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Judge rules in favor of Lady Ann

Hanalei boating to continue

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Posted: Friday, August 28, 2009 12:00 am

LIHU‘E — State Fifth Circuit Judge Kathleen Watanabe Thursday denied the county’s request for a preliminary injunction to prohibit Lady Ann Cruises from operating boat tours out of Hanalei Bay.

The ruling clears the way for Lady Ann to continue operating, after Watanabe ruled the county didn’t show enough evidence the county would prevail on the merits of its case — that Lady Ann lacks requisite permits necessary to operate out of Hanalei — or that allowing the operation to continue would cause irreparable harm or go counter to the public’s interest, said Richard Wilson, attorney for Lady Ann.

Wilson said Lady Ann co-owners Mary Kagawa Garcia and Claire Inazu Seaver were “tickled” by the ruling. “They’re the winners of the day. They did everything right,” Wilson said of Lady Ann’s partners, who are moving forward with a counterclaim seeking monetary damages for the county’s actions.

Watanabe instructed Wilson to prepare the written order denying the preliminary injunction, which he has two weeks to complete, Wilson said in a telephone interview from his Honolulu office.

Honolulu attorney David Minkin is the special counsel representing the county in this matter. During a telephone interview Thursday afternoon, Minkin said he is “basically disappointed” in Watanabe’s ruling, but this is not the end of the case.

Minkin and his team will further evaluate the evidence and continue to investigate Hanalei boating in general and Lady Ann in specific, as it is his feeling that Lady Ann is “skirting various (state and county) ordinances.”

“This was just a motion” that the county filed shortly after filing the lawsuit aimed at prohibiting Lady Ann from operating out of Hanalei, Minkin said.

Wilson had praise for Watanabe. “Hat’s off to her,” Wilson said of the judge, a former county attorney, for making the right ruling against her former employer after reviewing all the testimony, evidence and exhibits in the case, which she heard for most of the day Tuesday.

“Everyone on Kaua‘i knows this is a hot topic,” Wilson said, adding that his clients are willing to speak with groups large and small in Hanalei about their summertime operations there.

Regarding the counterclaim seeking monetary compensation for economic damage to Lady Ann Cruises done by the county’s court action, Wilson said a first amended counterclaim would be filed soon, and that discussions had taken place between himself and the county.

The county’s action “significantly impacted (Lady Ann’s) client base” in a very competitive business in a very slow time for visitor arrivals to the island, Wilson said.

Wilson reasserted his claim that the injunction was politically motivated, with the county “pandering to a small group of people who are very, very vocal.”

The bottom line, Wilson said, is that the commercial boating operation is not harmful to the environment.

“I can’t think of a more eco-friendly activity than going on a boat and taking pictures,” he said. “I can’t think of any other way of looking at it.”

The activity brings people to Kaua‘i, and visitors are going to go to Hanalei anyway, Wilson said.

“The county failed miserably in trying to fulfill their burden of proof,” said Mike Sheehan, owner of a commercial boatyard up the Hanalei River from the bay which was also a focal point in this week’s court activity.

Wilson, who also represents Sheehan, said parties in a contested-case hearing before the Kaua‘i Planning Commission are in the process of formulating their findings of fact and conclusions of law in a matter before the commission wherein county officials are attempting to revoke, modify or amend Sheehan’s boatyard county permits.

Carl Imparato, president of the Hanalei-to-Ha‘ena Community Association, said Watanabe’s Thursday ruling is “just a small bump in the road, just a procedural matter.”

“This has never been just about one boat, about Lady Ann, but about whether or not permits are needed to operate in Hanalei,” Imparato said.

“I’m confident that once the entire case is heard that the county and community will prevail. Hanalei is still worth saving,” the fight has been going on for 20 years, “we’ll continue to fight and we’ll win in the end,” said Imparato.

In a prepared statement e-mailed to The Garden Island, Kagawa Garcia and Seaver said they are “elated” and “overjoyed” with Watanabe’s ruling.

“We have always been in compliance with all rules, regulations and laws within the state of Hawai‘i and the County of Kaua‘i. Our entire Na Pali Explorer ‘ohana is overjoyed with the court’s decision as it provides job security during these challenging economic times,” the statement said.

“We have always stated that we are simply a small, locally owned and operated business that is striving to provide a good service to our malihini and kama‘aina alike while being pono with our ‘aina. Pupukahi I holomua (unite to move forward). Me ka ha‘aha‘a (humbly yours).”

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