Superferry TRO hearing - more details

The plaintiffs, 1,000 Friends of Kaua‘i, have asked the 5th Circuit Court for both a temporary restraining order (TRO) and a preliminary injunction, enjoining Hawaii Superferry from using Nawiliwili Harbor. A TRO is used to preserve the status quo until there is an opportunity to hold a hearing on a motion for a preliminary injunction. Ultimately, the plaintiffs are looking to keep Superferry out of the harbor until completion of the environmental process under section 343 recently ordered by the state supreme court.

The plaintiffs seemed to view themselves as essentially in the same position as the Sierra Club in its recent successful injunction motion on Maui. However the court expressed its doubts and pointed out that, unlike the plaintiffs here, the Sierra Club filed an objection to the exemption granted Superferry by HDOT two and a half years ago and within the 120-day period required under section 343 of HEPA. Judge Valenciano pointed out that the supreme court's decision made special mention of this fact - explicitly placing the event triggering the clock on this time limitation back to the grant of the exemption - and wondered out loud whether the top court might have done so in order to give guidance to lower court judges on precisely this issue.

The plaintiffs argued that the event triggering the 120-day statute of limitations for purposes of the TRO motion was not the grant of the exemption. Instead, they argued, the triggering event was when the Superferry first pulled into Nawiliwili Harbor a few days ago. The judge was not persuaded and called all the attorneys into his chambers to discuss his calendar and when the parties might brief their arguments on this statute of limitations issue. When they emerged from chambers, they had agreed that counsel would deliver briefs by tomorrow morning and had settled on September 17 for the date of a hearing on the preliminary injunction.


Counsel then proceeded to argue the merits of their positions, including plaintiff's section 343 claim, with the understanding that if Judge Valenciano rules against them tomorrow on the statute of limitations issue, that claim is out the window.

In addition to their section 343 claim, plaintiffs made two other other arguments based on the state constitution and on a theory of public nuisance.

Article XI, Section 9 of the Hawaii Constitution says

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

Plaintiffs argued that this provision was triggered by HEPA but the judge wondered whether their claim here suffered from the same liability as their other arguments based on 343 - that, because the statute of limitations had run, the court did not have the jurisdiction to hear those claims. Plaintiffs argued somewhat vaguely that there are lots of other environmental laws besides section 343 to justify their reliance on the Constitution, but did not elaborate.

(added: Plaintiffs also argued that one of the laws "relating to environmental quality" that they were seeking to enforce under Article XI is the Supreme Court decision.)

Plaintiffs then argued that, insofar as it operates without environmental assessment, the Superferry is a public nuisance. Defendants countered that, on the contrary, the Superferry has been deemed by different administration departments and by the legislature itself to be a public service.


A TRO is an extraordinary, emergency measure to prevent irreparable harm or damage. Plaintiffs who ask that one be granted have a high bar to hurdle. They must show that they are likely to prevail on the merits of their case and that there would otherwise result irreparable harm and that the harm is greater than that caused by the granting of a TRO, and that the public interest supports granting the injunction.

Plaintiffs argued that irreparable harm threatened in the potential importation of invasive species from the other islands, overloading local parks and roads, depletion of resources, importation of drugs, and harm to sea life such as whales, monk seals, and turtles.

Some of these strike me as not particularly irreparable - traffic jams resulting from the handful of trips the ferry would make in the 10 or 12 days the TRO would be in force, for instance, or crowded parks. The depletion of resources, too, seems minimal over the course of a little over a week's time. As for harm to whales, defendants pointed out that they are not generally around after the breeding season and have moved off to the north.

While the importation of a number of mongoose would possibly cause irreparable harm, defendants argued that they search all compartments of every car transported and asserted that the likelihood of such an importation was negligible, and certainly no greater than that posed by the shipping of containers among the islands as occurs regularly. Plaintiffs doubted (and reasonably so, I think) that the search of vehicles could possibly be as thorough as the defendants claimed.


In all, I'm not sure that the court will agree with plaintiffs that these harms are so imminent and grave as to justify, prior to a hearing on all the merits, the imposition of an emergency order. Furthermore, the judge himself expressed grave doubts that the plaintiff's Section 343 claim would survive a statute of limitations inquiry. And the equitable claims - the constitutional and nuisance arguments - seemed almost an afterthought. I haven't seen the briefs, so it might be that plaintiffs laid out convincing arguments on those issues, but they didn't come across in today's oral arguments which were disorganized. The plaintiffs seemed knocked back on their heels by the early statute of limitations challenge that could ultimately tank a large part of their case, and never quite able to get their stride as the ramifications of that challenge continued to bedevil their other arguments as well.

So I'm sticking with my prediction that a TRO will not issue and we'll look forward to the September 17 hearing on a preliminary injunction.