Charley Foster at Planet Kauai has written up the details of the Superferry TRO hearing on Kauai. Check it out.
Update: Here’s his detailed report. The critical issues appears to be the 120-day statute of repose to institute challenges under Haw. Rev. Stat. § 343-7(a):
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.
This seems like a pretty high hurdle. Statutes of repose — as contrasted with statutes of limitation — are, generally speaking, much more strictly construed. Missing the deadline usually means no case. Section 343-7(a) provides:
Anyjudicial proceeding, the subject of which is the lack of assessment requiredunder section 343-5, shall be initiated within one hundred twenty days of theagency’s decision to carry out or approve the action, or, if a proposed actionis undertaken without a formal determination by the agency that a statement isor is not required, a judicial proceeding shall be instituted within onehundred twenty days after the proposed action is started.
Charley also writes: “The Judge postponed making a ruling until tomorrow afternoon. Partiesare to brief the court by 11 tomorrow morning on the 120 day statute oflimitation under 343-7. I predict plaintiffs won’t get their tro. Lotsof arguments were made in the 3 hour hearing and I’ll be posting aboutit later on.”