From Jerry Mander’s article in The Nation:

But wait! The battle may not be over. As David Brower, the celebrated leader of the Sierra Club during its heyday in the 1960s, often said, “there are no environmental victories, only holding actions; they always come back.”

First there is the Cheneyesque Governor Lingle, who never admits mistakes, and never quits pushing. She said that ending Superferry service would be “devastating” to Hawaii–she may have meant devastating to herself–and arrogantly re-asserted that Act Two was entirely legal, whatever the unanimous court said.

Lingle revved up the conservative Honolulu broadcast media to blame environmentalists rather than herself for the loss of 236 Superferry jobs. But as one opponent responded, “If it’s illegal jobs the Governor wants, then growing marijuana would be more profitable, better for the environment and doesn’t need absentee owners.”

And it looks like our own Democratic Senate Leader, Colleen Hanabusa, has climbed into bed with Lingle and Bennet, spouting the same nonsensical line that the Court ruling will:

“It basically concluded that the Legislature can never do anything that favors one group over another, but that’s what they do everyday. That’s more of the concern that we have as a Legislature. It goes beyond just Superferry it goes to other pieces of legislation that we’ve done.

“We in the legislature write laws to benefit only the Big Island or only Oahu or only Maui or only Kauai. The Superferry decision will prohibit us from doing that. As well, when we look to preserve “Kona Wilderness,” this, too will be prohibited. That is why there is a concern. Anyone who disagrees with those laws can challenge it. That is why it now goes beyond Superferry.

Hanabusa’s statements are nonsensical on many levels. First, anyone can sue at any time regardless of a Court ruling — they might not win — but nothing except money stops any individual or group from filing a lawsuit. The Court ruling did not create this situation. It has always existed.

Second, the Court ruling was quite narrow. The finding that this was an unconstitutional law was based on the fact that it benefited only one private company, it had a sunset date that meant no other ferry company could take advantage of the exemption. The Court made sure to state that this ruling did not invalidate all laws aimed at a “Class of one” only that this particular law created an artificial class of one that made it a special interest law.

Thirdly, Senator Hanabusa somehow has gotten the impression that the Court ruling made new law or precedent. This is far from the case. The Court simply followed existing law. Law that is applied in all 50 of the U.S. States. And no disaster has befallen the other state legislatures.

Hanabusa is either not very bright or she is spouting Linda Lingles lies for some political gain. Since Hanabusa has ambitions for a state-wide office, I wonder if she has burnt her bridges with the neighbor islands by allying herself with Gov. Lingle.

Read more: HAWAII COURT BACKS PROTESTORS VS. SUPERFERRY
(But the Saga Continues)
By Jerry Mander & Koohan Paik

According to the Honolulu Advertiser:

Fargo, after mentioning that the military might want to lease the Alakai, addressed speculation by some activists who have opposed the project that Superferry was designed from the start as a military operation.

“I want to make one thing perfectly clear because this has been misunderstood from the get-go. All these theories that it had something to do with the military are bogus,” he said. “We wouldn’t have painted, branded, and carpeted (the ship), put 831 first-class seats and spent all this money if we wanted to lease it to the military. ” [emphasis added]

And from Andy Parx at Got Windmills

“Of course- how could we have been so blind? All we had to do was look at the paint job. It was right on the boat… “Hawai`i Superferry”. obviously if it were really for military use it would have said “War Ship Prototype- Military Boondoggle”.”

Andy Parx does a hilarious sendup on Fargo simultaneously saying that Superferry was going off to do military contracting and that the Superferry was never designed to do military contracting because it has a pretty paint job, carpeting and seats.

“We who thought there was ever any connection between the Hawai`i Superferry Inc. and the military simply made the common mistake of believing’ our own lyin’ eyes instead of the words of those always trustworthy PR hacks”

We hesitate to say this as it might interfere with Superferry getting a military contract and going away, but the one-year shakedown test of this Joint High Speed Military Vessel shows that the thin alumninum hull can not stand up to the Hawai’i interisland channels, given its problems with cracks and unexpected repairs.

From a Maui Reader:

It would seem that the real reason that the Hawaii Superferry company is stopping operations is that their financial model is NOT working. They seem to be using the Supreme Court decision as an excuse and as a potential basis for a suit against the State. The failure to attract enough passengers/vehicles, even with severely discounted fares, seems to be the real rationale for the HSF withdrawal from the Hawaii inter-island market. The investors are probably thankful that they have been given an excuse to immediately cease operations.

The Superferry Company claimed to the PUC that it would have a capacity for 866 passengers (50% break-even would be 433), and a capacity to carry 282 vehicles (50% break-even would be 141). If it is NOT attracting enough passengers and vehicles, it will be unable to cover its expenses.

It was claimed by Hawaii Superferry Company that their financial break-even point was to be able to travel at 50% of vessel capacity. The financial break-even assumed higher ticket prices (rather than the discounted fares now being offered), and it required a “fuel- adjustment surcharge” that is NOT being imposed. They have failed to attract sufficient ridership.

[Webmaster note:]As you can see from the chart below they are running at only about 25% capacity instead of the 50% required.

HAWAII SUPERFERRY — RIDERSHIP

Ridership Source: Numbers from the Wednesday, March 18, 2009 Honolulu Advertiser.

Who got us into this mess? According to memos released to the Honolulu Advertiser under FOI, Hawai’i DOT was telling both Gov Lingle and the Superferry company they must do an EIS.

But then Gov. Lingle stepped in and directed DOT to find a way around environmental law.

That’s when DOT came up with the poorly conceived, unworkable, expensive, Chinese-made barge. That barge cost us $38 million dollars of tax-payer money. I was in the room when the pilots told DOT administrators that it physically wouldn’t work. But Lingle forced DOT to go ahead anyway, thinking this would circumvent the law.

Since them we’ve spent almost another $Million repairing the dock and paying for tugs to hold it still. Another half a million dollars is slated to be spent on another probably fruitless attempt to anchor the barge so it doesn’t dash itself into Pier 2 during high surf conditions.

Meanwhile the Superferry has been operating at about 25% capacity — only half of what they need to break even. Had they done the EIS, it would have shown these things:

1. The ship they chose was too big for the passenger loads reasonably expected
2. The ship they chose used too much fuel to be economical
3. The ship they chose was the wrong design to sail comfortably in the extreme conditions of our interisland channels.
4. They should have included onboard ramps (as their second ship has) so as not to need any barges thus saving us about $41,000,000 that Lingle has wasted.

But Superferry feared an EIS. We can only speculate that they were set on the current ship design for reasons that have little to do with their ferry business. Investigating the many tangled relationships, we find that the major shareholder, Lehman, is involved in ship building for the military and the Superferry was perhaps the “proof of design” prototype for a very lucrative Joint Highspeed Vessel contract the military was going to award.

So what got us into this mess? Lingle deliberately flouting the law to do favors for a very highly placed neocon, Lehman (slated to be McCain’s chief of staff had McCain been elected) and a greedy company with ulterior motives not in the best interests of the people of Hawai’i.

Many supporters of the ferry are crying out against the Supreme Court decision, little realizing that because the EIS was not done, we got a plan that was doomed to failure. Too big, too fuel-hungry, wrong design for comfort. As we pointed out for the last 4 years – the business plan simply didn’t add up to a profit.

The Court decision may have hastened the end of the Superferry but its days were numbered anyway.

Mayor Tavares of Maui said it the best:

Maui County Spokesperson Mahina Martin released this statement about the Supreme Court Decision.

“The ruling is not unexpected. If an Environmental Impact Statement was first done as required by laws that exist to protect our environment, then DOT and the Superferry owners would have been able to assess the impacts and take necessary steps years ago to address any concerns.

“Early compliance would have benefited both the environment and today’s small businesses that utilize the Superferry. Having a variety of transportation options is important. It is equally important to follow laws meant to safeguard our communities.”

Superferry is notifying customers so that no one is stranded as happened last time the Hawai’i Supreme Court ruled against them. You’ll recall that instead of delaying their operational start, they moved it ahead. Thus when the injunction came down three days later, many passengers were stranded with no way to get their vehicles home.

We applaud Superferry for thinking of their customers first this time and complying with the law (finally).

One imagines that the Superferry stockholders are breathing a sigh of relief. Now Superferry can go off and get lucrative military contracts instead of losing money on almost every trip they make. And they’ll be able to blame those “pesky environmentalists” instead of having to admit that their business plan was faulty.

In 2004 when we first asked Superferry to do an EIS, we expected that one finding would be that they should downsize and slow their ferry. If they had, they would have been profitable at their current passenger load. With lower fuel expenses, they could have offered lower fares. (Right now their fares look low but there is a hidden “fuel surcharge” that makes them as expensive as flying)

Read more at the Honolulu Advertiser and in Joan Conrow’s Blog, Kaua’i Eclectic

The main issue to be determined in this appeal is whether Act 2 enacted in the second special session of the 2007 legislature is constitutional. Sierra Club challenges the constitutionality of Act 2 on three separate grounds: (1) Act 2 is unconstitutional special legislation; (2) Act 2 violates the separation of powers doctrine; and (3) Act 2 violates the due process rights of Sierra Club and the public.

Based on our analysis herein, we hold that Act 2 is unconstitutional as it is a special law in violation of Article XI, section 5 of the Hawai’i Constitution.

Read the rest of the Court’s decision here. Some more from the opinion:

Similarly, in this case Superferry worked hand-in-hand with Dot throughout the planning and implementation of the Superferry project and throughout this litigation, in promoting its own private business interests. Under these facts, we see no unfairness in requiring Superferry, jointly with Dot, to pay Sierra Club’s attorney’s fees awarded by the ciruit court.
…

DOT and Superferry are jointly liable for the attorney’s fees award granted to Sierra Club pursuant to the private attorney general doctrine.

Act 2 having been found to be unconstitutional, the requirements of the general law set forth in HRS chapter 343 are applicable to Superferry. Based upon the foregoing, we reverse the circuit court’s final judgement of January 31, 2008 in favor of DOT and Superferry. We affirm, in part, the ciruit court’s March 27, 2008 order granting (1) Sierra Club attorney’s fees in the about of $86,270.28 against DOT and Superferry jointly based on the private attorney general doctrine, and (2) costs in the reduced amount of $4,532.09 against DOT and Superferry jointly. We further remand this case to the circuit court for such other and further disposition of any remaining claims as may be appropriate and consistent with this opinion.

Here’s a little anecdotal information on the ferry. I took my car to Oahu on HSF a few weeks ago just to check it out. I lost a day each way on the trip.

On the way to Oahu, we were delayed leaving Maui b/c there was no power to the hydraulics on the barge ramp. So, vehicles were unable to be unloaded or loaded for about 45 minutes. Can you imagine how ugly sitting in a ferry vehicle hold for 45 minutes would be? You know some of those folks had their engines running…

We arrived on Oahu pretty close to on time – so they took the north shore of Molokai route, and hauled ass, I’m sure. I got sick even though I’d taken one “Bonine”. Fortunately, I made it to the washroom before getting sick, and the woman in the stall next to me was throwing up too. Fortunately also, I had no food or drink in my stomach. I felt awful for the better part of 24 hours after that trip and mostly slept.

On the way home I took 2 Bonines and passed out on the ferry – so I didn’t get sick. (They were nice enough to have someone accompany me to my car so I could bring up a blanket. Otherwise, I’d never have slept BECAUSE IT WAS REALLY COLD.) After I got home I was essentially knocked out for the remainder of the day. The reason I was able to sleep during that trip is because the ferry was so empty, there was a free bench. (It was pretty empty on the way to Oahu as well, just no benches available.)

If you think you want to sleep without ruining your neck, you have to get there early enough to claim a bench. That means you’d spend LONGER waiting in line at the harbor than you would to arrive early at the airport. You can’t just drive up and get on because the vehicles are coming off the dock and the traffic would be a problem. You’ve got to get there at least half an hour early and wait, just like you do at the airport…

I’d hate to be on it if it were crowded and the seas were rough. Last week someone told me of a trip she took with her kids and they and many others were throwing up IN THE AISLES! She said they come around with a shop vac to clean it up. To be fair, I hear it’s a “lovely trip” when the weather is good.

As much as I enjoyed having my car on Oahu (and not paying the cost of a rental) I don’t plan to make the trip by ferry again. In fact, I’m flying over next week for an appointment…

PS I counted the cars going over to Oahu – less than 50. There were somewhat more coming back to Maui, but the main vehicle deck wasn’t by any means full on that trip – maybe 70? It seems that Loves Bakery and Fed Ex have contracts with HSF. Those trucks were on both trips, and there were benches reserved for their drivers who had lunches packed at home in coolers.