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Marcus Tullius Cicero Quote

A nation can survive its fools and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly against the city. But the traitor moves among those within the gates freely, his sly whispers rustling through the alleys, heard in the very halls of government itself. For the traitor appears not traitor; he speaks in the accents familiar to his victims, and he wears their face and their garments, and he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation; he works secretly and unknown in the night undermine the pillars of a city; he infects the body politic so that it can no longer resist. A murderer is less to be feared. The traitor is the carrier of the plague.

ideas > Hawaii...a state of men, not of laws

Hawaii...a state of men, not of laws
I read or skimmed the Hawaii Supreme Court’s opinion dated August 31, 2007, which basically halted the Superferry’s operations in Hawaii. Below are my conclusions and my conclusions only. These conclusions disturb me, because it would appear that the Justices have set a new standard for following laws. Not only do we have to follow the letter of the law, which is apparent and obvious, but now we must follow the intent of the law, which is often one’s opinion. This makes Hawaii a nation of men, not a nation of laws, which means we are susceptible to tyranny and the abuses of our freedoms are just around the corner, if not already upon us. Below are my conclusions with citations directly from the Hawaii Supreme Court’s opinions. I do not pretend to be a great legal mind, but I’ve come to some conclusions, that to me make sense of this whole mess.

The Hawaii Environmental Protection Act (HEPA) allows State Department’s to come up with a list of exemption classes. Exemption classes are items or activities that can be exempted from environmental assessments because they have been determined to have minimal impact on the environment. Each agency has its own list of exemption classes that have been developed and known for many years. Each agency, in consultation with other agencies, can determine whether or not a project and its activities fits under these classes, thereby excluding it from the environmental assessment process. The Department of Transportation, after consulting with the Office of Environmental Quality Control, determined that no Environmental Assessment was needed at Kahului Harbor because all of the improvements they were doing fell under the following exempted classes. This is a judgement call that the executive branch can make according to the law passed by the legislature.

Pursuant to chapter 343, Hawaii Revised Statutes, and chapter 11-200, Hawaii Administrative Rules, the Department of Transportation has determined that the subject property will have minimal or no significant effect on the environment and is therefore exempt from the preparation of an environmental assessment. The determination is based on the following Exemption Classes as listed on the Comprehensive Exemption List for the State of Hawaii Department of Transportation amended November 15, 2000.

The applicable exemption classes are as follows:
Exemption Class 3: Construction and location of single, new, small facilities or structures and the alteration and modification of same and installation of new, small, equipment and facilities and the alteration and modification of the same including but not limited to:
Item 3. Installation of security and safety equipment.
Exemption Class 6: Construction or placement of minor structures accessory to existing facilities.
Item 8. Alteration or addition of improvements with associated utilities, which are incidental to existing harbor and boat ramp operations, in accordance with master plans that have met the requirements of Chapter 343, Hawaii Revised Statutes. Such improvements and associated utilities include concessions, comfort stations, pavilions, paving, rock walls, fencings, walkways, loading docks, warehouses, piers, offices, container freight stations, cranes, fuel lines, lighting, sprinkler and drainage system.

The Hawaii Supreme Court said the following in their ruling:

HEPA does not provide direct guidance as to what standards of review should apply to an agency's determination that a project is exempt from the preparation of an EA.
Therefore, this court must decide which standard of review to apply. Based on this review of the statutory framework and our caselaw, we conclude that the appropriate standard of review depends on the specific question under consideration. In general, agency exemption determinations that involve factual questions should be reviewed under a clearly erroneous standard.

Can you see the problem here? The executive branch is in a bind. They are given the power to determine when a project is exempted from an environmental assessment, but that isn’t enough. They can be overruled, on a whim, by the unelected Hawaii Supreme Court because they determined that the State did not follow a part of the law that never existed: “HEPA does not provide direct guidance as to what standards of review should apply to an agency's determination that a project is exempt from the preparation of an EA.” How can anyone follow a part of law that never existed? This is not the role of the Hawaii Supreme Court. Their role is to determine whether or not the law was followed as is. In this ruling, the Hawaii Supreme Court states that “the appropriate standard of review depends on the specific questions under consideration.” Translated this means that whatever they say goes. Nobody can know the rules up front because it’s up to them. Does that sound like a nation of laws? No. It’s a nation of men and their opinions. This is a dangerous precedent, because it basically says that you should just go before the Supreme Court first before doing anything else, because they might overrule you after all the work is done and right before you will start business. It puts unelected officials in charge of this State.

In this opinion, the justices speak of the letter and intent of the law. What is meant by intent? It is nothing but the opinion of unelected justices. This makes Hawaii a state of run by men, not a state run by laws. Basically it is saying that the law is not enough, and that the interpreter of the law matters just as much. This is a recipe for a disaster for this state and for such projects as the Superferry. If a state agency, following the letter of the law, is overruled by a judge because the judge determines he is not following the intent of the law (whatever that is), then why have laws. If the justices, in their wisdom, seem to be able to divine intent, then let's get rid of laws and let's go with their intent. In fact, why don't we just run everything by the judges first just to make sure we are following the intent of the law. Can anyone see the absurdity of this position? Where is freedom for the people? We have basically created a committee of five kings to determine what we can and cannot do in our environment, the people’s will be damned. The problem with this case is that the State thought they were following the law. In fact, they were following the law, but the justices determined that following the law wasn't good enough. They had to follow the intent of the law, whatever that means.

Another interesting word used in the this opinion is the "public interest". What exactly is this? It would appear that the "public interests" are clearly behind the Superferry. The ones opposed to the Superferry are a small group of environmental zealots, who believe that their belief system trumps the belief system of the majority. Their interests are not the public's interests, but are a “minority interest of environmental zealots” who oppose anyone using an environment they have not paid for nor have the right to control.

It is clear that the State agencies followed the law, but this was not enough for the environmental zealots and our benighted, enlightened court, so they invented a new way to interpret laws using the intent of the law argument. Why would anyone in their right mind do business in this state? They could be following the law completely, yet the Hawaii Supreme Court or any other court in Hawaii could side with environmental zealots and determine that the intent of the law was not followed. What is the intent of the law? It is nothing but someone’s opinion. If we are not a nation of laws, then we are a nation of men. A nation of men is a nation of tyranny because noone knows how to act or what law to follow, for fear that some judiciary somewhere can overrule them at any time. This is scary stuff and tragic for Hawaii.
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