U.S. District Judge Helen Gillmor has denied an application for a temporary restraining order sought by Hawaii Superferry opponents. The opponents had filed a federal lawsuit seeking to enjoin the Coast Guard from enforcing a security zone at Kauai’s Nawiliwili Harbor.
The temporary security zone (effective from Sep. 1, 2007 through Oct. 31, 2007) is located in the Federal Register (33 CFR Part 165) and is posted here. The rule’s Summary:
The Coast Guard has created a security zone in the waters of Nawiliwili Harbor, Kauai, and on the land of the jetty south of Nawiliwili Park, including Waapa Road. This zone is intended to enable the Coast Guard and its law enforcement partners to better protect people, vessels, and facilities in and around Nawiliwili Harbor in the face of non-compliant protesters who have impeded passage of the Hawaii Super Ferry to its dock in the harbor. This rule complements, but does not replace or supersede, existing regulations that establish a moving 100-yard security zone around large passenger vessels like the Hawaii Super Ferry.
The Coast Guard had been recently, and undoubtedly reluctantly, brought into the ongoing Superferry controversy (part of which is explained by my colleague Robert Thomas, here) after the Superferry made its initial voyages to Kauai in August. As explained in the "Background" section of the temporary rule:
On August 26 and 27, 2007, protesters impeded the passage of the Super Ferry Hawaii Super Ferry into and through Nawiliwili Harbor by entering the water from the land and waterfront facilities adjacent to the harbor, often with kayaks, surfboards, and other small vessels, and then swimming into and blocking the harbor’s navigable channel. In addition, several hundred onlookers watched the unfolding events from land adjacent to the harbor. Most of these observers were on the jetty that is south of Nawiliwili Park, which is adjacent to the Madsen shipping facility in Nawiliwili Harbor (hereinafter referred to as ‘‘Nawiliwili Jetty’’). Some of these onlookers threw rocks and bottles at Coast Guard personnel who were conveying detained protesters to shore on August 26. Most of the protesters doing so from Nawiliwili Jetty.
The transit of the entrance into Nawiliwili harbor is difficult for large vessels in all but calm weather. The turn around the outer breakwater, then immediately turning in the opposite direction around the inner jetty is made more difficult by the combined effects of the winds and seas. Due to the difficulty of maneuvering in the small area of Nawiliwili, and in the interest of ensuring the safety of the protesters, the Hawaii Super Ferry’s master chose not to enter the channel until the Coast Guard had cleared the channel of protesters. However, because the vessel remained outside the harbor, and because the protesters did not approach to within 100 yards of the vessel, the existing security zone (see 33 CFR 165.1410) did not provide the Coast Guard with the authority to control protestor entry into Nawiliwili Harbor or clear the channel of protesters before the Hawaii Super Ferry commenced its transit into the harbor. The resulting situation substantially complicated an already difficult transit and created a substantial risk of damage and injury.
The plaintiffs’ First Amended Complaint is posted here, the Memorandum in Support of the Application for TRO is posted here.
Judge Gillmor’s decision denying the Temporary Restraining Order can be downloaded here. Exhibit A to the Order is the graphic of the security zone.
The Coast Guard has also proposed another rule to continue the security zone until December 31, 2007, which is provided here .