Lanny Alan Sinkin
Attorney at Law (Federal Practice)
P. O. Box 944
Hilo, Hawai'i 96721
(808) 936-4428
lanny.sinkin@gmail.com

September 30, 2007

To:  Members of the Hawai'i County Council

Attached to this email are three photographs and two documents.

The first photograph shows a surfer in front of the Hawai'i Superferry with a Coast Guard boat to the side.  This photograph documented the event in which surfers and swimmers in Nawiliwili Harbor on the Island of Kaua'i prevented the Hawai'i Superferry from entering the harbor in late August of this year.

The second photograph shows a Coast Guard boat with its large caliber machine gun uncovered and prepared for operation by a sailor.   The Coast Guard experienced a high degree of frustration during the blockade because they were unable to clear the water for the Hawai'i Superferry.  The threat of lethal force expressed that frustration.

The third photograph shows some of the many boats the Unified Command is assembling to force open Nawiliwili Harbor during the next voyage of the Hawai'i Superferry.

These photographs are provided to assist you in understanding that a confrontation between the Governor's Unified Command and the determined opponents of the Hawai'i Superferry entering Nawiliwili Harbor has the potential for a terrible outcome.

The first document is the First Amended Complaint in a suit I have filed in United States Federal Court in Honolulu challenging the legality of the Superferry Security Zone Rule adopted by the United States Coast Guard.   I urge you to read the statements from the Plaintiffs to get a feel for how strong the commitments are on the Island of Kaua'i.  I trust that you saw the reaction when Governor Lingle went to Kaua'I and threatened to have anyone entering the harbor waters arrested and prosecuted.  

Among the multiple violations of law, the Coast Guard is using a regulation meant to prevent sabotage, terrorism, and subversion to suppress First Amendment- protected free speech, guarantee the profits of a private corporation, and aid and abet the breaking of the law by the Hawai'i Superferry.

The second document is a draft resolution being presented to all the County Councils that we ask you and the other members of the Hawai'i County Council to consider on an emergency basis.   With the Governor and the Unified Command taking the position that the Hawai'i Superferry can return to Kaua'i at any time, time is of the essence.  An expression of concern and recommendation for avoiding confrontation by the Hawai'i County Council might help prevent a disaster.

With one of the issues before the Court in Honolulu being whether a reasonable person could believe that the continued operation of the Superferry is illegal, a pronouncement on that issue by the County Council is very relevant.

As you will see, the draft resolution quotes the Hawai'i Revised Statutes section that requires the completion of an environmental assessment as a "condition precedent" to the initiation of the action at issue, i.e. the State of Hawai'i must finish the EA prior to permitting the Hawai'i Superferry to use the harbor improvements.  The position taken by the Governor and the Department of Transportation that continued operation is legally possible while the EA is prepared is wrong on the law.   "Concurrent" is mutually exclusive with "condition precedent."  The Governor and the Department of Transportation are refusing to admit they made a mistake and trying to use raw power to salvage something.

If the County Council passes this resolution or a revised version of this resolution, I also ask that a member of the Council be present at 11 a.m., Friday, October 5 in the Federal Court House, Honolulu for the hearing before Judge Helen Gillmor on Plaintiffs' Motion for a Temporary Restraining Order to testify as to the adoption of the resolution by the Hawai'i County Council.   If you would like to read the memorandum of law prepared in support of that motion, please let me know.

If you have any questions or I can be of any assistance, please contact me at your earliest convenience.

Other relevant documents:

Exhibits to 2nd TRO