Legislature files amicus brief in Superferry case

The State Senate filed this press release late today:

Honolulu - The Hawai‘i State Legislature today filed its Amicus Curiae Brief in the case Sierra Club v. Department of Transportation (Supreme Court No. 29035), commonly referred to as Sierra Club II, or the Superferry case. The case is currently before the State Supreme Court on a Motion for Reconsideration filed by the State of Hawai‘i. The Legislature was earlier granted permission to file a “friend of the court” brief to present arguments related to impacts on the Legislature that may arise from the Sierra Club II decision.

The case arises out of a challenge to Act 2 of the Special Session of 2007, which permitted the Hawai‘i Superferry to operate pending the completion of an Environmental Impact Statement. On March 16, 2009, the Hawai‘i Supreme Court held that Act 2 violates the Hawai‘i Constitution because it is not a “general law” as the Constitution requires.

The Legislature’s brief argues that:

· The court’s ruling has “dangerously undermined” the Legislature’s constitutional authority to craft precise laws that reflect its policy choices;
· Under the court’s analysis of “special laws,” only Act 2’s “sunset” provision is unconstitutional, and so that section should be severed, allowing the remainder of the law to stand;
· Even if most of Act 2 is unconstitutional, the Act’s waiver and indemnity provision is fully operative on its own and should stand; and
· Only Section 15 of Act 2 implicates Article XI, Sec. 5 of the Hawai‘i Constitution (i.e., the “general law” provision related to legislative power over land), so that portion of Act 2 should be severed.

“These issues relate directly to the Legislature’s power to craft effective laws and implement public policy,” said Senate President Colleen Hanabusa. “Questions of severability and constitutionality really cut to the core of how we, as a co-equal branch of government, will be able to address complex concerns in our community. Constitutionally, this is a very sensitive area, and I think it calls for a degree of deference and care.”

"We need to be able to continue to effectuate public policy and do what is best for the public interest,” said Rep. Blake Oshiro, House Majority Leader. “We are concerned that the decision, as it currently stands, impedes on those crucial functions. Therefore, we hope that the court will reconsider these important points because their decision will have precedence on future actions of the Legislature."

The Legislature is represented in the appeal by First Deputy Solicitor General Girard D. Lau and Deputy Solicitor General Deidre Marie-Iha.

View the amicus brief here.

Live blog coverage of Hawaii Supreme Court arguments on Hawaii Superferry case

The Hawaii Supreme Court will hear arguments on the Hawaii Superferry case on Thursday, December 18th, starting around 8:45 a.m. The Legislature passed Act 2 in 2007. Here's the description:

"Requires the Department of Transportation to perform an environmental impact statement (EIS) for certain improvements made to commercial harbors. Permits operation of large capacity ferry vessel company prior to completion of EIS upon meeting certain minimum conditions. Establishes a temporary Hawaii Inter-island Ferry Oversight Task Force."

While the new law does not name the Hawaii Superferry, the complaint is that Act 2 was specifically written and passed for the Hawaii Superferry, and that passing legislation to benefit a specific company is not valid.

If you want to follow the proceedings, Robert Thomas, a Hawaii attorney specializing in land use law, will be covering the trial live on his blog http://www.inversecondemnation.com/. as an experiment. He notes that appellate arguments go pretty fast and that the justices ask a lot of questions. All that is required is a web browser. Here's the page where it will go live, and where you can also sign up for an email reminder: Click here.

Hawaii Superferry Audit

Here's a link to the Hawaii Superferry Audit report released yesterday. The Advertiser story is here. The AP story is here. No word yet on followup action, if any. The audit was conducted in accordance with Act 2, passed in the 2nd Special Session of 2007.

The performance audit conducted by the Office of the Auditor is only Phase I. Phase I focuses on the administration's action to exempt the Department of Transportation from the requirements of the state's environmental impact statement law related to harbor improvements in order to accommodate the Hawaii Superferry. Phase II will focus on the whether this decision "will cost the state more than its environmental policy."

Speaker appoints members to Superferry Task Force

Speaker of the House Calvin Say has appointed the following individuals as members of the Temporary Hawaii Inter-Island Ferry Oversight Task Force:

To represent the County of Maui, Ms. Colette Machado - Office of Hawaiian Affairs.
To represent the City and County of Honolulu, Mr. Kauila Clark - Native Hawaiian Cultural Practitioner.
To represent the County of Hawaii, Ms. Sara Peck - Natural Energy Laboratory of Hawaii, Environmental Community Representative.
To represent the County of Kauai, Mr. Jeff Mira - Honsador Lumber, General Business Community Representative.

Pursuant to Act 2, (starts on page 45), there are to be 13 members of the task force, including the Director of Transportation (or designee); Chairperson of the Board of Agriculture (or designee); Chairperson of the Board of Land and Natural Resources (or designee); the Attorney General (or designee); the president of a large ferry vessel company (or designee); one representative from each of the four major counties, including one from the business community, one from the environmental community, and one knowledgeable in native Hawaiian practices to be appointed by the Speaker of the House; and the same number and criteria for the Senate President.

The task force must submit a report to the legislature 20 days prior to the 2009 session. It will cease to exist upon the completion of the final report.

Act 2

The Governor's office just announced that she has signed the SB1, SD1 into law as Act 2, and that today the State and the Hawaii Superferry will file a motion before Judge Cardoza's court to lift the injunction so that the vessel can sail into Kahului Harbor. PDF's of the Executive Order 07-10 which lists the conditions and protocols, and the Letter to the Legislature, are posted on the Governor's website. The SB's Richard Borreca starts off his story on the bill signing with an interesting sentence, "Gov. Linda Lingle signed the Hawaii Superferry bill Friday afternoon, although legislators only found out about it this morning." What's up with that?

One of the weirdest things about working at the Capitol is that it's like a bustling city one day (in session) and a ghost town the next (out of session). Such was the case after the recent special session, but it's worthwhile to see the blog community continuing a lively discussion on what will surely be the #1 news story of 2008. Rep. Kirk Caldwell's op-ed piece in Sunday's Star-Bulletin seemed to touch a nerve in Disappeared News and The Kong Blog. Rep. Tom Brower has a viewpoint on Hawaii Reporter today.

Day 6 - Sine Die

The House passed the Superferry bill, SB1, SD1 today by a vote of 39 ayes, 11 noes, and 1 excused. The noes were Reps Berg, Carroll, Hanohano, Morita, Marcus Oshiro, Saiki, Shimabukuro, Sonson, Takamine, Takumi, and Tokioka. Here are some highlights:

Photo: House members give Blake Oshiro a round of applause

Speaker pro tem Blake Oshiro gaveled the House to order shortly after 12 noon. Anticipating many lengthy floor speeches, B. Oshiro reminded the members of House Rule 50.1 limiting floor debate to 5 minutes. Members may voluntarily yield their time to others, but he was not going to encourage or solicit them to do so. And then they were off...

Many members, both for and against the bill, reflected on the divisiveness in their communities and the need for the state to heal on this issue. Rep. Bob Herkes (Puna, Ka'u, South Kona) said that he has had three threats of recall if he voted for the bill. Rep. Roland Sagum (Waimea, Kauai) voted up on the bill on behalf of the overwhelming majority of residents in his district who favor the Superferry.

Rep. Ryan Yamane (Mililani, Waipahu) spoke in favor of Section 14 of the bill, which requires the State Auditor to conduct a performance audit. Section 14 says in part: The auditor shall conduct a performance audit on the state administration's actions in exempting certain harbor improvements to facilitate large capacity ferry vessels from the requirements of conducting an environmental assessment or environmental impact statement under chapter 343, Hawaii Revised Statutes. The audit shall also include the state administration's actions in not considering potential secondary environmental impacts of the harbor improvements prior to granting the exemption from these requirements.

Rep. Sharon Har (Kapolei) voted for the bill but expressed concern that Section 16 does not adequately protect the state from future claims. The section releases and waives the Superferry from any claims that arise from the effective date of the Act, and the Superferry indemnifies the state from claims brought through any of their actions, employees or agents.

Rep. Kyle Yamashita (Upcountry Maui) voted for the bill. He said the majority of people in his district favor the Superferry, but to the person, they were concerned about the invasive species issue. They believe that invasive species are already coming to Maui through other means, so it's not just a Superferry issue. He suggested that individuals need to become more aware of how they could be carriers of invasive species, and to start self-policing their own actions, such as washing down their own cars, and inspecting their clothes and shoes prior to transport.

We've included excerpts from Rep. Hermina Morita's floor speech and Rep. Kirk Caldwell's floor speech in a separate post.

The vote was taken around 2:30 p.m. Given that it was Halloween, Rep. Caldwell rose to thank the Minority for leaving candy on the desks, but that now he wasn't feeling so good...like he was leaning more to the right (joke). With that, Blake Oshiro returned the gavel to Speaker Say. Rep. Oshiro received a round of applause from the floor and compliments on running a smooth and time-efficient session.

Speaker Say pounded the gavel and adjourned the Special Session, Sine Die.

Photo: Returning the gavel to Speaker Say

Rep Caldwell's Floor Speech

A few closing observations for the record. Thank you to all members of the House, the public and the administration who participated in making this the best bill possible, that includes everyone, even the harshest critics. Not one of us is completely comfortable with being here. A special session should be reserved for unique situations – a last option. This is not the optimum way to do the public's business.

The title of the Honolulu Star Bulletin's editorial today is "Superferry legislation makes the best of a bad situation." I would agree. Through focused leadership, the House supported a carefully crafted measure that set a firm foundation and established the necessary basics for balanced action. The Senate made several amendments. All actions we can accept.

The bill allows the ferry to sail so long as it meets certain conditions and until a full EIS is completed and accepted. No more and no less. In our lengthy joint committee hearing Monday, we received a commitment from the Governor that the protocols and conditions she adds will be
more than the Superferry wants and less than the critics desire.

Our measure also calls for an audit to determine how and why the exemption for an environmental assessment was granted. The reason is simple. We need to know what went wrong before we try to fix it legislatively or we could do more harm than good. There is a big difference between a flaw in the law and a flaw in the administration of the law. We are expecting full cooperation from the administration in completing a comprehensive review so that we can prevent something like this from happening again.

On the Supreme court decision… it's important to look beyond the Superferry at how the court decision and the social experience will change the way we do business and the way we interact with each other. There are two big takeaways from the Hawaii state supreme court decision:

First, proposed projects covered by the law must include secondary impacts when conducting an EA or EIS.

Second, the court underscored that public participation in the review process of an EA/EIS benefits all parties and society as a whole.

Therefore, going forward, the government and the private sector, in laying out plans, need to work from those assumptions, rather than play chicken with the law or the court.

Community sentiment. For a relatively compressed period of time we have heard a lot from the community during this session. Whether you agree with him or not, Maui Council Chair Riki Hokama summed it up this way in Monday's House hearing:

"When are we saying enough is enough?" and "Who are we building for?"

Those words should resound in everyone's mind. In the future they must be asked and answered, before any concrete is laid, before the new technology is introduced and before the building goes up. Are we building for quality rather than volume? Are we creating self-contained communities where people can live, work and enjoy life without continually burning away hours having to travel elsewhere? Are we using the remarkable resources of these islands in respectful stewardship? For those who say those questions are too much to ask, wait until there is a project that comes along and impacts you to see how you feel if it is planned entirely behind closed doors.

Working within these assumptions and in a community that is demanding increased transparency, we must still strive for progress and excellence in this state and not slide into backwaterism. That is why I -- and I think most of us -- supported ferry legislation in this special session.

Thank you all again.

Rep. Morita's floor speech

Here are excerpts from Rep. Hermina Morita's floor speech, in opposition to the bill with a link to an opinion piece by Chief Justice Ronald J. Moon:

Mr. Speaker, I rise in opposition to this measure. The constitution of the State of Hawaii grants this body the power to enact legislation that is not inconsistent with the constitutions of the United States and Hawaii. We generally make laws to protect the health, safety and welfare of Hawaii's people and its environment. We should not be making laws to correct political fixes gone bad which is what Senate Bill 1, Senate Draft 1 attempts to do. I want to emphasize, in this bill this body is not making a new policy or protecting the public interest. Rather, Senate Bill 1, Senate Draft 1 establishes a process to circumvent existing laws to facilitate a permitting process.

Furthermore, our State Constitution, Article XI, Section 9 states:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

In Sierra Club v. Department of Transportation, Civil No. 05-1-0114(3) (Declaratory Judgment), October 9, 2007, Judge Joseph Cardoza found and concluded "that the balance of irreparable damage favors the issuance of a permanent injunction in this case as Plaintiffs have demonstrated the possibility of irreparable injury with respect to the environmental impacts of Hawaii Superferry operations on natural resources, protected species, increased introduction of invasive species and causing social and cultural impacts." Furthermore, the Court also found and concluded that "the public interest in implementing the environmental review process supports the granting of a permanent injunction in this case."

There is no dispute that the legislative intent of Chapter 343, specifically HRS 343-5(b) requires that the "acceptance of the requested final statement shall be a condition precedent to the implementation of the proposed action." And, simply put, Senate Bill 1, Senate Draft 1 clearly abrogates the constitutional rights of the plaintiffs in Sierra Club v. Department of Transportation.

There is no effort in this measure to "strike a balance between the issues of public interest and concerns for the environment" by allowing the Hawaii Superferry to operate. The public interest is served only when the rule of law is followed, not by changing the law to serve the interests of one company, especially after a judicial ruling and injunction against said company.

This body's own committee report states "Your Committees believe that State officials should have been more vigilant in the interests of protecting the environment while seeking to enhance the economy of the State and that more due diligence is required when making decisions that may have significant environmental impacts for future generations." Well, will someone please explain to me how you all can pass this measure and honestly say we are acting in the public's interest when the committee report clearly states otherwise and that the Administration was clearly derelict in its responsibilities to follow the law and protect the public's interest.

We can learn some important lessons from history. I mentioned several days ago on this floor that arrogance and speed led to the sinking of the Titanic. Much like the Titanic, in our quest to embrace new opportunities for economic development, we are acting solely on the information provided by the Hawaii Superferry without heeding red flags or performing due diligence to assess the acceptable amount of risk to the State and its resources in this endeavor.

But more importantly, we need to understand and respect the importance of judicial independence. I would like to submit to the journal an opinion piece by Chief Justice Moon dated July 24, 1999 which appeared in the Honolulu Star-Bulletin where the 1930's Massie alleged rape case and the subsequent murder of Joseph Kahahawai illustrated the need for an unfettered judiciary that would not bend to political pressure.

Finally, I think it is really appropriate that we are voting on this measure on Halloween. Senate Bill 1, Senate Draft 1 dressed in the facade of the toothless conditions is still one ugly bill that reeks the horrors of political favors gone awry and should be haunting this Legislature on how cheap we sold the credibility and respectability of this institution and our moral compass.

Adjournment Sine Die - Some Observations

Photo: Watching from the gallery are Superferry supporters and opponents.

The Special Session rather quietly came to a close this afternoon as the House voted 39-11 to pass SB1 SD1, a bill that would allow the Superferry to resume service while an environmental impact statement is conducted.

Although the end of the session was quiet, the floor debate was lively. Gov. Linda Lingle joined the scant crowd in the gallery for the opening of the floor session and sat through remarks from the first several speakers.

"We are one state, one Hawaii, not a divided Hawaii," said Rep. Joseph Souki, standing in support of the bill.

He continued, "The water is our highway, the air is our highway...why should we put barriers between the water and air?"

"[The legislature] shouldn't be making laws to correct political fixes gone bad," said Rep. Hermina Morita, who rose in opposition to the measure, describing it as "one ugly bill" that would haunt the legislature in the future.

"The public interest is served only when the rule of law is followed," she said.

Rep. Faye Hanohano also stood, as she did yesterday, to speak in Hawaiian about her opposition to the measure.

Many spoke in support, but with reservations. Rep. Angus McKelvey, described the bill as a "very imperfect measure," but added that he believed the public good that would come from its passage outweighed the negatives.

The debate continued for several hours with reps rising both in support and in opposition. Acting Speaker Blake Oshiro kept each speaker to his or her five minutes. He was applauded for his 6-day term as Speaker by all the members after taking his seat after the final vote. Rep. Calvin Say then reassumed the position of Speaker of the House.

In the end, after all the excitement and late hours over the last week, just a handful of die-hard legislature-watchers, several reporters and camera crews, a few legislative staff members (two in costume), some curious members of the public, and Superferry CEO John Garibaldi and ferry supporters watched from the gallery as the Special Session came to a close. The bill will now go before the Governor, who is expected to sign it into law.

Day 5 - Superferry Bill passes 2nd Reading

Day 5 has been a relatively quiet day on the House side, with much of the media attention gravitating toward the failed confirmation (9 ayes, 16 noes) of Randal Lee to the Intermediate Court of Appeals by the state Senate. During the House floor session this afternoon, members voted to pass SB1, SD1, the Superferry bill, by a voice vote on second reading. The following members stood to indicate their vote. Reps Morita, Hanohano, Carroll, Shimabukuro and Tokioka voted "noe", Reps McKelvey, Green, Berg, Belatti, Manahan, Har, Sonson , M. Oshiro, Ching, Yamane, Bertram, and Waters went WR - with reservations, and Reps Caldwell, Pine, and Ward voted in favor of the bill.

Rep. Hanohano, the only member of the caucus who speaks Hawaiian, rose to give her comments in the Hawaiian language. Speaker Emeritus Souki requested a translation in English. Speaker pro tem Blake Oshiro stated that since both English and Hawaiian are official languages of the state, the translation was not required. However, Rep. Hanohano agreed to send Speaker Joe a translation at a later time. The House stands adjourned until 12 noon tomorrow. It will be cablecast on Olelo (awaiting a channel #). If you plan to watch, anticipate a lengthy session with many floor speeches on the Superferry bill as it comes up for third reading.

Day 4: House TRN/FIN committees vote up Superferry bill

After nearly 10 hours of testimony from speakers that included the Governor, the House committees on Finance and Transportation voted to pass SB1 SD1 unamended. The bill now goes before the full House which will decide tomorrow whether or not the bill should pass Second Reading.

For the Committee of Transportation, there were 10 ayes, 0 noes and 3 excused. The votes were as follows: ayes: Nakasone, Pine, Evans, Lee, Nishimoto, Souki; ayes with reservations: Har, McKelvey, Sonson, Takamine; noes: none; excused: Meyer, Luke, Takumi.

For the Committee on Finance, there were 13 ayes, 2 noes and 3 excused. The votes were as follows: ayes: Lee, Brower, Chong, Magaoay, Mizuno, Nakasone, Sagum, Rhoads, Awana, Ward; ayes with reservations: Har, Manahan, M. Oshiro; noes: Carroll, Hanohano; excused: Tokioka, Meyer, Belatti.

The House will convene at 2 p.m. tomorrow.

A tense exchange

Rep. Marcus Oshiro turned up the heat in the icebox, aka Capitol Auditorium, this afternoon. In a tense exchange with Governor Lingle, Chair Oshiro questioned the governor on why the legislature should pass a bill specifically to save the Superferry. The governor explained that she doesn't believe that the purpose of the bill is to save one company; it'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.

Oshiro's hard line of questioning led up to his final point which was to question why the Superferry needed to be "saved" when the Hawaii Superferry is not a "mom and pop" operation; indeed, it is a company with great political and financial resources. "I'm not convinced that this company needs to be saved," said Rep. Oshiro. "This is a company that is well-heeled, well-financed, well-connected that does not need the Hawaii state legislature to save it." 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.

Late this evening, Chair Oshiro expressed appreciation that the governor appeared today after receiving his letter, as did OEQC Acting Director Larry Lau. As the chair of Finance, he recommended that the committee vote aye with reservations, but also encouraged members to vote their conscience on the issue.

TRN/FIN welcome testifiers, including Gov. Lingle

The House Transportation/Finance committee joint hearing on the Senate version of the Superferry legislation (SB1, SD1) is currently underway in the Capitol auditorium.

Gov. Lingle spoke briefly and will remain to answer questions from committee members starting at 3 p.m., along with other testifiers including Superferry CEO John Garibaldi and First Deputy Attorney General Lisa M. Ginoza.

Earlier in the day, Finance Chair Marcus Oshiro sent a letter to Gov. Lingle requesting her presence at the hearing, especially to respond to testifiers' concerns last week about her willingness and ability to establish conditions and protocols "to mitigate significant environmental effects" of the ferry, as is stated in the current legislation.

Kauai County Council member JoAnn Yukimura also testified, expressing her concerns that the Superferry would threaten Hawaii's environment statewide and could change the character of the neighbor islands. Yukimura also offered her support for elements of the amendment proposed by Rep. Hermina Morita on Friday which included reducing the ferry's speed in waters of a certain depth and requiring the vessel to do an undercarriage wash before sailing.

Watch the hearing live on 'Olelo, Ch. 49.

Chair Marcus Oshiro sends requests to Governor, Thielen and Lau to appear at today's hearing

Late this morning, Chair of Finance Marcus Oshiro sent letters to Governor Lingle, DLNR Interim Director Laura Thielen and Acting Director of OEQC, Lawrence Lau, to appear before the joint Transportation/Finance committee hearing. Oshiro acknowledged the lateness of the request, but wondered why the three have not appeared before the hearings at the special session.

Excerpts from the letter to the Governor: The legislation requires you, the Governor, to establish conditions and protocols "to mitigate significant environmental effects". During a recent hearing on the House version of this legislation, several citizens of the state of Hawaii expressed concerns about your willingness and/or ability to create such conditions and protocols.....At this point in time, it does not appear that you have submitted testimony nor are planning to appear at the hearing. I respectfully request that you attend the hearing to help allay the fears of those expressing concern in the establishment of these protocols.

Excerpts from the letter to DLNR Interim Director: The legislation requires you, or your designee, to be one of the thirteen members of the temporary Hawaii inter-island ferry oversight task force. In addition, conservation and resources enforcement personnel of your department may be tasked with additional duties as a result of this legislation....At this point in time, it does not appear that you have submitted testimony nor are planning to appear at the hearing. I respectfully request that you attend the hearing as this proposed legislation has a direct effect on your department.

Excerpts from the letter to Acting OEQC Director: Your office, the Office of Environmental Quality Control, has a direct responsibility in the review and evaluation of an environmental impact statement law and the current Supreme Court decision. In addition, a previous hearing on the House version of this legislation brought up questions regarding the environmental review process and your office's advisory role to the Governor.....At this point in time, it does not appear that you have submitted testimony nor are planning to appear at the hearing. I respectfully request that you attend the hearing as this legislation has a direct effect on your office.

House Hearing on Olelo, Ch. 49

The House hearing at 1:30 p.m. will be on Olelo, Ch. 49.

Day 4 - Senate Session this morning

Today is a critical day for the special session, hinging on the Senate third reading votes on SB1, SD1, and SB2, whether these bills this morning crossover to the House unamended, and what the House Transportation and Finance committees do with these bills at the end of the day.

Here's what happened in the Senate: SB1, SD1 Relating to Transportation (Superferry bill) passed third reading with 20 ayes and 5 noes. Ayes: Chun-Oakland, Espero, Hemmings, Inouye, Slom, Whalen; Ayes with reservations: Bunda, Fukunaga, Gabbard, Hanabusa, Hee, Ige, Ihara, Kim, Menor, Nishihara, Sakamoto, Taniguchi, Tokuda, Trimble; Noes: Baker, English, Hooser, Kokubun, Tsutsui. Click here for bill status.

SB2 on Extended Sentencing was not on the agenda. Come to think of it, the Senate did not hold a hearing on SB2, so looks like they are going with the House vehicle.

Day 3 - HB1 and HB2 pass critical third reading

Speaker pro tem Blake Oshiro called the House to order at 3:00 p.m. today. It has been a relatively quiet day after the 12-hour public hearing yesterday. Recess was called after the roll call, and both majority and minority met in caucus for less than an hour.

HB2 Extended Sentencing: After the recess, about 4:00 p.m., the House came back to address HB2 - the Extended Sentencing bill - up for third reading. There was a brief discussion, and then the House voted to pass the bill on third reading, with Rep. Joe Bertram from Maui being the only "noe" vote.

HB1 Superferry Amendment offered: Rep. Hermina Morita offered Floor Amendment No. 1, seconded by Rep. Faye Hanohano. (See Kim's post on the details of the amendment.) Many of the representatives who stood up to speak on the amendment, for and against, praised Rep. Morita for the substance of her work. Rep. Angus McKelvey from Lahaina said his objections were mostly procedural, but that Rep. Morita offered good ideas that should be considered as the House goes forward with the existing bills. Majority Leader Caldwell pointed out that two points in the amendment could be considered "deal breakers" for the Superferry, namely the slower speed, 13 knots in most waters around the Hawaiian islands, and requiring the Superferry to do an undercarriage wash prior to sailing. Caldwell said that "we can't support the amendment if we want the ferry to sail." (Rep. Ward added allegorically that "it turns the superferry into a carwash and a slowboat to the neighbor islands".) The amendment failed.

HB1 Superferry Third Reading: There was less discussion on the HB1 up for third reading, as many of the representatives opted to submit written comments to the House Journal. Rep. Joe Souki said, in support, that the ferry "will be the glue that will bind the state together." Rep. Bertram, in support, believes it will be necessary to provide more resources for the Department of Land and Natural Resources in order to monitor the environmental impact of the ferry. Rep. Sharon Har from Kapolei, in support, emphasized the importance of the release and indemnity clause of the bill and cited the need to protect the taxpayers who would ultimately pay for any litigation. The bill passed third reading with 9 members voting "noe" - Belatti, Berg, Carroll, Hanohano, Morita, Saiki, Shimabukuro, Takamine and Tokioka.

On Monday: The Senate is scheduled to go into session at 9:00 a.m., and it is anticipated that the SB1, SD1 will pass third reading and crossover to the House unamended. The House will go into session at 12 noon, and pass the bill on first reading. The House will then hold a public hearing on the Senate bill at 1:30 p.m. in the capitol auditorium.

Day 3: House amendment offered by Rep. Morita

The House floor session ended just now with the Reps voting to pass HB1 unamended. The bill now crosses over to the Senate side.

On the floor, Rep. Hermina Morita rose to propose a floor amendment that would impose certain conditions on the Superferry's operation not currently in the House bill, such as speed limits in waters of a certain depth and measures to prevent invasive species from moving between islands via the ferry. The amendment also tasked the Public Utilities Commission, not the governor, with evaluating the efficiency of the regulations and gave the PUC the responsibility of imposing any other necessary conditions to further protect the environment.

This would also eliminate the need for a Task Force (proposed in the current bill) to monitor the Superferry's operations, Rep. Morita said.

The amendment to the current bill would give the legislature a chance "to sideswipe, rather than go full speed ahead" into the metaphorical iceberg that the Superferry situation has become, she added.

Several of her colleagues spoke in favor of the amendment, including Rep. Sylvia Luke, Rep. Lyla Berg and Rep. Della Au Belatti. Rep. Luke favored the idea of giving the duty of oversight to the PUC and said that even though the amendment would make the House bill look more like the current Senate bill, that would mean that the House and Senate were moving closer to finding a compromise on legislation that is acceptable to both chambers.

Rep. Caldwell, Rep. Souki, Rep. Ward and Rep. Meyer spoke in opposition to the amendment, but commended Rep. Morita for proposing the amendment. Rep. McKelvey also rose to oppose the amendment, but applauded Rep. Morita, saying "Ho'oponopono is about coming together in the spirit of compromise."

The House voted and the amendment was defeated, 11 ayes, 35 noes and 5 excused.

The House then voted to pass HB1 unamended and cross the bill over to the Senate. The motion passed with 9 reps voting no (Reps. Belatti, Berg, Carroll, Hanohano, Morita, Saiki, Shimabukuro, Takamine and Tokioka) and 5 excused.

Acting Speaker Blake Oshiro adjourned the House until noon on Monday.

House hearing on amended Senate bill set for Monday

The House Finance and Transportation committees will hear input on the recently amended Senate version of a bill (SB1 SD1) to allow the Superferry to sail under new operating conditions while an environmental assessment is being conducted. The House will convene in a floor session at noon on Monday to accept the Senate bill and the hearing will begin at 1:30 p.m. Click here for the hearing notice.

WHEN/WHERE:

Monday, October 29, 1:30 p.m. in the Capitol Auditorium, Chamber Level

HEARING NOTICE:
The draft bill can be found on the Hawaii State Capitol Website. A hearing notice will be posted soon.

HOW TO SUBMIT TESTIMONY:
There are two ways to submit testimony – by hard copy delivered to the House Chief Clerk's Office (State Capitol, Room 027) or by Email. Either way, testifiers will be given a registration number, which will serve as their place number on the testifier's list. Testimony should be less than 5 pages in length.

Paper Hard Copy: One (1) original document may be hand-delivered to the House Chief Clerk's Office on the Chamber level of the State Capitol (Room 027). The testifier will be given a registration number for the testifiers' list.

Email: (**Please note that email addresses have changed for this hearing**) Testifiers should first determine whether they want to testify in person or just submit testimony for the record and not testify in person. To testify in person, email testimony to: mailto:HseinpersonSBTestimony@Capitol.hawaii.gov. Testifiers will receive a reply confirming acceptance of the testimony and their assigned registration number.

To submit testimony for the record, send email testimony to mailto:HsewrittenonlySBTestimony@Capitol.hawaii.gov. Testimony will be accepted until the end of the hearing, however, the earlier one submits testimony, the earlier they will be called to testify at the hearing as their registration serves as their placement on the testifier's list. The Chairs will go in numerical order.

After the start of the hearing, and once the chairs start to move through the testifier list, testimony that has been presented will be posted for public viewing online at the capitol website. After the hearing, testimony will be PDF-searchable.

PARKING:
Metered stalls at the State Capitol (Miller Street entrance), Iolani Palace, U.S. Post Office, Kalanimoku Building (entrance from Punchbowl Street or Beretania Street), City and County parking lot (entrance from South Street or Beretania Street), Department of Health (Punchbowl street entrance) and street parking along Richards Street. There are numerous public parking lots downtown, but the closest is at Alii Place (Alakea Street entrance)

CABLECAST:
The hearing will be live on Olelo, public access television, Channel 53.

INFO DESK:
Located directly outside the Auditorium for help with general information and questions, to track testifiers, confirm registration numbers, etc.

End of Day 2 - Session

Great photo from the Honolulu Star-Bulletin. The caption, however, identified Rep. Mike Magaoay on the left (correct) and Rep. Pono Chong on the right (don't think so). That's Rep. Mele Carroll.

It appears that the Senate has amended SB1 although the Senate Draft 1 is not posted at this hour. The SB1, SD1 was passed out of the joint committee: Judiciary (5 ayes, 1 noe)/Transportation (4 ayes, 3 noes)/Energy and Environment (3 ayes, 2 noes). A significant number of the ayes were with reservations. See the status here.

The House Transportation/Finance committee passed HB1 unamended after a 12-hour hearing. At 9:00 p.m., the House went into session. HB2 Extended Sentencing passed second reading and was placed on the calendar for third reading. HB1 Superferry passed second reading and was placed on the calendar for third reading. There were 6 noes for HB1 - Morita, Carroll, Shimabukuro, Hanohano, Berg and Tokioka.

The House session for Friday is scheduled for 3 p.m.