KAHULUI, Maui — Maui Tomorrow yesterday announced it would pursue legal action challenging the constitutionality of a new state law that allows Hawaii Superferry to operate before an environmental assessment is completed.

The nonprofit citizens group made the announcement during a rally at Kahului Harbor that attracted an estimated 250 protesters, who greeted the high-speed vessel with banners, signs and chants of "'A'ole Superferry," using the Hawaiian word for "no."

The company relaunched daily service to Maui on Thursday after a nearly four-month delay caused by legal challenges, protests and bad weather. Its 350-foot catamaran, Alakai, carried 250 passengers and 67 vehicles from Honolulu to Maui yesterday, and made the return trip with 135 passengers and 35 vehicles, according to Hawaii Superferry.

There have been no arrests associated with the ferry protests, but two people on surfboards yesterday tested the limits of the Coast Guard's security zone at Kahului Harbor.

A line with floats stretching from the beach to a buoy identifies the boundary of the restricted area closest to Pier 2, where the ferry docks. The remaining boundary is determined by an invisible line from the buoy to a second buoy farther down the shoreline.

As the Alakai entered the harbor around 10:15 a.m., the two protesters began paddling into what appeared to be the unmarked restricted zone. They were quickly intercepted by a 25-foot Coast Guard boat, which prevented the pair from advancing toward the ferry but did not pick them up from the water. The protesters later returned to the beach.

FLOAT LINE CUT

Coast Guard Chief Petty Officer Chad Saylor said someone cut the float line during the incident, but 10 other protesters on surfboards and an outrigger canoe crew that were in the open-water zone did not enter the restricted area.

Saylor said the actions are under investigation, but "overall we are pleased that the Alakai transited safely and that the demonstrators have been cooperative."

Hannah Bernard was one of the two surfboard protesters who appeared to have entered the security zone. "It wasn't about getting arrested," she said. "It was to make a point that the security zone is punitive and it's unnecessary and ludicrous."

Bernard, founder of the Hawai'i Wildlife Fund, said the security measures were intended to punish Maui residents who oppose the ferry. She testified during a four-week court hearing on the Superferry that the high-speed vessel poses a threat to humpback whales, sea turtles, dolphins and other marine species.

Environmental concerns about Superferry were augmented by complaints that Kahului Harbor has been closed off to surfers, fishermen, divers and others from an hour before the Alakai's 10:15 a.m. arrival until 10 minutes after its 11:15 a.m. departure.

The Coast Guard said the security zone will be lifted when it is determined to be no longer necessary.

A crowd of approximately 150 protesters were present when the ferry arrived Thursday, and few turned out Friday. Additional demonstrations are expected to wane following yesterday's rally, which was organized by Maui Tomorrow, the Pacific Whale Foundation and Save Kahului Harbor.

RULING TO BE APPEALED

Maui Tomorrow executive director Irene Bowie said the organization's board voted to appeal November's court ruling that lifted an injunction preventing Hawaii Superferry from operating until environmental studies were performed in compliance with "Chapter 343," the state's environmental review law.

Bowie said Maui Tomorrow has launched a statewide fund-raising campaign to help pay legal fees to pursue the appeal, which will be filed once Maui Circuit Judge Joseph Cardoza issues a final order in the case. She was uncertain whether the two co-plaintiffs, the Sierra Club and the Kahului Harbor Coalition, would join the appeal.

Officials with those two groups could not be reached yesterday.

The three groups had filed a legal challenge to a state Department of Transportation determination in February 2005 that $40 million in ferry-related projects at four ports were exempt from Chapter 343 and did not require environmental studies.

When Cardoza dismissed the groups' complaint, they appealed to the Hawai'i Supreme Court, which ruled in August that the exemption was improper and that an environmental assessment was required.

Hawaii Superferry launched Aug. 26, but the next day Cardoza issued a temporary restraining order halting further voyages to Maui.

Following a four-week trial, the judge ruled in October that Chapter 343 requires an environmental review before commencement of a project, and he replaced the temporary order with a preliminary and permanent injunction that prevented the ferry from visiting Kahului Harbor.

SPECIAL LEGISLATION

Gov. Linda Lingle and the Legislature convened a special session to pass a bill that essentially voided Cardoza's ruling and allowed the ferry to resume operations during the review.

The judge subsequently lifted his injunction and rejected arguments by Maui Tomorrow and the other two groups that the new law, known as Act 2, was unconstitutional.

Bowie said lawmakers and Lingle violated the balance of power among the three branches of government by approving Act 2, and also violated their public trust duties under the state Constitution to protect Hawai'i's environment.

She said the law also is unconstitutional because it is "special" legislation designed for the sole benefit of Superferry.

The state had argued that Act 2 is not special legislation because language in the law states that it applies to any "large capacity ferry vessel company."

Reach Christie Wilson at cwilson@honoluluadvertiser.com.

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