On December 16, the Board of Land and Natural Resources will hold a hearing on rules proposed for managing commercial boating activities in Hanalei, Kauai.
There are rules on the books at the moment – rules that go back to 1988. However, for more than two years, the state has not enforced them. This, according to Land Board chairman Mike Wilson, is because the administration of the county of Kauai, under Mayor Maryanne Kusaka, has not wished to have state rules enforced.
The proposed Hanalei rules have been fast-tracked. A timetable set forth by the Kaua’i board member, Lynn McCrory, calls for the rules to be adopted by the governor before the year’s end. (A more customary turn-around time between the drafting of rules and their adoption is two or three years. For example, the Department of Land and Natural Resources has been considering a draft of rules to protect bottomfish for two years, and a draft of rules for sanctuaries for endangered plants has been languishing since 1989.)
In any event, McCrory was given the green light to work on draft rules by Wilson in June of this year. McCrory and her close friend, Gary Baldwin, who chairs the Kaua’i Planning Commission, decided that what was needed was a complementary set of county and state rules for the Hanalei area – rules that, in addition, would have to be acceptable to the affected community, including the commercial boaters.
McCrory and Baldwin selected an advisory committee, which then went to work interviewing many of the people who have been involved, one way or another, in boating disputes spanning nearly two decades.
In October, this committee forwarded its recommendations to the DLNR’s Division of Boating and Ocean Recreation. These were translated into the language of administrative rules by Carol She, a staffer with DOBOR. On October 10, the Land Board was scheduled to approve allowing public hearing on the rules, but at the last minute, the Department of Attorney General advised that no legal basis existed for adopting “interim” rules.
The rules went back to DOBOR for re-working. At a meeting of the Land Board on October 30, the draft rules were amended by the board, which then approved them for public hearing.
Following the hearing, scheduled for December 16, the DLNR will continue to take testimony on the rules until December 23. After that, the DLNR will decide what changes (if any) to make to the draft rules on the basis of testimony from the public. The board will then decide whether to approve the rules and, should it do so, the rules will go to the governor for his signature. Ten days after the governor’s signature, the rules will take effect.
According to a spokeswoman for the DLNR, the first scheduled meeting of the Land Board after the comment cut-off date will be held on January 16. Assuming that the board approves the rules at that time, it is possible that the rules might be in place by the end of January.
That’s not quite what McCrory had planned. Still, in state government, a month’s slippage is no disgrace.
The timetable on the county’s side may be slower still. The original plan of the Land Board and the county Planning Commission was to bold a joint hearing on December 16. At the same time that the Land Board heard testimony on its draft rules, the Planning Commission was going to take testimony on a petition, by the county Planning Department, to repeal altogether the existing regulations governing boating activity at Hanalei.
However, the Planning Commission’s notice of the meeting, published November 24, falls short of the statutory requirement that at least 30 days’ notice be provided for hearings where rule changes, amendments, or repeal are to be considered. At press time, it was not clear whether the Land Board would proceed to have its hearing independent of the Planning Commission or whether the Planning Commission would attend the Land Board meeting but not have an official meeting of its own.
In any case, success is not to be measured by how quickly the rules move from draft to final, but how well they are able to resolve the thorny disputes that have riven the Hanalei community.
By that measure, the rules may well fall short of the mark.
The New Regime
As stated earlier, in June 1997, Land Board member McCrory obtained Wilson’s go-ahead to work on amendments to state boating regulations for Hanalei. She and Baldwin appointed an advisory committee to investigate the situation and make recommendations to the state.
Baldwin is on record as having said he was determined to reach a decision on boating by Christmas. McCrory went so far as to distribute a timetable that called for a party to celebrate the new rules on January 3, 1998.
Members of the committee were Dee Crowell, planning director for the county; Jeff Bearman of the Kauai office of DOBOR and later Mike Laureta, DLNR land agent on Kaua’i (Bearman appears to have been pulled off the committee, and Laureta was his replacement); Mike Ching (his father owns Ching Young Shopping Center, one of whose tenants is the unpermitted Captain Zodiac); Ann Leighton, a Kapa’a businesswoman and member of the Wailua River Water Activities Association who in 1992 testified against the HEMP limits; Felicia Cowden, who has a surf shop in Hanalei; Stacy Sproat, a farmer at Waipi’o; and two former county attorneys, Max Graham and Mike Belles. Specifically left out were “stakeholders,” which McCrory defined as the commercial boaters and “environmental group(s).”
On July 1, McCrory sent out a report, “Hanalei River Strategy: County of Kaua’i/Planning Department and State of Hawai’i/DLNR.” According to that, the committee was to be meeting in July and August, during which time it would receive information from the DLNR, county, boaters, “Waioli” (sic), the Hanalei Community Association, representatives of the Kaua’i North Shore Business Council (on whose board McCrory sits), and the “local Hawaiian community.”
McCrory went on to outline “areas to be considered” by the committee. They included the Hanalei River, the Sheehan boat yard (a private facility that is used as a baseyard by many of the unpermitted boaters); “sales offices and parking”; use of the county Black Pot Beach Park; and the Hanalei Pier.
“Areas not to be considered,” McCrory said, were Tunnels (also known as Makua), which is used as a staging area by Clancy Greff; and “landings on the Na Pali” (sic).
In September, the committee made an initial report to the DLNR. Among the findings presented was the committee’s determination that the current level of boating activity carried about 810 passengers a day. (The maximum permitted number under existing state rules is 450.)
In September, the committee sponsored two community fairs, attended altogether by 95 people.
On October 10, the “final recommendations” were forwarded to DOBOR. The prose of the report would make a high-school freshman English teacher despair; sentences fail to parse or are run-on; punctuation is missing or erratic; meanings are unclear; many times, it is impossible to know whether comments that the committee received by the community are sarcastic or serious.
Nonetheless, from what can be deciphered of the report, it would seem that the recommendations included establishing “interim” rules, to be repealed after two years; cutting back the current level to 776 passengers a day, while increasing to 110 (from 30) the maximum number of passengers that each permit holder could carry; issuing no more than seven permits (called “licenses” by the committee); issuing licenses to unpermitted boaters on condition that they pay to the state 2 percent of gross receipts since September 30, 1988, the date they began operating without county Special Management Area permits; and dedicating those back payments to offset the impacts of commercial boating activities – including perhaps preparation of environmental studies. (No environmental impact statement to address the effects of commercial boating has ever been commented in the 20-year history of boating operations in Hanalei. This remains a sore point with many people in the community.)
The committee also recommended that during the “interim” period, the community begin a process to determine “Levels of Acceptable Change” for Hanalei and Kaua’i more generally. The LAC process, which McCrory has decided Kaua’i should embrace, has been used in Oregon, among other areas, to resolve river disputes.
(A conference on the LAC process was scheduled to be held in Princeville November 30 through December 5. Invited guests included state officials and two LAC “gurus” from the mainland. Sponsoring the conference were the Princeville resort and Pahio companies – for whom McCrory works – and the Kaua’i Economic Development Board, whose chairman is Baldwin. Princeville and Pahio are “comping” rooms to conference participants, while the KEDB is underwriting travel costs, McCrory told Environment Hawai`i.)
Sheehan’s Boat Yard
One of the more controversial recommendations concerns the Sheehan boat yard. A county SMA permit issued to Sheehan in 1987 provided that he could only serve permitted boaters and prohibited the launching of boats from his property along the Hanalei River. In 1993, the county Planning Commission ordered Sheehan to show cause why his permit should not be revoked, since an investigation had found many instances of non-compliance with permit terms.
Immediately after the order was issued, Sheehan sued in federal court. Named as defendants were past and present county planning officials, Mayor JoAnn Yukimura, and several county attorneys. In 1996, Judge David A. Ezra found in favor of the defendants, but Sheehan has appealed to the 9th Circuit Court. Meanwhile, the new administration of Mayor Maryanne Kusaka appears inclined to settle out of court with Sheehan, and the court process has been temporarily halted.
Despite the legal cloud, the advisory committee recommended that all boats be required to use Sheehan’s facility, which boaters say costs them 2 percent of their revenues (the same level that the state charges permitted boaters).
Draft Rules
On October 30, the Land Board considered whether to go to public hearing with draft rules, no longer described as interim on the advice of the attorney general.
The rules diverged somewhat from the recommendations of the advisory committee. Instead of a maximum capacity of 110 per permitted operator, the limit was placed at 50. Instead of limiting permits to seven operators, the number was placed at 15. Altogether, the maximum daily capacity was revised to 750 instead of the 770 recommended by the committee.
An advisory committee would be set up under the draft rules. As originally proposed, this would consist of three commercial boaters. They would advise DOBOR on the issuance of permits.
Retroactive fees of 2 percent would be charged unpermitted boaters seeking new permits back to 1992 instead of 1988.
Whereas the advisory committee had taken a hands-off approach to boating at Makua, the rule amendments contained a section dealing with Ha’ena – presumably intended to deal with the Makua problem. While the Land Board has issued a permit to Greff to operate two boats out of Makua, the existing rules, reflecting a time when Greff operated more boats, sets the limit at 10. The draft rules propose a cut to five, which would appear to represent an increase over existing levels of activity. In an interview with Environment Hawai’i, however, McCrory insisted that it was her intention to have boating activity at Makua cease altogether and remove it to Hanalei.
Finally, in a bow to the legal system, the draft rules would not allow a permit to be issued to any operator “under an order from a court prohibiting use of the Hanalei River mouth area.”
A House Divided
Reaction to the draft rules was sharply divided. Many of the boaters operating now without permits and without sanctions – the DLNR has not enforced its rules for years – objected to the draft rules’ provisions. For several of them, the 50-passenger-a-day limit would represent a substantial curtailment of their activity. They also expressed opposition to the retroactive 2 percent charge.
Others who testified including tour-boat operators in possession of valid permits as well as community activists – objected to the increased levels of permitted commercial activity that would occur under the proposed rules. Many repeated, as they have in the past, calls for an environmental impact statement to be prepared before the state authorizes such a dramatic increase in permitted levels of tour-boat operations.
The disqualification of operators under a court order not to use the Hanalei River mouth was ambiguous, many claimed. In 1989, Judge George Masuoka enjoined all operators from using the Hanalei River mouth until a valid SMA permit was obtained. Many – indeed, most – of the current operators have violated this injunction over the years, with apparent impunity.
Only one boater, however – Steven Cole’s Na Pali Adventures – was ever held in contempt for violating the order. At the October 30 meeting, Cole wanted to know whether his company was being singled out with this condition.
Howard Gehring, the new acting administrator of DOBOR, acknowledged he did not know the reach of this clause. Rather than deleting it, he said, “maybe I could do some magic on this for our customers, saying [that this condition would be] ‘waived’ pending the Supreme Court ruling.” In fact, the matter of Cole’s order was not taken to the Supreme Court.
At one point in the meeting, McCrory indicated that it was her intention that the rules not set maximum limits on each operator; rather, the advisory committee should be allowed some flexibility in the number of passengers given to each operator. “Can we at this point leave that decision of allocation with the Advisory Committee,” she asked, noting she would be willing to have its proposed membership expanded to include people other than commercial boaters.
Board member Chris Yuen, who had to leave the meeting early, expressed his clear objections on this score. “I don’t think the department can delegate the final decision to an advisory board… The board has to spell out some guidelines about how this is done or else the advisory council becomes a sort of Lord of the Flies situation. Clearly, from the testimony we’ve had, there are very deep disagreements, fundamental disagreements, about who should get priority, and what is fair. And I think definitely we have to drop this idea of a permitted boater being on the advisory council…. I think there is a built-in conflict of interest there.”
By the meeting’s end, McCrory made a motion that the board approve the draft rules for public hearing, with several changes. To get around the legal bar against adopting “interim” rules, McCrory’s motion was to amend the draft rules so that each permit “shall be valid for not more than three years.” Thereafter, permits are to be valid for one year, “or until these rules are amended in accordance with the community-based planning process such as the Limits of Acceptable Change process, and the completion of an environmental study in the three-year period.” Finally, she said, the advisory committee would have additional members, all to be appointed by the Land Board.
The motion was approved unanimously by the four members then in attendance: Chairman Wilson, McCrory, Maui member William Kennison, and O’ahu member Kathryn Whang Inouye.
Volume 8, Number 6 December 1997