Wong v. Bush, 2008 WL 4093619 (9th Cir. Sept. 5, 2008).

Stephanie Showalter, J.D., M.S.E.L.

Hawaii Superferry is an inter-island ferry service currently offering twice-daily trips between Honolulu, Oahu and Kahului, Maui. The Alakai, the company’s first ferry, can accommodate 836 passengers and up to 230 subcompact cars.1 Controversy erupted immediately after the commencement of the service. Envi­ ron­ mentalists worry about the ferry’s impact on humpback whales and its potential to transport invasive species. Residents of Maui and Kauai voice concern that the ferry’s arrival will boost tourism and development on islands already under immense development pressure.

In the latest round of litigation over the Hawaii Superferry, the Ninth Circuit Court of Appeals affirmed the district court’s denial of injunctive relief to protestors challenging the Coast Guard’s establishment of a security zone in Nawiliwili Har­ bor. Wong v. Bush is rooted in the February 2005 decision of the Hawaii Department of Transportation (HDOT) to exempt harbor improvements at Kahului, Maui to accommodate the Super­ ­ ferry from the Hawaii Environmental Policy Act (HEPA). On August 23, 2007, the Hawaii Supreme Court ruled that the HDOT may not exempt the improvements to the Kahului Harbor.2

Despite the Supreme Court’s order, Hawaii Superferry began service from Kauai on August 26, 2007. An injunction had not yet been issued by the lower court. That day, hundreds of protestors cheered as over thirty surfers and swimmers formed a human blockade to prevent the Superferry from leaving Nawiliwili Harbor.3 The Coast Guard had to forcibly move the protestors out of the way. The Coast Guard soon announced that it was establishing security zones to “provide a safe and secure environment for both recreational vessels and the Alakai.”4

Megan Wong and her fellow protestors challenged the Coast Guard’s authority to establish the security zones. The protestors claimed the zone violated their First Amendment rights, the National Environmental Policy Act (NEPA) and the Coast Guard’s authority to establish such zones. The Ninth Circuit upheld the district court’s denial of injunctive relief. The court found that the Coast Guard did not infringe on the protesters’ First Amendment right of free speech because the security zone is a reasonable time, place, and manner restriction. The court also found no violation of NEPA or the agency’s authority under 50 U.S.C. A7 191(b) to establish security zones to safeguard vessels, harbors, ports, and waterfront facilities.

While the Coast Guard won this round, the Superferry’s woes continue. In October 2007, in a separate lawfuit, the circuit court enjoined operations until the environmental assessment is complete. While the Hawaii Legislature later passed a law allowing operations to continue, the Sierra Club has a challenge to that law pending with the Hawaii Supreme Court.5 The company continues to operate its ferry service between Oahu and Maui, but has halted service to Kauai indefinitely.

Endnotes
1.   Hawaii Superferry, Fact Sheet, http://www. hawaiisuperferry.com/images/pdfs/HSF-Fact-Sheet-Final.pdf .
2.   Sierra Club v. Department of Transp., 167 P.3d 292 (Hawai‘i 2007).
3.  Jan TenBruggencate and Rick Daysog, Surfers Block Hawaii Superferry, USA Today (Aug. 27, 2007).
4.  Press Release, Coast Guard to Enforce Hawaii Superferry Security Zones, Aug. 26, 2007.
5.  Associated Press, Court Appeal Could Halt Ferry Service Again, KPUA Hawaii News, http://www.kpua.net/news.php?id=15679 .