State seeks to evict Waialeale

Lawyers from the state Attorney General’s office filed an eviction motion in Lihu‘e Circuit Court Monday, seeking to oust Waialeale Boat Tours from its operations on the Wailua River.

Waialeale, one of two barge companies operating tours to the Fern Grotto, is owned by William Sonny Waialeale, and has not paid its $3,500 monthly rent for marina space over a period of several years, owing over $108,000 in total, according to officials with the state Department of Land and Natural Resources.

The lawsuit filed Monday seeks to evict Waialeale, and asks for the back rent and damages, said William J. Wynhoff, state deputy attorney general in the land-transportation division.

The lawsuit will probably allow the boat-tour company, which has operated on the river since 1968, to remain in business until the court’s decision, according to sources close to the case.

According to letters between Wynhoff and Waialeale’s former lawyer, Mark Zenger, obtained by The Garden Island, it was construed that the state would close down the operation Tuesday.

In a letter dated April 20, Wynhoff states, “We hereby notify your client, Waialeale Boat Tours, Inc., to vacate the leased property by the close of business on April 26, 2004. If it fails to do so, then the State will take appropriate action to recover possession and to pursue all its other rights and remedies.”

In another letter, dated April 19, Wynhoff writes, “Please do not assume that the State will file a lawsuit to seek possession of the property. The State reserves all rights to enforce the board’s decision, as and when it deems appropriate.”

In response to the letters, Zenger replied, in an April 19 letter, that since Wynhoff wrote the state would not try to obtain an eviction order, nor turn over documents requested by the owner of the boat company, Waialeale was no longer in need of a lawyer.

Wynhoff said yesterday that the letters might have been misconstrued, that the state still had not decided at the time whether to proceed in court or not.

The next step for the state, Wynhoff said, is to ask for a motion of summary judgment. Then a court date could be set and a decision would be made. That might occur in as little as two months, he said.

But, depending on what Waialeale decides to do, the process could take the better part of a year or more, he explained.

“Our position is to move it along as quickly as possible within the guidelines” of the court, said Wynhoff. “We’re going to be acting expeditiously, even though it’s going to take” time for a resolution.

Waialeale will continue to be charged rent until the decision is made, said Wynhoff. The company was still running tours yesterday, and Waialeale said he would continue.

His is one of only two companies that run daily tours on large motorized barges up and down the Wailua River to the Fern Grotto, a state park, and he docks his five boats at a state marina near the mouth of the river.

While Wynhoff said he is not exactly sure of the reasons why Waialeale has not paid his rent, it is his understanding that Waialeale believes the state does not own the land and does not have the right to lease it.

According to an April 22 letter to Wynhoff, Waialeale states, “My inherent right on land comes from the ‘identity’ of the ‘loi’ and the right to be part of a government, is vested in the reserved right of the minerals and metallic mines on the Royal Patent.”

Wynhoff said yesterday that, while the state has a great amount of respect for the rights of Native Hawaiians, he has not seen the courts adopt a provision supporting a claim of Native Hawaiian rights over the state’s ownership of the land.

Staff Writer Tom Finnegan may be reached at 245-3681 (ext. 252) or tfinnegan@pulitzer.net.

The Associated Press contributed to this report.