Saturday, December 22, 2007

Musings: Superferry Shenanigans

Ended up at my favorite beach in the late afternoon yesterday, and discovered a super ebb tide — the lowest I’d seen there — prompted by the solstice and pending full moon. It made me think of how the ocean, in this bountiful Makahiki time, pulls back her water and allows a big harvest from the reef.

I didn’t grab any opihi, squid or sea cucumber, but my friend found three great pieces of glass from Japanese fishing floats, including one with a rare double nipple, all of which he gave to me for my collection. The moon, already up, turned brighter as the sky faded to charcoal and dusky pink. I could have stayed forever, but I was wet from swimming and shaking from the cold, despite a thick sweatshirt.

On the way home I got a call from the owner of the dog, whose name is Daisy, and it turns out she was a former hunting dog, adopted from the shelter, and lost while hiking on the trail near my house. So they’re going to pick her up from the shelter today. We’re all pleased that story had a happy ending.

While we're on the topic of endings, it’s typical for newspapers in late December to do articles that capture the events of the past year, and so we have the Star-Bulletin today launching its “10 Who Made a Difference” line up with a piece on Superferry CEO John Garibaldi.

Besides the usual fluff that Garibaldi is prone to utter — "Now that we've started up our service to Kahului, and after seeing how that community has reacted to it and the support that we've seen from the various customers that have taken advantage of the Superferry in the first week, I'm very excited and looking forward to the future." — the article contained information about the substantial losses the company reportedly has suffered.

I thought this bit was interesting, seeing as how the Legislature’s bail-out bill supposedly was not aimed at Superferry: “Garibaldi estimates that lost revenue and fees for various legal and legislative proceedings during the 3 1/2 months the Superferry was shut down cost the company in excess of $10 million.”

I can’t help but wonder what kind of fees — and for exactly what services — Superferry was paying out during legislative proceedings that were intended not to benefit their company, but a generic high capacity ferry service. Ho! Magnanimous, dem.

The article also reported:

“Another daily round trip to Kauai has been postponed indefinitely due to the volatile situation there. ‘We're hoping to return there as soon as we can be assured it will be a safe environment for our passengers and the community,’ he said.

Hmmm, so if they can’t be assured of that, they won’t come? Awright!

The article continues:

“Garibaldi said one of the advantages in having the Maui service in operation now is that it can clear up a lot of the misunderstandings and misconceptions in how the ferry operates. ‘We can look to that example as the actual experience of what happens with the operation of the ferry,’ he said. ‘We're hopeful that will answer or address some of the concerns of the people within the state.”"

Yes, running the "Pukerferry" to Maui has made it clear that those on board can expect a sickening ride, (thanks to Disappeared News for posting the link to Pritchett’s carton) which looks like it will continue to get worse with the trades expected to pick up a couple of notches through next week.

Meanwhile, Gov. Lingle and her “Unified Command” are continuing to promote Superferry, this time by sending over National Guard troops to help clean up Maui’s storm damage.

This is such an obvious ploy to try out Superferry’s military transport abilities under the sugar-coated PR ploy of “community service.” I mean, come on! First, the storm was two weeks ago. And second, was Maui the only island that suffered such damage it warrants that sort of assistance?

Of course, it’s the kind of story that the TV stations lap up like kittens do cream, while the real objective of planting such stories is to have other folks in positions of authority hyping Superferry. The KGMB report includes this plug, er, I mean, statement from Director of Civil Defense Adjutant General Robert Lee:

“'Our National Guard and Civil Defense will pay the $55 fare per heavy equipment to bring it over,’ said Adjutant General Lee. ‘I can bring it in on C-17 but the cost is so much more.’

The report continues: "He says the Superferry is the best and fastest way to transport its vehicles to Maui, despite all the controversy that's surrounded the ship. ‘I think the community of Maui would want us to bring the heavy equipment to help neighbors out in the case of this emergency. We're not bringing in any kind of invasive species from Oahu to Maui.’”

That’s the kind of advertisement that money can’t buy — but slick PR firms can. And what a clever way to discourage demonstrations! People are bound to look like bad guys if they protest a ferry carrying Guardsman on a supposed humanitarian mission.

Oh, btw, KGMB also reported that the Guardsmen “will be on Maui until all the storm damage is cleaned up.”

Now isn’t that convenient. If Maui folks do decide to act up over the holidays, when people have more time to get out and demonstrate, the cops and Coast Guard will have back up handy.

Lingle is one smart cookie. Must be why she's da leader of da "Unified Command."


Anonymous said...

It can seem sort of counterintuitive, but the question of whether Act 2 was specifically intended to address the Superferry situation is not the same thing as the question of whether Act 2 is a "general law" or not. Odd as it might seem, a law can be(and in fact numerous laws have been) enacted solely to address specific circumstances and yet can nevertheless still be a "general law" under the legal defenition of that phrase.

A separate question still is whether any law even requires Act 2 to be a general law. Isaac Hall is relying on Art. XI, Sec. 5 of Hawaii’s Constitution to assert that there is such a requirement. But that's an untested theory - nobody has ever asserted that that's what that section means - and it appears to be a bit of a stretch.

Anonymous said...

"Grabbing at straws" more than "a bit of a stretch". The last ditch effort of the losing team.

Once that loss is history, things will settle down somewhat. HSF is not an option in's a given. It will continue to be economically solvent because the lege and military want it so, and that's just fine with me.

The minority of "pukers" on the ride will learn to take their meds before the ride or not use it in winter. The majority didn't think it was so bad. Personally, I really love a rough sea ride!

Once winter is past, more and more people will ride HSF and its popularity will go up, also making the case for its return to Kauai.

Sure, it's not "the state of Oahu", but it's neither the "state of Maui" nor the "state of Kauai" (sovereignty pukes not withstanding). It is the state of Hawaii, and the duly elected reps of that state have sanctioned GET OVER IT!!!

Anonymous said...

Joan, you took notice of that $10 million figure. I liked the pukerferry cartoons. Dick Mayer and Larry Geller are working on a Puke Index of weather conditions for the HSF. BTW, only standard size vehicles have been charged the $55 rate...the National Guard vehicles are much larger and would be charged a higher rate at least as commercials vehicles have...that quote seemed to me to be just PR to get regular people/size cars to go. The real problem right now is that esp. Maui people are not booking in significant numbers on this thing. That PR quote, government service, and ads in the Maui News are ways they are trying to deal with it. But none of those will ultimately make a significant dent into the kind of numbers they need from outer islands. People on the outer islands see that they can just take a plane in 30 minutes, not get sea sick, and rent a car on Oahu if they need to. HSF won't be able to change that. They are destined to fail, except in showing 6 to 12 months of service to qualify for the contract to build these for DoD, which is the goal. For now they are just offering a money losing service to the people of Hawaii until they get the contract they want. I figure they can go for 6 to 18 months in this manner, and in that time lose $30 to $45 million which would only be 1% to 2% of the contract they want. Aloha, Brad

Anonymous said...

Given the media's silence on the issue of passenger nausea since the initial run to Maui, how does dogfly know that the majority didn't think it was so bad? The rough ride wasn't due to the north swells but the trade winds. The trades are year 'round, not just in the winter. How can something be economically solvent if it relies on government assistance?

Anonymous said...

I wasn't aware of any DOD contract requiring a 6-12 month qualifying period, but I never looked into it.

If that is so, HSF management has my sincere admiration for such planning. I wish I could take credit for it. It's a fantastic gambit!

I hope that HSF will continue to operate as a passenger/car ferryat somewhat of a "loss leader" after the contract is let. The Big Island can't wait for start of service!

Joan Conrow said...

Charley, you've made that observation before, and although I respect your legal knowledge (while wondering why you aren't licensed in Hawaii) and have little of my own, I think I'll wait to see what the judge has to say before I throw in the towel!

Brad, thanks for the observation about the true cost of shipping the Guard vehicles over -- and also that Maui people are not taking the ferry in any sizable numbers.

Anonymous said...

Yep. Lanny Sinkin and I: Not licensed in Hawaii. I'm not licensed in Hawaii because I've never taken the Hawaii bar. And I've never sat for the Hawaii bar because the work I do doesn't require me to be licensed in Hawaii. Not yet anyway. I might very well take the bar here some day.

I would never ask anyone to throw in the towel. Good Lord, no. I think the legal wrangling has been fantastically interesting. Much more so than any other aspect of the controversy. Forgive my wonky commentary. It's a function of my interests.

Anonymous said...

you'd think they'd let the ng clean up vehicles ride for free. talk about corporate greed! where's the aloha?

Lanny said...

To me the proof that Act 2 is not a general law is the "drop dead" clause in the law. After Superferry completes its EIS or within a certain number of days after the next legislative session ends, Act 2 is repealed. That means that the Superferry is the only "large capacity ferry vessel company" that will ever benefit from the environmental exemption. If another company showed up after Superferry completed its EIS, they would have to go through the normal process of preparing environmental documentation prior to operation. Tying the expiration of the law specifically to the Superferry EIS is pretty obvious evidence of a special interest law.

Charley is sort of right about my authorization to practice. I am admitted to the Hawai'i Federal Bar and continuing to pursue the suit against the Coast Guard's security zones there. I am not licensed to practice in State court because I never took the State bar.

Joan Conrow said...

Legal wonking is welcome, Charley and Lanny, whether you're admitted to the Hawaii bar or not. I was just being niele with Charley.

Anonymous said...

Thanks for the go-ahead, Joan.

Lanny, I'm very pleased to have the opportunity to converse with you. I have to disagree about the drop dead element of Act 2 because the only Hawaii case I'm aware of addressing "general legislation" found a law just as specific and limited in scope as Act 2 to be a general law.

Bulgo v. Maui County, 430 P.2d 321, 50 Hawai'i 51 (1967), involved legislation that specifically enabled Maui County to replace a member of the board of supervisors who had died after his election but before the start of the term.

The law said, "The governor shall issue a proclamation within ten days after the approval of this Act requiring special elections to be held if any person elected in the general election of 1966 to the office of chairman of the board of supervisors of a county died before January 2, 1967..."

Plaintiffs challenged the law on the grounds that it was not a general law as required under the constitution for state laws regulating counties, but was instead a special law to deal with the specific situation in Maui.

At the time of approval of the Act, the county of Maui was the only county in which the person elected as county chairman in the 1966 general election had died before January 2, 1967 and it was patently obvious and freely admitted that the act was specially written to address this particular situation. Further, because of the explicitly defined period of time covered by the law, its terms could never cover any other situations in the future.

So just as Superferry is the only "large capacity ferry vessel company" that will ever benefit from the environmental exemption, Maui was the only county to benefit by the legislation challenged in Bulgo v. Maui County.

Lanny said...

If Joan does not mind us legal wonking on her blog, let me toss in the following for consideration.

Bulgo v. Maui County, 430 P.2d 321, 50 Hawai'i 51 (1967) dealt with a special situation in a general way. The law did not specify who should be elected in the special election, only that a special election should be held.

The Superferry Law is the reverse. The law deals with a general situation (desire to have ferry service right away) in a special way (authorizes Superferry and only Superferry to operate without doing environmental work). The “general law” argument relies upon the characterization of “large capacity ferry vessels” in a law that then gives special privileges to Superferry over other vessels that would fall into the same category. To be truly a general law, the law would apply to all large capacity ferry vessels, just as the Bulgo case allowed anyone to benefit from the law by running for the vacated office.

Sometimes arguing the law we fail to observe common sense. Everyone knows that the law was meant only for Superferry. The bill was discussed in the media, the Legislature, and the general public as the Superferry Bill. While lawyers can make arguments for practically any position, when the obvious is obvious the arguments to the contrary better be really good.

Permit me to shift the legal focus while remaining on the characterization of the Superferry Law as a special, not general, law.

Article 1, Section 21. The power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities.

What the State Legislature did was to grant the Superferry the right to go into operation with the full knowledge that operation would pose the threat of irreparable environmental, social, and cultural harm. Judge Cardoza made that finding after an extensive evidentiary hearing on that issue. “Irreparable” is a synonym for irrevocable.

I thought one of the strongest constitutional arguments would be that the legislation does provide only Superferry the privilege of operating without completing its environmental work (drop dead clause) and immunity from the legal requirement for such completion, knowing that the results of the privilege and immunity could be irrevocable. The law, therefore, violates the provisions of Article 1, Section 21.

I understand that the Legislature could revoke the privilege and immunity granted in the Superferry Law. To me that potential does not mean that the irrevocable acts allowed while the law is in place are constitutional under Article 1, Section 21.

Anonymous said...

This is what lawyers do - argue analogies and distinctions. Bulgo v. Maui County challenged as violating what is now Art. 8, Sect 1 which essentially says the legislature must grant powers to counties by general laws and not by laws for single counties.

The Maui county chairman was elected in '66 but died before he took office in '67. It goes without saying that it was the only county with such a situation. The legislature wrote a law that said, any county in which the county chairman was elected in '66 but died before he took office in '67 shall have a special election.

Everybody knew the law was written to address the Maui situation. Nobody denied it. But the court nevertheless said it was a general law because it was drafted in such a way as to pertain to a class, not to a particular county - even though Maui County was clearly the only county it pertained to, and even though the law was specifically written for Maui County, and even though no other county could at that time, or at any other subsequent time, take advantage of the law. Still, according to the HI Supreme Court, it was a general law.

Here we have a law that everyone knows and admits was written to address the superferry, but it is drafted in such a way as to address a class. Under Bulgo, the fact that it is a law drafted for a specific purpose would seem not to matter.

I'll think about your Article 1, Section 21 but my first thought is that a law allowing a thing that has the potential for causing an irreprable harm (under the test for an injunction) does not amount to making an irrevocable grant of special privileges or immunities.

As you point out, the legislature can revoke the grant - and would probably do so if it turned out to cause irreparable harms willy nilly - like killing whales every third trip, say.

The potential for causing irreperable harm doesn't create an irrevokable grant. Is what I would argue anyway.