The proverbial spot between a rock and a hard place might quite possibly exist somewhere in the waters of Hanalei Bay.
According to a state deputy attorney general, a federal judge has ruled that any vessels with valid U.S. Coast Guard licenses cannot be prevented by the state from operating commercial tours out of Hanalei Bay.
That interpretation has the potential to allow the return of mass, unregulated, un-permitted commercial boat tours the likes of which nearly caused community uprisings along the North Shore over the last few decades.
Because the federal judge said no state permits are necessary for Coast Guard-approved boats to operate out of Hanalei Bay, the state Department of Land and Natural Resources Division of Boating and Ocean Recreation has refused to issue commercial use permits to three companies which won the right to continue operating as a result of the federal judge’s order.
Yvonne Izu, the state deputy attorney general who argued the state’s case in Honolulu federal district court before Judge Helen Gillmor, said the state’s interpretation of Gillmor’s ruling is that commercial boats that have valid Coast Guard licenses don’t need state permits to operate out of Hanalei Bay.
If the state issues permits to the three tour boat companies currently operating of Hanalei, and says “no” to other tour boat operators, it will be sued, Izu said. If it simply watches as rampant, mass, unregulated boating returns to Hanalei, it will have a community inflamed and potentially be a partner to environmental devastation.
That’s where the rock meets the hard place.
Besides the three companies currently conducting commercial tours out of Hanalei Bay, at least one other company has requested a state permit, and one other has told the state it will launch operations out of the bay without a permit, Izu said.
Dennis Niles, attorney for Hanalei Sport Fishing & Tours, Whitey’s Boat Cruises, Inc. doing business as Na Pali Catamarans, and Capt. Sundown Enterprises won a permanent injunction against the state in Gillmor’s court in August.
Gillmor ruled in August that an administrative state rule enacted in November 2000 was unconstitutional. The rule had been used to effectively shut down the three remaining commercial boating businesses at Hanalei for the first half of last year.
In December Gillmor’s complete 41-page ruling was issued.
Niles said the judgment pertained only to his clients, the plaintiffs in the case, and couldn’t be used by other companies to enter or re-enter the commercial boating business in Hanalei.
The state has appealed Gillmor’s ruling to the Ninth Circuit Court of Appeals in San Francisco, and a mandatory settlement conference call is set for April.
During that conference call, a determination will be made whether or not the lawsuit can be settled through mediation, Niles said.
The state shares his clients’ desire to have boating at Hanalei regulated, and the three still operating are doing business under the restrictions that existed when they held state permits, Niles said. The now self-imposed regulations include: Limited numbers of passengers and trips per day, no operations on weekends and holidays, and other rules.
Niles said Gillmor’s decision lays out options for the state to determine if the current level of commercial boating activity in Hanalei is tolerable, both in terms of environmental and community impacts.
“This is a problem that can be fixed,” simply by the state concluding that the current level of commercial activity works for the environment and community, but additional commercial boating activity would have adverse impacts to both, Niles said.
While the conference call is scheduled, both sides are continuing to prepare briefs and other documents with a mid-summer deadline in mind, Niles said.
If the phone conference doesn’t yield a settlement, and the case goes before the federal appeals court, the ruling of the appeals court will be the law not only for Hanalei, but for all Hawai’i, Niles said.
The next appeal would be to the U.S. Supreme Court, and Niles doesn’t think the state should risk losing before the Ninth Circuit Court of Appeals, where that court’s ruling would have broader impact.
“We’d be more than happy to end this whole lawsuit,” said Izu. But Niles is looking out for the best interests of his clients, and the state needs to look out for the interest of everyone in the state, so there are differing ends trying to be met, Izu said.
The state also is trying to avoid being sued by the next operator to enter (or re-enter) the tour-boat business at Hanalei, she added.
“It’s been a problem for a long time,” said Izu. She said the state is trying to solve the problem while knowing not everyone who has been a part, participant or observer of the situation will be happy with the final outcome.
The county’s position is to wait and see what happens at the appeals court, said Dee Crowell, director of the county Planning Department.
Only the commercial kayak companies operating along the Hanalei River have valid county Special Management Area (SMA) permits, Crowell said.
Some other boaters have inquired about getting county permission to operate out of Hanalei, he added.
It’s also the county’s position to evaluate SMA permit applications based on land-use issues, such as traffic, parking, restroom facilities, etc., and to only issue SMA permits to landowners or land lessees (i.e. launch sites in the case of boating at Hanalei).
An example could be Mike Sheehan’s boatyard along the Hanalei River, which currently is only permitted by the county as a place to park boats. His permit doesn’t allow the loading or unloading of passengers, or launching of boats, from his boatyard, Crowell said.
If people can figure out a way to operate a commercial boating operation in Hanalei without triggering the need for a county SMA permit, the county really can’t stop them, said Crowell.
The current three commercial boat operators shuttle passengers in vans from Hanalei Center down to the river and back, effectively and intentionally bypassing the need for them to have an SMA permit, Crowell said.
