clearly come within the exemptions defined by the statute and the rules.

The doctrines relied upon by the court to bring the project under the EA requirements - the "connected actions" and the "secondary impact" doctrines which saved the day for environmentalists - are entirely judge-made caselaw precedent and do not appear anywhere in the code.

Looking at the face of the HEPA statute, the state had a pretty good case. It was the precedents - specifically McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981), and Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) and Kahana Sunset Owners Ass'n v. County of Maui, 86 Hawai`i 66, 947 P.2d 378 (1997) - that won it for the Sierra Club.

So, to answer Ed, one can read the environmental law and easily come away with the same opinion as did Judge Cardoza. Even with respect to the caselaw doctrines that the decision turned on, the argument wasn't over whether they exist as law (everyone agreed they do). The argument was whether they applied under the facts of this case. I always thought it was a close call.

Anonymous said...

"So, to answer Ed, one can read the environmental law and easily come away with the same opinion as did Judge Cardoza. Even with respect to the caselaw doctrines that the decision turned on, the argument wasn't over whether they exist as law (everyone agreed they do). The argument was whether they applied under the facts of this case. I always thought it was a close call."

Funny how the DOT e-mails indicate that the staff members reviewing the project and the deputy AG advising the DOT thought otherwise.

charley foster said...

Actually, according to Derrick DePledge, an email "suggests" that. But even that is not to say the attorney didn't believe it was a relatively close call. I think it was clear to everyone that the prudent course would have been to do an EA. But failing to be entirely risk averse is hardly a massive criminal conspiracy as some of the more breathless sloganeering from the partisans would have us believe.

Andy Parx said...

The "irreparable harm" is from the Hawai`i constitutional provisions as expressed in the NEPA, which HEPA mimics through that Constitutional provisions cited by Collins.

Just because you can't make the “irreparable harm" fit into your scheme you can’t just ignore it and paper us with is irrelevant caselaw which, constitutionally in Hawai`i and by statue nationally in NEPA, trumps all your state law minutia.

charley foster said...

You're mistaken again, Andy. "Irreperable harm" is not from Hawaii constitutional provisions or from HEPA. It was one of the elements required to get the injunction (remember, there was an injunction) - they are required for any injunction, not just one involving HEPA:

(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.

The cases that you mistakenly dissmiss as irrelevant were actually cited by the court explicitely as the basis for its decision.

Anonymous said...

Here's a quote of a DOT e-mail from the Advertiser article:

"Our attorney ... feels that one statewide comprehensive document is necessary that would cover the improvements as well as the cumulative operational impacts".

That the AG felt that a "comprehensive document is necessary" clearly indicates that it was not merely a "suggestion" or "relatively close call" in his or her mind.

The e-mail also establishes that contrary to your assertion that, "everyone seemed in agreement that if only the impact of the harbor improvements were at issue then the project would pretty clearly come within the exemptions defined by the statute and the rules", the AG believed that both the harbor improvements and the impacts of the operation needed to be assessed.

The Advertiser had previously run an article documenting similar harbor improvements that had undergone an EA.

After the SF officials met with
Bob Awana in December, 2004, the DOT abruptly decided that an EA was not necessary. Who knows what the SF did to persuade Lingle/Awana/ Fukushima. I would bet that at a minimum, it wasn't ethical.

charley foster said...

The harbor improvements considered alone are certainly at best a close call since all of them fall squarely within exemption classes established by administrative rules. Combined with the caselaw requirements of connected actions and secondary impacts, it becomes less close if you accept that the boat is substantially likely to cause environmental harms.

The 3d person quote by an engineer that "our attorney" "feels" that a comprehensive document is necessary says nothing whatsoever about whether the attorney thought this opinion was a full on slam dunk with no wiggle room, or whether the attorney thought that on balance, although a close call, a court would be likely enough to rule that way that the prudent thing to do would be to get one.

We can't tell from the quote. We don't know. You claim way too much when you say the quote "clearly indicates that it was not merely a "suggestion" or "relatively close call" in his or her mind." Maybe. But again, maybe not. We cannot tell from this.

Anonymous said...

HRS §343-5 reads as follows: Applicability and requirements.
(a) Except as otherwise provided, an environmental assessment shall be required for actions that:
(1) Propose the use of state or county lands or the use of state or county funds . . .

The OEQC may, pursuant to HRS §343-6, adapt rules that, "Establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an assessment". Therefore, it is incorrect to state that, "Looking at the face of the HEPA statute, the state had a pretty good case".

With regard to your assertion that, "The harbor improvements considered alone are certainly at best a close call since all of them fall squarely within exemption classes established by administrative rules", the Hawaii Supreme Court's opinion stated that:

The applicable exemption classes are as follows:

Exemption Class 3: Construction and location of single, new, small facilities or structures and the alteration and modification of same and installation of new, small, equipment and facilities and the alteration and modification of the same including but not limited to:

Item 3. Installation of security and safety equipment.

Exemption Class 6: Construction or placement of minor structures accessory to existing facilities.

Item 8. Alteration or addition of improvements with associated utilities, which are incidental to existing harbor and boat ramp operations, in accordance with master plans that have met the requirements of Chapter 343, Hawaii Revised Statutes. Such improvements and associated utilities include concessions, comfort stations, pavilions, paving, rock walls, fencings, walkways, loading docks, warehouses, piers, offices, container freight stations, cranes, fuel lines, lighting, sprinkler and drainage system.

The court did not rule on the applicability of the exemptions because it was unnecessary to its disposition of the case. The court, in a footnote, did state that:

Although we hold that the harbor improvements were not a proper candidate for exemption because of their secondary impacts, we note that even if the harbor improvements were considered in isolation, the record is devoid of facts which would indicate that DOT's exemption Class 6 item 8 was applicable, because there is no evidence that the improvements were "in accordance with master plans that have met the requirements of Chapter 343, Hawaii Revised Statutes." Comprehensive Exemption List for the State of Hawaii Department of Transportation, supra note 13. See supra note 11.

Given the foregoing, it is hardly clear that the SF harbor improvements fall squarely within the exemptions.

Furthermore, as Christie Wilson's article noted: "But state records also show a number of recent harbor projects for Matson, Young Brothers, American Hawaii Cruises and other users that did undergo environmental assessment. These include $6.5 million in improvements to allow two cruise ships to dock at the same time at Nawiliwili Harbor, and Matson's installation of a mooring dolphin at Kahului Harbor's Pier 1C at a cost of $980,000". Here's the cite: http://the.honoluluadvertiser.com/article/2007/Sep/09/ln/hawaii709090361.html

Let's face it. The Lingle administration bent its interpretation of the law to benefit the SF. Why try to rationalize it on a legal basis after all of the revelations made to date?

charley foster said...

Here are the harbor improvements, according to the decision:

[T]he Superferry project requires the following improvements at Kahului Harbor, the locus of Appellants' HEPA challenge: (1) the construction and utilization of a removable barge (floating platform) that will be moored at Pier 2 to provide a platform between the vessel and the pier for passenger loading and off loading, and which will be configured with a removable ramp for safe vehicle loading and off loading and (2) operational support to accommodate the Superferry project, which will include (a) the provision of utility services (water, power, and lighting) on or adjacent to the pier; (b) security fencing; (c) pavement striping; (d) the placement of boarding gangway ramps; and (e) the installation of tents at inspection points or customer waiting areas.

If they do not "clearly" fall within the exemptions, there is at least a colorable argument that they do.

I'm not arguing that the court in any way decided incorrectly, mind. I'm saying that going into it, it wasn't necessarily slam dunk certain whether these improvements, even combined with the operation of the vessel, involve impacts significant enough to require an EA. It seems to me rather it can be reasonably argued both ways. Now that the court has spoken we know what the law is. But before the decision it seems to me overboard to cast those arguing for no EA as a criminal enterprise.

I'm enjoying the exchange with you by the way. I admire your familiarity with the case.

Ed Coll said...

Foster said; "I think it was clear to everyone that the prudent course would have been to do an EA."

But evidently the precautionary principle although applicable in science doesn't carry much legal weight with the state supposedly looking out for citizen interests,

Foster said "But failing to be entirely risk averse is hardly a massive criminal conspiracy as some of the more breathless sloganeering from the partisans would have us believe."

You mean the breathless sloganeering like calling the ferry "H4" and using what looked amazingly like a State highway sign on the side of the 3/4 sized demo ferry and at "informational" meetings might have given the conspiracy minded the false impression that state and special interests might be in cahoots with each other. Don't these simple folks understand the difference between a criminal enterprise and the legal concept of puffery?

charley foster said...

Yes, I mean breathless sloganeering exactly like that. Having suspicions that the state and special interests were in cahoots with each other and elevating those suspicions to unqualified assertions that the state acted feloniously, and that Act 2 is an assault on the court's integrity are, exactly that, puffery.

Also, I don't think it's "simple folk" who are asserting vague suspicions as legal conclusions. I think it is mostly done by people who tend to be politically outspoken and are generally sophisticated enough to know the difference.

Which is fine. It's all part of public debate. Everyone wants to put the best face on their side and the worst face on the other side. I'm just calling it what it is.

Anonymous said...

"elevating those suspicions to unqualified assertions that the state acted feloniously"

Who is doing that?

"Act 2 is an assault on the court's integrity" — that's all a matter of opinion. You are the one incorrectly trying to label, and thus disprove, it as a "fact."

"I'm just calling it what it is."

You're just calling it what YOU think it is.

charley foster said...

"Who is doing that?"

In this thread it was anonymous June 18, 2008 3:35 PM. But you're not pretending you haven't heard that sentiment expressed elsewhere?

"that's all a matter of opinion. You are the one incorrectly trying to label, and thus disprove, it as a "fact.""

It is opinion. Exactly right. I'm calling it "puffery."

Anonymous said...

"It is opinion. Exactly right. I'm calling it "puffery."

OK, so now you're correctly admitting this is all about opinions. Because earlier in this discussion, you were trying to assert it was about facts.

"It's only the factually incorrect statements such as that the integrity of the courts was undermined or that a law to help a single entity is unconstitutional that I object to. Sure, it's nitpicky, but it's my little contribution to the public debate."

Which then raises the question, what exactly has your contribution been to this particular public debate?

"But you're not pretending you haven't heard that sentiment expressed elsewhere?"

No, I'm not pretending. I have not heard that sentiment expressed elsewhere. And I certainly didn't interpret the comment by Anon. 3:35 as such.

charley foster said...

Here's my contribution to the debate. 114 posts on the issue so far. I bet even you won't disagree with all of it. Watch for more soon as I digest the appellate briefs.

Anonymous said...

"Here's my contribution to the debate. 114 posts on the issue so far. I bet even you won't disagree with all of it. Watch for more soon as I digest the appellate briefs."

Oh, I thought it was as nitpicker:

"I thinks it's appropriate whenever little errors try to worm their way into the public debate."

So actually, there were no "errors." Just opinions. Your and everyone else's.

OK. We'll be watching for more of your opinions.

charley foster said...

When you do, don't forget to leave a comment!

Anonymous said...

Of course. It's always important to expose smug sanctimony trying to pass itself off as "fact" whenever it tries to worm its way into the public debate.

Anonymous said...

The question is not whether the case was a "slam dunk" from a legal perspective. The question is why the DOT, after having numerous "front line" employees and deputy AG opine that the EA was necessary, suddenly decide, after Bob Awana's meeting with SF officials in December, '04, to exempt the harbor improvements.

Were there any felonies (such as bribery) or misdemeanors (such as tampering with government records) involved? Who knows? It is highly unlikely that we'll ever know, as the agency responsible for making that determination is the proverbial fox guarding the hen house, and they ain't cooperating with any independent investigations (e.g. the auditor or the media).

What galls me the most is that instead of simply saying that she disagreed with the Hawaii Supreme Court, Lingle came out with both guns blazing, attacking the court and the protesters. Then she has the nerve to suppress the SF opponents' freedom of speech by threatening to sic her "unified command" on future protesters and
threatening to use child protective services against parents of children who may protest against her and the SF. What a bunch of BS!

And the media, not daring to confront a lucrative ad account (I mean, how many ads did the SF run during the news and football games?), portrays Lingle and the SF as victims and the protesters as a bunch of radical loons. I agree that some of them were out of hand, but for the most part, the protesters were civil. They weren't just mainland transplants, either. But you wouldn't know that from watching the news. They kept looping the same footage for every f-ing SF story.

So, continue with the finely honed legal analysis. Meanwhile, the real issues are being swept under what is already a really dirty rug.

Anonymous said...

I forgot to mention the lame-okole legislature and the too stupid to think for themselves members of the general public. It's amazing what you can do with video footage of calm seas and the worst Cazimero Brothers song ever.

charley foster said...

I completely agree with anonymous that the questions of what went on behind closed doors within the government are the most interesting. I think all levels of state government violate the various open government laws with relative impunity. And I'm very interested in the legal issues that offer the only hope - even if slim - of getting to those materials. (Certainly, yelling FU at the governor won't do any good. Pfft). I do disagree though that keeping protestors from blocking the boat is in any way tantamount to interfering with anyone's first amendment rights.

Also, I couldn't agree more with the anonymous who said, "It's always important to expose smug sanctimony trying to pass itself off as "fact" whenever it tries to worm its way into the public debate." Exactly! Hence my original comment in this thread!

Anonymous said...

Hence my original comment in this thread!

Which, as I noted earlier, was in error, because the issue, as you admitted, was one of opinion all along.

charley foster said...

Right. Opinion...passing itself off as fact!

That's what I objected to.

Anonymous said...

Who said anything about blocking the boat? If any protester violated the law, he or she should be prosecuted. Hey, some of those protesters were yelling profanities at the cops and DLNR officers, some of whom are my friends, and none of whom deserved the abuse. I was ready to crack some of those guys myself, just on principle. The Governor went well beyond that, essentially limiting the protest area to Kalapaki Beach (which, I'm sure, went over well with the Marriott). There was no legitimate reason to keep the protesters off the seawall, except to limit their visibility. If someone was so inclined, they could easily paddle into the path of the boat from Kalapaki or some other entry point. If they did that and they got arrested, well, thems the breaks.

Ed Coll said...

Anonymous June 21, 2008 4:42 PM said to Foster;

"So, continue with the finely honed legal analysis. Meanwhile, the real issues are being swept under what is already a really dirty rug."

Bingo! Why should a subset of reality (the law) be an acceptable perspective from which to define reality or become the basis action?

After all the Constitution as Black points out is not the origin of our freedom but the consequence of our power.

"A constitution 'is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but the consequence, of personal and political freedom; it grants no rights to the people, but, is the creature of their power, -- the instrument of their convenience.'"

Aloha is a two way street. Invited guests are more than welcome, but when threatened by a home invasion necessity knows no law.

From my direct observations of the three Kauai protests they were for all practical purposes leaderless and grew larger every time.

charley foster said...

Keeping them off the seawall appears in hindsight to have been a justifiable attempt to keep them off the cars coming off the boat. And I think their behavior toward the cars getting off the boat more than justifies keeping them off the seawall. If you think the ones who blocked the boat ought to be prosecuted, do you agree the ones who blocked the cars getting off the boat also ought to be prosecuted?

Anonymous said...

No, you're not getting off in the usual CF fashion of once cornered, turn the tables.

You say: "Opinion...passing itself off as fact! That's what I objected to."

Yet you started this off by saying: "Except that Act 2 cannot be said to undermine the integrity of the court."

However, you've offered no evidence that your own assertion above is anything more than opinion.

In short, you are doing exactly what you object to: passing opinion off as fact.

charley foster said...

I'm not turning any tables. I already made my factual arguments why Act 2 cannot be said to undermine the integrity of the court. They are all contained in the thread above. I don't maintain that they're unassailable by any stretch. You can counter them, or you can make your arguments that it does undermine the integrity of the courts. The facts seem to me to fairly indicate that legislation to overcome a court opinion is not rare nor does it implicate one way or the other the integrity of the couts. If you disagree I'm very very open to hearing why.

Anonymous said...

The incident involving the cars didn't happen near the seawall, it happened at the other gate. If the protesters stood in front of a car and didn't let it pass it was probably illegal. Merely walking in front of a car is not illegal. Again, if a law is broken, then arrest the violator. Denying all protesters access to the seawall, whether they were law abiding or acting criminally, can't be justified from a law enforcement standpoint.

I'd bet that once the Marriott's guests got an earful of the protesters on Kalapaki Beach, the Governor would get a call and the "security zone" would be lifted. In fact, I wouldn't be surprised if the Marriott already called to tell her that they didn't want their guests to hear chants of "go back" and some of the more colorful taunts.

Ed Coll said...
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Ed Coll said...

It does appear CF is dressing opinion up as (selective)fact to fit neatly into his legalistic framework which creates it own reductionistic logic.

CF wrote; "Keeping them off the seawall appears in hindsight to have been a justifiable attempt to keep them off the cars coming off the boat."

How reasonable, but wait Anon counters with "Denying all protesters access to the seawall, whether they were law abiding or acting criminally, can't be justified from a law enforcement standpoint."

CF's logic (to use the word loosely) and his reasonable opinion is how "Free Speech Zones" wound up 6 miles away from where the G7 summit was held, but did not prevent the Battle in Seattle. It is also the logic of a "First Strike" policy of the U.S. in international affairs. Someone gives you stink-eye crack'um.

Anon says you must commit a crime before your freedom is curtailed in some fashion while CF thinks it is "reasonable" to curtail rights just in case someone may commit a crime. This is known as tyranny, and when tyranny is law revolution is order as the American Lawyers Guild opines.

Fortunately the more people's freedom you curtail the more resistance you create and due to the explosion in communications technology an asymmetrical power shift has occurred and it is becoming increasingly difficult to defend against a box cutter with a nuclear weapon as Arundhati Roy notes.

Andy Parx said...

There’s a lot of talking around the issue of opinion and fact. So just to point out how a trolls “work” .

1) A writers write something presenting and documenting some facts and express an opinion about the facts presented.

2) Troll “A” calls the facts presented the writer’s opinion and disagrees with that now opinion and expressing their opinion about the fact to disprove the fact.

3) Troll B takes the opinions, calls them the writer’s “facts” and attacks them as being non-factual.

Neither discusses or even addresses the facts or opinions expressed as such much less the point the writer was making. It’s not even nitpicking- it’s more like placing a plastic fake nit in your hair and screaming you’ve got cooties.

I just love you anonymous trolls and your transparent obfuscations - you’re so entertainingly obtuse – just like little boys leaving a flaming bag of poop on the doorstep ringing the bell and running away and watching.