Tuesday, March 17, 2009


GUARD DOG AND YAPPERS : Though yesterday’s Hawai`i Supreme Court ruling that “Act 2” was created for “a class of one” was obvious all along to anyone but the politically deaf, dumb and blind, at the time of the hearing many doubted whether the justices would see that.

Sure they could have looked at the fact that the original draft was written with the words “Hawai`i Superferry (HSf)” but dropped that and inserted the words “high capacity ferry” instead in the final version. Or they could have just read the transcripts of the special legislative session and reached the same conclusion.

But instead, in the final analysis all they had to look at was something that came to light only after the hearing- that the fact of the sunset date made the addition into service of another vessel meeting the description, a physical impossibility.

And that fact- not well expounded upon in the case filed by Maui Tomorrow (MT) and the Sierra Club (SC) which relied more on the environmental protections in the Hawai`i State Constitution- came to light only through the intrepid efforts of indefatigable Superferry opponent Brad Parsons who spent a few week going through Act 2 with a fine tooth comb looking for a smoking gun.

And he found out that it was staring us all right in the face all along.

We followed his almost daily reports trying to put together the facts that might add to the case but, we admit, we doubted that anyone would listen to whatever he came up with.

That is until one day when the latest installment of his work arrived in our inbox peaking our ears.

Parsons was working on the section showing how it would have been almost impossible to have another company use the law to buy a boat fitting the description to ever start service.

That work seemed to lead to one point that had been escaping scrutiny. Even if somehow another company could have used the law to enter the market someday- a questionable proposition to begin with- there’s no way they could have done it by the “sunset date” in the bill.

After a brief email exchange, Parsons made the case that it wasn’t just virtually impossible but was fully impossible for there to be another ferry covered by the legislation before the expiration date the legislation contained.

Certainly there was a lot of useless and even just plain wrong information from Superferry opponents along the way which was used to try discredit the opposition. The book “The Superferry Chronicles” was a plethora of misinformation such as the now ubiquitously reported number of 1500 protesters in Nawiliwili (no one who was there thinks there were any more than 1000 and even that might be high) to the repeated claim that “Act 2” was named that by Lingle to say that the Supreme Court’s original ruling was only “Act 1” in the Superferry drama yet to be written (it was actually the second “act” passed during the special session, the first being a legally mandated confirmation of a Lingle appointee) not to mention the claim that it wasn’t until late in the game that the project suddenly, somehow morphed into a military boondoggle (documents going back to 2001 uncovered by Hope Kalai show military involvement in the ferry project’s conception through U.S. Senator Daniel Inouye’s “ranking member” position on the Senate Armed Forces Appropriation Committee).

If it weren’t for articles written by people like Joan Conrow, Dan Hempey and Haunani Trask it might not have any credible information at all.

But our hero today is Parsons who dealt with the facts and worked his butt off until he found the one fact that would make all the others pale in comparison. Parsons kept at the facts and, in the final analysis there’s a good probability that his work was indeed recognized and formed the basis for yesterday’s Supreme Court decision.

It stands up while the attempts by some to blow off facts in favor of sloppily written pseudo histories- which well could have derailed opposition and eroded the credibility of those who actually researched the matter via original documentation rather than through sensationalization of a cursory examination of newspaper reports- have done little but provide a potential for a guilt by association discrediting of the work of Parson’s and other actual, credible researchers.

None of this of course would have been possible without the efforts of Isaac Hall and his supporters in MT and SC. But without people like Parsons and many others who stuck to the facts and knew they should be enough, we wouldn’t be here today.

And where we are today is that the HSf’s “surprise” decision to voluntarily stop operations is most likely because they have completed their military “mission” and now will be able to recoup their losses by selling the boat and suing the state for whatever they lost.

Too bad we can’t get clowns like Governor Lingle and the legislators who supported Act 2 to pay for it out of their pockets. And it’s too bad we can’t get all those voters who ignored the facts and kept the circus in town to share in that cost.

1 comment:

Mauibrad said...

Thank you, Andy. I couldn't help but also seeing the logic and line of thought of a "closed class of one" in reading the Supreme Court Decision.

Isaac Hall did use the phrase "closed class of one" but neither he nor Dep. Atty. Gen. Ginoza answered the Justices questions as to how exactly Act 2 created a "closed class of one."

From my old business law classes, I could tell by the questions of the Justices that that phrase was going to be the key to the case. I could tell that somebody had to do the grunt work to show exactly how Act 2 created a "closed class of one," and that it did not require only legal knowledge. But, it did require a complete understanding of Act 2, requiring reading and re-reading it many times, something that even Ginoza clearly did not do. It also required some additional industry research to show how the definitions, content, and timeframes of Act 2 in fact created "a closed class of one."

It is refreshing to see that the Supreme Court Justices either independently or otherwise picked up on the same line of thought logic, verified it, and further developed it with references from the confidential Harbors Operating Agreement that I did not have access to.

I appreciate, Andy, that you recognize what happened.

Aloha, Brad