Gentlemen:

I understand all of you, except perhaps Mr. Ostebo, to be attorneys for the Coast Guard.  I undertand Mr. Ostebo to be the liaison for Commandant Allen, head of the Coast Guard.

My experience with government attorneys is that they generally take a very narrow view of their responsibilities.  If their client agency or office is sued, they provide a defense.  If they are asked for a legal opinion by someone in their client agency or office regarding the operations of that agency or office, they provide an opinion.   The general approachs is reactive, not proactive.

We have just gone through a process that, I believe, calls for reevaluating that general approach when circumstances call for a proactive response.  I have attached the order from the judge in the Mau'i case in which the court found that the Superferry cannot legally continue to operate until such time as an environmental impact statement is prepared.  That decision is based on a law that is not subject to any different interpretation.

When the Hawai'i Supreme Court ruled in The Sierra Club v. The Hawai'i Department of Transporation that HRS Section 343-5 applied and the State had to prepare an environmental assessment for Superferry operations, the rest of that section made clear that Superferry could not continue to operate.

In Kahana Sunset Owners Ass′n v. County of Maui, 86 Haw. 66; 947 P.2d 378 (1997), the Hawai′i Supreme Court said:

HRS § 343-5(c) provides that "acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of proposed action."   Where the legislative mandate is clear, we will not excuse compliance with the plain language of the statute ….

86 Haw. 66, 73; 947 P.2d 378, 385 (1997) (emphasis added).

The judge in Mau'i similarly found the law to be plain and the mandate clear.

If Superferry cannot legally operate, then all the efforts to make it possible for Superferry to operate were simply aiding and abetting an illegal action.  I specifically reference the adoption of the Superferry security zone by the United States Coast Guard to facilitate the operation of the Governor's Unified Command.  The sole purpose of that zone was to permit the Superferry to enter, dock, unload, reload, and exit Nawiliwili Harbor on the Island of Kaua'i.  All of those actions would have been illegal.

Your client, therefore, was engaged in a conspiracy to violate the law.

What makes matters even worse is that there was every likelihood that such an illegal act would have been met by citizens in the water and on land seeking to enforce the law.  Those citizens would have clashed with the combined power of Federal, State, and local law enforcement.  A day of infamy would have stained Hawaiian history.

When the illegality of the entire law enforcement operation became clear, as it most certainly would have, your clients would have been subject to innumerable legal actions.  Many of your clients would have been  personally liable for acting outside the scope of their authority.  They could have faced criminal charges, including possible charges of murder or manslaughter, if deaths occurred during the operation.

So where were the Coast Guard lawyers?  Defending the indefensible in Federal Court because that is their job description?  What about serving the public interest in having the laws obeyed?  What about protecting the people whom you serve as legal advisors, rather than the policy makers pursuing an illegitimate objective at the expense of those who follow their orders?  The "just following orders" defense went out the window in World War II, so what would your clients have had for a defense -- the Director of the Hawai'i Department of Transportation said Superferry could continue to operate?

I raise these issues for your consideration.

In the meantime, the United States Attorneys in court on October 5, 2007 stated that the Coast Guard had issued or was about to issue a permanent rule establishing the Superferry security zone in Nawiliwili Harbor.  I requested information regarding that rule shortly thereafter and have had no response.  I would appreciate a copy of the rule and any information as to the status of the rule.

Aloha,

Lanny Sinkin