Island Breath: Goast Guard Confrontation

SOURCE: LANNY SINKIN lanny.sinkin@gmail.com

POSTED: 5 OCTOBER 2007 - 7:00pm HST

Superferry Federal Ruling

by Lanny Sinkin on 5 October 2007

We were well aware going into the courtroom that the Judge did not want to rule in favor of the TRO. She had indicated in an earlier order that she was looking at dismissing the case on standing grounds.

We took that cue and loaded up the record with declarations from Plaintiffs showing standing under four separate theories. We even added a new theory seeking standing for people whose spiritual beliefs include an obligation to protect the 'aina, such as Hawaiians.

In her ruling, the judge did said she was not comfortable that there was standing and was going to address that question in her written order.

When she turned to the arguments for the TRO, the first thing she said was that she did not have jurisdiction to review a Supreme Court decision. She was referring to the decision of the Hawai'i Supreme Court that found an environmental assessment is necessary. As we all know, the Supreme Court cited Section 343-5 of the Hawaii Revised Statutes that says, when an EA is required, that EA must be completed and accepted prior to the initiation of the proposed action, i.e. Superferry cannot operate until the EA (and almost certainly an EIS) is completed.

We did not ask the judge to review the Supreme Court decision; we were not asking the judge to find the decision correct or incorrect. We asked the judge to apply the Supreme Court decision, i.e. to find that the Hawai'i Supreme Court had already ruled that an EA is required and that ruling means Superferry cannot operate now. We cited other Hawai?i Supreme Court rulings (thanks to research shared by Dan Hempey and Greg Meyers) that specifically noted the "condition precedent" requirement of 343-5 and found that phrase to mean prior to any further action.

What we asked the judge to do was apply those rulings to this case. If she did, then continued operation of Superferry is illegal. All the law enforcement actions taken to permit Superferry to operate are illegal, constitute aiding and abetting a violation of law, and are actions outside the authority of those officials (Federal, State, and local law enforcement.

The people of Kaua?i, abandoned by those who are supposed to enforce the law, are left to choose self-help to enforce the law. If they do not stop Superferry, then no one will.

In acting to protect their island from all the environmental and infrastructure impacts of Superferry, the people are acting in self defense and fulfilling the obligations of this generation to protect the 'aina for future generations.

We know that.

Attached is an opinion editorial I submitted to the Honolulu Advertiser.

We are now planning the next steps for this front in the ongoing movement to restore lawful government.

SUBJECT: UNIFIED COMMAND

SOURCE: LANNY SINKIN lanny.sinkin@gmail.com

POSTED: 4 OCTOBER 2007 - 8:30am HST

Laywer seeks resolutions from councils on HSF

imgae above: PHOTO 3 - Coast Guard hides ten Interceptors behind containers at Nawailiwili Harbor

[Editor's Note: below is a letter from lawyer Lanny Sinkin to the Kauai County Council pointing out the impending danger to Kauai residents by elements od the Unified Command tht is coordinating security in the event of a scheduled Superferry entry to the Nawiliwili Harbor. The Coast Gaurd and other authorities have amassed a formidable assembly of vehicles and weapons to enforce the "safe" landing of the Superferry. Sinkin's letter asks the Council to reaffirm its unaminmous vote for an EIS before ferry service and a response to the existing dangers presented to the public by asking the state to ensure no ferry service until all court cases are resolved. Similar letters have been sent ot the Mauai, and Hawaii County Councils and the Honolulu City Council.]

September 30, 2007

To: Members of the Kaua'i County Council

Attached to this email are three photographs and two documents.

image above: PHOTO 1 by Carl Wright

The first photograph (PHOTO 1) shows a surfer in front of the Hawai'i Superferry with a Coast Guard boat to the side. This photograph documented the event in which surfers and swimmers in Nawiliwili Harbor on the Island of Kaua'i prevented the Hawai'i Superferry from entering the harbor in late August of this year.

image above: PHOTO 3 by Jonathan Jay

The second (PHOTO 2) photograph shows a Coast Guard boat with its large caliber machine gun uncovered and prepared for operation by a sailor. The Coast Guard experienced a high degree of frustration during the blockade because they were unable to clear the water for the Hawai'i Superferry. The threat of lethal force expressed that frustration.

The third photograph (PHOTO 3) shows some of the many boats the Unified Command is assembling to force open Nawiliwili Harbor during the next voyage of the Hawai'i Superferry.

These photographs are provided to assist you in understanding that a
confrontation between the Governor's Unified Command and the determined opponents of the Hawai'i Superferry entering Nawiliwili Harbor has the potential for a terrible outcome.

The first document is the First Amended Complaint in a suit I have filed in United States Federal Court in Honolulu challenging the legality of the Superferry Security Zone Rule adopted by the United States Coast Guard. I urge you to read the statements from the Plaintiffs to get a feel for how strong the commitments are on the Island of Kaua'i. I trust that you saw the reaction when Governor Lingle went to Kaua'I and threatened to have anyone entering the harbor waters arrested and prosecuted.

Among the multiple violations of law, the Coast Guard is using a regulation meant to prevent sabotage, terrorism, and subversion to suppress First Amendment- protected free speech, guarantee the profits of a private corporation, and aid and abet the breaking of the law by the Hawai'i Superferry.

The second document is a draft resolution (see below) being presented to all the County Councils that we ask you and the other members of the Kaua'i County Council to consider on an emergency basis. With the Governor and the Unified Command taking the position that the Hawai'i Superferry can return to Kaua'i at any time, time is of the essence.

An expression of concern and recommendation for avoiding confrontation by the Kaua'i County Council might help prevent a disaster.

With one of the issues before the Court in Honolulu being whether a reasonable person could believe that the continued operation of the Superferry is illegal, a pronouncement on that issue by the Kaua'i County Council is very relevant.

As you will see, the draft resolution quotes the Hawai'i Revised Statutes section that requires the completion of an environmental assessment as a "condition precedent" to the initiation of the action at issue, i.e. the State of Hawai'i must finish the EA prior to permitting the Hawai'i Superferry to use the harbor improvements.

The position taken by the Governor and the Department of Transportation that continued operation is legally possible while the EA is prepared is wrong on the law. "Concurrent" is mutually exclusive with "condition precedent." The Governor and the Department of Transportation are refusing to admit they made a mistake and trying to use raw power to salvage something.

If the County Council passes this resolution or a revised version of this resolution, I also ask that a member of the Council be present at 11 a.m., Friday, October 5 in the Federal Court House, Honolulu for the hearing before Judge Helen Gillmor on Plaintiffs' Motion for a Temporary Restraining Order to testify as to the adoption of the resolution by the Kaua'i County Council. If you would like to read the memorandum of law prepared in support of that motion, please let me know.

If you have any questions or I can be of any assistance, please contact me at your earliest convenience. Aloha,

Lanny Sinkin

image above: PHOTO 4 alternative image of Coast Guard machine gun by Juan Wilson

RESOLUTION

WHEREAS the Hawai’i Supreme Court issued a ruling on August 31, 2007 in The Sierra Club v. The Department of Transporation of the State of
Hawai’i, No. 27407;

WHEREAS the Supreme Court ruling stated that the Department of Transportation made a legal error in not preparing an environmental assessment for the operation of the Hawai’i Superferry;

WHEREAS Hawai’i Revised Statutes § 343-5(c) states that, if an EA is required, the “acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action” (emphasis added);

WHEREAS the “condition precedent” requirement excludes the possibility of preparing the environmental assessment while the Hawai’i Superferry continues to use the harbor improvements covered by the environmental assessment;

WHEREAS the Governor and the Department of Transportation have encouraged the Hawai’i Superferry to continue operating, despite the opinion of the Supreme Court and the clarity of the applicable law;

| WHEREAS the continued operation of the Hawai’i Superferry, despite the opinion of the Supreme Court and the clarity of the applicable law, produced an outpouring of public opposition;

WHEREAS that public opposition included people entering the waters of Nawiliwili Harbor on the Island of Kaua’i to prevent the Hawai’i Superferry from entering the harbor;

WHEREAS those entering the water could legitimately believe that they were acting to enforce the law through self help while those furthering the continued operation of the Hawai’i Superferry were violating the law;

WHEREAS the Governor then formed a Unified Command that included the United States Coast Guard as well as state and local law enforcement officials;

WHEREAS the United States Coast Guard then adopted a rule establishing a security zone in the waters and lands adjacent to Nawiliwili Harbor to be activated when the Hawai’i Superferry is entering, docked, and leaving the harbor;

WHEREAS the Unified Command is threatening to arrest and prosecute anyone entering the security zone once activated;

WHEREAS, subsequent to the creation of the security zone, thousands of people attended a meeting with the Governor on the Island of Kaua’i;

WHEREAS the people attending that meeting made clear that they will enter the waters of Nawiliwili Harbor again to block the entrance of the Hawai’i Superferry;

WHEREAS the potential confrontation between the Unified Command and the people of Kaua’i creates the potential for injury, bloodshed, and even death;

THEREFORE, BE IT RESOLVED, that the Kaua’i County Council hereby declares an emergency need to respond to the current situation;

BE IT FURTHER RESOLVED, that the Kaua’i County Council appeals to the Governor, the United States Coast Guard, and all participants in the Unified Command to avoid a confrontation;

BE IT FURTHER RESOLVED, that the Kaua’i County Council recommends to the Governor, the United States Coast Guard, and all participants in the Unified Command to wait for the resolution of all pending litigation in State and Federal Court related to operation of the Hawai’i Superferry and adoption of the security zone rule prior to making any decisions about the future operations of the Hawai’i Superferry.

First Amended Complaint PDF Link

contact:
Lanny Sinkin
Attorney at Law
P. O. Box 944
Hilo, Hawai'i 96721
(808) 936-4428

see also:
Island Breath: Superferry Lawsuit Links 9/17/07