With great fanfare, the state of Hawai`i cracked down on illegal boat tour operators in September of 1994, issuing more than 100 citations. With the same degree of stealth, the citations were withdrawn from court less than a year later, and there is now no likelihood that any of the illegal operators will ever be penalized for failure to obtain necessary permits.
Kaua`i County Prosecuting Attorney Ryan Jimenez explained to Environment Hawai`i the difficulties his office faced when it tried to follow through by bringing the cases to trial.
The enforcement effort, he said, “happened primarily during the administration of former Mayor JoAnne Yukimura. We were in the process of … issuing citations and attempting to prosecute these cases. However, some legal and administrative problems arose concerning proof. Just because someone is doing something that may be construed as illegal, when you go to criminal court, you have the burden of proof beyond a reasonable doubt. We had to prove that these people were conducting certain proscribed business activities. We depend on law enforcement agents not only to issue citations, but also to provide evidence admissible in court, and in this case, we were having problems getting sufficient proof.
“First of all, one major problem is that the people were being cited for conducting a business activity. To prove this, you would have to basically get business records. For all the boats operating on a daily basis during the summer, that would entail issuing search warrants, confiscating records, plowing through records, matching business records up to what was happening on the ground. For example, on a particular Sunday, you would have to get a warrant to go to a person’s business, go through the records, prove they were conducting business. The simple fact that they were launching boats was not sufficient, especially since people on the boats had been instructed by the boating companies not to cooperate with law enforcement.
“Also, there was the question of who was going to execute the warrants and confiscate the records and be responsible for committing the resources needed for going through all the records and getting the information. The office of the prosecuting attorney for the county doesn’t have those resources, and the [state] Marine Patrol is not qualified or doesn’t have people with the needed expertise.
“There was talk about seizing the boats, but that raises another whole host of problems. When you seize property, you must safeguard and care for it. If the property should be damaged or its value diminished, the state or county would be responsible. Nobody wanted to assume that responsibility.
“While we were trying to hash out and juggle these problems, we had a change in administration. The new mayor, Maryanne Kusaka, initiated meetings with the state to attempt to resolve the matter. Since then, several meetings have been held of an ad-hoc committee composed of people representing various government agencies, to try to come to a meeting of the minds between government and the boaters so this problem can be resolved and controls extended over the activities in Hanalei. While this was going on, it was felt it would not be appropriate for the law enforcement arm to try to prosecute these people while the administrative arm is trying to resolve the problem peacefully.”
According to Jiminez, the Center for Alternative Dispute Resolution has been guiding the committee meetings. That is ongoing. Although the private sector (including boaters) have not been involved directly in the process, Jiminez said the county had been holding separate talks with the boaters.
In sum, Jiminez said, the existing “statutory scheme was never designed for enforcement. When push comes to shove and everybody throws up their hands and says ‘take it to the criminal courts,’ the rules of evidence there are proof beyond reasonable doubt.”
And even should the prosecution be successful, he added, the most the criminal courts can do is levy a monetary fine, which often tends to be regarded as just another cost of doing business. To get injunctions and orders prohibiting operations, “you have to go to civil court,” he noted, adding that there was one active civil case being pursued by the county.
For any resolution to be successful, Jiminez said, it would have to be “well enough crafted” to be enforceable, administratively or criminally — a quality that, he implied, the present regulations lacked.
Even though the Cayetano and Kusaka administrations appear committed to reaching a new resolution of the problem, the county Planning Commission is the agency that issued the existing Special Management Area regulations that are being flouted regularly by the boaters. The commission is autonomous and does not report to the mayor. Jiminez said that the county planning director, hired by the commission, had been involved in the talks, but he couldn’t say if the commission itself would go along with any decision reached by county and state administrations.
“That’s the wild card,” he said.
Volume 6, Number 7 January 1996
Leave a Reply