The New York Times reported that Judge Randal Valencio on Kauai rejected a request for a temporary restraining order ("TRO") that would block Superferry operations at Nawiliwili Harbor on Kauai. The Star Bulletin may have been inaccurate when it stated that Judge Valencio “gave no reason for denying the TRO.”
On Friday, September 6, 2007, in 1000 Friends v. Haw. Dept. of Trans., 5th Cir., Civ. No. 07-1-0131, the clerk’s minutes indicate that the “court . . . had concerns regardin (sic) the 120 day statute of limitations.” Under HRS § 343-7(a) of Hawaii’s Environmental Policy Act (“HEPA”), any judicial proceeding based on the lack of an assessment required under HEPA must be taken within 120-days. It appears that the court is not willing to grant a TRO until it further considers the statute of limitations issue. After denying the Plaintiff’s TRO request, Judge Valencio set the motion for temporary, preliminary and/or permanent injunction for September 17, 2007. If he decides that the statute of limitations applies, he may dismiss the case.
In the Superferry matter on Maui (Sierra Club v. Haw. Dept. of Trans., 2nd Cir. Ct., 05-1-0114), statute of limitations was not an issue. In Maui’s circuit court, Judge Cardoza granted a TRO ceasing Superferry operations at Maui’s Kahului Harbor. Cardoza's decision came after the state supreme court overruled his previous decision upholding the State's determination that an environmental assessment was not required. Judge Cardoza will hear a request on Monday, September 10, 2007, to extend the Maui ban until an environmental assessment is completed.