Island Watch

Supreme Court Throws Boating Dispute Back to Kaua`i Planning Commission

The Hawai`i Supreme Court has issued its ruling on the matter of whether operators of tour boats along Kaua`i’s Na Pali coast need to obtain a Special Management Area permit from the county. Although some newspapers have reported the Supreme Court’s decision as one favoring the boaters, in fact, it would seem to support the county’s position — which is that the boaters are indeed required to obtain SMA permits as a condition of their operation.

The Supreme Court’s decision, entered May 14, 1996, essentially remands the whole case back to the Planning Commission. The boaters did not complete their application for SMA permits, the court held. Therefore, the county Planning Department and the Planning Commission could not complete processing of their applications. As such, there was no appealable decision that was ripe for review by the Circuit Court.

This finding of “unripeness,” as it were, is the same one made by the Circuit Court in its 1991 award of summary judgment to the county. All the Supreme Court appears to have done was to have overturned the Circuit Court’s finding that the boaters’ applications were withdrawn when Martin Wolff, onetime attorney for the boaters, notified the county on April 18, 1991, that the applications were being “withdrawn from the administrative SMA use permit application process” pending certain administrative appeals by some of the boaters. “Because the manifest intent of [Wolff’s] letter was simply to apprise the Department that the appellants would not be proceeding further with their applications pending an alternative mode of redress, we hold that the letter did not ‘withdraw’ the applications from the administrative process,” the court held.

From the court’s decision, it is clear that the Supreme Court justices were not impressed with the boaters’ case. For example, in a footnote, the justices address the boaters’ claim that the county failed to comply with environmental impact statement rules and that this alleged failure constitutes a “de facto denial of and final decision and order regarding the SMA use application permits.” The boaters contention, the Supreme Court says, “is entirely without merit.”

Or consider the justices’ comment on another claim of the boaters — that the Planning Department’s rejection of their SMA applications (deemed to be incomplete by the department) amounts to “a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive [the boaters] of adequate relief” (the quote is from the boaters’ appeal). “We disagree,” was the court’s comment.

The court’s decision came in the form of an unpublished memorandum opinion. As such, it has no value as precedent.

In late March, the Sierra Club Legal Defense Fund brought suit in U.S. District Court against the owners of Kai Malino Ranch, in South Kona, and the U.S. Fish and Wildlife Service. The suit, filed on behalf of the National Audubon Society and the Hawai`i Audubon Society, requests an injunction under the federal Endangered Species Act that would prevent the owners from moving ahead with their announced plans to take koa from the ranch, which the federal government is attempting to purchase for use as a forest bird refuge.

The 10,000-acre ranch covers about a third of the area that used to make up the McCandless Ranch. More than half of it (5,300 acres) is used for breeding, nesting, and foraging by wild `alala, whose population stands at about 14 birds. (For more on this subject, see the [url=/members_archives/archives_more.php?id=971_0_28_0_C]March 1996 article[/url] in Environment Hawai`i.) The ranch has been designated by the Fish and Wildlife Service as essential habitat for the `alala, or Hawaiian crow, and three other endangered forest birds.

Since the suit was filed, owners of the ranch have agreed to hold off any plans to log koa pending the outcome of an application to the Fish and Wildlife Service for an “incidental take,” as provided for in the Endangered Species Act. “Everything is on hold,” SCLDF attorney Lea Hong.

An Oklahoma company that had earlier expressed an interest in developing a grain-to-ethanol plant on the islands has now informed the state it is looking to build a trash-to-energy plant on Kaua`i. According to Chin Nyean Lee, executive director of the Agribusiness Development Corporation, Coxwell Energy, Inc., has tentative plans to build a trash-to-energy plant using “stand-alone plasma and torch technology.”

“Indications suggest that they have a first draft of the power agreement with Citizens Electric,” Lee said in a report to the ADC at its March 1996 meeting. The company is Coxwell Energy, Inc., based in Oklahoma City.

John Harder, director of solid waste management for the state Department of Health, said Coxwell was one of two companies proposing some kind of trash-to-energy plan for Kaua`i. Coxwell’s method, he said, employs a proven technology, which uses extremely high temperatures to vaporize most of the refuse, leaving behind an inert, mineral-like slug that can be safely landfilled or crushed and used as aggregate, if needed. Still, Harder added, while the technology is proven, the cost is high — all the more so because of Kaua`i’s limited waste generation potential.

The second Kaua`i proposal, Harder said, is from a company called Hydro-Mex, based in Southern California. The proposal is for a plant — the first of its kind — that would that would grind all solid wastes to chunks of less than an inch in diameter, add liquid wastes (solvents, sewage sludge, and almost any other thing), and inject various resins into the resulting mix, depending upon what type of end product was desired. The final product would — according to Hydro-Mex — be able to be used as structural building blocks, as fuel, or as compost.

Harder doesn’t hide his skepticism about this approach, but says that Hydro-Mex has indicated it will be shipping its plant to Kaua`i within a few weeks. The county administration seems to be willing to let the company use county land, but, according to Harder, there are still so many permits to obtain from the Department of Health that operation will be a long way off.

As of mid-May, neither Hydro-Mex nor Coxwell had made formal application for any permit to operate.

The state Department of Agriculture has lost one of the supermarket chains that it earlier had used in its test of the mainland market for irradiated Hawaiian fruit. According to a news release from Food and Water, a non-profit organization based in Walden, Vermont, the Marsh supermarket chain in the midwest in Ohio and Indiana has reversed its position on the sale of irradiated produce.

“On March 14, 1996, yet another food company came out against irradiation. Marsh Supermarkets in Ohio and Indiana, the largest supermarket chain to date to publicly admit selling labeled irradiated fruits, reversed its position,” Food and Water said in its news release. “Marsh joined other large supermarket chains including A&P, Publix, and Kroger, a Marsh competitor, in their refusal to sell irradiated foods.”

Food and Water noted that Marsh had sold irradiated Hawaiian fruit at several outlets late last year. The fruits were shipped from Hawai`i to Chicago, where they were irradiated, as part of a trial irradiation project undertaken by the Hawai`i Department of Agriculture.

According to Food and Water, Marsh Supermarkets decided against carrying irradiated produce in the future on the basis of consumer complaints.

Score one for Buck Joiner of Kihei. Joiner had complained for months about litter and construction debris along Pi`ilani Highway. The mess had been left behind by Grace Pacific Corp., which repaved the highway last year. In early May, reports The Maui News, Maui County charged Grace Pacific with 89 counts of criminal littering, based on evidence supplied by Joiner.

Among Joiner’s evidence was an hour-long videotape of construction trash — asphalt, boxes, used temporary lane tape, and broken tools — in weeds along the highway. According to The Maui News, arraignment on the charges was set for May 30 in Wailuku District Court.

Volume 6, Number 12 June 1996