State House Democrats want to wait until a Maui court rules on the Hawaii Superferry before they consider whether to help Superferry in a special session.

House Democrats met privately yesterday afternoon at the state Capitol for nearly two hours to discuss options for a special session and heard legal presentations by House majority attorney Richard Dvonch and state Attorney General Mark Bennett.

The consensus, according to people familiar with the discussion, was to wait rather than intervene while legal issues surrounding Superferry are still in doubt.

Asked afterward whether there are enough votes in the House to help Superferry, state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), said: "At this point, yes."

But Say said there would be no commitment by the House until after a court ruling and some agreement with the state Senate and Gov. Linda Lingle on draft legislation.

Pressure for a special session would likely come if the court rules that Superferry cannot resume service to Maui while the state conducts an environmental assessment or places so many conditions on ferry service that Superferry argues it cannot survive financially.

If Superferry could operate during the review lawmakers might have time to consider legislation during the session that starts in January. Appeals to the state Supreme Court by either side are possible.

A second ferry is now being built for Big Island voyages in 2009.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), has said that a special session would be better before the Maui court rules because it may be harder politically for lawmakers to come back and undo a court decision against Superferry. Hanabusa met with her leadership team yesterday, and a Senate caucus is planned for today.

Hanabusa said her position "didn't sell" with the House and now, with the Maui court expected to rule soon, the timing works against having a special session before a ruling.

Hanabusa said she still believes a majority in the Senate would help Superferry, but it may depend on what the court rules. "Now there are going to be different ramifications. Do we go in and overrule the third branch of government?" she said.

At the House caucus, according to people who attended, freshman state Rep. Della Au Belatti, D-25th (Tantalus, Makiki, McCully), was the only one to speak in favor of a special session before the court rules.

"I think it's a missed opportunity if we don't go into special session now," she said.

WHALE PROTECTION

In Maui Circuit Court yesterday, Greg Kaufman of the Pacific Whale Foundation resumed his testimony, offering an alternative route between Honolulu and Maui that would take the ferry much farther north of Moloka'i in an effort to avoid waters inhabited by whales.

As part of its whale-avoidance plan, the Superferry will steer clear of waters of 600 feet or less from January through April, the peak of the humpback whale season. Those shallower waters are preferred by humpbacks. The route avoids whale-dense areas of Penguin Bank and the interior seas separating the four islands of Maui County.

When that is not possible due to poor ocean conditions, the ferry will slow to a maximum speed of 25 knots while traversing shallower seas. Its normal cruising speed is 37 knots.

Kaufman, president and founder of the Maui-based research and education group, yesterday recommended the ferry eliminate any route that goes south of Moloka'i, regardless of the season, because even though humpbacks are only part-time Hawai'i residents, other whales and dolphins are present.

"That route travels right through the heart of humpback whale and cetacean breeding, feeding and winter grounds and is the primary habitat for non-humpback cetaceans here in Hawai'i," he said.

He also advised that the northern route keep the vessel about five miles off Hanauma Bay on O'ahu before it heads toward Moloka'i, passing about 12 miles north of 'Ilio Point on the west end of the island and 10 miles north of Cape Halawa on the east end, before turning south toward Kahului Harbor.

During whale season, Kaufman said, the ferry should travel at 13 knots throughout the entire Honolulu-to-Maui voyage. When humpback season is over, the vessel may travel at its regular cruising speed, he said.

Some whale researchers have determined that 13 knots is an appropriate speed to reduce the risk of significant injury to whales involved in vessel collisions.

Outside the hearing, Superferry President and Chief Executive Officer John Garibaldi said the company designed its routes in consultation with whale experts and the advisory council to the Hawaiian Islands Humpback Whale National Marine Sanctuary.

"We have very well-laid-out routes right now that are supported by the planning that's gone on, and we're proud of that," he said.

Garibaldi said the ferry will be using the same routes that barges, container ships, passenger liners, whale-watch boats and other vessels use without restrictions.

State Department of Transportation Director Barry Fukunaga is scheduled to testify today.

Meanwhile, Lanny Sinkin, a Big Island attorney, has dropped his request in federal court for a temporary restraining order against the Coast Guard's federal security zone for Superferry at Nawiliwili Harbor on Kaua'i. A hearing had been scheduled yesterday but was canceled given that Superferry announced last week that it was postponing a resumption of ferry service to Kaua'i.

Sinkin still plans to pursue injunctions against the Coast Guard and others in federal court.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com and Christie Wilson at cwilson@honoluluadvertiser.com.