Locals have long complained about over-tourism in Hawaiʻi — that vacation rentals are transforming their neighborhoods, that tour helicopters are constantly buzzing over their homes, that their once-favorite hiking trials are now clogged with throngs of visitors wielding selfie-sticks …
In the case of commercial tours operating out of West Maui’s Mala Wharf, the groups Ka Malu o Kahālāwai and Nā Papaʻi Wawae ʻUlaʻula, and their respective officers Kekai Keahi and Kai Nishiki, claim that the companies are hogging most of the boat trailer parking and that their customers are trampling the reef, drifting into boating lanes, and disturbing traditional ʻopelu fishing grounds.
These impacts, the groups and their members argue, infringe on their constitutional rights to a clean and healthful environment, as well as their ability to engage in native Hawaiian traditional and customary practices.
The groups, Keahi, and Nishiki first filed a petition for a contested case hearing last July on a number of commercial use permits for Mala Wharf issued by the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation.
Despite the pending contested case hearing request, DOBOR extended the permits, then later successfully sought Land Board approval to deny their request.
Subsequent contested case hearing requests filed by the groups opposed to other Mala commercial use permits being renewed or set to be renewed were also denied by the Land Board.
The groups, Keahi and Nihsiki filed complaints in 2nd Circuit Court asking that the permits be vacated and that DOBOR be required to hold a contested case hearing “such that it may make findings and conclusions under the Ka Paʻakai analysis, and to, if not deny the permits, place conditions on the permits sufficient to protect the reasonable exercise of Native Hawaiian rights,” the groups’ attorney Christina Lizzi stated in one of her court briefs.
(The Ka Paʻakai analysis, which stems from a 2000 Hawaiʻi Supreme Court decision, requires agencies to 1) identify the extent to which traditional and customary native Hawaiian rights and practices are exercised in a subject area; 2) determine the extent to which those rights will be affected by a proposed action in the area; and 3) identify feasible ways to reasonably protect those rights and practices.)
DOBOR not only failed to conduct such an analysis, it also “failed to ensure that the public would correspondingly and reasonably benefit from permit issuance, as required by Hawai‘i Administrative Rules § 13-231-50,” Lizzi wrote.
On March 23, 2nd Circuit Judge Peter Cahill upheld the board’s decision to deny the contested case hearing request regarding permits DOBOR issued to Hawaiian Rafting Adventures, Inc., Lahaina Harbor Water Taxi, Inc.;,and Underwater Safari Inc. A final order, however, will not be approved until mid-May.
On March 24, the board denied the groups’ latest contested case hearing request, but ordered DOBOR to return in three months with proposed permit conditions aimed at alleviating the problems that had been repeatedly raised.
On April 13, 2nd Circuit Judge Kelsey Kawano is set to decide whether or not to dismiss the groups’ complaint regarding the contested permits to Noio Charters, Inc., and Extended Horizons, Inc.
Mala wharf is the only commercial and recreational boat ramp from Ukumehame to Honokohau and has become a popular snorkel and dive spot for not only commercial tour companies, but for the general public and visitors who rent their own vehicles.
DOBOR staff reported earlier this year that in response to the community’s concerns, it had moved barriers at Mala to create more parking, ceased issuing new shoreline access permits for SCUBA dive tours, and added conditions to existing commercial use permits for the area prohibiting tour company employees from parking at the wharf and discouraging their customers from parking there, as well.
Denied
In October, January, and March, the Land Board approved DOBOR recommendations to deny the contested case hearing requests from the groups.
DOBOR administrator Ed Underwood characterized the renewal of the 16 commercial use permits at Mala as largely ministerial. Hawaiʻi Administrative Rules establish that up to 15 commercial use permits may be issued at Mala. The 16th permit pre-dated the rules and will eventually go away through attrition, he explained.
He said that the permits, which have varying expiration dates (hence, the multiple contested case hearing requests), are annually renewed so long as the permittees meet requirements such as minimum gross receipts and have no violations.
In explaining his rationale for denying the contested case hearing requests, board member Chris Yuen said that the petitioners’ preferred decision is to not have so many permits issued. However, “we do not have the authority to say now … we should only have 5 instead of 15 [permits],” he said.
He added that if a contested case hearing were granted, “we would take all day, a couple of days to do it. We would have to hire a hearing officer … multiple tens of thousands of dollars to hire a lawyer … to make a decision that is a weighing of a number of policy factors. It is not an adjudication of someone’s rights.”
At its most recent meeting on the permits, Yuen expanded on his reasoning for why a contested case hearing was not the best way to go to achieve better management at Mala.
He said he thought the petitioners had offered some recommendations that had merit, “and I’ve heard other possibilities that would … make things a lot better.”
“Litigation isn’t always the answer. I remember when I was a young attorney a long time ago, I was in a case with about five lawyers sitting in a deposition that was going on and on. It was about one guy was suing his neighbor who put a berm across his property that the plaintiff thought was causing flooding on his own property. It occurred to me, if all the lawyers grabbed a shovel, they could dig out the berm in less time than we were taking on this deposition,” he said.
Yuen and the rest of the board supported efforts by DOBOR to try to find solutions to the problems raised.
The Not-Working Group
Rather than duke things out in the courts or in expensive contested case hearings, which are similar to court proceedings, DOBOR formed a working group of representatives from the community groups and the permittees to discuss possible solutions.
It went nowhere.
Because of the pending lawsuits, attorneys for the permittees advised them not to speak at or commit to anything raised in the working group. Instead, 14 of the 16 permittees selected Toni Matthies Davis to be their representative at the working group meetings.
Davis testified to the Land Board in February that she didn’t believe that the permittees were causing any problems. She said that on her two site visits to the wharf, one of which was on a holiday, she had no trouble parking.
She also said the petitioners objected to her presence at the working group meeting held in January.
At the group’s second meeting, held in early February, none of the representatives from the community attended.
Nishiki explained to the Land Board at a briefing on February 25 that they didn’t see the point in attending, since the permittees wouldn’t even acknowledge there was a problem or that they were part of the problem. The petitioners were “basically talking to ourselves” and DOBOR staff, she said.
Despite the board’s wish to have matters worked out informally, testimony at that briefing suggested that the two sides were still very much at loggerheads.
Erik Stein, who with his wife runs Extended Horizons out of Mala, argued that not only are the commercial permittees respectful of the community, “the narrative of constant conflict is manufactured.”
Jessica Pickering, a dive tour operator added that the accusations of tour groups trampling the reef are false. To which Nā Papaʻi’s Tiare Lawrence said she had video of divers doing just that.
Archie Kalepa, also of Nā Papaʻi, said that while the number of permits has remained steady over the years, the operators are conducting more tours.
“One tour company is doing four tours in one day,” he said. “We’re not trying to stop anyone from doing commercial activity. But when you have 26 [parking] stalls and 31 permits … there’s been times that I don’t have a place to park,” he said. (While DOBOR rules allow for 15 commercial use permits, the 16 permittees from Ka`anapali also use Mala ramp, for a potential total of 31 permittees or 32 if the 16th Mala permittee is included).
“These commercial operators are making enough money to hire someone to help alleviate this,” he said, suggesting that the companies hire people to drive their trailers back to their place of business.
Superior Rights
Kalepa, who is involved in limu restoration and led the maiden voyage in 2020 of the Hawaiian voyaging canoe Mānaiakalani, testified to the board about how he has had to fight for ramp access at Mala because it’s so congested.
Because the community groups had argued that they were entitled to a contested case hearing in part because their traditional and customary native Hawaiian rights were being infringed upon, board chair Suzanne case eventually asked, “Is use of the boat ramp a traditional and customary practice?”
Lizzi replied that it was. “It’s how they enter the water,” she said.
Case argued that that was not a traditional and customary practice, and board member Yuen had similar thoughts.
“I really do not understand your conception of rights,” Yuen told Lizzi. Registered boaters, native Hawaiian or not, recreational and commercial, have a right to use Mala ramp, he said.
“Is it your contention that a native Hawaiian has a superior right to use Mala ramp?” he asked Lizzi.
Yes and no, she replied, noting that traditional and customary native Hawaiian rights are a property interest recognized by the courts.
Yuen said that Mala ramp is a shared facility where people come to use a ramp. Those who come later wait for those who come first, he said.
“If I get there, does a native Hawaiian have a superior right to not wait at Mala ramp in your view?” he pressed.
Lizzi said she didn’t know about that. “We’re talking about a right to a contested case hearing, whether or not this impacts their property interest,” she said.
Yuen argued that the infringement of rights in this case seemed to be that the petitioners are suffering a delay when they want to get their boats in the water. He has asked Lawrence of Nā Papa‘i whether her group had ever been kept from launching the Mānaikalani from Mala wharf.
Lawrence said that they had to wait a half hour because tour companies were taking too long to load their passengers. She also mentioned in her own testimony that there had been several instances over the summer where her uncle, Archie Kalepa, could not find trailer parking for the canoe.
Given this, Yuen told Lizzi, “You don’t have an absolute right to use the ramp at any one time. You have to wait. That is not an infringement on your right.”
Lizzi countered, “That is an injury to the right and ability to exercise it.” Right now, she said, there is no limit on the amount of time permittees have to occupy the boat ramp and the petitioners do have an interest in using it. “They’re asking for a seat at the table,” she said.
Yuen replied that her clients and members of the public do have a seat at the table. “DOBOR wants to meet with them. We would like to see this resolved for many technical reasons, partly because of my concept of rights. I do not think that somebody has a right not to wait to use a shared facility anymore than I have a right to obtain a parking space at Ala Moana beach park if I get there when it’s all full,” he said.
Board member Kaiwi Yoon expressed his aversion to the whole discussion of superior rights. “I think those things are divisive. There’s a time and place for that, but it’s a trap. We’re not talking about somebody saying, ‘No, you can’t be here.’ That’s sophomoric. The issues are much more complex than that.
“If you’ve got X amount of stalls and all these tourists are there, you’re preventing access. Period. Hawaiian or otherwise,” he said.
To Kauaʻi board member Tommy Oi, the gripe over parking was much ado about nothing. He said that Nawiliwili harbor on Kauaʻi has just 32 parking stalls. “When ahi is biting, people park a thousand feet away on the main road with their trailers. This goes on for weeks” with no fighting, he said. “I don’t see what the problem is. Why can’t they just work together? Over here, they walk a thousand feet to get back to the boat ramp.”
Ways Forward
When the Land Board met on March 24 to decide whether or not to grant a contested case hearing request on commercial use permits to Ocean Riders, Inc., Adventure Rafting, Inc., Lahaina Para-Sail, Inc., Lahaina Water Ski, Inc., Parasail Kaanapali, Inc., and West Maui Parasail, Inc., Judge Cahill had just upheld one of the board’s earlier decisions to deny the community groups’ contested case hearing request.
Even so, Lizzi reminded the Land Board of DOBOR’s obligation to do more to reasonably protect traditional and customary native Hawaiian rights.
“Even if this board again today denies the contested case hearing, I please implore the board, you’ve heard over and over again how the issuance of these permits is impacting traditional and customary rights. Please, do something to make sure that analysis is really followed,” she said.
She went on to say that the permits right now don’t limit commercial use in any way and permit applicants aren’t asked basic questions, such as how often they plan to use the ramp, what their business practices will be, or where their customers will load or unload or park.
“That also goes to whether or not the state and DOBOR can reasonably say there are corresponding benefits and returns for the use of the ramp,” she said.
With DOBOR’s treatment of the permit renewals as ministerial, “there’s a really high risk of erroneous deprivation,” she said, adding that that risk would drop if the division were to start doing a Ka Paʻakai analysis for each permit before it’s renewed for another year.
“We don’t want to keep coming back here asking for contested case hearings,” and there would be no need to if the right questions were asked and DOBOR imposed conditions as necessary, she said.
DOBOR’s Meghan Statts said that her division is “definitely interested in finding a solution.”
With regard to the contested case request, the permitees’ attorney, Lisa Bail, noted that her position in court the day earlier was that the petitioners had received due process.
“Due process is a flexible concept. We have had now many board meetings. There has also been a working group ongoing … Judge Cahill wanted to know what’s going on in the working group,” she said.
She said the pending litigation has had a chilling effect on having meaningful dialogue about solutions.
They talked at length in court about alternative remedies allowed by statute for people to have an opportunity to participate in shaping agency policy, she added.
“There may be opportunities for declaratory rulings or petitions to amend the rule that would better get at these issues,” she said.
“I’m curious about whether your clients would be willing to support administrative rule changes if those were proposed,” board member Aimee Barnes said.
“Some things we could support and other things would be more difficult. If people lose their permits and they lose their business, that would be a big problem,” Bail said. She also pointed out that her clients and the community groups aren’t the only parties that use the ramp.
“We need to have the right parties in the dialogue,” she said.
In the end, after an executive session, the board approved DOBOR’s recommendation to deny the contested case hearing request, but deleted the division’s request to delegate to the chair the authority to rule on future contested case hearing requests.
The board also voted to have staff return to the board with recommended management actions.
Board member Doreen Canto from Maui was the sole dissenter.
— Teresa Dawson
(This article has been corrected. It’s Kekai, not Kekahi, Keahi. We sincerely regret the error.)
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