January 10, 2009

Poinography September 2007 archive

Filed under: — Doug @ 2:25 pm



Civil disobedience stakes are raised

Filed under: HI State Politics — Doug @ 6:43 pm
The Advertiser has a story partially motivated by blog posts (like this, this, and this) regarding a flier distributed at Governor Lingle’s public appearance on Kauai last week.

Children with boogie boards and surfboards who jumped into Nawiliwili Harbor on Kaua’i to confront the Hawaii Superferry last month prompted warnings by the Lingle administration that parents could be subject to child welfare investigations if it happens again.

The administration said the warnings, along with a list of more than a dozen possible criminal charges for illegal protests, are to inform parents of the consequences of violating federal security zones when the Superferry returns. The administration has stressed that legal protesters would not face any penalties.

But rather than diffuse tensions on Kaua’i, the warnings of potential child welfare investigations in particular have led to an emotional backlash. Several people on Kaua’i and on Internet blogs and discussion boards have seized on the warnings as an example of what they believe is the Lingle administration’s overreaction to dissent.

“It’s unprecedented that they’ve used child protective services as a political weapon, especially one to censor people, to censor their right to speak, to censor their right to protest,” said Andrea Brower, an activist in Anahola who was among the protesters who went into the harbor to block the ferry.

“It’s pretty telling how far the Lingle administration is willing to go to ensure that these private business owners get their way.”

Keone Kealoha, director of Malama Kaua’i, said that warnings seem to be at the root of the administration’s xresponse to the protests.

“It just seems, again, that they are escalating the consequences instead of listening to the concerns,” he said.

Comments like Brower’s seem oblivious to what it means to engage in civil disobedience. Civil disobedience is a form of protest that goes beyond the exercise of free speech to purposefully and knowingly violate the law. Engaging in civil disobedience entails assuming the risk, even the likelihood, of being arrested and convicted. Indeed, that is what makes civil disobedience such a powerful form of dissent. Now that Governor Lingle has rattled this array of legal sabers, it remains to be seen if any protesters choose to test her “unified command” by proceeding with civil disobedience. In the classic civil disobedience model, protesters committing any of the various offenses cited by Lingle would freely submit to arrest and would not resist proescution.

Now, if the superferry sails again (before completing an environmental review) it will be a much more dramatic test of wills. The escalation of the rhetoric embodied in the “warning” distributed to Kauai residents almost obligates the authorities to follow through and to aggressively make arrests. Part of me suspects that Lingle is bluffing, although hers would not be the first gamble to go awry in this saga… However, if she follows through and the end result is surfers and swimmers being locked up, fined, and separated from their parents and/or children, it would be a hugely powerful show of commitment by the protesters.

Will any of this actually happen? We wait.

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Filed under: General — Doug @ 9:53 am
Go read another blog today. I got nothin’.

Better yet, do that and then tell me the best of what you found.

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If Superferry doesn’t sail, then harbor users like Young Brothers, Matson & NCL will pay the bonds back. But what if they sail somewhere else?..

Filed under: HI State Politics — Doug @ 7:29 pm
I am surprised that it took this long for somebody to pin down the Department of Transportation about it, but in court this week Director Fukunaga explained the financial impact of the ferry not paying what it owes on the bonds issued for harbor improvements. The Advertiser has this:

If the Hawaii Superferry leaves the state, other harbor users will have to pick up the tab for $40 million in ferry-related improvements at four ports, according to Department of Transportation officials.

The state issued general obligation reimbursable bonds to purchase the barges, ramps and other equipment and facilities necessary for the new interisland ferry service, DOT Director Barry Fukunaga testified yesterday in Maui Circuit Court. The money to pay off the debt will come from the DOT Harbor Fund, which contains proceeds from harbor-use charges, rentals and other sources of income.

Under the terms of an unprecedented operating agreement between Hawaii Superferry and the DOT, the company will be contributing to the fund a minimum of $2.3 million or 1 percent of its gross revenues, whichever is greater, in each of the first three years of the 22-year deal. Future payment amounts will be renegotiated in years four, 10 and 15, according to the agreement.

The ferry also will pay dockage, passenger and vehicle fees, like other harbor users.

Michael Formby, deputy DOT director of the Harbors Division, told the Advertiser yesterday the Harbor Fund is not limited to using Hawaii Superferry payments in its obligation to pay the principal and interest on the $40 million in bonds.

“If (Superferry) does not operate then the state would not get the revenue expected from them, but the Harbors Division still has to repay the debt, payment for which is made from all revenue sources available to the division,” Formby said in an e-mail.

No taxpayer funds are being used for the ferry projects, he said, since the money to pay for them is not coming from general revenue sources.

I know the data are published in the budget documents every year, but I’m having trouble finding the current balance of the harbor special fund online. My hunch is that the fund has significantly more than the $2.3 million needed for the first year payment amount. Thus, the net (immediate) economic effect on the taxpayers if the Superferry had to forego sailing until the environmental review is complete seems to be small.

Meanwhile, the Maui News has this interesting revelation from the hearing regarding another finger the state has in the superferry pie:

[Maui Tomorrow laywer] Hall also tried to establish whether Superferry could remove its vessel if it were unable to use it here. Superferry President John Garibaldi had told reporters that might happen.

The state holds a third mortgage on the vessel. Hall speculated that the mortgage might prevent moving the ferry, but there was no testimony about what provisions the mortgage contains.

Hmmm. If the Superferry decides to leave, the state would need to carefully weigh the alternatives. Allowing them to leave would make it (more) possible for the ferry to pay off those harbor improvement bonds and could protect the MARAD loan guarantee. Even if the third mortgage on the vessel allows for it, if the state refuses to let the ferry leave it would … be like cutting off the nose to spite the face. The environmental review of Hawaii operations could possibly even continue while the ferry sailed somewhere else, and the ferry could return if/when the way is cleared. A potential “win-win?”

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Is it about public shaming or about the environment?

Filed under: HI State Politics — Doug @ 8:26 pm
After a caucus of Senate Democrats a few Senators are making comments to the effect that any special session to allow the Superferry to sail during the environmental assessment will have some political cost. According to an Advertiser story:

Several senators also want to hear what environmental and other concessions or compromises Hawaii Superferry officials are prepared to offer if a special session is called, and some want to hear some contrition from the company and the Lingle administration for rejecting the Senate’s offer last session to allow the ferry to launch while the state conducted an environmental impact statement of ferry-related improvements at four harbors.

In an ongoing court hearing, now in its third week, Hawaii Superferry and the state Department of Transportation are trying to persuade Maui Circuit Judge Joseph Cardoza that an environmental assessment can be done while the ferry service operates.

“What happened here in this case is that they gambled and lost,” said state Sen. Shan Tsutsui, D-4th (Kahului).

State Senate Majority Leader Gary Hooser, D-7th (Kaua’i, Ni’ihau), said the Transportation Department and Gov. Linda Lingle are still defending the agency’s decision to exempt the ferry projects from environmental review laws, even though the state Supreme Court ruled the exemption was improper and ordered a review.

“I think it’s long overdue for the governor, the Superferry and the Department of Transportation to acknowledge that they made some serious errors in judgment,” Hooser said.

That’s it, an admission of “serious errors in judgment?” What kind of “environmental and other concessions” would need to be thrown in to win over Senators like Tsutsui and Hooser?

Also, nobody seems to be mentioning the (remote, in my opinion) possibility that Cardoza rules the ferry can sail during the EA and the plaintiffs appeal his ruling to the Hawaii Supreme Court. Would the Lege convene in special session before the HSC hears and/or rules on the appeal?

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OIP sued by Kauai County Council

Filed under: HI State Politics, Neighbor Islands — Doug @ 6:35 pm
The Garden Island News has a story about a fight over executive session minutes that may be nearing resolution. It is worth watching, not necessarily because of the specifics of the minutes being withheld by the Council, but because of what it means for the powers of the OIP to enforce its rulings.

The county?s arguments against releasing the minutes to the public include that specific matters were discussed regarding an investigation within the Kaua?i Police Department, ?including anecdotal complaints about the department or individual officers.?

The county?s argument continues that were such complaints against the police to be rendered unfounded, ?the integrity of the officers and department will be irreparably harmed by the premature disclosure.?

In its motion for summary judgment, attorneys for the OIP allege that is an overstatement, alluding to the transcript of the executive session they reviewed.

?The transcript revealed no Council consideration of any information required to be kept confidential by law,? the OIP argument states. ?The OIP also advised the Council that the Sunshine Law does not allow the Council to go into an executive meeting to ?minimize the inadvertent violation of a person?s privacy rights.??

In a letter dated June 8, 2005, the OIP demanded that the county release the minutes by June 9, 2005, identifying three lines which could be redacted as privileged attorney client communication.

That, the county suggests, indicates that the OIP was delayed in suggesting portions could be blacked-out before being released to the public.

In addition to clarifying the roles of the OIP and various county entities, the ultimate decision on the matter also should help provide clarification as to whether the court has jurisdiction to decide what the impact of an OIP opinion is, [OIP attorney] Cosgrove said.

I am especially interested in the outcome of this, because my document requests from the Public Utilities Commission suggest that far too much of the petroleum industry data and communications submitted to the Commission is being classified as confidential information. I may end up raising that issue with the OIP, and it would be great if the authority of the Office was strengthened or, at the least, upheld in whatever decision the court reaches.

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While we are waiting…

Filed under: HI State Politics — Doug @ 7:27 pm
Since I am waiting for a response after making another request for records from the PUC regarding the Petroleum Industry Monitoring and Reporting program, I might as well post a few of the more interesting excerpts from the limited (and redacted) documents I already have on hand from the first batch of documents.

From a May 25, 2007, letter from Island Petroleum to the PUC:

We are also concerned with the information the PUC might decide to make public, even on an aggregated basis that protects confidentiality. Someone has to be concerned with the misinterpretation of this information by the public. For example, prior to knowing anything about gasoline margins, what would the ?public? consider ?reasonable?? What irresponsible innuendo could politicians or the media make of ?bites? of information taken out of context? In the interest of avoiding future irrational attacks on an entire industry, jeopardizing the distribution of a product as critical as fuel, it would seem that the PUC and other users of the information should have some responsibility to properly interpret and disseminate aggregated information, based on a specific objective. If the PUC does not accept this role, then this whole process amounts to nothing more than a witch hunt and fodder for emotional reactions to retail gasoline prices.

From another May 25, 2007, letter from Tesoro to the PUC:

Tesoro Hawaii notes that Senate Bill 990 requuires certain information be required to be disclosed to the public. Prior to disclosing this information, Tesoro Hawaii suggests that the Commission provide reporting entities with a template of the data and presentation that the Commission will use to disclose to the public certain information under Section 9 of Senate Bill 990 SD2 HD3 CD1. Tesoro Hawaii respectfully requests the opportunity to review and comment on the data and the template.

I have asked the PUC if this “opportunity to review and comment” was granted, and about the outcome of the review, if any. So far as I know at this time, the public never had an opportunity “to review and comment” on the template and presentation of the PIMAR data.

Last, a bit of a lawyer-to-lawyer smackdown from the PUC to Shell. It began when Shell submitted a very stilted and non-ressponsive response to the Information Request sent by the PUC to all the registered petroleum companies. [Also, I’ll note that Shell’s “response” letter that the PUC provided me a copy of is boldly marked “copying prohibited.” Heh.] The PUC responded on July 3, 2007, and here are some excerpts:

As an initial matter, Shell?s rote articulation of standard litigation objections is misplaced. This is not a contested case proceeding; indeed, this matter is not even the subject of a docketed proceeding before the Commission. As such, the Commission finds without merit Shell?s objections to the IRs on the grounds that they are ?vague,? ?ambiguous,? ?overly broad,? ?unduly burdensome,? and ?seek information that is not relevant to the subject matter of this litigation, or reasonably calculated to lead to the discovery of admissible evidence.?


Despite the clear statutory authority for the Commission?s IRs, Shell provided a series of rote objections that for the most part appear to lack any legal or factual basis. The responses that Shell did provide were short, conclusory and did not address all of the subparts of the IRs. Unlike other wholesalers, Shell does not appear to have made a good faith effort to comply with the IRs.


As Shell, however, did request a two-week extension of time “to provide any additional responses it may have to complete the [IRs],” the Commission will grant Shell’s request. Shell must file complete IR responses no later than July 19, 2007. Failure to provide the information requested by the Commission may subject Shell to civil penalties as provided by law.

So far as I can tell from the documents I was provided, Shell did not comply. My email correspondence with the PUC during the first document request included a direct question about any violations of the PIMAR program, and the PUC told me (as of August 21) that there had been no violators cited for failure to file timely reports. Go figure.

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Oh, the non-irony

Filed under: HI State Politics — Doug @ 7:55 pm
According to this almost smug Star-Bulletin story the Superferry plaintiffs and protestors are to blame for tons of marine debris that the Coast Guard had intended to pick up from the Northwest Hawaiian Islands.

Tons of sea-life-killing marine debris will go uncollected in the Northwestern Hawaiian Islands this year because a Coast Guard voyage has been canceled due to Superferry security concerns.

The Superferry has been idled as a result of protests and court challenges over its potential environmental impact.

The canceled debris-collection voyage means the Superferry has exacted an indirect environmental toll even as it remains tied pierside.

Only at the tail end of the article do we learn that a Hawaii-homeported NOAA ship has been, and will continue, picking up tons of debris from the same area this year. What’s more, these cleanups are a classic example of a losing battle worth fighting. The sad fact is that even if the USCG and NOAA ships were to work among those isolated islands non-stop all year the rubbish is never, and would never be, truly eradicated. The debris is generated at staggering rates and brought to the area by persistent currents.

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Successories gives it up

Filed under: General — Doug @ 7:54 pm
Okay, I know this is essentially a thinly- (or un-) edited press release lurking among the Advertiser breaking news, but the announcement of this particular store closure is too easy of a set-up for little fun at their expense.

Which Despair.com design is most appropriate for this occasion? My first pick for Mr. Wheeler would be this one.

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Injured officer tries to arrest Hawaii County police chief

Filed under: HI Media, Neighbor Islands — Doug @ 9:15 am
Check out this bizarre story from the West Hawaii Today. It’s hard to tell if this is about an officer coming unhinged or an officer on a crusade for justice. Perhaps it would be easier to categorize if the Police Commission had not forced the discussion of his complaints into executive session against the officer’s wishes.

After the short executive session, Keliipio walked out of the meeting room, to where Mahuna stood with four other office[r]s. Two officers stepped in front of Mahuna as Keliipio announced his intention to arrest the chief.

“They refused me my right to place a person under arrest,” Keliipio said, noting that the situation was five armed men in front of himself, one unarmed man. “Since I was using a federal law, it’s obstruction of justice.”

Officers speaking with Keliipio told him he didn’t have the authority to arrest anyone.

Keliipio told Mahuna he violated Keliipio’s civil rights and the Health Insurance Portability and Accountability Act, the latter by allowing the release of Keliipio’s medical records following his work injury.

“The problem is, they’ve tried to terminate (my employment) numerous times while using my medical records and they don’t consider that malicious harm,” he said.

Corporation Counsel Lincoln Ashida advised commissioners to hear and discuss the complaint in executive session because of concerns about documents Keliipio provided that included medical records.

If Keliipio publicly discloses his own records, then I don’t understand where the privacy concerns would arise.

For whatever reason, we are given no idea in this story exactly what federal law Keliipio was trying to arrest Kahuna for violating. It’s also unclear if any reporting effort was made to hear Keliipio’s side of the civil rights complaint and, more alarming, his allegations of “criminal acts” go completely without comment?!

On a more general note, is a municipal police officer on medical leave (or not in a leave status) authorized to arrest people for alleged violations of federal law? Further, once an authorized officer tries to execute an arrest, is interference by other officers (or by anyone) allowed? It seems wrong to short-circuit the legal process before a prosecutor has even weighed the evidence to determine if charges will be filed.

This is a really strange (and poorly-reported) story!

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PUC documents are going to require some time to digest

Filed under: HI State Politics — Doug @ 12:27 pm
I spent the morning reading over the paper and digital documents provided by the Public Utilities Commission in response to my request. Along the way, I have formulated another request for additional information. Insert your favorite onion peeling analogy here.

Hopefully this request will be resolved more quickly than the first one, but since I am asking for documents that may be considered confidential under the Protective Order (PDF), it’s hard to say. I may have to file a motion to appeal the classification of the information I’m asking for (per paragraph 26).

Basically, the Commission had a few meetings with industry officials regarding the data to be collected under the PIMAR program, and I am trying to find out what was discussed at those meetings. I’m also interested in what input (if any) the industry was allowed to provide regarding the way the information is being released to the public by the Commission.

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Media clampdown in Kauai courtroom

Filed under: HI State Politics, HI Media — Doug @ 7:43 pm
I reckon it was done in reaction to the Akaku “open mic” incident, but the Advertiser has a breaking news story that doesn’t really explain the reasoning behind the Kauai Circuit Court restrictions on audio and video recording during a superferry hearing today:

State sheriffs had seized an Associated Press reporter’s audio recorder before the Friday court hearing. They said they were following the instructions from the judge limiting media.

But [Judge] Valenciano ordered that the audio recorder be returned an hour and a half into the proceeding.

At the start of the hearing, only one video camera and one still camera were allowed. All other video, audio and still photography was barred.

Is this normal? I don’t know exactly where to look, but the Circuit Court rules (here and here) don’t seem to address limitations on electronic media in the courtroom. A quick search of the HRS came up dry for me, too, but maybe I’m using the wrong search terms.

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The “transparency” documents have arrived

Filed under: HI State Politics — Doug @ 6:50 pm
I have finally received a chubby envelope full of photocopies and a CD-ROM full of electronic records as requested from the Public Utilities Commission. I’ll start reviewing the documents closely and describing what I find soon, probably this weekend. At first glance, it is not something I would recommend paying $30-odd for…some are heavily redacted and it seems that much of the give-and-take between the petroleum industry and the PUC regarding the implementation of the PIMAR program took place at informal confidential meetings.

However, I’m not giving up hope just yet. I’ve been thinking about this while running lately (uh oh, haha), and my thoughts are beginning to gel regarding a way to produce a useful public report without violating the (overly broad, in my opinion) confidentiality granted to the petroleum companies.

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Mayor Kim’s aide, Billy Kenoi, will join race

Filed under: Neighbor Islands — Doug @ 6:50 pm
Both Hawaii County dailies have a story (West Hawaii Today and Hawaii Tribune-Herald) by Jason Armstrong regarding the latest candidate for Big Island mayor. Billy Kenoi will face (so far) Stacy Higa, Lorraine Inouye, and Angel Pilago on the ticket next fall.

Kenoi, a Democrat, joins state Sen. Lorraine Inouye, Hilo Councilman Stacy Higa and North Kona Councilman Angel Pilago in the declared field of mayoral candidates.

Kenoi, 38, said he expects to resign his appointed post in the “next few months” after finishing some projects he’s been overseeing.

He’s spent the past six years representing Kim on issues such as combating the use of crystal methamphetamine or “ice,” fighting the spread of coqui frogs and improving the island’s health care industry.

“I’d like to continue what Harry has done,” Kenoi said of the man who served as his football coach 30 years ago.

I’m agnostic on the Hawaii County mayoral race, but an examination of those three issues don’t seem like topics that would flatter Kenoi (or anybody, for that matter) over there.

Hunter Bishop is a much better informed source for handicapping of the race, of course.

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The special session tea leaves are still swirling

Filed under: HI State Politics — Doug @ 7:52 pm
It’s anyone’s guess if the Legislature will reconvene in a special session to debate the superferry environmental review. Many different flavors of the basic “who knows?” story are out there.

In the Garden Island News:

Gov. Linda Lingle said last week that she is considering calling a special session to address the Superferry situation and met earlier this week with the state Attorney General and top-ranking lawmakers to discuss the possibility.

?No correction to the law is necessary,? state Rep. Mina Morita, D-14th District (Kaua?i), said. ?If we do go into special session, it will be to exempt the Superferry from the law.?


?Barring being presented with a compelling case to the contrary, I do not support holding such a special session and believe all parties should wait until the Maui and Kaua?i courts have made a determination and decision, and then honor that outcome,? state Sen. Gary Hooser, D-Kaua?i, said. ?Holding a special session of the Legislature to promote and benefit the interests of one specific business would set a bad precedent, and open the door to the requests of other business interests who may also believe they are entitled to so-called ?legislative relief.??

Superferry officials did not respond to requests for comment on the potential for lawmakers to resolve the issue in a special session.

After a private meeting between Lingle, state Senate President Colleen Hanabusa and state House Speaker Calvin Say, ?All three have agreed not to publicly discuss a special session at this time because it?s too preliminary,? Russell Pang, spokesman for the governor?s office, said yesterday.

?There is an understanding among the three that the Superferry should be allowed to succeed (operate in Hawai?i) and we just need to find a way to do that,? he said.

Pang noted the governor?s remarks on the implications of an unfavorable decision in Maui or Kaua?i courtrooms.

?If the court on Maui rules that the Superferry could not operate while an EA is being prepared, that ruling would be an important factor in deciding whether or not to have a special session,? he said.

Okay, despite Pang’s hedging, I read that as Lingle, Say and Hanabusa will call for the session if the superferry can’t sail during the EA.

Next, in the Advertiser:

At the state Capitol yesterday, lawmakers continued to discuss how to approach a possible special session on Superferry.

Gov. Linda Lingle and state House and Senate leaders, in private talks, have debated whether a special session should be called before or after the Maui and Kaua’i courts rule.

The timing is also being influenced by the fact that state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), wants to discuss the issue with House Democrats at a caucus Tuesday. Senate Democrats are also expected to meet next week and discuss the issue.

“Any comment on the issue of a special session for the Superferry is premature until I discuss it with the House leadership and majority caucus on Tuesday,” Say said in a statement yesterday.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said any decision will require the cooperation between the Republican governor, Senate and House leaders, and a majority of rank-and-file Democrats.

“We’re still discussing it,” she said. “In order for a special session to take place, you need everyone on the same page.”

Several people, speaking on the condition of anonymity, said there may be enough votes in the Senate and House to help Superferry. But there is a hesitancy among some lawmakers about bypassing the courts and stepping into the controversy when public opinion on Superferry is largely unknown.

Ah, such courage from the legislators that would “help” the Superferry. Environmental policy by public opinion polling? Nice.

However, a seemingly much more definitive statement is found in the Star-Bulletin version:

Meanwhile, legislators have not been able to reach any agreement on whether they should intervene to restart the ferry service.

Gov. Linda Lingle, a strong supporter of the Superferry, said she would not consider calling for a special legislative session to change the law to allow the ferry to resume service between Maui and Honolulu while an environmental study is done.

The Honolulu-to-Kauai run is expected to start next Wednesday.

Yesterday, two Democratic senators, Robert Bunda (Kaena-Wahiawa) and Will Espero (Ewa-Ewa Beach) called on Senate President Colleen Hanabusa to speed along a special session.

“We should pass legislation that will allow the Superferry to operate until the court decides,” Espero said.

The pair said in their letter that “there is overwhelming public support for a legislative compromise.”

Huh? So, which is it, the Governor has ruled out asking for a special session, or it’s too premature for her to say and it all depends on how the Court rules?

Going a bit meta for a moment, but how would this sort of a special session work, anyway? Would a bill actually be referred to committees and subject to public hearings as during a regular session? Which Committees would hear it? If a proposal to provide “legislative relief” for the ferry were to go to Representative Morita’s committee it probably would not emerge. The other possible referral in the House would be to Maui Representative Joe Souki’s committee, and he has been facing a growing (and deserved) firestorm of criticism (from both sides) in the Maui News letters pages. Who can guess what he would do?

On the other hand, maybe there would simply be three readings of a bill before the committee of the whole in each chamber. In which case it would be even more important for both sides to have their ducks in a row waiting to go.

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I’d lay odds that this is astroturf

Filed under: HI State Politics, HI Media — Doug @ 7:51 pm
Somehow this doesn’t strike me as a spontaneous expression of local sentiment for the Superferry. Looks like astroturf to me.

Plenny double-talk in the FAQ page.

Q: Who are the Friends of Hawaii Superferry?

A: Friends of Hawaii Superferry is a community-based coalition of residents and local businesses who care for the future of our islands? communities and have come together to support Hawaii Superferry because of the benefits it will provide to our communities. We believe Hawaii Superferry is a safe, convenient, state-of-the-art, and eco-friendly choice in inter-island travel.

Why not answer the “who” question with a bit more detail? The website allows people to sign a petition, but doesn’t give much idea of who has already signed other than a page of endorsements (some of which read as if they have been quoted out of context).

Q: Has there been any review of the environmental impact of Hawaii Superferry?

A: Yes. Hawaii Superferry enlisted environmental experts on every island it will serve to help it be an eco-friendly company. The result is a ferry service that will care for our special environment and offer a fuel-efficient, ecologically sound form of transportation for all of Hawai?i?s residents and visitors to use and enjoy. Its whale avoidance policy is stricter than federal law in Hawaii and its procedures to prevent the transportation of invasive species exceed standards established by the Hawaii Department of Agriculture.

Oww, my eyes hurt from rolling too hard.

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GIH clarifies, or rather solidifies, its opinion of the Akaka Bill

Filed under: HI State Politics — Doug @ 7:51 pm
Maybe it’s purely coincidental, but I reckon that my post from a few days ago could have provided the impetus behind this Hawaii Reporter post from the Grassroot Institute of Hawaii. I was openly pondering if the “institute” is attempting to influence federal legislation (i.e. the Akaka Bill) even though they reported to the IRS that they were doing nothing of the sort. Well, this is how the testimony presented at the recent Hawaii State Advisory Council meeting concludes:

In summary, GRIH is not explicitly opposed to the Akaka bill.

Instead, we object to:

1) The lack of adequate debate and discussion to develop full understanding of the proposed bill by the people of Hawaii and the nation.

2) The notion implied by backers of the bill that those of native Hawaiian ancestry are somehow inferior or inadequate. We believe that to be false.

3) The notion that such supposed inadequacy could be corrected by perpetual superiority imposed by law.

4) The absence of any provision for the people of Hawaii to approve the Akaka bill prior to action by the US government.

5) The imposition of all costs for implementation of the bill on the innocent people of Hawaii.

See, there’s the rub, they claim no “explicit” opposition, but they peddle plenty of implcit opposition. It would not take much of a review by the IRS to reach that same conclusion.

UPDATE: And now the Hawaii Reporter further “honors” me with a mention in this post submitted by Grant Jones of The Dougout. No working link to this blog is included, though, confunnit. Maybe next time? Heh.

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Caldwell calls for an extra-judicial, extra-legislative compromise — fat chance

Filed under: HI State Politics — Doug @ 7:28 pm
House Majority Leader Kirk Caldwell’s speech to the Honolulu Rotarians is excerpted in this post at the House Majority blog. Judging by the excerpted portion of the speech only (because I don’t know if/where we may find the entire transcript), I think the first two elements of his three-pronged plan amount to wishful thinking. Caldwell is urging the Governor to broker a compromise that will allow the ferry to sail during an environmental review.

UPDATE: A complete transcript has been provided and may be read in the comments section of this post.

The only logical reason why the plaintiffs in this case (or, indeed, in any case) would agree to such a compromise would be to avoid a potentially worse outcome. However, if there is no compromise in this case, then a potential special session of the legislature would, at most, (so far as I have heard) do the same thing. It’s not as if any legislators (or the Governor) are talking about the Lege waiving the environmental review process for the ferry altogether. Thus, why would the plaintiffs compromise now, when it is still possible that the Court will rule that the ferry may not sail during the EA process?

On the other hand, if the Court rules (before any compromise is reached) that the ferry may sail during the review process, then the plaintiffs would still have the right to an appeal. At the appeals level, even more so than at the Circuit Court level, it seems impossible that the review process would be waived. Judging from the earlier ruling, the worst (and least likely, in my opinion) ruling that the HSC is likely to hand down (from the plaintiffs’ viewpoint) would be … to permit the ferry to sail during the review process. Again, a fate no worse than the proposed compromisse.

If my thinking is correct, then the plaintiffs have nothing to gain by compromising, so why would they do so?

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Potential replacements for McCartney are emerging

Filed under: HI State Politics — Doug @ 7:28 pm
Today the SB follows up on the change of leadership at the Hawaii Democratic Party (discussed a few days back in the Advertiser), providing some additional information.

Former state Rep. Brian Schatz said he is interested in running for chairman at the Democratic convention in May.

Others possibly interested include Tony Gill, a labor attorney, Donn Ariyoshi, son of former Gov. George Ariyoshi, and Al Harrington, an entertainer.


Annelle Amaral, Oahu County chairwoman, said she was not interested in the state chairmanship, but said the Democrats’ biggest challenge will be the possible Constitutional Convention in 2010.

“I think watching the issues for the ConCon and where the guys will fall on the issues will be the major thing to watch closely,” Amaral said.

Voters will decide next year whether to hold a state ConCon in 2010.


Schatz, chief executive officer of Helping Hands Hawaii, said yesterday that he would start surveying Democrats for support.

“I want to make sure that people can buy into my vision,” he said.

My comment forum is available if Schatz would like to explain his “vision” publicly. Actually, I’m more interested in the specifics, though. For starters, which of those interested in the post support a ConCon? Why or why not?

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High power vs. high volume

Filed under: HI State Politics, Neighbor Islands — Doug @ 7:28 pm
Several months ago there was speculation about former House Finance Chair Dwight Takamine making a run for State Senator Lorraine Inouye’s seat (which she is giving up to run for Hawaii County mayor), and now the speculation is confirmed, according to this Advertiser story. I don’t expect any (formidable) challenger to Takamine in the Democratic Party primary, nor do I expect Takamine will have much trouble out-fundraising (and defeating) Republican Ted Hong in the general election, despite Hong’s bluster.

Ted Hong, another lawyer and former state chief labor negotiator for Gov. Linda Lingle, is expected to run for the same Senate seat as a Republican.

Hong, a Hilo resident, said yesterday he is “finalizing his plans” for the race.

“I certainly welcome his challenge, because Dwight Takamine has a long record that he should be held accountable for,” Hong said. If the voters are unhappy with traffic jams or the condition of Big Island public schools, they should hold Takamine responsible because he held a position of power at the Legislature for many years, Hong said.

In return, Takamine (or his campaign staff, bearing in mind the fact that Takamine is an exceptionally reclusive politician) can be expected to remind voters, especially public employee union members, of Hong’s record as chief labor negotiator.

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Grassroot Institute of Hawaii tax filings are interesting

Filed under: HI State Politics — Doug @ 8:03 pm
Inspired by the latest installment of an ongoing series in the Advertiser about non-profits in Hawaii, I followed the link to a website that gathers information about non-profits nationwide, registered as a user, and looked up the 2005 (latest they have on hand) IRS Form 990 filed by the Grassroot Institute of Hawaii. You’ll probably have to register too (no charge) for this link (PDF) to work.

Evidently they use a pretty loose interpretation of what constitutes lobbying, because the GIH claims zero activity in Part VI-B of the Form 990 Schedule A, where it asks:

During the year, did the organization attempt to influence national, state, or local legislation, including any attempt to influence public opinion on a legislative matter or referendum through the use of: volunteers; paid staff or managemen; media advertisements; mailings to members, legislators, or the public; publications or published or broadcast statements; grants to other organizations for lobbying purposes; direct contact with legislators, their staffs, government officials or a legislative body; or, rallies, demonstrations, seminars, conventions, speeches, lectures, or any other means?

Yet in Part III of the Form 990 “Statement of Program Service Accomplishments” they reported their efforts (guest speakers, a public debate, a telephone survey) to oppose the Akaka Bill as “educational” endeavors. Right… Not an attempt to influence that national legislation? Hmmm.

I look forward to the rest of this series in the Advertiser.

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Two interesting tidbits from the Superferry front

Filed under: HI State Politics, HI Media — Doug @ 9:10 am
The same person, Lance Collins of Akaku (Maui public access television), figures in two different stories from different islands. From Maui, where the Maui News reports about a webcast of the superferry trial that picked up and broadcast audio from the attorneys during court recesses, and from Hawaii County, where the West Hawaii Today describes a challenge to the “emergency” process used to procure a company to perform the EA for the superferry.

From the Maui News:

During the initial morning session when the unauthorized audio broadcasts were initially discussed, the only Akaku representative in the courtroom was technician James Harrington.

He told the judge he would talk to his Webmaster.

?I?ll pull the archives off the site and scrub them,? he told Cardoza.

But just before noon, Collins and Akaku Chief Executive Officer Jay April appeared, with Collins arguing that the audio pickup from courtroom microphones were no different from a reporter in the audience listening in on an attorney?s conversations during a recess.

Collins also questioned whether the conversations were privileged, saying no one had shown that the conversations that were broadcast violated any court rules or guidelines.

?When someone makes an allegation, it should not be the burden for Akaku to show it hasn?t done anything wrong,? he said.

?It may not have occurred at all,? Collins argued since no one had shown that any inappropriate or unauthorized material was broadcast. He said Akaku staff are willing to review the material that went out on streaming audio ?but this is a case of a public proceeding being provided to the public.?

From the West Hawaii Today:

“Public procurement is intended to remove barriers and open up new, nondiscriminatory and competitive markets through a legal and rational process offering the state and the people of Hawaii the highest quality goods and services at the lowest reasonable price,” Collins said.


The state Legislature enacted the public procurement code in the 1990s after the state government battled negative publicity over the awarding of millions of dollars in no-bid, noncompetitive contracts to friends of powerful politicians, Collins said.

“This is not an issue of being for or against the Superferry,” Collins said. “But after 30 years of scandals, the state Legislature decided competitive bidding should be the process.”

The Procurement Code provides for an exemption if there is only one source available for the goods or services in an emergency of life or limb, or it would not be “practicable or advantageous to the state.”

Collins said the first two avenues are not available to the state because the department acknowledges there are multiple potential vendors for the environmental assessment. It also does not claim that there is an imminent threat to life or limb and therefore cannot claim an emergency.

The objections point out the department has not provided accurate information regarding the procurement itself and that it has not provided any justification as required by the statute for the exemption.

The normal, non-emergency, procurement process can take a while, and would further delay the start of an EA. Of course, if the ferry is allowed to sail in the interim, then an additional delay may not matter much.

Anyway, Mr. Collins certainly has been a man of action this week!

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Present and former Hawaii Democratic Party chairs announce new plans

Filed under: HI State Politics — Doug @ 9:10 am
In a strange little bit of synchronicity, both Honolulu dailies report on (different) former leaders of the Hawaii Democratic Party. The Advertiser reports that Mike McCartney is going to replace the retiring Joan Husted as the leader of the Hawaii State Teachers’ Association.

McCartney will leave as party chairman within the next month. Jeani Withington, of the Big Island, will likely take over until a new chair is selected at the party’s convention in May.

Democratic insiders have been speculating that the new chair may give some insight into which of the party’s competing factions are positioning for leadership before the 2010 governor’s race.

McCartney said his high point as chairman was the 2006 elections, when Democrats held the majority in the state Senate and picked up two seats to add to their majority in the state House. A disappointment, he said, was not doing more to quell a bitter internal leadership struggle in the House before last session.

Meanwhile the Star-Bulletin (buried within this wide-ranging piece) says that Brickwood Galuteria intends to challenge Republican downtown district Senator Gordon Trimble for his seat at the Lege.

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Be the author, not the floor amendment maker

Filed under: HI State Politics — Doug @ 5:15 pm
Today the SB has a story that is representative of a growing murmur about a special session to address the Superferry’s loss at the Hawaii Supreme Court. Unless the courts rule that the EA can go forward at the same time as the ferry is in service (which I still can’t imagine what legal doctrine would permit), it is almost a lock that the Governor will call for a special session (or make lots of political hay in trying to convince the Lege to call itself back to work).

If a special session is held, there is unlikely to be much time for public testimony and debate on whatever legislation is offered. In this scenario whatever bill is introduced has a huge likelihood of being passed relatively, if not completely, unamended. Some of the recent media coverage even suggests that a condition for holding a special session is that the Lege leadership would essentially agree to the general thrust of the legislation in advance. Thus, the time is now for legislators who disagree with the Lingle administration’s position to draft a legislative solution and begin actively circulating the idea to gather support from other legislators. This means you, Senator Hooser, Representative Morita, Representative Caldwell, etc. We can pretty much rest assured that the Superferry people are already huddling with the Lingle administration (and, apparently, with Senate President Hanabusa and others) to frame the legislative debate in terms most favorable to bailing out the ferry.

One strategy for those who agree with the HSC ruling is to simply on principle not support any legislative meddling/solution. Honorable enough, but a better strategy (from a public relations standpoint and a public policy standpoint) would be to use this opportunity to tighten up the EA waiver process rather than to bail out a single company that is afraid of losing its shirt after taking a big gamble.

Get to drafting, people!

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Let’s not talk in front of the reporters

Filed under: HI State Politics, HI Media — Doug @ 6:55 pm
A very interesting story in the Stephens Media papers today (Hawaii Tribune-Herald and West Hawaii Today ) about a recent politically charged meeting of the Hawaii State Advisory Committee to the U.S. Commission on Civil Rights.

Several members of the Hawaii State Advisory Committee said Wednesday they’re considering filing a complaint about Michael Yaki, a pro-Akaka commission member who sat in on a Sept. 5 meeting of the committee. Yaki is the second commission member to attend an advisory committee meeting this year — Commission Chairman Gerald Reynold [an anti-Akaka commission member] attended the first meeting of the committee in August.


Advisory Committee Chairman Michael Lilly, in a discussion before the meeting Wednesday, asked fellow committee members whether they wanted to add a discussion of Yaki’s behavior to the day’s agenda.

Lilly said Yaki, unlike Reynold, was “disruptive” during the Sept. 5 meeting and “disrespectful” to a speaker.

In addition, noted committee member Vernon Char, Yaki was later on a radio show criticizing the makeup of the committee and saying it was biased against the Akaka Bill, more formally known as Native Hawaiian Government Reorganization Act of 2007.

“I would make a complaint to the commission itself,” said Char, “if we are being undermined before we’ve even deliberated.”

At the suggestion of commission staff analyst Barbara de La Viez, who said she objected strongly to the issue being brought up in a public forum with reporters present, committee members agreed to send her emails instead of discussing it at the meeting.

Is there no open records law that applies to the Commission and the committee? If so, any emails to de La Viez won’t provide much secrecy, or at least not for long…

Yaki characterized the flak about his visit as a way to “distract from the message by attacking the messenger.” He said his interview on Na Oiwi Olino Radio, a broadcast of the state Office of Hawaiian Affairs, was well within his free speech rights.

“I have every legal right to participate in state committee activities,” Yaki told Stephens Media in a telephone interview. “I will not hesitate to speak my mind. I am concerned that my colleagues in Washington, D.C., tried to create a committee that would act quickly to oppose the Akaka Bill. … I’m hoping they will make their own independent judgments and not have the people in D.C. tell them how to do it.”

For a committee that touts itself as being (re-)committed to airing a wider range of opinions to suddenly try to silence Yaki is ironic.

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No reason for “mini EA” argues lawyer

Filed under: HI State Politics, Neighbor Islands — Doug @ 6:54 pm
I almost wrote about this yesterday, but I got lazy.

The Kauai Garden Island News has a story with this lede:

As protesters were rallying for the mayor to join in opposing the Superferry yesterday, across town their attorney was filing what could have been construed as counterintuitive: A motion asking Judge Randal Valenciano to prevent evidence referencing the controversial catamaran?s harm or lack thereof from being presented.

The reasoning behind that decision, attorney Dan Hempey said, was that such evidence could allow the Superferry to ignore the Hawai?i Environmental Protection Act and instead get the benefit of a three-day, ?mini? environmental assessment.

Such evidence isn?t relevant to this proceeding, Hempey said, noting that if Superferry advocates were made to prove the harm or lack thereof caused by the catamaran during a trial, they would essentially be getting away with using their own experts in an amount of time significantly less than what it would have taken to conduct a full assessment, all under the guise of ?a balancing of harms,? required by law.

The balance of harms is supposed to level the playing field, and the ?mini? assessment would mean those battling on both sides of the issue would not be equal, Hempey said, as those against the Superferry would then be burdened with the task of producing counter-testimony within a limited time frame.

This is somewhat like the musing I made earlier this week about presenting all this evidence now that would be re-hashed in any EA. I am very curious to see how the Court responds to Hempey’s motion.

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Transparency was intended to serve consumers, too, not just the PUC

Filed under: HI State Politics — Doug @ 8:12 pm
Another week, another semi-useless “transparency” report on the petroleum industry. From a SB story:

As in the first report, some prices and figures for inventory could not be published (PDF).

Because there are only two oil refiners in the state, some information had to be kept confidential for competitive reasons, the PUC said. For example, releasing the total amount of crude oil inventory for both refiners would allow each competitor to calculate the other’s stock.

The withholding of those numbers does not mean they are being overlooked, said one oil industry representative. The law requires the PUC to analyze the information submitted and report irregularities that could signify illegal activity.

“The Legislature felt it was important to have some oversight and monitoring,” said Melissa Pavlicek, a lobbyist for the Western States Petroleum Association, an industry trade group. “I think the PUC is doing just that.

“If there’s some information that they can’t disclose … that doesn’t mean that the PUC is not reviewing that information.”

Reminder, the law was passed (and amended twice) to provide enough information for the public to evaluate if the prices (and profits) are tied to market forces.

The purposes of this Act are to:

(1) Require true transparency by the oil industry to increase competition and provide the public and elected officials with the necessary monitoring capability to discourage the industry from using price maintenance schemes or other anti-competitive practices that artificially raise consumer prices;


By that yardstick, and since the public and the elected officials don’t get much from the weekly report, the way the PUC has implemented the law is inadequate. I am likely to have much more to write about this, once I obtain the documents I just paid for.

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A three-part test?

Filed under: HI State Politics — Doug @ 7:37 pm
A portion of this Maui News story about the ongoing hearings before Judge Cardoza begins to answer the thoughts I posed earlier.

On Friday, Hall had argued that there was no need to take evidence. The Hawaii Supreme Court ruling was enough, he said. The environmental assessment must be done, and state law says the activity under review must cease until it is, Hall argued.

Superferry lawyer Lisa Munger had argued that the high court?s finding is only the first part of a three-part legal test. Evidence on harm must be heard, she said.

On Monday, Hall again tried to get Cardoza to make the injunction permanent until the environmental assessment is done. Cardoza, without commenting further on the issue of balancing interests, said taking evidence is ?appropriate? and will continue.

What “three-part legal test” is Munger talking about? If the HSC ruling is part one, then what are parts two and three? Help me out here, lawyerly readers.

Since part of the argument that the Superferry needs to have an environmental assessment, when other vessels have not, depends on it operating like no other vessel in Hawaii, [expert witness for Maui Tomorrow] Bernard had to use studies from other places to support her opinion.

Wha? There should no longer be an “argument” about whether the Superferry needs to have an environmental assessment. The HSC has ordered the EA to be performed and that the State must consider not just the harbor improvements but also the secondary impacts. The whole evidentiary hearing process seems pointless, in this light. All this stuff can be dealt with during the EA work.

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My check is in the mail

Filed under: HI State Politics — Doug @ 7:37 pm
Well, the PUC has finally told me what I owe for my Sunshine Law request. They found over 600 pages of (non-confidential) material, but about 500 pages of that are SEC filings that (I hope) would not have much use to me. So, considering they want 25 cents per page plus postage, I’ve sent off my check for the remaining 100-odd pages of correspondence. Apparently there are also some electronic records (emails, I assume) that they are going to provide without charge.

Stay tuned!

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BOE gives with one hand, takes with the other

Filed under: HI Media — Doug @ 8:31 pm
The Advertiser has the good news that the Hawaii State Board of Education is setting up a web server to provide video and audio of board meetings.

Through a partnership with Apple Inc., the board office has been setting up a server and Web site that will host live streaming video and audio podcasts of meetings, as well as an archive of video from previous meetings and related documents, said BOE executive director Galen Onouye.

Onouye said the video streams and podcasts will provide parents, community members and students who may not be able to attend specific meetings to have an opportunity to listen to the discussion in real time.

I wonder if they are already taping the meetings for future inclusion on this server, because I would sure like to hear/see the debate about the canine drug search policy that advanced at a reent BOE committee meeting which the SB reported about here.

Whitney White, owner of Interquest Detection Canines of Hawaii, said courts have ruled that dog sniffing of lockers, cars, bags and restrooms searches would not violate students’ privacy. The presence of dogs on campuses, she argues, gives students “a reason to say no” to drugs.

“The alert by the certified canine does provide the ‘reasonable suspicion’ to conduct an inspection,” she wrote in testimony.

Huh?! Following that logic, the government would have the authority to have a dog sniff every person transiting public property, with a positive alert by the dog providing “reasonable suspicion” to conduct a search on him or her for illegal drugs. I don’t see much hope of that “the result of one search without reasonable cause provides reasonable suspicion for another search” argument withstanding a legal challenge, at least not here in Hawaii.

Still nothing on the BOE website to reflect the actual rule language passed by the committee, by the way.

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Tick, tock. Say your piece.

Filed under: Neighbor Islands — Doug @ 7:10 pm
Ah, so nice to have a break from “all Superferry, all the time.”

The West Hawaii Today has a story about Hawaii County Councilmember Yoshimoto and his quest to enforce a five-minute spekaing limit on his council colleagues.

Council Rule No. 20, subsection 9 states that “no council member may speak longer than five minutes, nor may any member speak more than twice on the same question without leave of the chairperson, subject to an appeal to the council.”

The exception, according to the rule, is the council member can speak longer if he or she “is the maker of the motion or sponsor of the matter pending, in which case the council member may speak in reply but only after every other council member choosing to speak has spoken.”

Yoshimoto said Friday residents who testify during council meetings are given three minutes to speak, with an additional minute to summarize, and they are timed.

Council members, on the other hand, are not timed but should be, he said.


Yoshimoto said the rule is important because by not following it, some meetings are lasting longer than they should.

How long “should” a meeting last?

I’m unfamiliar with how the Hawaii County Council operates (and, so far as I can tell, its rules are not online), but I would be surprised if (committee, assuming they use a committee structure) meetings where public testimony is taken find the members subject to the same five-minute limit as applies during a regular business meeting of the Council. If so, it sounds like an excellent way to make ill-informed decisions; to arbitrarily limit how much questioning and discussion may occur before a vote.

The Honolulu council routinely stops testifiers at the time limit, but the politically-connected will have a friendly co-conspirator councilmember lob out leading questions that allow the testifier to elaborate as necessary without regard to the time limit. The grumpy random citizen, however, rarely is afforded such extra time.

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What now, Director Fukunaga?

Filed under: HI State Politics — Doug @ 1:21 pm
Kudos to Christie Wilson of the Advertiser for her article about the recent history of DOT harbor projects that were exempted from environmental review and about other recent DOT harbor projects that were subjected to environmental review. Wilson’s story pretty much demolishes the “we never had to do it before” argument.

In a follow-up 104-page opinion issued Aug. 31, the higher court said the exemption determination was “restricted to the harbor improvements and does not consider the secondary impacts that may result from the use of the Hawaii Superferry in conjunction with Kahului Harbor. … Rather, DOT appears to studiously restrict its consideration of environmental impact to the physical harbor improvements themselves.”

The court also said, “Stated simply, the record in this case shows that DOT did not consider whether its facilitation of the Hawaii Superferry Project will probably have minimal or no significant impacts, both primary and secondary on the environment.”

Fukunaga said the Supreme Court is asking for something dramatically new. Instead of just a cursory review, the court now seems to be saying that all “minor” transportation projects must undergo extensive environmental assessment that includes an examination of user operations before an exemption can be granted, he said.


The DOT is specifically concerned about a statement in the Supreme Court opinion that says: “The (DOT) exemption letter does not consider whether Superferry operation independent of the harbor will have any significant effect on the environment.”

Fukunaga and Mike Formby, deputy director of harbors, said DOT has never before conducted a full assessment of a harbor user’s operation in seeking an exemption.

“We don’t own the Superferry, we don’t run the Superferry, we don’t know the specifics about all the details of the Superferry, but we are being told to consider secondary impacts ‘independent’ of harbor improvements,” Fukunaga said.

Formby said in an e-mail to The Advertiser that prior to the Supreme Court opinion, the state Harbors Division “has not considered the secondary impact of vessels for exempt projects. In essence, this decision collapses the exempt, EA and EIS process and now makes us consider secondary impacts at the exemption stage when this was previously reserved for EAs and EISs.”

In a separate interview, he said: “It introduces uncertainty into the whole process and every single case is going to be challenged.”

Evidently Formby thinks a level of thorough review is a bad thing. Why? Is it better to rush into things with the narrowest scope of review, save [corporate] time and money (in the short term), and have the [public] downside emerge later?

Also, the story lists several DOT harbors projects that were not exempted and were required to complete EAs. Formby’s comment says that secondary impacts were “previously reserved for EAs and EISs,” so, if that were true, did, for example, the EA for the cruise ship improvements at Nawiliwili discuss the secondary impacts of the cruise ships? Frankly, I doubt the secondary impacts were considered in that EA, but without knowing exactly when that happened I don’t even know which back issue of the Environmental Notice to review.

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Sore in a good way

Filed under: General — Doug @ 1:21 pm
My Sunday posting is delayed today, as I am just waking up after a nap. I ran in the Windward Half Marathon this morning, and I am pleased with my performance. My time was 1:44:05, which puts me (unofficially) in 43rd place overall and 7th place in my age group.

Now I need another event to train for…

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Who pays if the Superferry is a flop?

Filed under: HI State Politics — Doug @ 8:12 am
Similar to my post from yesterday, today I’m thinking out loud about another one of the arguments offered in favor of allowing the Superferry to sail while an environmental review is completed. The argument goes like this:

If the Hawaii Superferry is not allowed to continue operations, then the $40M in bonds backed by the State and the $100+M federally-backed loan guarantee may go into default and the taxpayers will end up paying.

The argument being that since the State waived the environmental review and allowed the project to proceed, to stop ferry operations at this point voids the obligation of the ferry to pay the bond back on time. However, each of the Maui-based appeals of the waiver were filed in a timely manner, so can the waiver truly be considered a done deal while any of the appeals were still pending? In other words, at what point (if any) did the State “commit” to the deal? We may find out.

Furthermore, while much of the State’s harbor improvements to prepare for the ferry are less tangible, the federal government has an obvious piece of collateral that they could seize should the ferry fall behind in payments, i.e. they could repossess the shiny new ship. That machine could be auctioned to offset some of the federal taxpayer loss. Should that happen, the ferry operators would be very likely to sue the State for the loss of the ship, too. Confused yet?

Yesterday at iLind.net there was a comment from Derrick DePledge with a quote from MARAD that reads, in part:

As part of the Maritime Administration?s (MARAD) due diligence review of Federal Ship Financing Loan Guarantee (Title XI) applications, in addition to determining that a project is financially, technically, and economically sound, the Maritime Administration also determines that the project is environmentally sound.


As a condition to Closing, the Maritime Administration required that the State provide written confirmation, in form and substance satisfactory to MARAD, that an Environmental Assessment and/or Environmental Impact Statement for the port infrastructure would not be required.

In that written confirmation, did the State tell MARAD that there were appeals to the EA/EIS waiver still pending (or that the window for timely appeals to be filed was still open)? Finally, can MARAD be considered to have properly completed its “due diligience” if there was a reasonable possibility of an EA/EIS being required but the loan guarantee went forward anyway?

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With reaction comes over-reaction

Filed under: HI State Politics — Doug @ 7:33 pm
The Garden Island News published an op-ed by Hawaii Department of Transportation director Barry Fukunaga where he defends his decision to waive the environmental assessment for the harbor improvements made to support the Superferry. Meanwhile, the Advertiser has a story based upon Fukunaga’s statement.

Fukunaga writes:

It is unclear how the Hawai?i Supreme Court?s new standard will apply to facilities and operations across the state.

No environmental assessment was required or requested when Pasha Transport Lines introduced vehicle delivery service or new cruise ships commenced inter-island service. Nor was there a requirement to impose similar scrutiny to Matson Navigation when it introduced larger vessels or a mobile crane at the Kahului Harbor. The Young Brothers interisland barge company has added larger barges, including one with a 500-car capacity and an environmental review for their activity was not required, even when the state made necessary harbor improvements to provide more operating area for their activities.

I’m really tired of hearing this argument advanced in such a half-’okoled manner. The Hawaii Supreme Court may not (and does not) simply step in whenever it feels like it to ensure absolute consistency of State actions. The HSC responds to legal appeals. So, were there lawsuits seeking to compel (or waive) environmental assessments for all the unexamined projects Director Fukunaga mentions? If so, did any of those lawsuits make it to the HSC on appeal? I honestly don’t know. My point is that it is not a fair argument to imply that the Supreme Court has suddenly changed the rules in the middle of the game if the Superferry decision was the first time the question of environmental review for a new or expanded transportation mode had actually come before the Court. The Court may not simply swoop down out of the blue and demand (or waive) environmental assessments on every unexamined project; the Court may only act when an appeal presents itself.

Nonetheless, Fukunaga’s comments about the uncertainty caused by the ruling are already beginning to bear some fruit, according to this SB story about an irrigation system on Molokai that will be subject to an environmental review before a contract is renewed to share water from a state system with Molokai Ranch property on the (dry) west end of the island.

Finally, I note a post at the Hawaii House (Majority) Blog that points to stirrings from unnamed legislators agitating for a special session to bail out the Superferry project if it is barred from operation while the environmental review is completed. As I understand the Hawaii Constitution, it would take either two-thirds of both chambers to call for a Special Session, or the Governor may call for a Special Session solely based on his or her own prerogative. I don’t expect enough legislators would be willing to sign on to such a scheme, but I would not be surprised to see the Governor call the Lege back into session nonetheless.

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A cloudy start for transparency

Filed under: HI State Politics — Doug @ 8:21 pm
I don’t have much time to post today, since I went sailing this evening, but it would not be right for me to go without mentioning the first of what will be weekly data deliveries from the Petroleum Industry Monitoring, Analysis and Reporting (PIMAR) program. The SB has a story and the Advertiser has a piece, too.

The data from one week are insufficient to draw conclusions, and the PUC is still struggling to figure out how to best present the data to the public in a meaningful way. It is a bit disturbing that they talk of some data that must remain confidential because with only two refiners releasing the data would allow each refiner to know what the competition is up to. As a result, it’s like saying because there is an oligopoly we have to keep the data secret. Lame.

I have been in regular contact with the PUC and they seem to be close to delivering on my Sunshine Law request. It turns out that there are hundreds of pages of material and I will probably be paying in the neighborhood of $100 or more to get all of it. Hopefully that expenditure will bear some fruit! Curiosity is an expensive itch to scratch.

[and all this time I thought this blog was just a cheap hobby of mine…]

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Kobayashi “not ruling out” a run for Mayor

Filed under: Honolulu Politics — Doug @ 7:04 pm
Blah, blah, blah, affordable housing, blah, blah, blah. Ann Kobayashi is being urged to run for Honolulu Mayor according to this Advertiser story about housing (or somesuch).

Meanwhile, council members Ann Kobayashi and Donovan Dela Cruz have drafted a legislation package that includes various incentives for private developers to build more affordable housing.

“It doesn’t seem like the city administration is moving,” said Kobayashi, who has been mentioned in political circles as a possible challenger to Mayor Mufi Hannemann’s bid for re-election next year. “The city should do its share in helping to solve the homeless problem.”

Kobayashi said she had been urged by supporters to run against Hannemann and had not ruled it out, but that her initial plan is to seek re-election to the council.

Kobayashi ran for Mayor in 1994 and lost to Jeremy Harris whose brief incumbency was via Fasi’s resignation to run for Governor. Hannemann’s incumbency and campaign fund will be daunting after a full-term (via election) and so I think she would have a tough time beating Mufi. On the other hand, winning re-election to her Council seat would be gravy.

For now, barring other entrants in the mayoral race or a Hannemann announcement of running for some other office, I don’t think Kobayashi will actually run for Mayor. However, the possibility will certainly give a new reporting angle to everything she does/says at the Council.

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Does the judge really have any choice other than to halt the ferry during EA?

Filed under: HI State Politics, Neighbor Islands — Doug @ 6:57 pm
All the Honolulu media announce that the Hawaii DOT intends to complete an environmental assessment for all the harbors where the Superferry intends to make landfall (not just at Kahului, the subject of the lawsuit). However, the DOT spokesman leaves it to a Maui Circuti Court judge to answer the question of if the ferry service will operate in the interim.

I am not a lawyer, but I don’t see any language in the Hawaii Revised Statutes that would allow a proposed action to go forward while an environmental review is being done. Rather, in several places the law mentions that the acceptance of the final statement (i.e. an EIS) “shall be a “condition precedent to approval of the request and commencement of the proposed action.”

Thus, if the action can’t occur until the EIS is accepted, and if the need for an EIS is not even known until the EA is complete, then it seems pretty clear that the Superferry sits at the dock until the EA is pau, at the earliest.

That is how I understand it anyway, unless some of you lawyers or non-lawyers in the audience can explain to me an argument that would circumvent that interpretation (and would survive an appeal, heh).

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Superferry snarl good for state’s environmental image

Filed under: HI State Politics — Doug @ 9:00 am
I took the liberty of re-working the headline of this Pacific Business News story where leaders of the Hawaii business community lament the latest Superferry news.

Pamela Tumpap, president of the Maui Chamber of Commerce, called recent court decisions that have limited the Superferry operations “a scary prospect” for businesses.

“Aside from the ramifications these decisions may now have on other businesses, they also fuel the anti-business sentiment that already plagues our state,” Tumpap said. “Investment confidence is certainly lost when the rules can change at the stroke of midnight and businesses can’t count on government assurances.”


Each development has been transmitted around the world in news accounts and even in e-mails between friends and business associates, a prospect that alarms Ted Liu, director of the state Department of Business, Economic Development and Tourism.

“This simply is not positive at all,” he told PBN. “Outside investors want transparency, predictability and confidence that they are making a good investment. What has now happened reflects very poorly on Hawaii.”

Environmentalists, however, are less morose.

“The only thing that is going to stop the Superferry is legal action,” said Richard Hoeppner, president of People for the Preservation of Kauai.

Hoeppner’s group is raising money to file a federal lawsuit against the Superferry regardless of what happens in state courts.

“It seems like the Superferry has kept pulling the government strings to avoid an environmental study,” he said. “They had this thing greased down from the very top. A judge’s ruling is the only thing they’ll understand.”

Perhaps when enough large projects have experienced the same “unexpected” result, the result will be expected and businesses will build environmental review into their plans from the start. In the meantime, members of the business community can perhaps take some solace in these words of 19th-Century financier Simon Cameron:

“An honest politician is one who, when [s]he is bought, will stay bought.”

Happy Labor Day.

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U.S. Maritime Administration is not a black box

Filed under: HI State Politics — Doug @ 9:23 am
While it’s not exactly “news” the Advertiser reminds readers today that in 2005 the Superferry was fighting against an (official) environmental review process because the U.S. Maritime Administration (MARAD) had stipulated that the ferry’s loan guarantee was contingent upon the process being settled. Unfortunately, the background of the loan guarantee is not described at all and is reported at face value.

The U.S. Department of Transportation’s Maritime Administration approved $140 million in loan guarantees for Superferry in January 2005 on the condition that the state give all governmental and environmental clearances, including confirmation that there was no need for an environmental assessment of port facilities.

That sounds like putting the cart before the horse, doesn’t it? The MARAD is run by bureaucrats, working under the U.S. Secretary of Transportation, and, as such, is bound by voluminous rules. The loan guarantee approved for the Superferry is part of a program called Title XI.

So, I was curious; how does one obtain a $193M loan guarantee from a big government agency? One fills out a form, of course. Take a look at Part II-G on page 7 of the form:

G. Environmental Impact – Are any international, Federal, State, Tribal, or local approvals, permits or certificates required pursuant to any law, rule, regulation or ordinance related to the environment? If so, provide copies of all such approvals, permits or certificates, or applications for same, that encompass the project. Please identify any environmental study or assessment that has been performed.

The Superferry response to this part of the application is, I suspect, the basis of the “requirement” imposed on the loan guarantee.

If the Superferry operators told MARAD that no environmental approvals, permits or certificates were required, then (although beleiving that claim would entail some credulity) it would make logical sense for the loan guarantee to reflect that claim. Furthermore, I very much doubt that the MARAD would have conditioned the loan guarantee in the way it did if the Superferry application indicated that an approval, permit, certificate or environmental review was necessary but incomplete.

To unravel this would require a look at the form submitted by the Superferry for the Title XI financing guarantee. Is that a public record? I dunno.

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Re-open the floodgates

Filed under: HI State Politics — Doug @ 10:24 am
I’m feeling better today, so I’ll catch up on something I noticed yesterday.

The Advertiser reports that the Campaign Spending Commission intends to appeal a decision that has major implications for political fundraising. The Commission had interpreted a revised campaign spending law to mean that corporations had to set up a political action committee in order to make campaign contributions, and that the corporations were limited in how much they could donate to the PAC. A recent court ruling said the Commission’s interpretation is wrong, and the Commission is appealing after a 4-1 vote. Until then, however:

The appeal will first go to the Intermediate Court of Appeals. The commission will also ask the state Legislature to clarify the law during the next session.

In the meantime, the commission will post an advisory on its Web site as guidance for fundraising for the 2008 election cycle.

The commission, pending the appeal or change by the Legislature, will not enforce the corporate contribution limits, meaning corporations can donate unlimited amounts of money from their treasuries to candidates without going through corporate political action committees.

The commission will also not enforce corporate registration and reporting requirements for such committees.

Sigh. Depressing, but maybe it’s just a case of the CSC staking out the extreme position in hopes of reaching the middle ground upon appeal.

Oh, and while I was at the CSC website, there is a link to a list of candidate and non-candidate committees that did not file spending reports on time. I only recognize a few sitting politicians (Representative Cabanilla, Kaneohe Neighborhood Board member Kris DeRego), but maybe there are some interesting stories in this list. In any case, it is costing these people $50/day until they turn in the reports.

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