Will Lingle disclose details on Awanaâ€™s case? Not likely.
Filed under: HI State Politics, HI Media â€” Doug @ 6:29 pm
Now that the latest round of Superferry hoopla is complete, today a column by the Advertiserâ€™s David Shapiro goes back to tug on the thread originally loosened by Ian Lind in July. The man who blackmailed Robert Awana, Lingleâ€™s former chief of staff, has been sentenced, and new details of the case have emerged that allege Awana tried to arrange Filipina escorts for members of the Governorâ€™s trade delegation in exchange for assistance in arranging a chance for the women to study nursing in Hawaii.
Lingle has been silent on the matter since she and Awana decided it was in their mutual interest that he resign on June 29.
She said after that, â€œI donâ€™t have anything more to say. Weâ€™re moving on.â€
She might have been able to get away with that when details were sparse and there was question as to whether Awana committed a private indiscretion that was nobodyâ€™s business but his and his familyâ€™s, or whether state business was involved.
If what Byrne says is true, state business was very much involved and the problem becomes Lingleâ€™s.
The governor waited to act until after this unbecoming behavior by her top aide became public and she had no choice but to do something. It was unlikely this was the first she had heard of it, since Awana had reported the extortion attempt to federal prosecutors some time earlier.
The questions are obvious: When did Lingle become aware of this tawdry behavior by top state officials and other members of the trade delegations she led? How widespread was the hanky-panky? What action did she take to stop the misconduct and discipline state officials involved?
Lingle has led a number of high-profile trade missions to Asia since taking office; she was supposed to be on one this month until she had to put it off because of the Legislatureâ€™s special session on the Superferry.
The junkets have already been controversial because of the way the administration solicited private money to pay for them outside of normal procurement practices.
Itâ€™s of grave concern that instead of enhancing Hawaiâ€™iâ€™s image on these trips, members of the delegations were engaging in sleazy behavior that disgraced us.
And Awana was not just any aide. He was Lingleâ€™s closest confidant, constantly at her side since she first ran for governor in 1998. Heâ€™s perhaps the most powerful state official ever to resign under a cloud.
Lingle had to realize that these transgressions tarnished the state, and she made a mistake by not offering a full explanation of what she knew and what she did about it before the disturbing details came out in court.
Sheâ€™ll only compound the serious hit her personal reputation is taking if she continues her silence while a federal investigation develops potentially more embarrassing information.
Because of the high-level players and the bad light this sorry incident shines on Hawaiâ€™i, the questions are not going away and the governor will almost certainly be forced to disclose details of how she did or didnâ€™t handle it sooner or later.
The cynic in me says that Shapiro will be proven dead wrong with his â€œquestions are not going awayâ€ claim. The Governor will continue to clam up and to deflect all questions, the press will get bored (or, to be more charitable, will realize the futility) and will move on.
What were the exact â€œfighting words?â€
Filed under: HI State Politics â€” Doug @ 7:17 pm
Yesterday I had hoped that a more complete account of the questioning of Governor Lingle by Representative Marcus Oshiro would be published. So far, no such luck. From the S-B story:
In the House, critics, including Rep. Marcus Oshiro, said the Senate bill is forcing the Legislature to choose between the environment and the successful operation of the Superferry.
â€œYou will be taking apart and setting apart 30 years of law and policy in the state of Hawaii for this one company,â€ Oshiro (D, Wahiawa-Poamoho), chairman of the House Finance Committee, said to Lingle.
As Lingle tried to answer during the afternoon hearing on the Senate bill, Oshiro interrupted: â€œDo you realize this is a major policy shift? â€¦ We are asking for special legislation for one project. Do you understand the enormity of what you are asking us to do?â€
â€œIt seems astounding that one would put so much political capital on the line,â€ Oshiro said.
Lingle answered, â€œEvery one of you is going to have to make that decision, and when your name is called you are going to have to vote.â€
After the hearing, Lingle said she was pleased with her one hour of testimony, adding that she thought Oshiro was just trying to pick a fight.
â€œMarcus Oshiro either has a different point of view or he just wanted to make it political. Clearly, he just wanted to argue with me. He wasnâ€™t there to ask me my opinion,â€ Lingle told reporters.
Oshiro wants to â€œfight?â€ Well, until we know exactly what was said, I am just as inclined to believe Oshiro wanted a substantive public debate on the topic. You know, of the sort that never took place while multiple drafts of this legislation were secretly drafted by the Governor and legislative â€œleaders.â€
From the Advertiser article:
Oshiro confronted Lingle about her administrationâ€™s 2005 decision to exempt the Superferry project from an environmental assessment, which led to legal challenges by environmentalists and, ultimately, the court rulings. Oshiro asked why the administration fought bills requiring an environmental impact statement for the project in the years before the ferry launched.
Lingle told Oshiro that the House also was opposed to requiring an environmental impact statement for the Superferry project when the Senate offered a bill last session. The governor said lawmakers had a clear choice of either passing the bill or losing the ferry service.
State Rep. Joseph Souki, D-8th (Wailuku, Waiheâ€™e, Waiehu), who as chairman of the House Transportation Committee made the decision not to hear the Senate proposal last session, cut Oshiro off with the gavel and briefly recessed the hearing when Oshiro kept pressing the governor.
â€œThis is checks and balances, folks,â€ Oshiro told his colleagues. â€œThis is democracy.â€
Lingle said afterward that she thought the tone of the questions from lawmakers was fair, â€œexcept for Representative Oshiro, who just either has a different opinion or an ax to grind.â€
Lingle also predicted that the operating conditions the administration comes up with for Superferry will not satisfy everyone. Superferry executives have said they could be back in service within 10 days of the Legislature taking action.
â€œI think itâ€™s important to note and Iâ€™m going to predict it in advance, Superferryâ€™s going to think I put too many conditions on them and the opponents are going to think I didnâ€™t put enough,â€ the governor said.
What were the other questions asked of Lingle by other Representatives that were â€œfair?â€ What, exactly, did Marcus Oshiro say that was â€œax grinding?â€ The legislature, in case you have forgotten, is the place for â€œdifferent opinionsâ€ to be debated. Public hearings are not intended to be press conferences where talking points are strictly adhered to and are not events where substanceless or unresponsive testimony is to be left unchallenged. The media may be rolling over like that, but Oshiro is not obliged to. Meanwhile, the fact that Representative Souki apparently called for a recess once the Governor began to remind people of his own complicity in the whole episode is pathetic.
The Governor has already made it quite clear that she will not impose any operating conditions that will limit the superferry business plan; so, will the Governor be meeting publicly with the plaintiffs and the Supeferry honchos to compose her operating conditions? Of course not, since the legislation exempts the method Lingle will use to impose condtions from the formal (and public) Chapter 91 rulemaking process. I reckon the plaintiffs will (again) release whatever list of operating conditions they suggest to the Governor, but somehow I doubt the ferry would propose anything beyond what they had already planned to do.
In making the operating conditions, Lingle need only report who was consulted; weâ€™ll not be made privy to what additional conditions (if any) were offered by the superferry and rejected, nor what conditions offered by the plaintiffs were rejected by the Superferry (we can assume that answer would be â€œall of them,â€ though). We wonâ€™t know exactly how (or even if) the enivronmental, political, and economic impacts were weighed.
At least in the novel [ahem] â€œFISâ€ process all of the operating conditions adopted (or rejected) will have to be explained.
House â€œsorta-subpoenasâ€ Gov and others to testify on SB1
Filed under: General, HI State Politics â€” Doug @ 7:11 pm
According to a post at the House Majority blog, Governor Lingle, DLNR Director-designee Thielen, and the Acting Director of the Office of Environmental Quality Control were â€œrespectfully requestedâ€ to testify on Senate Bill 1 when it was heard before the House joint Finance and Transportation (not Environmentâ€¦) Committees today. She appeared and a subsequent post suggests that things got â€œtenseâ€ as Chair Oshiro grilled the Governor.
The blog post is appreciated, but I truly hope there will be more thorough accounts (or even a transcript) published of what exactly was said here:
Chair Oshiro questioned the governor on why the legislature should pass a bill specifically to save the Superferry. The governor explained that she doesnâ€™t believe that the purpose of the bill is to save one company; itâ€™s about saving the service that the Superferry provides for the people of Hawaii.
Oshiro also had questions on the relationship between the Superferry legislation and the Supreme Court decision on the interpretation of the environmental review statute (chapter 343). He pointed out that the bill before the legislature does not address the Supreme Court decision, and that there is still uncertainty about the application of the law. The governor agreed that the legislature should review the statute next session, but that it was not necessary to make changes to that section of the law in order to save the Superferry service.
Oshiroâ€™s hard line of questioning led up to his final point which was to question why the Superferry needed to be â€œsavedâ€ when the Hawaii Superferry is not a â€œmom and popâ€ operation; indeed, it is a company with great political and financial resources. â€œIâ€™m not convinced that this company needs to be saved,â€ said Rep. Oshiro. â€œThis is a company that is well-heeled, well-financed, well-connected that does not need the Hawaii state legislature to save it.â€ Speaker Emeritus and Transportation Chair Joe Souki called a recess when it became apparent that Rep. Oshiro and Governor were going to continue to be in disagreement on that point.
In the end, however, Oshiro and a majority in the House are gonna pass this bill. Thus, this â€œtense exchangeâ€ is a lot of bluster unless Oshiro actually intends to recommend a â€œholdâ€ vote or to later vote â€œnoâ€ on Final Reading.
Speaking of no votes, the Senate Majority blog has a post with PDF versions of the floor comments by Senator Hooser and Senator Tsutsui. What, did Senators Baker, English, and Kokubun not explain their â€œnoâ€ votes? [shrug]
META: On the bill status page for SB 1, it mentions â€œBroadcast of hearing/briefing available. See: www.capitoltv.orgâ€ But that domain is only a placeholder. ??
A flawed civics lesson from the LG
Filed under: HI State Politics â€” Doug @ 10:40 am
We havenâ€™t heard much (anything?) from him yet, so it was about time the Lieutenant Governor weighed in with an op-ed in the Advertiser today. He writes:
Keep in mind the explicit roles of the branches of government in regard to laws. The executive branch implements and enforces the law, the legislative branch makes the law, and the judicial branch interprets the law.
If the court interprets the law in a manner that elected officials feel is not in the best interest of the public, lawmakers have the responsibility to clarify the law.
This is what is happening during the special session.
I disagree. The law (in this case HRS 343) is not being â€œclarifiedâ€ during the special session. Rather a new, (nearly) parallel version of the law is being crafted to retroactively bypass for one time only a law that requires no clarification; i.e. the legislation is intended to bypass a law that resulted in a politically embarrassing outcome when it was properly applied by the Court.
There are other recent examples of the Legislature taking similar measures to balance a judicial interpretation of the law. During this special session, for example, legislators will consider another bill that would also override a Hawaiâ€™i Supreme Court decision, this one dealing with extending sentencing for criminals. No one is labeling this potential action as unusual or unconstitutional.
The sentencing legislation Aiona refers to, HB 2 and SB 2, do not â€œoverrideâ€ a Hawaiâ€™i Supreme Court decision. From the legislation being considered now:
The purpose of this Act is to amend Hawaiiâ€™s extended term sentencing statutes to ensure that the procedures used to impose extended terms of imprisonment comply with the requirements set forth by the United States Supreme Court and Hawaii supreme court.
Doesnâ€™t sound like â€œoverturningâ€ a decision to me. The bills go further, too, and describe what is not the purpose of the legislation:
It is not the purpose of this Act to confer upon a defendant who has previously been sentenced to an extended term the right to be resentenced under the new procedures in this Act, unless the defendant is otherwise legally entitled to be resentenced. As the Hawaii supreme court held in State v. Gomes, 107 Haw. 308, 113 P.3d 184 (2005), the Apprendi rule itself does not retroactively apply to those cases in which the defendantâ€™s conviction became final prior to the United States Supreme Courtâ€™s announcement of that rule in 2000. To the extent that this Act applies retroactively, the legislature finds that it does not subject any offender to additional punishment or other disadvantage. [bold emphases mine, italics in original]
Compare this to the Superferry situation. In the instant case the legislature is unquestionably imposing a retroactive â€œdisadvantageâ€ to the plaintiffs from Maui; the plaintiffs won their appeal and the legislature is about to snatch the victory away from them.
Also, notice that in the sentencing legislation the Hawaii court did not act because the legislature had not proscribed a process for the Hawaii courts to comply the with the US Supreme Court rulings. The latest legislation takes a subtle swipe at the HSC for failing to â€œexercise its inherent judicial power,â€ which at other times is derided as â€œlegislating from the bench.â€ Again, from the legislation:
However, the Hawaii supreme court declined to exercise its inherent judicial power to order, on remand, that a jury be empanelled to find the facts necessary to impose an extended term of imprisonment. The court explained that it had done so because, when the legislature attempted, through Act 230, Session Laws of Hawaii 2006, to conform the extended term sentencing scheme to the requirements set forth by the United States Supreme Court, it did not vest in the jury the power to find the requisite facts but had instead directed that the court retain this responsibility.
So much for HB/SB 2 being similar to the Supeferry legislation, then. The sentencing legislation under consideration prospectively reinforces the existing Constitutional rights to due process. In contrast, the Superferry legislation aims to retroactively diminish Constitutional protections previously upheld and to retroactively negate a judicial decision that was clearly within the scope of the law as written.
Even in the case Aiona cites of the collective bargaining law passed over Governor Lingleâ€™s veto, the Lege was acting to enhance the Constitutional right to collective bargaining. Management was unquestionably weakened by that retroactively-applied legislation, but itâ€™s worth pointing out that there are no commensurate â€œmanagement rightsâ€ enshrined in the Hawaii Constitution.
Not deadâ€¦ yet
Filed under: HI State Politics â€” Doug @ 10:40 am
Noticed at the start of this Hawaii Reporter post:
A special note to the readers of the Tax Foundationâ€™s Weekly Column in the HawaiiReporter.com – This may be one of the last columns published by the Tax Foundation as the Foundationâ€™s Board of Directors is considering closing the Foundation due to lack of financial support from the community.
Awww. As much as I (and others) may miss their relentless supply of oh-so-snarky commentary testimony at the Lege, suddenly I seem to be unable to reach my wallet. As Dad used to say, â€œIâ€™ve got short arms and deep pockets.â€ Heh.
Floor amendment fails in House – who could have saw that coming?
Filed under: HI State Politics â€” Doug @ 10:50 am
The House Majority blog, the Advertiser, and the Star-Bulletin each report that the unamended version of HB 1 has passed third reading and is now awaiting action in the Senate. Before it passed, however, a floor amendment was offered by Representative Morita. The floor amendment failed. No surprise.
The state House yesterday defeated a proposed amendment to a Hawaii Superferry bill that would have required the ferry to slow down to under 13 knots in shallow waters to protect whales and wash the undercarriages of vehicles to prevent the spread of invasive species.
The amendment, by state Rep. Hermina Morita, D-14th (Hanalei, Anahola, Kapaâ€™a), also would have required Superferry, instead of the state, to pay for an environmental impact statement that would be regulated by the stateâ€™s Public Utilities Commission.
But the House rejected Moritaâ€™s amendment and passed the original Superferry bill that was introduced at the start of special session Wednesday, moving it to the Senate. The original bill was passed largely as a tactical move to keep alive a fallback bill in case House and Senate leaders are unable to agree on a new Senate version next week.
From that concluding sentence it would appear that, much like the shameful secrecy from last week, the Senate and House â€œleadershipâ€ will soon conduct the equivalent of a secret â€œconference committee meetingâ€ to reach an agreement on the final draft of a bill. Too bad neither chamber thought it worthwhile to pass a bill with a defective effective date to thereby ensure that the legislation goes to a public conference committee meeting.
Also, as an aside, is there anybody familiar with the 1998 law that exempted the purchase of the Waiahole water system from Chapter 343? I was working at the Lege that year, but it was one year before the online records at the Capitol begin. The S-B article includes this:
In testimony, Attorney General Mark Bennett assured lawmakers that â€œacting to amend the law in light of a court decision is neither unprecedented nor unusual.â€
For instance, Bennett noted, in 1998 the Legislature passed a law that exempted the purchase of the Waiahole water system from the EIS laws.
â€œThe Hawaii Supreme Court has interpreted the current law, but it is the constitutional responsibility of the Legislature to decide if that is how the law should remain,â€ Bennett told the legislators.
Did the Lege act that year to overturn a Court decision or did they carve out the exemption before the Court actually ruled?
And now, a sideshow during the special session intermission
Filed under: HI State Politics â€” Doug @ 7:24 pm
In the second story at this S-B link (the â€œjumpâ€ part of the link doesnâ€™t seem to be working properly for me, your mileage may vary) there is more about the continuing spat pitting the Lingle administration against the Judiciary. The administration has been accusing the Hawaii Supreme Court of sitting on the Superferry case too long. The Court spokespeople have been explaining the delay as brought on by the Superferry itself and a result of the well-known backlog at the Court. So today we see:
In yesterdayâ€™s response from the Governorâ€™s Office to the high court, [Lingle spokeswoman] Watari said Superferry actions and the brief delays the company might have caused in proceedings â€œwere inconsequential.â€
â€œThe main point, as Gov. Linda Lingle pointed out earlier this month, is that the Supreme Court sat on this very important case for a year and a half,â€ Watari said. â€œAnd when the justices finally did issue their controversial ruling on Aug. 23, there was limited time available for Superferry officials or the state Department of Transportation to respond before the service was scheduled to set sail.â€
She acknowledged that the court had other cases over the 18 months it took to reach a decision in the Superferry case, but she said it still should have decided the important issue â€œmany, many months ago.â€
â€œDid all of those cases have widespread repercussions that might affect our state economy for years to come?â€ Watari asked. â€œI think that is truly the big picture, which some people canâ€™t see right now in the midst of this contentious debate.â€
In a previous salvo, a Judiciary spokeswoman said that â€œduring the period that the Superferry appeal was pending, the Supreme Court decided many important cases, including OHA v. State, Kalima v. State, and Kahoohanohano v. State.â€ I suppose one can argue if those cases have more less â€œwidespread repercussionsâ€ than the Superferry.
I am not a lawyer, but now I am becoming curious about how the Hawaii Supreme Court sets its calendar. Every case that is granted HSC review is important to somebody, and I donâ€™t know if the Court does or does not (or even if it may) consider â€œwidespread repercussionsâ€ when setting its calendar or if the process is more like a â€œfirst in, first outâ€ queue.
Iâ€™m assuming it is possible to speed the process up. So, did the Supeferry (or the administration) ever petition for expedited hearings at any step of the appeal process? For that matter, did the plaintiffs ever ask for (or oppose) an expedited process? If so, what was the outcome of the request for an expedited process, and what factors are/were weighed by the Judiciary in granting or denying such a request?
My point being that if the Court ruled against attempts to speed up the process, then Lingleâ€™s accusations have more merit. On the other hand, if there was never any attempt made to speed things along, then I think it is pretty unfair to scold the Court for not capriciously (and unjustly, in my opinion) moving this particular case to the head of the line. Equal treatment before the law, and all that jazz.
Itâ€™s quite likely that Iâ€™m looking in the wrong place, but I see nothing in the â€œprocedural historyâ€ of the case (insofar as it is described at pages 21-22 of the HSC opinion) to suggest that any attempt to expedite the proceedings was made (or was made and denied) between the filing of the appeal in July, 2005 and the oral arguments held on August 23, 2007.
UPDATE: I donâ€™t have much luck with Hoâ€™ohiki (the Judiciary database), but I managed to find the records of all the documents filed for the case that led to the HSC appeal. That case was 2CC05-1-000114. Judging by the data available for the â€œpre-appealâ€ timeframe, it would appear that the system would reveal the information I am seeking, if only I knew where to look! The first page of the HSC opinion has a number 27407, but that doesnâ€™t turn up anything at Hoâ€™ohiki. If anybody has better luck with searching, please post your results in the comments.
Senate amends Superferry legislation
Filed under: HI State Politics â€” Doug @ 7:31 pm
As expected, Senators at a joint committee meeting have voted to amend the bill to include specific operating conditions rather than leaving the bill to provide that the operating conditions were to be imposed by the Governor alone. It was not a unanimous vote, with the neighbor island Senators voting no, except for (lame duck Hawaii County mayor candidate) Senator Inouye.
According to a breaking news story at the Advertiser:
Specifically, the new bill would force the Superferry to:
Apply for an incidental-take permit from the National Oceanic and Atmospheric Administration that could set operating conditions but give the Superferry some liability protection in the event of whale strikes.
Request an observer from the National Marine Fisheries Service to assist the Superferry in avoiding and reporting if it hits endangered humpback whales.
Post signs and notify passengers of bans on gill net fishing nets, rocks, soil and dirt.
Require passengers to declare all plants, fruits and seeds to cut down on the potential that coqui frogs, fire ants or caterpillars could spread to other islands on the boat.
Inspect the trunks, pickup truck beds and undercarriages of all vehicles before boarding.
Reaction from the Governor or the Superferry people is not included in the story. Of course, it also remains to be seen how the House will react to this amended bill. I reckon the House will agree to it, albeit with some no votes, if the Governor and the Superferry give the draft the green light.
Another article from earlier today described Senator Menorâ€™s comments regarding an incidental take permit, vehicle washing, and reworking the membership of the oversight task force:
Menor is suggesting that Superferry apply for an incidental-take permit from the National Oceanic and Atmospheric Administration that could set operating conditions but give Superferry some liability protection in the event of whale strikes. No other vessel in Hawaiâ€™i has such a permit. Until the ferry gets the permit, he said, Superferry should have to lower speeds to 13 knots in the humpback sanctuary after the first severe strike of a whale. After a second strike, he said, the ferry should return passengers and vehicles to their home islands and then suspend operations until it obtains a permit.
He also suggests vehicle inspections to prevent people from hoarding natural resources and that Superferry create a way to wash the undercarriage of all vehicles onboard within three months of resuming service to deter the spread of invasive species.
Menor also wants to change the composition of an oversight task force to include federal environmental officials and local environmental groups while removing a Superferry executive.
From the breaking news report, it would seem that the undercarriage washing, the changes to the task force, and the specific consequences of an â€œincidental takeâ€ whale strike may not have made it into the amended bill. I really need to see the exact language in the draft. If the new draft truly says that the ferry need only â€œapplyâ€ for the permit, then it is really not that much of a burden. On the other hand, it would be more of a burden if the Superferry had to wait to obtain the permit before sailing, and especially if the permit imposed operating conditions that were â€œunacceptableâ€ to the ferry operatorsâ€™ business plan.
Blake Oshiro to serve as temporary House Speaker; special session begins
Filed under: HI State Politics â€” Doug @ 7:21 pm
Congratulations to the Hawaii House (Majority) Blog team for an excellent post about the first few hours of the special session.
After a recess, Speaker Say let the members know that Rep. Jon Riki Karamatsu had submitted his letter of resignation from the Vice Speaker position. Instead of accepting the resignation, Speaker relieved Rep. Karamatsu from his duties until Opening Day of the 2008 session. Rep. Karamatsu may or may not reassume the Vice Speaker position during the 2008 Legislative session, depending on his court proceedings scheduled for late December and, ultimately, the feeling of the majority caucus as to whether he should continue to serve in that capacity.
Speaker also announced that he will not be presiding as Speaker during the special session because he felt that discussion about his son, an entry level account executive with the Hawaii Superferry, had become a distraction from the real issues the House is being asked to consider. The House later decided that Speaker does not have a conflict of interest because of his son, meaning that heâ€™ll be allowed to vote on any actions on the Superferry legislation.
Because neither himself nor Rep. Karamatsu would preside over the special session, Speaker requested Majority Leader Kirk Caldwell to act as Speaker. Rep. Caldwell, however, declined, wishing to stay on the floor and debate the issues with his colleagues. Majority Floor Leader Blake Oshiro was then asked to preside over the special session. He accepted and stepped up to the rostrum to finish the Houseâ€™s business for the rest of the session.
The general public may or may not care for that level of detail, but wonks like me really appreciate it! Now, if only the House and Senate Journals were available online somedayâ€¦
Anyway, with Blake Oshiro on the rostrum, does this mean that the Lingle-Hanabusa-Say-Superferry negotiations regarding the Superferry legislation will from here on out be Lingle-Hanabusa-Oshiro-Superferry negotiations? Somehow, I doubt it. More likely that Say will either be in the room or Blake Oshiro will be operating purely as Sayâ€™s proxy.
On the floor, Rep. Hermina Morita, chair of the House Committee on Energy and Environmental Protection, requested that the Superferry bill be heard before the House Finance, Transportation and Energy and Environmental Protection committees, instead of just the House Finance and Transportation committees as is scheduled right now. The motion was defeated, 29 nays to 17 yays [sic].
Rep. Oshiro, presiding as speaker, adjourned the House.
Hmmm. A 48-page bill that seeks to carve out an exemption to the Hawaii Environmental Protection Act does not get a referral to the Environmental Protection Committee. Which Reps voted in favor of Moritaâ€™s motion? How did the floor debate for that motion proceed? I would not be at all surprised to see Representative Morita offer up floor amendments to the billâ€”even knowing that her amendments would probably all fail by a similar margin.
Meanwhile â€¦the Senate Majority Blog has no original content about the special session even though they are hearing the Superferry bill today.
In the Advertiser story there are these comments from Speaker [do we still call him that?] Say and President Hanabusa:
As lawmakers convene in special session this morning, the question is whether the different perspectives among House and Senate leaders can be worked through over the next several days or whether they are signs that consensus on Superferry already has a foreboding crack. Gov. Linda Lingle, like Say, has told lawmakers she prefers that the draft not be amended.
â€œIt may unravel what all parties have agreed upon â€” meaning the Senate, the administration and the House,â€ Say said, adding that he would consider Senate amendments as long as they do not threaten Superferryâ€™s ability to successfully operate. â€œThatâ€™s why Iâ€™ve taken a very hard stance. The whole objective is what? To allow the Superferry to operate. To connect the four counties.
â€œThe Superferry, to me, is a bridge that connects the four counties.â€
Hanabusa said that talk about amendments is simply part of the legislative process. â€œI know the governor has been concerned about whether or not the bill can go through unamended. And I told her very clearly we might be able to agree on a form that weâ€™re going to put down, so that both houses are going to put this particular bill down, which we have agreed to, speaker and I have agreed to.
â€œBut there is no agreement that the bill as itâ€™s put down will make its way through session.â€
The article also includes a useful roster of â€œkey playersâ€ in the Superferry special session. Given the widespread public ignorance of the legislature, the graphic was a good idea. Should Blake Oshiro be among the key players now? I dunno.
From the S-B report is another flat denial of any consensus:
But as the House and Senate start their negotiations, there is no firm agreement on one bill.
â€œWe did not come to an agreement on a bill. We discussed various versions of the bill,â€ said Senate President Colleen Hanabusa (D, Nanakuli-Makua).
The Senate yesterday concluded a series of informational meetings on Kauai, Maui and the Big Island. The Senate, Hanabusa said, is likely to include some of the issues raised by neighbor island opponents in the new bill.
â€œI think a majority of the senators want to help the Superferry sail again under certain conditions, I donâ€™t think you have a majority saying just let the Superferry sail,â€ Hanabusa said.
Nevertheless, the Senate has introduced a companion bill. So, to the extent that I thought there was no such bill, I was wrong yesterday.
If the Senate sticks to its usual drill, after the Senate hearing today they will defer decisionmaking. Actually, after so many hours of testimony over four diferent islands it would definitely take a while to digest everything submitted; to make a decision on the spot would make it obvious that the outcome was pre-determined. Maybe it is. ??
By the way, a BIG mahalo to whoever is behind the work to scan and post all the testimony for SB 1 onto the Capitol website! There is also a page of the Maui court transcripts. Wow!
In what universe is there a â€œconsensusâ€ between the two chambers?
Filed under: HI State Politics â€” Doug @ 7:10 pm
Itâ€™s amusing to read these comments from the S-B story published before the Governor announced that she was calling the Legislature into special session:
Last night, Say added that he was watching both Lingle and the Senate, saying he was confident that the House Democrats had the votes to allow the Superferry to sail despite a court injunction forbidding it to use Maui harbor facilities.
Say noted that the Senate has been holding public hearings on the neighbor islands, and wondered whether the hearings will result in changes to a draft bill proposed Friday.
â€œThe Senate hearing is going on. I donâ€™t know what they have in mind at this point. It is up to the Senate if they agree. For what purpose are the informational briefings, to amend the bill? I donâ€™t know,â€ Say said.
Yesterday morning, Hanabusa said she was still waiting for Lingle to call the session. â€œI donâ€™t know what she is holding it up for. I thought the positions were done,â€ Hanabusa said.
Hanabusa, however, noted that she was not sure the Friday draft was something â€œthat all will agree to.â€
Sen. Brian Taniguchi, who has been leading the informational briefings or hearings on Kauai and Maui, called the Friday draft â€œa starting point.â€
â€œI donâ€™t think necessarily that the draft is going to pass as it is now,â€ Taniguchi said. â€œThere are a lot of concerns about it. I am pretty sure it may not be the draft we come up with on Wednesday.â€
â€œThe draft may be the best solution, but at this point I donâ€™t see it,â€ he added.
As I was hypothesizing earlier, itâ€™s all but certain that Speaker Say and Senate President Hanabusa have not reached a consensus. Thus, if the Senate amends the draft to incorporate some of the concerns brought forth in the hearings informational briefings, then either the House must agree to the Senateâ€™s amendments, or there will be a conference committee to iron out the differences (or, a long shot, the bill dies altogether).
From an Advertiser article:
The legislative and Superferry sources, speaking on background, said Lingle had been concerned with a provision in the draft legislation requiring the state auditor to investigate the Lingle administrationâ€™s review of the Superferry project. A legislative source said lawmakers have apparently agreed to drop language urging Lingle to waive any attorney-client privilege as part of the audit.
Lingle, like many in the House, also is concerned with possible amendments to the draft, sources said. Several lawmakers will likely want to amend the draft to include specific operating conditions on Superferry or to change the composition of an oversight task force.
Indeed, the move to challenge the Attorney General-to-Governor privilege is not part of House Bill 1, so I would be very surprised if any â€œsmoking gunsâ€ turn up for the auditor. As for the â€œpossible amendments,â€ I think itâ€™s worth noting that there has not yet been a companion Senate Bill introducedâ€¦ As Senator Taniguchi has repeated throughout the past few days, â€œit is not a done deal.â€
Anyway, mid-day today the Governor issued a press release to announce her proclamation that the Legislature shall reconvene in special session. The press release reads, in part:
The Governor has been meeting with Senate President Colleen Hanabusa and House Speaker Calvin Say to reach a consensus on the language of a bill to allow the Superferry service to resume while the state conducts an environmental impact statement relating to harbor improvements for the ferry operation. Both President Hanabusa and Speaker Say have informed the Governor that after meeting with members of their respective chambers, they â€œascertained that there is support to convene a special session for the purposes of addressing matters pertaining to the Superferry and extended term sentencing.â€ Drafts of the bill have also been shared with the Hawaiâ€˜i Superferry to ensure the measure would enable the company to remain in business.
â€œI appreciate the bipartisan cooperation of both the Senate President and House Speaker, together with their members, to find an acceptable solution that is in the best interest of all the people of Hawaiâ€˜i,â€ said Governor Lingle. â€œThe majority of the people across our state want this important transportation option, and I am pleased that we have worked collaboratively to find a way to allow the service to continue while an environmental impact statement is conducted and concerns are addressed.
I am not even close to convinced that there is a consensus between the House, the Senate, the Executive and (the fourth branch of Hawaii government?) Superferry. Rather, I suspect things are about to get very messy democraticâ€¦ we may even witness something more like a real legislative session with open debate and public testimony. Imagine that.
Roadshow continues – while Senator Hanabusa makes a cryptic comment
Filed under: HI State Politics â€” Doug @ 7:16 pm
I was struck by this passage in a post at Kauai Eclectic:
Sen. President Colleen Hanabusa, who arrived a couple hours late and stopped first to talk to the TV cameras, reassured the crowd that the bill was not a â€œdone deal.â€ She even went so far as to say the draft bill was merely a vehicle to solicit public comment.
And the comments people made were overwhelmingly against the bill, and against Superferry.
Hanabusa made two other noteworthy comments. She said she personally would never ride the Superferry because of seasickness, and that the Legislature, if called into special session by the guv, could meet and then adjourn, without taking any action.
Needless to say, that met with loud applause.
Someone needs to track down the specifics of that comment (and, ideally, get a reaction from Speaker Say, too). It sounds as if the Senate is prepared to use a bit of gamesmanship to stall a hurried special session. The House leadership, on the other hand, according to every statement from Speaker Say that Iâ€™m aware of, is against holding hearings, is against adding specific operating conditions to the bill, and is against anything other than a â€œfull speed aheadâ€ special session. However, for any bill to pass it would need to go through the Senate, too. Hanabusaâ€™s strategy is potentially big news, but perhaps Hanabusa was just playing to the audienceâ€™s sentiments. I dunno.
After reading that comment, however, things like what we find in the Garden Island News become more interesting:
A panel of seven state senators representing various committees and islands sat attentively as the anxious but civil crowd took turns at the microphone for more than five hours.
â€œWe have come to listen,â€ said state Sen. Brian Taniguchi, D-10th District, Manoa/Moâ€˜iliâ€˜ili/McCully/Makiki. â€œRumors that this is a done deal are not true.â€
Next, Iâ€™ll note this â€œplain as the nose on a faceâ€ comment from a testifier on Kauai via the S-Bi:
State Senate President Colleen Hanabusa said the Legislature still has not been asked by Lingle to return in special session to discuss saving the Superferry, and that the bill crafted last week is just a draft.
â€œWe, the Senate, feel we need to gather informationâ€ in case the governor asks for the Legislature to return, Hanabusa added. â€œWe need to get the conversation started.â€
The conversation was almost completely one-sided on Kauai.
Speakers continually repeated yesterday that any bill to save the Superferry would circumvent current environmental laws and ignore judicial rulings, and would bring unneeded problems to the state and especially to the Garden Isle.
â€œWhat will happen if they allow it and then find there is a significant impact? I imagine they will say, â€˜Well, weâ€™re already in business so we need to continue,â€™â€ said Joan Kutzer.
Actually, thatâ€™s exactly what the politicians will say and are saying now, as the latest draft contains language in the purpose section (see pages 6 and 7) to the effect that an unaccepted EIS is not going to stop the ferry operations. Read it for yourself; that clause reduces the entire process to a farce, in my opinion.
Itâ€™s still possible that â€œthe showâ€ will not go on
Filed under: HI State Politics â€” Doug @ 10:03 am
In an Advertiser story about what I consider to be a small diversionary skirmish that obscures the underlying flow of the battle, there are a few interesting passages:
The draft legislation, which could be heard in a possible special session this week, would require the Lingle administration to impose operating conditions on the ferry to protect whales and other marine life, prevent the spread of invasive species and preserve cultural and natural resources.
Superferry executives would have to agree to the conditions to resume operations.
While lawmakers could add more suggestions after informational briefings on the Neighbor Islands starting today on Kauaâ€™i, some, especially in the House, are worried that a protracted argument about which conditions should be in the draft could unravel the consensus behind the legislation.
That assumes that there is consensus to unravel. Since what happens in the caucus room has (so far) remained secret, itâ€™s impossible to judge the extent of consensus.
For a bit of a refresher, I took a look back to after 9/11 which (if I recall correctly) is the last time the Legislature met to consider substantive matters, i.e. for reasons other than veto overrides. Governor Cayetano called the legislature back to consider a handful of bills and, according to a S-B story, just as we see now, the Legislature in 2001 hammered out the language of the legislation in advance in order to ram it through in a brief flurry of ill-considered â€œlegislativeâ€ activity. Itâ€™s how things like the PATRIOT Act happen, but thatâ€™s beyond the scope of this blogâ€¦
Onward, to another tug on the thread from yesterday. If House and Senate leaders do (or donâ€™t) agree that the legislation to be considered at the special session will include additional operating conditions (instead of completely delegating to the Governor the authority to impose operating conditions) would doing so kill the majority support for the legislation in either chamber? Many times we have read that if there is not an existing majority in support of the bill in both chambers, then the special session would not proceed.
From the Executive branch side of the â€œconsensus,â€ if the audit of Lingleâ€™s decisionmaking stays in the draft legislation despite her objections, would she still call the Lege back into special session or would legislators have to petition to reconvene? That written request to reconvene in special session would take 2/3 support in each chamber, by the way.
Notice how this sausage-making reinforces what I wrote about the importance of authoring the draft instead of trying to amend an existing draft that is gathering â€œinevitabilityâ€ simply by being on the table. There is not enough time (allowed) during special session for actual debate.
State Senate Majority Leader Gary Hooser, D-7th (Kauaâ€™i, Niâ€™ihau), who wants more community representation, said he understands that some environmentalists might dismiss the task force as window-dressing to compensate for giving Lingle the discretion on operating conditions. But he believes the task force could help lawmakers identify problems.
â€œIf this task force embraces its role, then it could play a meaningful part in oversight,â€ Hooser said.
A Superferry spokesman declined to comment on the task force, saying the company is still reviewing the draft.
Superferry executives, lobbyists and public-relations advisers have been hesitant over the past week to talk publicly about a special session or the details of the draft as those have surfaced at the state Capitol.
Superferry executives have been meeting privately with lawmakers and, according to legislative sources, their attorneys and lobbyists have been suggesting draft language and offering comments.
Sources close to Superferry have said that its executives are concerned that any public comment by them on the draft could be attacked by opponents and undercut their chances during a special session.
Keep in mind that the plaintiffs publicly released their reaction to the draft (along with a list of 29 proposed operating conditions) and willingly opened themselves to â€œattackâ€ by opponents, also known as â€œpublic debate.â€ Similarly, over the next few days, pro- and anti-EIS residents of each island will testify in public on the proposed draft. Meanwhile, the Superferry team skulks around the Capitol delivering their testimony (which is essentially what their â€œlobbyingâ€ is during this de facto special session before the â€œofficialâ€ special session) in private. This is some great democracy we have on display here. Not.
Is the testimony to have any impact – or is it only part of the show?
Filed under: General â€” Doug @ 9:58 am
The plot picks up some pace, now that the public is about to (semi-formally) participate in the Superferry debate. According to an Advertiser story:
The main purpose of the draft â€” allowing Superferry to resume service while the state conducts a full environmental impact statement â€” is unlikely to change before a special session. But lawmakers said they are open to hearing suggestions on operating conditions that the Lingle administration should impose on the ferry to protect the environment and changes to the composition of an oversight task force that would monitor ferry service and give monthly reports to the Legislature.
The state House has chosen not to formally participate in the briefings, but individual House lawmakers plan to attend. The House appears less inclined than the Senate to add conditions to the draft, preferring that Lingle do so. Lawmakers, if they are not satisfied with what Lingle imposes, could add conditions during the regular session that starts in January.
Late yesterday, lawmakers posted the latest draft on the Legislatureâ€™s Web site. While still remaining separate from the stateâ€™s existing environmental review law, it [now] includes similar language.
Iâ€™m beginning to wonder just what those seemingly minor differences between the House and Senate mean. In a regular legislative session, those issues would not be a big deal; they are the kind of disagreements routinely ironed out during a series of [public] conference committee meetings. Here, though, in the run-up to a special session, the mechanism, if any exists, to resolve inter-chamber differences is unclear secret. If the Senate has no assurances from the House that additional operating conditions could be imposed by the Lege, then the upcoming â€œroadshowâ€ hearings will (again) be characterized (and received) as a patronizing charadeâ€”this time performed by the Senators instead of the Governor.
I also note a Maui News piece that gives a very different impression of the reception given to people seeking to add operating conditions than what we find in a S-B article. From the Maui News story :
Maui residents and one Kauai resident opposed to the Hawaii Superferry said they got favorable reactions Thursday as they met with legislators to voice their concerns over plans for an emergency special session to allow the Superferry to operate.
â€œThey were very thankful that somebody is helping them determine potential conditions for the operation of the Superferry. Up until now, they felt they did not have the expertise or advisers to help them craft legislation,â€ Mayer said.
The group suggested 29 conditions that should be imposed on Superferry operations if the vessel is allowed to run while a environmental study is being prepared. The conditions would seek stiffer standards for preventing the spread of alien species among the islands, require state agricultural inspectors to conduct inspections of ferry cargo and mandate a bond to reimburse the state if environmental problems occur as a result of the ferry operations.
The conditions would slow the ferry to 15 mph in areas where whales are known to congregate and ban ferry passengers from carrying any natural products gathered from the islands they visit.
â€œFavorable reactions?â€ Not so fast, according to the S-B:
The new draft of the bill does not contain any of the 29 conditions that were recommended by Maui environmentalists earlier this week. But it does include about 20 new pages that reference the Hawaii environmental impact law.
The new portions spell out what an environmental impact statement for the Superferry must include, how the statement would be prepared and the areas that must be covered.
Now, to be fair, the draft is a work in progress, so maybe some of those 29 conditions will be incorporatedâ€”if the Senate can persuade the House to not leave the operating conditions completely to the Governorâ€™s discretion.
Plaintiffs offer amendments
Filed under: HI State Politics â€” Doug @ 4:49 am
The focus today shifts to the plaintiffs, who have begun to suggest operating conditions to impose on the Superferry before it is allowed to sail while an environmental review is underway. The Advertiser story is here, and the S-B story is here (with another batch of jpegs[?] showing the complete list of 29 conditions).
In my opinion, the more interesting conditions are those beginning with number 21:
21. Hawaii Superferry shall post a bond in the amount of $840M to reimburse the State for the balance of the funds due, in the event that the Hawaii Superferry does not operate or refuses to follow the mitigation measures required by the EIS.
I can pretty much guarantee that would be a poison pill amendment in the eyes of the HSF lawyersâ€¦.
22. The permission to operate in this bill is limited solely to the Alakai and shall not extend to any other vessel or vessels operated by Hawaii Superferry. The â€œno actionâ€ provision of Chapter 343 shall be fully applicable to all other Superferry vessels, except for the Alakai.
This is pretty much moot at this point, because the latest draft Iâ€™m aware of speaks only of â€œqualifying ferry operationsâ€ and does not limit itself to any specific ferry operator or to any amount of vessels.
23. Hawaii Superferry shall not be able to utilize the lack of a time deadline in HRS Chapter 343 for the completion of an EIS as a means to keep operating for whatever period of time it may take to prepare an EIS. The Alakai shall not be able to operate after the expiration of the last day of the fifteenth (15th) month after the date of the adoption of this legislation.
Usually this would be unnecessary, since in other cases the motivation is to proceed quickly; because until the environmental review is complete the proposed action may not take place. In this case, however, the tables are reversed, so a time limit seems only fair. Whether 15 months is enough time, I donâ€™t know, but some limit should be included.
24. These conditions of operation shall, however, be applicable to any and all Hawaii Superferries irrespective of whether they operate before or after the preparation of the EIS.
They would have been foolish not to ask for it, but I donâ€™t see this condition being acceptable to the HSF. The final five conditions, when combined with number 24, would allow the plaintiffs to enforce and monitor compliance with the Hawaii Superferry operating conditions indefinitely.
Back to the Advertiser story:
Superferry executives, according to [Senate President] Hanabusa and [House Speaker] Say and a source familiar with the Superferryâ€™s position, are concerned about draft language relating to an â€œexplicit and comprehensive indemnity clauseâ€ for any new operating agreement with the state. The clause would shield the state from lawsuits by the Superferry for delays in ferry service caused by court actions.
Superferry executives are generally in agreement with indemnity language as it applies to the entire draft, but question why they should have to give up their rights to sue if sections are later found to be invalid by the courts and damage their ability to operate. The draft contains a severability clause that would, if one section is held invalid, protect other provisions of the bill.
The Lingle administration, according to Hanabusa and Say, are questioning the draft provision requiring the state auditor to investigate the administrationâ€™s handling of the Superferry project, including the February 2005 decision by the state Department of Transportation to exempt the project from an environmental assessment.
My hunch is that the Lege and the Lingle administration are not going to cling to the indemnity clause very tightly if the Superferry protests it too much. The matter of the auditorâ€™s investigation, however, I expect to be a bit harder to reconcile. I donâ€™t know if the Lingle administration wants badly enough for the Superferry to operate as to acquiesce to an inevitably-damaging audit of its activities.
Blog software may be upgraded tonight, if everything goes as planned
Filed under: General â€” Doug @ 7:14 pm
Cross your fingers, but I am pretty sure that Ryan and Art have the situation well in hand.
Thanks again, you two!
On the off chance that something goes awry, I am assured that they can revert this blog to the status quo while they figure it out.
UPDATE: Nothing went wrong, but the coordination of their work didnâ€™t happen as hoped. Sâ€™okay.
IT IS DONE! I like it. Enjoy.
Big mahalos, again, to Art and Ryan.
So, where are drafts one through six?
Filed under: HI State Politics â€” Doug @ 7:14 pm
After considerable delay, a copy of [one of] the draft legislative proposal[s] to allow the Superferry to sail during an environmental review has been published in the Honolulu dailies. (Advertiser and Star-Bulletin). The S-B online edition includes separate photos(?!) of each page of the draft, while the Advertiser online edition provides a much easier to browse PDF version.
The House Majority Blog says that the drafts may be on the Capitol website soon, but makes no promises since they donâ€™t control that website. Strangely, for some reason they donâ€™t post the information at their own blog. Go figure.
Anyway, now that I have had a chance to read the draft, here are my comments:
This is the SEVENTH version?! May we see the first six drafts, too, please?
On page 8, the bill specifies that a â€œqualifying ferryâ€ (canâ€™t name the beneficiary explicitly, you see) will be allowed to operate â€œnot withstanding that environmental assessments and environmental impact statements have not been prepared, or have been completed and the environmental impact statement is found unacceptable.â€ [emphasis mine]
What exactly is the point of mandating an EIS if the ferry will operate even if the EIS is [unlikely as it may be, since the â€œaccepting authorityâ€ is the Lingle administration] ultimately found unacceptable? Pure political theater, apparently.
On page 10, the Governor is directed to impose â€œreasonable conditions and protocols â€¦ to mitigate adverse environmental impacts that are proximately caused by the qualifying vessel companyâ€™s inter-island operations.â€ This is to be done without regard to chapter 91 (the administrative rulemaking process). In other words, there need not be any public testimony or review of the Governorâ€™s proposed conditions and protocols.
On page 11, the Governor â€œshall notify the legislature of any conditions or protocols established, including the entities consulted, within ten days of establishing the condition or protocol.â€ [emphasis mine] It will be interesting to see which entities (if any) other than the Superferry are consulted.
On page 12, â€œthe environmental review process for state actions in connection with a qualifying ferry vessel shall be governed by this [draft], and not by Chapter 343, Hawaii Revised Statutes.â€ This is strange because the only â€œprocessâ€ I see described in the draft is on page 13, where it says public review and comment shall be â€œin the manner provided by section 343-3.â€ So far as I can tell, then, the â€œprocessâ€ established by the draft does not incorporate the definitions of 343-2, nor the requirements to solicit and respond to public comments found in 343-5, nor the rules established by direction of 343-6, nor the limitations imposed on legal challenges in 343-7. What does all this mean? Is the Superferry going to be the subject of an EIS process as presently understood, or will it be subjected to something altogether different that is merely stamped with an EIS label?
Gasoline price gap narrows, still nothing on profit margins
Filed under: HI State Politics â€” Doug @ 7:13 pm
A brief Advertiser story about gasoline prices begins:
The gap between average prices for retail regular gasoline and wholesale regular gasoline fell to 46 cents a gallon on Oâ€™ahu during the week ended Aug. 12, the state Public Utilities Commission reported yesterday.
That is good news.
The PUCâ€™s average wholesale price has been criticized as inaccurate and inflated because it combines different types of wholesale transactions into one price.
Under the program, oil companies must file monthly and weekly reports disclosing in some cases crude oil costs, wholesale prices, gross margins and other figures.
Yeah, and file the data they do. However, we have yet to get any data reported that speaks to the real reason behind the petroleum industry monitoring and reporting program, i.e. data that would indicate if profit margins manipulated unfairly, or if Hawaii gasoline prices rationally follow changes in the costs of conducting business.
Like all the previous weekly reports, the latest (PDF) weekly PIMAR report includes this:
The Commission also continues to examine information, such as reporting entities? Form W-150 reports on reported gross margins, to determine appropriate methods to aggregate confidential data and publish meaningful information.
There have now been seven consecutive weekly reports with that same boilerplate language. When will the PUC be able to â€œpublish meaningful informationâ€ about reported gross margins?
Taking â€œvote buyingâ€ to a whole different level
Filed under: Neighbor Islands â€” Doug @ 7:13 pm
There is a proposal on the Big Island to require frequent campaign contribution reports and to exclude contribution recipients from voting on matters that would advance the interest of their donors. Get a load of this comment from Hawaii County councilmember Dominic Yagong, as reported by the Hawaii Tribune-Herald:
Requiring more reports and debating whether council members may vote on a pending proposal could take time away from more pressing matters, resulting in inefficient work, Hamakua Councilman Dominic Yagong said.
â€œIâ€™m OK with the (current) system,â€ he said.
Another problem, Yagong added, is the potential that a developer will block lawmakers from voting against his proposal simply by giving them money beforehand.
Is that scenario possible? Sure, I suppose so. But Yagong is implicitly saying that it is impossible for a Councilmember to refuse a campaign contribution.
Seriously, though, I think the proposal has a whole slew of unintended consequences to be considered, even though it sounds good at first. Yagongâ€™s example is not among the top ten, however.
Lots of commentary, but itâ€™s meaningless without context
Filed under: HI State Politics, HI Media â€” Doug @ 7:29 pm
Another day, another description of the draft legislation. From the Advertiser:
While consensus among House and Senate leaders is a hopeful development for Superferry after two losses in court, some lawmakers may seek amendments to the draft that more explicitly define the operating conditions. Environmentalists and activists who have questioned the project could also attack the draft and pressure lawmakers for changes.
â€œMore explicitly?â€ The last I heard, the draft does not describe the operating conditions at all, much less describe the operating conditions explicitly. Instead, we were told that the Governor would decide on the operating conditions. So, which is it? Are there any operating conditions in the draft? What amendments are being sought? We donâ€™t know, because we are being kept in the dark by the Governor, the Legislature, and the media.
As for the environmentalists attacking the draft, a very good way to delay such attacks is for the draft language to remain secret until the political kabuki special session is convenedâ€¦.
Asked yesterday whether Superferry could live with what is being proposed, John Garibaldi, the Superferryâ€™s president and chief executive officer, and Tig Krekel, the vice chairman of J.F. Lehman & Co., the projectâ€™s main investor, declined to comment directly. â€œWeâ€™re still talking,â€ Garibaldi said as he and Krekel continued their private meetings with senators.
Keone Kealoha, director of Malama Kauaâ€™i, and Joel Guy, founder of HGS Productions, were also visiting with senators yesterday urging them not to go into special session to help Superferry. â€œWeâ€™d like to see them uphold the law as written,â€ Kealoha said.
But Kealoha and Guy said they would likely recommend conditions if the draft moves forward. â€œWeâ€™re not going to just sit back and let this go,â€ Guy said.
Have Kealoha and Guy seen the draft? Somehow, I doubt it.
State Sen. Shan Tsutsui, D-4th (Kahului), described the draft as weak because he said it gives too much discretion to Lingle to set the conditions. He also questioned whether lawmakers would add more conditions next session if Superferry is already back in operation. â€œI donâ€™t know if there is the will,â€ he said.
State Attorney General Mark Bennett had recommended that the Department of Transportation impose the conditions but several lawmakers want it to be Lingle so they could hold her accountable if the conditions are too soft.
Let me get this straight. Some legislators hope to pass a bill that forces Lingle to impose the operating conditions herself, then, if the conditions are â€œtoo soft,â€ the Legislators will say â€œblame Lingle.â€ That may be (wrongly) considered to be a useful political ploy for Democrats, but it doesnâ€™t ensure adequate environmental protections are in place in time for the [re-]commencement of ferry operations. Furthermore, why should anyone think that the Governor is going to properly weigh the environmental risks of the superferry this time, after a few years of history that suggests an inability or unwillingness to do so?
Lingle wants total discretion to delineate the initial ferry operating restrictions
Filed under: HI State Politics â€” Doug @ 7:32 pm
The Advertiser reports today on yet another attempt by the Attorney General to draft legislation allowing the Superferry to circumvent the injunction that is preventing it from operation during an environmental review.
META: Yes, I noticed the print edition headline uses the word â€œstringent.â€ Heh. Maybe itâ€™s hubris, but I am inclined to believe somebody down there is paying attentionâ€¦
Hawaii Superferry would have to give â€œunconditional acceptanceâ€ to operating restrictions that protect whales and prevent the spread of invasive species in exchange for being allowed to resume ferry service while the state conducts an environmental review, according to a potential Superferry compromise.
The Lingle administration would impose the conditions and they would not be subject to judicial or administrative review. The state Legislature, however, would have the right to add conditions later if lawmakers were not satisfied.
State Attorney General Mark Bennett shared the draft with state House and Senate Democrats over the weekend and lawmakers are reviewing it as they consider whether to back a special session to save Superferry.
Again, the public should not be denied the full text of this bill. Even if this particular draft doesnâ€™t become law, it would provide additional insight as to the Lingle administrationâ€™s stance. So, since the legislators and the media [still] are not sharing what they evidently have, does anybody from inside the Lege care to leak this latest draft? If so, please leave a comment.
As I proceed, keep in mind that the rest of this post is written without the full text of the legislation available to me. If the bill is inaccurately described in the article, then all of this may be off the mark.
Okay, first thing, the AGâ€™s proposed legislation need not provide â€œthe rightâ€ of the Legislature to amend the operating restrictions. That â€œrightâ€ already exists, the Legeâ€™s power to amend this [or any other] law may not be abridged, and the AGâ€™s meniton of it here is, in my opinion, a red herring.
Second thing, Iâ€™m not a lawyer or a full-on Constitutional scholar, but Iâ€™m pretty sure that the Legislature may not pass a law that prohibits Judicial review of actions taken by the Executive. Congress, so far, has been willing to look the other way regarding the â€œunitary executiveâ€ jabberwocky being peddled by the President, but I donâ€™t think for a second that the Hawaii Supreme Court would let this stand were this draft were to pass and a challenge were made to the operating restrictions imposed by Lingle.
Meanwhile, in a Star-Bulletin story:
Senators are discussing a possible round of hearings on the neighbor islands before a special session. Hearings could start as soon as Thursday, with a five-day session starting Monday.
Former Senate President Robert Bunda said the public hearings are not needed now and could be held during the regular legislative session in January.
Meanwhile, a bill to help the ferry could be passed now and adjusted in January.
â€œIf the Legislature wants to help the Superferry, we should go into special session now and lift the injunction. We should keep it simple. If there are reasons to overturn it later, so be it,â€ Bunda (D, Wahiawa-Pupukea) said.
But Sen. Gary Hooser, the lone Kauai senator, said his fellow Democrats â€œare very uncomfortable about going into a special session.â€
â€œMy sense is that a good percentage of the majority doesnâ€™t want to go into a special session. They believe we can wait until January,â€ he said.
Senator Bunda would do well to consider his words more carefully. Senators on the fence regarding the propriety of a special session may turn against the idea altogether if the public is to have no meaningful participation in the special session.
â€œArtifacts from the futureâ€ dispersed throughout Chinatown
Filed under: Honolulu Politics â€” Doug @ 7:31 pm
A couple of futurists (one with an interesting blog) from UH-Manoa have a clever little project underway in Chinatown, described briefly in this Advertiser story. The project involves a series of posters displayed in Chinatown storefronts, (contrived) websites targeting pro- and anti- gentrification organizations, artifacts from the future, and a plan for more events.
Itâ€™s an interesting little gimmick, and if the intent was to create â€œbuzzâ€ then (with an article in the Stateâ€™s biggest daily) it worked pretty well. However, I donâ€™t expect a lot of non-academics to be attending their chin-rubbing conferences, picking up the future studies jargon, and/or giving much serious thought to events beyond the very near futureâ€”the furthest out most people think involves estate or retirement planning. Heh.
Look! Loud, fast and deadly stuff!
Filed under: General â€” Doug @ 9:20 am
If you live on Oahu and didnâ€™t go yesterday, itâ€™s not too late to go today. Get yourself a megadose of propaganda. Wear your sunscreenâ€¦
Otherwise, have a look at my (pitifully low-skill) photography from the show. I had really bad luck trying to capture the moving aircraft, and I soon realized that attempting to watch the show through a camera viewfinder was going to ruin the experience for me.
Whatever conditions that are agreed to will be labeled â€œstringent,â€ just watch.
Filed under: HI State Politics â€” Doug @ 8:24 pm
Iâ€™m a bit late to the scene after a day at the airshow, but information is slowly trickling out regarding the legislation to circumvent the requirement that the Superferry not sail until an environmental review is complete. The Advertiser story has a few key paragraphs:
â€œItâ€™s important to understand that the agreement that has to be reached here in order for this service to continue is really a three-way agreement,â€ Lingle said at a news conference at the state Capitol where she announced she has canceled a trip to Asia so she could work with lawmakers during a possible special session. â€œItâ€™s not just between the Legislature and myself, but the Superferry has to agree that this is something that will enable them to operate in a way that they can stay in business.â€
Lawmakers generally agree with Bennettâ€™s proposal [via Disappeared News] for a full environmental impact statement, rather than a more limited environmental assessment required by the state Supreme Court. But the review could take one to two years, so lawmakers want conditions to protect the environment during the study. A 17-member task force, made up of state, county, environmental and business leaders, would also review the project and report to the Legislature before the 2009 session.
One latest draft of the legislation would require the state auditor to conduct a performance audit of the Lingleâ€™s administrationâ€™s actions leading up to the critical February 2005 decision by the state Department of Transportation to exempt the Superferry project from an environmental assessment. The provision also asks that the administration waive any attorney-client privilege that would shield the disclosure of what, if any, legal advice the department received from the state Attorney Generalâ€™s office.
Again, does anybody have or know where to find a copy of that â€œlatestâ€ draft? Furthermore, does anybody know who wrote it? These drafts should be made public! By the media if necessary, but more properly by the legislature.
In the Star-Bulletin piece we hear Mr. Garibaldi acknowledge that the ultimate shot-callers are the Superferry corporate board members.
Speaking about the coming meeting with Superferry board members, Garibaldi said board members would be considering the future of the company.
â€œIt is really so that everyone can hear the thoughts of the different players,â€ he said. â€œThey are the ones who, at the end of the day, have provided the needed capital.â€
Earlier yesterday Hanabusa said the Legislature looks at any new law to keep the ship sailing while a court-ordered environmental assessment is completed as an â€œextraordinary remedy.â€
â€œWe can put in the conditions that people feel are the best balance they can strike,â€ she added.
Hanabusa (D, Nanakuli-Makua) said leaders in the House and Senate are â€œsensing that people want to see some kind of effort to mitigate the problems and protect the environment.â€
Such conditions could be special washing of all vehicles before they go onto the ship, low speeds while traversing known whale breeding grounds near Maui and inspections of vehicles.
â€œThe Legislature is concerned, but the Legislature is not saying (save) the Superferry at any cost,â€ Hanabusa said.
â€¦ well, weâ€™ll see about that.
If the Superferry objects to any (or all) of the conditions proposed by the legislature, then the test of Hanabusaâ€™s integrity would be if the legislature holds firm or if the legislative leadership promptly removes the condition(s) causing the objections. Of course, since the â€œthree-wayâ€ deliberations now in progress are being conducted under secrecy it means that the public doesnâ€™t know exactly what conditions are being discussed. Thus, the legislative leaders could easily cave in (if they have not done so already) to the Superferry position and the public would never know if/which conditions were set aside to ensure the salvation of the Superferry.
From the conclusion of the Advertiser story:
Under questioning from reporters at her news conference, Lingle again defended the administrationâ€™s decision-making. The governor said she was not aware of any legal advice on Superferry from the attorney general in her file. She also said she was, and still is, a supporter of the Superferry project but had no role in the Department of Transportationâ€™s decision to grant the exemption.
Asked whether she has any responsibility for what has happened to Superferry, Lingle responded: â€œNo, I donâ€™t. I think we made a decision based on the law at the time. The Supreme Court, for whatever their reason was, decided to wait over a year-and-a-half to reach a decision and to do it two days before this service was set to begin.â€
Huh? How could the exemption decision have been both â€œbased on the law at the timeâ€ and yet be found by the HSC to be â€œerroneous as a matter of law.â€ Oh, and another nice smear of the Court, too, as if Lingle could actually be unaware of the chronic backlog at the HSC.
At least the media are starting to ask some tougher questions of the Governorâ€¦
The special session is essentially underway already – in secret
Filed under: HI State Politics, HI Media â€” Doug @ 7:57 pm
Another flood of Superferry stories today, most of them reporting that the first draft presented by the Attorney General was not well-received by legislators. If any of the media have a copy of the legislation, then they are not sharing it. The reports (at most) describe the proposed draft only in general terms. Whatâ€™s worse, none of the reporting has questioned the propriety of the draft legislation being discussed only within the private caucus rooms at the Capitol. I am sure that Iâ€™m not the only one who wishes to read the draft to ascertain how far into the Superferry pocket it would reveal the Governor to be.
Instead, the legislators have rolled over and are playing along with this secretive deliberation. Actually, it is more fair and accurate to say that the House and Senate leaders have endorsed this tactic of negotiating in private to amend the bill into something with a chance of passage. However, if ever there is a time for the full deliberative process in a special session (with hearings, amendments, conference committees, i.e. â€œthe whole nine yardsâ€ of legislative sausagemaking), it is in a case like this where much more than a straightforward veto override is contemplated.
The Senate, especially, has no excuse for trying to ram this all through in five days because it will certainly take them much longer than five days to confirm dozens of people nominated to various positions in the Lingle administration, and all of those nominations shall be considered if they reconvene in special session (or else the Governor will be forced to find new people to nominate to interim appointments). Why not use that time to allow for a real deliberative process? Let the Governor submit (and defend) her â€œno strings attachedâ€ draft and let the legislature hold hearings to defend, amend, or kill the bill as they see fit.
It doesnâ€™t help when we get misinformation like this from KHNL:
In order for the Governorâ€™s plan to go through, the Attorney General must submit a proposal. Both the House and the Senate must agree to the bill. Only then can the Governor call an emergency five-day session for lawmakers to decide if and how they can save the Superferry.
The â€œonly thenâ€ baloney makes it sound as if there is no other alternative except to have a pre-ordained outcome, drafted by the Attorney General! Sheesh.
Meanwhile, as evidence of the complicity of the legislative leadership in all of this, the House Majority Blog has a post describing a sort of â€œinvitation onlyâ€ process of legislating:
House and Senate leaderships agree with the AGâ€™s provisions that permit the Superferry to operate while an EIS is being conducted. The requirement to proceed directly to the EIS is supported.
However, the legislature wants the bill to require operating conditions on the Superferry intended to mitigate adverse environmental effects.
Both the Superferry and plaintiff-environmentalists have been informally requested to submit proposed operating conditions that will be considered for inclusion in the bill.
House and Senate leaderships will have further discussions today and this weekend with each other. The Speaker and Senate President also will meet with the Governor on Saturday.
No deadline has been imposed, but the consensus of both House and Senate is to get an amended draft to their respective caucuses as early as possible.
The only rays of sunshine are that Senators Hooser [Majority Leader] and English [Transportation Committee Chair] are on record as saying there will be public hearings held on the legislation (to include, according to English, hearings on Maui and Kauai, not just at the Capitol).
Lt. Murphy awarded posthumous Medal of Honor
Filed under: General, HI Media â€” Doug @ 7:57 pm
Mahalo to the Honolulu newspapers for noting a Hawaii-based sailor soon to be awarded a posthumous Medal of Honor. (Advertiser and Star-Bulletin) By the way, the Advertiser piece also mentions the award for Marine Sergeant Rafael Peralta is still pending. Iâ€™ll be thinking of these guys as I spend my Saturday across the bay watching the air shows.
With a sly hat tip to Ian Lind, and in case anyone might have forgotten, all the loud and fast military hardware on display this weekend is very lethal. I should know, as I repaired the very same F/A-18 jets for five years to include Operations Desert Shield & Desert Stormâ€¦ when our birds returned to base without the ordnance they left with it was a safe bet that there was violence inflicted somewhere downrangeâ€”hopefully against a combatant.
On a related note, a seriously wounded Kaneohe-based Marine (whose mother started a blog chronicling his recovery that Iâ€™ve been following on my blogroll) is here visiting his comrades in Hawaii after months of treatment on the mainland. I tipped the Advertiser and S-B about this a few weeks in advance, so maybe they have tried (or may still intend) to cover it.
Mickens is curtly denied
Filed under: HI State Politics, Neighbor Islands â€” Doug @ 7:46 pm
Iâ€™m not sure exactly what to make of this Garden Island News story, but here is what caught my attention:
The Kaua?i County Council yesterday approved the use of up to $10,000 to hire outside counsel to advise it on an ethics complaint against an unnamed member.
The complaint was filed with the Office of Disciplinary Council, which investigates and prosecutes attorneys alleged to have violated a ?code of professional responsibility? tied to rules of the Hawai?i Supreme Court.
The article goes on to describe the strange anonymity (from the council and the ODC) granted the councilmember facing the complaint, but it glides right past a bigger question: is it ethical lawful to use government money to defend a legislator facing an ethics complaint? That doesnâ€™t pass the smell test, in my opinion.
During the ensuing fight over the secret deliberations regarding the councilâ€™s approval of the expenditure, there was this:
County attorneys met with the council in an executive session to discuss the details of the complaint and the funding for hiring outside counsel. No details were provided by legislators.
Government watchdog Glenn Mickens said the complaint should have been publicly discussed for the benefit of residents watching Ho?ike, a public access television program.
But Councilman Jay Furfaro said the council should be allowed to meet in exclusive session on the complaint because ?there are certain potential claims and privacy issues that could be connected with this issue.
?We can?t discuss the details of those charges or name the council member due to privacy issues in accordance with Hawai?i law,? he said during a break in the meeting.
The special meeting came up amid renewed complaints by Mickens that a Kaua?i County Charter provision only allows the council to meet in closed sessions to discuss claims.
Any legal determination that stands could throw out a myriad of council decisions that have come from tainted closed sessions, Mickens said.
County officials have said the closed meetings are lawfully conducted and are held to seek sound legal advice from the County Attorney?s Office.
Council Chairman Kaipo Asing said he has heard the same arguments from Mickens for 11 weeks and threw down the gauntlet, telling Mickens his assertions are flawed.
?Thank you,? Asing said to Mickens. ?You are wrong. I will explain to you at a later time. You wanted an answer. I gave you an answer.?
So there. Heh.
Actually, it seems as if there is some â€œthereâ€ there. The Kauai County Charter (PDF) does say:
The council shall meet regularly at least twice in every month at such times as the council may prescribe by rule. Special meetings may be held on the call of the mayor, chairman or by five or more members. With the exception of deliberations relating to confirmation of appointees, or consultations with the county attorney on claims, all council and council committee meetings shall be open to the public.
To which the County attorney responds:
County Attorney Matthew Pyun Sr. said a state law [which one?] allows the council to meet behind closed doors beyond the single condition identified by Mickens.
Among the conditions, he said his office has the authority to discuss with the council the powers and privileges of the legislative body and liability issues.
[Councilmember] Iseri-Carvalho also noted that state law [again, which one?] stipulates the council can meet in closed sessions for other reasons, including to to investigate proceedings regarding criminal misconduct and to consider sensitive matters related to public safety.
Mickens said that state law is subservient to the charter provision because the language in the former is more stringent.
Pyun didn?t argue that point but alluded to the state law having precedent by continually referring to it.
However, Mickens said the Office of Information Practices agrees with his stand.
Thatâ€™s great, but itâ€™s too bad OIP is a toothless tigerâ€¦
More of this kind of reporting, please
Filed under: HI State Politics, HI Media, Neighbor Islands â€” Doug @ 7:45 pm
An excellent Maui News story actually goes beyond speaking to the â€œusual suspectsâ€ legislative leaders (Hanabusa, Say, Caldwell, Hooser) to obtain comments from other Maui legislators. This kind of â€œwhip count via mediaâ€ is very useful when trying to read what the result of a special session will be.
The story also had this nugget that is news to me:
If it is not able to operate, however, President John Garibaldi indicated during the lengthy court session that Superferry would consider relocating. If the Superferry leaves Hawaii in search of a friendlier port, other Hawaii harbor users would have to pay for $40 million spent by the state on ramps and barges at state ports for the Superferry ? which the Superferry will be able to take to its next location.
Huh? I distinctly remember hearing the DOT tell legislators that those barge/ramps could be used by any harbor user that needed them (of course, no other harbor user has a boat perfectly designed to work with the ramps). Those are state property, as far as I know. So, if the Superferry has rights to take the barge/ramps away, Iâ€™d sure like to know under what authority that could happen.
Oh, and I should note that Representative McKelvey seems to have taken my advice (although I have had no direct contact with him):
McKelvey said he would offer his own proposal during the caucus. It would allow the Superferry to ply waters between Kalaeloa and Sand Island to help ease traffic on Oahu while an environmental study is done for the Maui-to-Oahu ferry service.
An A for effort, but Iâ€™m sure that proposal (if actually offered) landed with a dull thud.
Student reporters fighting campus security stonewalling
Filed under: HI State Politics, HI Media â€” Doug @ 7:45 pm
The UH-Manoa campus newspaper has a story describing a few years of non-compliance with a federal law requiring campus security to promptly publish a log of on-campus crimes.
Prior to [Security Chief] Sakamotoâ€™s hiring last spring, Ka Leo reporters could check the crime log once a week and get more information from Campus Security officers for its Campus Beat column, which was one of the most popular items in the newspaper.
In April, the crime log was closed and then put online the first week of May without explanation or evidence that reporting by Ka Leo did any harm. Reporters can no longer speak to officers but must instead contact Sakamoto, who sometimes takes up to a week or longer to provide the requested information.
Sakamoto said he has been working on an â€œexpanded version of the log,â€ which would be available primarily to the media and also to the public.
When Ka Leo called Sakamoto last Wednesday, he did not have a specific time frame for when the â€œexpanded versionâ€ would be completed, nor did he say when the crime log would be in compliance with federal law. But during a follow-up call to him on Monday, Sakamoto said he plans to have a more timely and descriptive system implemented by the end of this month.
One thing sorely missing from the article is a response from the UH administrators. Another thing worth obtaining would be a comment from whatever federal agency is tasked with enforcement of the law requiring the disclosure.
Bill in a poke to be presented at special session
Filed under: HI State Politics â€” Doug @ 7:27 pm
Hmmm, what shall I write about today?.. Heh.
Rather than try to artfully craft a post full of smooth transitions from topic to topic, Iâ€™m gonna cheat and just go article by article and summarily add my comments. Beginning with a post by Malia Zimmerman at Hawaii Reporter:
Gov. Linda Lingle said this morning that the state attorney general hopes to successfully draft legislation by late today or early tomorrow to address the Oct. 10 Maui court ruling blocking the Hawaii Superferry from operating between the islands before the state completes an Environmental Assessment in 8 months.
The governor says the legislation proposed by her administration will be specific to the Hawaii Superferry.
?We want to focus on the future and how we can continue to have this service for the people of Hawaii. If we can get consensus from lawmakers, draft a bill, and talk through the issues in advance, we can move quickly once go into session to avoid wasting time and money,? Lingle said on KSSK radio?s Perry & Price Morning Show.
But the governor says any broader legislation addressing the Hawaii Supreme Court?s August ruling mandating an Environmental Assessment in the Superferry?s case could be handled in mid-January when the regular legislative session resumes.
â€œTo avoid wasting time and money?!â€ Just as I thought, the intent is to ram something through in a big hurry. Anybody not part of the secretive â€œconsensus buildingâ€ process, i.e. the closed-door caucus meetings of the House and Senate, wonâ€™t know what alternatives and arguments are presented and wonâ€™t have any chance to influence the â€œconsensus.â€
Sadly, according to an Advertiser story, Speaker Say is singing the same tune, but Senate President Hanabusa offers at least a glimmer of hope for public participation:
A legislative remedy would likely allow Superferry to resume service between Oâ€™ahu, Maui and Kauaâ€™i while the state conducts an environmental assessment of the ferryâ€™s impact on state harbors. Lawmakers may also add conditions to minimize potential collisions with whales, the spread of invasive species and increased harbor traffic.
Say has urged that, if a special session is called, it be limited to five days, with discussion on one bill with no amendments. Such a surgical approach would avoid floor fights over counterproposals and amendments that could bog down debate. It would require that Lingle, Hanabusa and Say reach consensus beforehand on a bill that would be palatable enough that even lawmakers with different ideas would go along. It would also preclude lawmakers from addressing other subjects, such as a recent state Supreme Court ruling that declared the stateâ€™s extended sentencing law unconstitutional.
Hanabusa said that she wants to give the public an opportunity to comment on a Superferry bill, either through an informational briefing before a special session or through public hearings.
A informational briefing before the speciall session would be next to worthless, unless the draft language of the â€œconsensusâ€ legislation to be considered is published in advance. If not, the public would be siply venting with very little focus.
In an otherwise grumpy editorial (wherein they needessly chide the court for allowing several weeks of arguments for and against the so-called mitigation measures), the SB editors opine:
If an emergency legislative session is convened, it is unclear what law could be fashioned to accommodate the ferry company without triggering further lawsuits or conflicts within the community. It would have been prudent for the governor and legislators to have drafted several alternatives to speed review by the public.
Lawmakers must be cautious not to overreact and gut balanced statutes that have served to protect Hawaiiâ€™s fragile environment. They should also acknowledge that the heated reaction from neighbor island residents and others are as much about the ferry as they are about a frustration with unresponsive political leaders and rapid growth across the state in recent years.
The Advertiser editors, however, seem less (or at least less-vocally) concerned about public participation in the special session process (seemingly content to allow polls to stand-in for public input?). Their editorial says:
Carving out exemptions from environmental law is far from good governmental practice, and itâ€™s distressing to contemplate doing that here. Lawmakers should review environmental law next regular session and discuss ways that decisions could be reviewed administratively, to avert future courtroom battles.
But the focus now should be on the preferred course to take in this case, in which government gave mixed signals to yet another company seeking to do business in Hawaiâ€™i. Uprooting the Superferry after the investment to date would send a message that the state would surely regret.
Lawmakers created a similar work-around in the Hokuliâ€™a development. Nobody wanted to exercise that option again so soon, but our collective guilty conscience should not deter leaders from making the best of a bad situation.
If a session convenes, lawmakers should spend their time understanding how the case unfolded and collaborating with the administration on how to proceed in the best interest of the state. Given the fractious relations between the Democrat-led Legislature and the Republican executive branch, that may seem hopelessly optimistic, but leadership is whatâ€™s needed now ? not grandstanding.
Sheesh, again with the â€œmessageâ€ sent by these events. What is so wrong about sending the â€œdonâ€™t try to sneak around HEPAâ€ message? Furhermore, the idea that giving more power to the administrative review process would avert future courtroom battles is probably true, but the idea presumes that the environment is not well-served by courtroom challenges to (ill-conceived) administrative rulings.
More on the â€œmessageâ€™ to the business community is in another Advertiser story:
â€œSomebody looking at Hawaiâ€™i with this in mind would see an uncertain and somewhat volatile investing environment,â€ said an investment manager who declined to be named because heâ€™s in talks with the state on a project.
â€œIf you canâ€™t be sure your investment is secure, people arenâ€™t going to do it.â€
MESSAGE TO INVESTORS: To be sure your investment in Hawaii is secure, donâ€™t try to circumvent the law and, if the law is circumvented on your behalf, donâ€™t begin your project before all appeals to the necessary approvals have been exhausted.
Finally, Representatives Souki and Morita sound off in another SB piece:
Legislative veterans, however, are warning that getting majorities in the House and Senate to allow the Superferry to operate will be difficult.
â€œThis is not a slam bang,â€ said Rep. Joe Souki (D, Waihee-Wailuku), a former House speaker. â€œI donâ€™t know how we are going to go on this one. It is Round One for the environmentalists, but I donâ€™t know if that is a KO or not.â€
Kauai Rep. Hermina Morita (D, Hanalei-Kapaa) said the Legislature should not try to overturn a court ruling. â€œAre we going to turn into a banana republic and let the rule of men override the rule of law?â€
Morita said existing state law requires Hawaii Superferry to have an environmental assessment before it could operate.
â€œJust because the administration doesnâ€™t agree with the law, doesnâ€™t make it a bad law,â€ Morita said.
I forget where I read it, but one article said that the ferry legal team intends to appeal Judge Cardozaâ€™s ruling to the Intermediate Court of Appeals. True? If so, then on what grounds could they appeal?
Krs wins after Kauai prosecutors mess up
Filed under: Neighbor Islands â€” Doug @ 7:26 pm
Honestly, this is not the kind of story I would usually mention, but a Garden Island News article mentions a legal victory by the blogger with probably the strangest presence on my blogroll. Congrats to Krs â€¦ I guess. You may recall that this is the blogger who the county offered to dismiss several charges against him on the condition that he stopped blogging, took down his website, and left the County. [boggle]
Hereâ€™s his â€œpensiveâ€ post after his victory. I love the internet, haha!
Pro-ferry forces must be fuming (and plotting) tonight
Filed under: HI State Politics â€” Doug @ 8:41 pm
Well, now that the Superferry operation has been enjoined by the court (see, I told you so!) until it completes an environmental assessment, the next episode is the all-but-certain special session of the Legislature to craft a law to allow the ferry to sail.
Will the Governor or legislators be so bold as to propose a naked exemption like what was done for the Waiahole water system in 1998? I doubt it, but trying to amend Chapter 343 in a more piecemeal manner such that the DOT exemption that the Supreme Court found invalid is made valid, and to make those amendments without undermining the ability of the statute to apply in future cases (also) worthy of environmental review could be quite tricky.
My expectation is that the special session is going to be so rushed that very little debate (perhaps even zero public hearings and/or amendments?) will be allowed. This type of special interest legislating is so inherently dubious that politicians who support the ferry would rather handle it as quickly and as quietly as possible.
Let the ignominy commence.
Caldwellâ€™s call for the Governor to explain herself
Filed under: HI State Politics â€” Doug @ 6:59 pm
There is a new post at the House Majority Blog by Majority Leader Kirk Caldwell wherein he calls for Governor Lingle to â€œshare with the State Legislature [and] the public the specific written opinion by the Attorney General that determined no environmental assessment was required for the $40 million harbor renovation.â€
Caldwell goes on:
The Governorâ€™s refusal to give us the formal reasons why the State gave harbors an exemption from environmental law flies in the face of her asking the legislature to fix the situation legally. How can you appropriately remedy the situation when the State will not openly share the reasoning behind its own wrong action?
In addition, when the Supreme Court issued its order on August 23rd stating than an environmental assessment should have been conducted, Governor Lingle should have immediately pulled together all the parties in the case. Her purpose should have been to work out a framework to conduct an environmental review and allow temporary operation of ferry service. This would have been a difficult negotiation. But it could have provided the court, the legislature, the Superferry management and the state administration with a go-forward plan. If specific help were needed from the legislature, the Public Utilities Commission or other parties, it should have been delineated through the negotiation.
I wrote about the unlikelihood of succesfully agreeing on any such â€œframework to conduct an environmental review and allow temporary operation of ferry serviceâ€ previously. It (still) makes no sense for the plaintiffs to be (or have been) a party to such negotiation. The plaintiffs would have nothing to gain from it, so far as I can tell.
As for Caldwellâ€™s call for releasing the AG opinion that set the whole thing in motion, Iâ€™d love to see it, too, but I donâ€™t expect that Lingle would ever disclose it.
Iâ€™ll also repeat again what I wrote about the strategy for a special session: itâ€™s better to be the author of the legislation than to try to stop the momentum of legislation submitted by someone else.
Two interpretations of three possibilities
Filed under: HI State Politics â€” Doug @ 8:45 pm
It is worthwhile to compare the difference in how this Advertiser article by Derrick DePledge and this Star-Bulletin op-ed by Representative Ward assess the three most likely rulings in the superferry case.
The court rules that Superferry can resume service while the state conducts an environmental assessment. Environmentalists may appeal the ruling to the state Supreme Court, but a special session is less likely unless there are signs the appeal would be heard before the regular session in January. Lawmakers would likely clarify environmental law next session to reflect the favorable ruling and a planned second ferry for Big Island voyages in 2009.
â€¦ The court rules that the Superferry is free to sail while the EA is being conducted. This would probably make the majority of the people in Hawaii happy â€” though inflame another, smaller group that is more volatile and vocal. For these reasons, I donâ€™t believe this is the likely ruling of the court.
Huh? Ward thinks this outcome is unlikely because it would make some people happy and inflame others? At the beginning of his piece Ward says that â€œthe court does not make rulings on the basis of politics, and will rule in a fully legal and technical manner.â€ So why, exactly, is this outcome unlikely? Ward doesnâ€™t explain. If it is the outcome, then Iâ€™d fully expect the plaintiffs to appeal (and, frankly, to prevail) at the Hawaii Supreme Court.
The court rules that Superferry cannot resume service until an environmental assessment is completed. A special session would be more likely because Superferry executives have said the project could not survive financially in the Islands for the estimated eight months it will take the state to finish the review.
[T]he court could rule that the Superferry is sunk â€” and will not be allowed to sail without the environmental assessment first being fully completed. This would likely shut down the operation in Hawaii and the harbor improvements would probably end up in court to decide who is going to pay for them. The mainland would make fun of us all over again, and the damage to our business image and investment climate would sour for years to come. This would be a great victory for all who filed numerous law suits to stop the Superferry.
Unlike DePledge, Ward does not mention any likelihood (Iâ€™d say itâ€™s become a near certainty) that if this were the outcome the Lege would convene in special session to overturn or soften this ruling. Ward also does not mention the possbility that the ferry operators could appeal such a ruling, perhaps because Ward and the superferry operators believe (correctly, in my estimation) that an appeal would be rejected.
The court rules that Superferry can resume service during the environmental assessment but places conditions on the voyages. Such a ruling could be the most difficult to address in a special session because it could be viewed as a compromise and cause extended debate over whether the conditions are reasonable. Superferry executives would likely balk at conditions that severely restrict travel speeds or the numbers of passengers or vehicles.
[The] option that most of us in the Legislature are expecting is that the court will provide neither a clean â€œstopâ€ or â€œgo,â€ but a â€œconditional proceed with cautionâ€ ruling. This yellow flashing light for the Superferry to set sail conditionally could include such things as changing sea lanes to avoid whales, decreasing the ferryâ€™s speed, washing the carsâ€™ undercarriages to eliminate invasive species and so on. This is a compromise that should please both opponents and proponents of the issue, and could result in there being no need to call for a special legislative session. Because of these benefits to all concerned, it is the likely outcome of the current legal battles and for the greater good.
Huh? This outcome would not â€œpleaseâ€ the plaintiffs, and they would almost certainly appeal it. In the face of that pending appeal (unless the appeal were taken up immediately), the Lege would be only temporarily removed from the debate. Furthermore, a â€œflashing yellow lightâ€ is not even very likely to â€œpleaseâ€ the ferry operators either, and I would expect them to begin beating the special session drum because I very much doubt the ferry operators would appeal such a ruling to (or expect relief from) the Hawaii Supreme Court.
Ward goes on to say that Chapter 343 of the Hawaii Revised Statutes is a â€œmessâ€ in need of a legislative clean up:
The unfortunate thing is that the language used in Hawaii Revised Statute 343 was written too vaguely and did not take into consideration the secondary effects on the environment that the state Supreme Court pointed out were so clearly needed in the case of the Superferry. In the absence of clear â€œlegislative intentâ€ in HRS 343, the justices had to interpret the law where the Legislature left off. The process of exemption was not clear, nor did it spell out what projects should or could be exempt if they had no significant environmental impact. Nothing suggested nautical speed to be checked for the safety of whales, nor safeguards for invasive species spreading throughout our islands. It was simply too silent in too many places.
The Supreme Court justices had to step in and become legislators, and that is exactly what they should have done. Now, however, is the time for we legislators to assume our rightful positions to fix the law while the justices return to their benches and prepare for the next onslaught of cases under the flawed measure. We have strong environmental advocates in the Legislature as well as a balanced approach to sound business for the state.
Short of a fix in 343, the state could be in big trouble. Without any clarification by the Legislature, we can expect even routine road maintenance or construction projects, or large public events such as the Honolulu Marathon, to be legally challengeable because each has its own serious secondary impacts on our traffic and socio-economic environment, not just our physical environment.
What kind of â€œfixâ€ would remedy this? If the law were to categorically allow the approving agency to exclude consideration of secondary effects when making exemptions, then the potential wider harm of any â€œactionâ€ taken would rarely (if ever) be fully considered. Thus, I would not expect the Lege to offer this new power to Governor Lingle, and, if it were offered, I would oppose it as it would severly tilt the judicial playing field in favor of the approving agency (i.e. executive branch) and against those challenging decisions to exempt projects from environmental review.
Lettter accuses Hawaii Supreme Court of chicanery
Filed under: HI State Politics â€” Doug @ 5:48 pm
An interesting letter in the Star-Bulletin today in response to a letter from a Judiciary spokesperson last month (found here and in many of the other Hawaii media). The new letter accuses the Supreme Court of, well, Iâ€™m not sure what.
The Judiciary explained the process like this:
A notice of appeal was first filed on July 25, 2005, and the case was assigned to the Supreme Court on Feb. 15, 2006. During those 205 days, Sierra Club filed its opening brief; Hawaii Superferry filed its answering brief (after securing a 30-day extension); and Sierra Club filed its reply brief (after securing a 10-day extension).
Once assigned to the Supreme Court, the case was added to the queue of more than 200 appeals that had been previously assigned and were awaiting decision. The notice of setting the case for oral argument was issued on June 19, 2007, with an original hearing date of Aug. 15, 2007. Hawaii Superferry attorneys asked the court to reschedule argument to Aug. 28 or after, but oral argument was held on Aug. 23. On the same day, the court issued a unanimous summary decision, which was followed by a 104-page opinion on Aug. 31, 2007.
Honolulu lawyer Gilbert Butson responds with these questions:
Clearly the Supreme Court justices took a vote (apparently unanimous) to reverse the July 12, 2005, judgment of the Maui Circuit Court and order a judgment entered in favor of the Superferry opponents. When was that vote taken? When was the decision made to assign Justice James Duffy to write his 104-page opinion? It was obviously done several months before its issuance on Aug. 31, 2007.
The Supreme Courtâ€™s two-page order issued on Aug. 23, within a few hours after a window-dressing oral argument on the merits of the appeal, could and should have been issued at the time Duffy was assigned to write his long-winded decision thereby allowing an environmental assessment to be completed long before the Superferryâ€™s arrival in Hawaii.
Does his letter sound loopy to anybody else?
Apparently Butson believes that Justice Duffyâ€™s 104-page opinion was written long before the â€œwindow-dressingâ€ oral arguments were conducted. As if an industrious Justice (with/or his law clerk) could not compose the opinion in the eight days between August 23 and 31. Whatever. I think itâ€™s pretty safe to assume that the case law was researched in advance. I suppose that it is possible the entire opinion was written in advance (Iâ€™m not a lawyer and I donâ€™t have any past or former law clerk friends to query), but even if it were true that it was pre-written the Court could not simply release its opinion early (on or soon after February 15th, I assume Butson would have had expected it) before the oral arguments were ever heard! To issue its opinion before the argument would go far beyond implying that the Court engaged in prejudicial behavior, it would be concrete evidence of it.
Representative Morita files formal PUC complaint
Filed under: HI State Politics â€” Doug @ 5:46 pm
Buried near the end of this Advertiser story we learn that Representative Morita is renewing her challenge of the superferry operating certificate.
Meanwhile, state Rep. Hermina Morita, D-14th (Hanalei, Anahola, Kapaâ€™a), has filed a formal complaint with the state Public Utilities Commission asking that Hawaii Superferryâ€™s operating certificate (PDF) be suspended until an environmental assessment is completed.
Morita had filed an initial complaint with the commission last month that was rejected. Her formal complaint, filed Sept. 27, claims Superferry is in willful violation of its operating certificate.
The commission approved the certificate in December 2004 with the condition that Superferry comply with all federal and state laws, including the stateâ€™s environmental review law.
The commission had noted that environmental concerns about the project had been raised at public hearings on the certificate.
What is the PUC formal complaint process timeline?
If the process takes a month or more and the complaint resulted in the superferry having its certificate suspended, then it adds another wrinkle to the quesion of a special session. Were the ferry to be allowed to operate during the environmental review (the decision on that is expected Monday), then itâ€™s very likely the plaintiffs will appeal that ruling (and perhaps even ask for a suspension of service until the appeal is heard?). If the Court rules that the ferry may not operate during the review process it is now quite likely that the Lege will convene to allow the ferry to sail. However, if the Lege convenes for that purpose before the PUC complaint is resolved, itâ€™s possible that the Lege would need a third special session to bail out the ferry if the PUC suspends its certificate to operate. On the other hand, the Lege may craft its legislative superferry salvation such that it would deflect the PUC threat, too.
Pau hana meetings and dinner
Filed under: General â€” Doug @ 9:42 pm
Sorry, no post for today. I just got home, Perl still needs a walk, and I have to get up early tomorrow.
Trade delegation travelling to Asia again – on the taxpayerâ€™ tab this time
Filed under: HI State Politics â€” Doug @ 7:50 pm
Will there be a media contingent embedded in the Governorâ€™s next trip to Asia? According to the Advertiser story, it sounds like this trip will be a much more low-key affair than last time:
The governor will be accompanied by Marsha Wienert, state tourism liaison; Ted Liu, director of the Department of Business, Economic Development and Tourism; Maj. Gen. Robert Lee, state adjutant general; and Lenny Klompus, senior adviser on communications.
David McClain, the University of Hawaiâ€™i president, and state staff members also will participate in portions of the trip.
No private sector â€œsponsorsâ€ among the entourage this time? What about her new bodyguard? In-country hospitality arrangements by Bob Awana?â€¦ [wink]
Sloppy poll reporting – so let us attempt a remedy
Filed under: HI State Politics, HI Media â€” Doug @ 6:57 pm
Iâ€™m disappointed with the Star-Bulletin story about a recent poll conducted on behalf of the superferry that is said to show strong support for a special session to allow the ferry to sail during an environmental review. Obviously, the wording of polling questions can have a significant effect on how responses are made. Strangely, Borrecaâ€™s story seems to have been written with a copy of the poll results in hand, yet the story does not include the specifics necessary for readers to assay any inherent bias in the survey design.
However, on a whim, I have emailed my Senator and Representative. According to the article, [all?] legislators are being â€œgivenâ€ the poll results. My hope is that Senator Tokuda or Representative Thielen will share with me whatever they were provided.
I ask you folks to contact your legislators and, if you get a response before I do, to leave a comment with what you learn. Weâ€™ll see which legislator is the first (or only) to respond with the survey questions. Some of the photocopy machines at the Capitol have the capability to scan and email documents, so itâ€™s not as if we are asking for a huge favorâ€¦
Also, I went ahead and asked the polling firm, too. Notice that QMarkâ€™s slogan is, â€œIf you want the right answers, ask the right questions.â€ Heh.
Candidate for Hawaii County mayor would decriminalize marijuana
Filed under: Neighbor Islands â€” Doug @ 6:56 pm
According to a West Hawaii Today story, Roger Christie of Cannabis THC Ministry plans to run for Hawaii County Mayor next year.
Christie said if heâ€™s elected mayor, heâ€™ll find a way to end the Big Islandâ€™s war on marijuana.
â€œWe would zero fund the war on marijuana immediately and make this island a sanctuary for the private personal use of marijuana,â€ he said.
Ending the war on marijuana â€œwould reduce crime by about 50 percent in the first year,â€ Christie said, adding it also would have a profound effect on health care as many people would have the option to use â€œcannabis remediesâ€ as opposed to prescription drugs.
â€œMany people give up pharmaceuticals when they have high quality cannabis,â€ he said.
Christie ran for mayor four years ago against Mayor Harry Kim and garnered only 1,300 votes to Kimâ€™s 13,000. But Christie said he feels his chances this time around will be better because all of the other candidates will be pro-drug war, thus fighting for votes among themselves.
Riiiight. Maybe if Christie evenutally offers some position statements on other issues of (greater) County importance that â€œfighting for votes among themselvesâ€ campaign analysis would be more persuasiveâ€¦ if not, then Christie is, uh, smoking rope if he thinks he has any chance to become Mayor on that single issue.
Coast Guard beefs up at Nawiliwili
Filed under: HI State Politics, Neighbor Islands â€” Doug @ 7:15 pm
I first heard of it from the Kauai Eclectic blog, but now the Garden Island News is also reporting that the Coast Guard has a small fleet of rigid inflatable boats staged among the shipping containers at Nawiliwili in anticipation of further civil disobedience in opposition to the superferry.
Where are these boats coming from? If these boats were transferred from other Coast Guard facilities in Hawaii, then what happens if there are emergencies (or harbor blockades) in areas other than Nawiliwili? For example, if the Maui court rules (or the legislature actsâ€¦) to allow the superferry to resume service to Maui during the environmental review and swimmers and surfers on Maui form a â€œKauai-styleâ€ blockade, then could the Coast Guard (and the DLNR) boats be transported in time to make a difference?
This could become a nautical version of whac-a-mole. Protesters would not necessarily choose (or need) to act on the first visits; a series of randomly unpredictable blockades would be nearly as effective in disrupting the service and causing passengers to form reasonable doubt about the likelihood of reaching their destination (and returning) as scheduled.
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