LIHU‘E — County officials have gone to court asking a judge to order a Na Pali Coast tour company to stop operating commercial boating out of the Hanalei River. Bring it on, said attorney Richard Wilson. Wilson, representing Lady Ann
LIHU‘E — County officials have gone to court asking a judge to order a Na Pali Coast tour company to stop operating commercial boating out of the Hanalei River.
Bring it on, said attorney Richard Wilson.
Wilson, representing Lady Ann Cruises, Inc., doing business as Na Pali Explorer, and Mike Sheehan, owner of the river boatyard, said in a telephone interview Friday he welcomes the chance to prove in court what federal courts, state opinions and even the county’s own filings agree to: The county has no authority to regulate any boating in Hanalei River or Hanalei Bay.
The county argues Lady Ann Cruises is not permitted to operate commercial boat tours out of Sheehan’s boatyard, and the operation is in violation of Sheehan’s special management area permit issued by the Kaua‘i Planning Commission.
Wilson said both Lady Ann and Sheehan have SMA permits, and an argument used by county attorneys seeking to dismiss a 2005 lawsuit Sheehan filed against the county used the following argument:
“The CZMA (Coastal Zone Management Act) does not afford the county authority to regulate commercial boating activity at Hanalei River or Hanalei Bay.”
Lady Ann’s operations are not illegal on any level, Wilson said. “It is fully permitted and fully allowed,” and anybody with a U.S. Coast Guard-certified vessel can operate in navigable waters of Hanalei Bay and Hanalei River, and there is little or nothing state and county officials can do about it, Wilson said.
According to a county press release, to operate legally from the Sheehan boatyard, Lady Ann Cruises would need permission from the Planning Commission, and no such application has been made, nor has such permission been granted.
The complaint also says loading and unloading passengers from the Hanalei River boatyard “significantly impacts coastal waters and related coastal resources,” and that such activity requires an SMA permit from the Planning Commission.
Wilson said the county’s own SMA law and rules indicate the permit system is for things happening inland of the shoreline, not in navigable or ocean waters.
The county is asking the court to issue a temporary restraining order, preliminary injunction and/or a permanent injunction preventing the loading and unloading of passengers at Black Pot Beach Park, the county press release stated.
“We’d like to thank the members of the Hanalei community who assisted the Planning Department in documenting this illegal activity,” said Planning Director Ian Costa. “We’ve worked hard to preserve and expand Black Pot Beach for the enjoyment of all, and cannot allow these non-permitted commercial activities to continue.”
In April, the Planning Department was alerted about signs appearing at the Hanalei River boatyard advertising Lady Ann’s boat tours, the county release said.
Then in May and earlier this month, boat tours conducted by Lady Ann Cruises were documented by members of the Hanalei-to-Ha‘ena Community Association and the Hanalei Watershed Hui Makai Watch, along with the Planning Department staff, according to the release.
Wilson said the county through its permit systems covers land-based management issues, and that all mariners have federally protected, constitutional rights to operate in navigable waters.
The county cannot regulate, monitor or control commercial boating in Hanalei, Wilson said. The county is trying to use the SMA permit as a land-use permit, but neither the county nor SMA process have any authority over water-based endeavors, he said.
Carl Imparato, president of the Hanalei-to-Ha‘ena Community Association, said that, until two summers ago, “we’ve had peace in Hanalei,” with just three commercial boat companies operating out of the bay.
In the summer of 2007, Lady Ann Cruises started operating “unpermitted boat tours out of Hanalei,” during the summer months, he said.
“The community’s been very concerned. I think there is very strong opposition to what Lady Ann is doing,” not just because of alleged violation of law but because their actions may encourage other boat companies to return as well, Imparato said.
“It’s very important to the community to not let unpermitted activity continue,” said Imparato.
Imparato said the Sheehan property’s SMA permit is only for parking, boat storage and maintenance, and that five consecutive directors of the county Planning Department have said the SMA permit for Sheehan’s property does not allow for launching or retrieving of boats.
The county has been concerned about Lady Ann operating, and since the late Mayor Bryan Baptiste was in office has been trying to deal with that problem, Imparato said.
Informational pickets are happening just about every day at Hanalei Bay, where community members also document Lady Ann operations, he said. More than 100 launches have been witnessed to date.
It is the community’s hope not only to stop Lady Ann, “but to prosecute them to the fullest extent of the law,” Imparato said.
“We thank the county for enforcing against Lady Ann and supporting the community. … I think the community wants to thank the boaters on the Westside for being pono and not joining Lady Ann with unpermitted boating in Hanalei. Several made the decision not to participate out of Hanalei,” Imparato said.
“Those companies deserve thanks and support from residents and tourists both. The community’s on strong grounds, the county is on strong grounds,” he said.
Earlier this month, The Garden Island received an anonymous letter indicating that Lady Ann Cruises’ Na Pali Explorer was engaged in “unauthorized commercial boating at Hanalei Bay.”
The letter was unsigned, with the authors saying they frequent the bay “and are concerned about retaliation.”
In response to that letter, The Garden Island asked a state Department of Land and Natural Resources spokesperson about state regulation of commercial activities in the bay and river.
“As it stands today, DOBOR (Division of Boating and Ocean Recreation) does not issue commercial permits to vessels operating in Hanalei Bay,” said Deborah Ward, DLNR public information specialist.
“The 9th Circuit Court of Appeals stated that commercial vessels can be reasonably regulated but not banned from operating on the water,” she said.
“Currently, the vessel operators are embarking and disembarking passengers through the county park. They are not violating any DOBOR rule tht we are aware of,” she said.
