Act I: The Hawaii Superferry brokers deal with State Department of Transportation and State Legislature to avoid preparing an environmental impact statement (“EIS”) and obtain millions of dollars in government funds for harbor improvements.
Act II: Superferry is ready to launch but is sued by Maui Tomorrow, et al., in Maui’s trial court to stop operations until an EIS is prepared. The Maui trial court rules in favor of Superferry and the Superferry prepares to set sail.
Act III: Maui Tomorrow, et al., appeals to the Hawaii Supreme Court; the Court disagrees with the Maui trial Court. Based on the Supreme Court’s opinion, the trial court reverses its prior injunction and Superferry operations cease until such time as it prepares an EIS.
Act IV: The Legislature steps in and passes legislation that is signed into law as Act 2. The Act allows ferries, like the Superferry, to operate while it prepares an EIS-like document under the new legislation. Based on the Act, the Maui court reverses its decision. The Superferry sets sail.
Act V: The Maui Tomorrow, et al., set to appeal again, arguing that Act 2 is void as “special legislation.”
In this Act V, the Supreme Court will need to decide whether Act 2 is impermissible special legislation or permissible “general legislation.” The term “general legislation," also referred to as “general laws," has been interpreted as laws which apply broadly or to a class of persons or entities. Special laws, on the other hand, are those laws that apply to a specific person or entity.
Some states have legislation which bans special laws, Hawaii does not. However, Art. XI, Sec. 5 of Hawaii’s Constitution appears to prohibit special laws that touch on state lands as follows:
The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof.At issue here is the use of state harbors which are “lands owned by or under the control of the State.” So at first glance Act 2 would be an improper special law that specifically applies to the Superferry’s use of state lands.
However upon closer inspection, Act 2 does not mention the Superferry by name, instead it generally applies to “large capacity ferry vessels” which are defined as a inter-island ferry vessels that “transports, is designed to transport, or is intended to transport per voyage at least five hundred passengers, two hundred motor vehicles, and cargo between the islands of the state.” (See Superferry Split Between Houses.) So it could be argued that Act 2 applies to a class, not a specific entity, and therefore is a permissible “general law.”
This later argument was heard in the Maui trial court in November 2007, and formed the basis of the trial court’s reversal of its injunction preventing operation of the Hawaii Superferry.
Will the Supreme Court agree with the trial court this time around? Will Hawaii sink its only alternative means of transportation in its island state, and enter the economic recession with the title: Worst State to Do Business? Or will reasoned minds prevail? Stay tuned for Act VI.