Hanalei tour boats back in business

Narrowly surviving five months of state-ordered closure that nearly put them out of business, the remaining Na Pali Coast commercial motorized tour boat companies launching out of Hanalei River and Hanalei Bay are operating again.

But they’re not celebrating yet.

“It put us on the verge of bankruptcy,” Brian Lansing, one of the company owners, said of the five-month hiatus imposed by the state Department of Land and Natural Resources as a result of a court order supporting enforcement of a rule banning commercial boat tours from Hanalei River and Hanalei Bay.

The regulation (“The one that put us out of business,” Lansing said) was enacted in November of last year, was ruled enforceable in February this year by U.S. District Judge Helen Gillmor, then was ruled unenforceable under a temporary restraining order Gillmor also issued earlier this year.

It was that last order that allowed the boaters – John White of Whitey’s Boat Cruises, doing business as Napali Catamaran, of which Lansing is a partner; Robert Butler, Jr., of Captain Sundown Catamaran Ku’uipo; and Ralph Young, of Hanalei Sport Fishing & Tours – to resume business activities in Hanalei.

Earlier this month, Gillmor issued a permanent injunction forbidding DLNR from using the November rule it had adopted to shut down the three remaining permitted, engine-powered operators.

Commercial kayak tours, permitted activities under DLNR rules, have continued. Those are not impacted by the November rule nor subsequent court interpretations.

Officials with DLNR’s Division of Boating and Ocean Recreation declined to comment until Gillmor issues her full, written opinion. It’s not known when that opinion might be forthcoming.

Dennis Niles, an attorney representing White, Butler and Young, wouldn’t speculate about what Gillmor’s latest ruling might mean until a full decision by the judge is issued.

“We want to see the court’s decision before we really comment on its implications. All the case really stands for is that the state cannot eliminate commercial permits at Hanalei Bay, particularly with respect to operators who had been in existence and had been operating for a period of years before this rule change took effect,” said Niles. “These are navigable waters, and it was our argument that while the state has power to regulate navigable waters, it cannot do it by focusing on activity occurring aboard the vessel.

“And that’s what we have here. This is not regulation of the manner in which the activity is occurring, but rather it’s a focus on the activity, and I think the court was troubled that certain federally licensed vessels could operate on these waters but we could not, even though the manner in which our vessels were operating was identical.”

Niles said the state “was classifying vessels on the basis of what their federal licenses authorized, and the state does not have the power to do that. So where does that leave us? Well, that leaves us with the original rule, and that rule limits to 15 the number of permits that are authorized for this area.”

Niles said the state can limit the number of commercial operators for a given area. “That’s part of regulation, as contrasted with prohibition,” he said.

“The state has consistently taken the position, from the earliest days of the boating program, that it is not obligated to issue permits even if they’re authorized,” he said.

Even at Port Allen Small Boat Harbor, where some of the former Hanalei commercial entities have relocated, the state hasn’t issued as many permits as rules authorize, Niles observed.

“At Hanalei, they have historically only issued five, and the state would be perfectly justified in my view to say, ‘We are not going to issue more than five, based on the sentiment of the community,'” Niles said.

He said the decision “does not open the floodgates” or eliminate regulations.

“What our opposition focused on was the prohibition, the idea that regulation per se was inadequate and therefore it was necessary to eliminate these vessels all together,” he said. “And I believe the judge agreed with me that the state did not make the case that would warrant a total prohibition on a relatively innocuous activity at Hanalei” by his clients.

Operating since the end of June but without the benefit of advertising after the five-month closure, business has not been booming, Lansing confessed.

“It was weak, but it was enough to pay our attorneys’ bills,” he said, laughing.

Lansing said he is unsure whether the three companies had business-interruption insurance.

“I don’t think I have insurance against the state of Hawai’i putting me out of business,” he said.

Still, the operators are happy with the latest ruling and happy to be in business, Lansing continued.

Whitey’s and Hanalei Sport Fishing and Tours began their businesses in Hanalei Bay in 1973, and Butler came later.

“All along, both Ralph and Whitey ran both of those companies small and low-profile explicitly to not upset the community,” Lansing said. “The community was treated to big business by other operators, by the ambitious operators, that grew their fleets to three, five, eight, 10 boats.

“When you figure it out, there were close to 30 boats operating out of the river in 1997, before the shutdown, and the ones that had no permits were operating in the good part of the summer three trips a day. So if you just take a rough estimate and say three trips a day times 30 boats, that’s about 90 trips out of Hanalei River.”

Each boat has to go out and in, so that’s about 180 trips along the river. And 180 divided into 10 hours (of daylight) is about 18 per hour, or a boat every three minutes either coming or going at the river mouth, Lansing calculated.

“It really was intolerable, just simply by the numbers,” he said.

Former Kaua’i County mayor JoAnn Yukimura offered a compromise to the boaters, Lansing said, telling them that if they operated smaller boats and smaller companies, they could continue at Hanalei.

The big companies refused to downsize, fought unsuccessfully in court to keep their large interests going at Hanalei, and eventually lost their permits to operate there, he recalled. Several of them now operate out of Port Allen.

Lansing said boat operators are at Hanalei because of town meetings that determined that a Shoreline Management Area (SMA) permit would be required, “and that the level of boating within these numbers – two motorized and two sail (boats) and one sailing school – has little or no effect on either the community or the environment.”

At those meetings, within the Hanalei Estuary Management Plan it was determined ” that any numbers greater than this would require both an SMA permit and an environmental impact statement,” he said.

‘…I think the court was troubled that certain federally licensed vessels could operate on these waters but we could not, even though the manner in which our vessels were operating was identical.’

—Dennis Niles, boaters’ attorney

Fleet sizes may be settled

It’s uncertain whether U.S. District Judge Helen Gillmor’s most recent ruling will open the door for the return of other commercial tour operators to Hanalei.

“The people that fear that our ruling will bring back the other boats, this is not going to be from anything the judge did for us. If other boats come back, it will be because state officials want them back,” said Brian Lansing of Napali Catamaran.

“We hope that this ruling settles once and for all the size of the fleet that operates out of Hanalei, and the size of the businesses of those. We hope it means the end of the debate over boating in Hanalei,” he added.

Lansing said his company’s operation going upriver in a canoe and shuttling passengers “in a canoe with a small, 10-horsepower, non-polluting engine. The motor is quiet, and the canoe is small.”

The two motor boats and two sailboats are enough to handle the demand for those visitors staying in the North Shore area, he said.

The boaters can only operate between 150 and 180 days a year, because of the weather and permit regulations. Captain Sundown Catamaran Ku’uipo carries around 20 passengers a day, and Napali Catamaran has about 30 passengers a day.

“Unless the state tries to pull off some other hidden agenda to get more boats back in Hanalei” and helping that cause along by knocking out the remaining permitted operators, this should be the end of debate about Hanalei fleet size, he said.

“The whole boating issue was created by the state in their lack of enforcement of the permit system,” Lansing claimed.

– Staff writer Paul C. Curtis can be reached at 245-3681 (ext. 2245) or e-mail at mailto:mailto:pcurtis@pulitzer.net