The operation of charter boats along the North Shore of Kaua`i began, by most accounts, in the mid-1970s. Tom Hegarty, a charter boat operator, has said he started carrying passengers for hire in 1975. Clancy Greff, whose nom de mer is Captain Zodiac, claims his charter trade began in 1976.
On September 20, 1977, the Department of Land and Natural Resources issued its first citation to a charter boat operator for the offense of using Conservation District land without a permit. The operator, whose identity does not surface in public records, was loading passengers at Ke`e Beach “and along beach areas in front of private properties.” (Under state law, all beaches are in the Conservation District, are held to be state lands, and are available for the use of the public. But state law also requires any commercial user of Conservation District land to receive a permit prior to operating. Commerce in areas administered as state parks is further restricted.)
A few days later, on October 3, Greff applied to the Board of Land and Natural Resources for official permission to make his landings at Kalalau, Miloli`i and elsewhere along Kaua`i’s Na Pali Coast.
From that day to the present, controversy over the proper regulation of the charter trade along Na Pali Coast has raged. Parties to the fray include a host of state agencies, the mayor, Council, Planning Commission and Planning Department of Kaua`i County, several dozen charter boat operators, several environmental organizations, and private landowners.
Kaua`i has been the focus of most disputes over charter boat regulation, but other islands may soon find themselves faced with similar controversies. Several of the operators on Kaua`i have been running similar boat tours on Maui and the Big Island. More generally, conflicts between commercial users of ocean resources and the residential or rural nature of the areas where commercial uses are occurring are becoming ubiquitous in Hawai`i.
Potential Conflicts
At the time of Greff’s Conservation District Use Application, the Division of State Parks, a branch of the Department of Land and Natural Resources, commented favorably on his operation. “The types of Zodiac activities already occurring include: conduction of tours, transporting, landing, and pickup of recreationists and others at the major beaches along the coast,” State Parks noted. “If continued, these types of uses may have a major impact on the physical environment, type of recreational uses, and management concerns along the Kalalau Trail and in the major valleys.”
“While the benefits of increased access are readily recognized, more subtle adverse impacts may also be involved,” the comments noted. “In all likelihood, the availability of motorized transportation will allow a greater variety of persons to visit areas which … they were not able to visit previously. While this increase in the availability of a wildland experience … is nice, there is also a possibility that conflicts between visitors of different values, attitudes and actions would be increased. Communication with frequent visitors to Kalalau Valley revealed the presence of this conflict.”
Nonetheless, the Division of State Parks staff wrote, Greff’s assistance “during cleanup, field check and rescue operations has been appreciated.”
The DLNR’s Planning Office, which at that time processed CDUAs, determined that the potential environmental consequences of Greff’s operation were not so great as to require an environmental impact statement. Richard Marland, then the administrator of the Office of Environmental Quality, took exception to that decision. “In our review of the [Greff] application, we raise some serious issues and question the determination that an EIS is not required. First, it is important to note that the proposed action for the CDUA has been and is currently in operation… Moreover, the application is after the fact…
“Secondly, the Na Pali Coast is one of the most spectacular and impressive areas of the Hawaiian chain. Its remoteness and inaccessibility have preserved and enhanced its quality. Increasing the accessibility to these isolated areas may have a significant and perhaps detrimental impact on the environment… Monitoring of the area becomes difficult, if not impossible…
“In light of these issues, we recommend that a full environmental impact statement be required and that the CDUA not be approved until such time that an EIS has been accepted.”
Under Chapter 205A, Hawai`i Revised Statutes, counties are given responsibility for regulating coastal development landward of the high water mark through their authority to issue Shoreline Management Area permits. People wanting permission from the Department of Land and Natural Resources for activities along the coast need to obtain either an SMA permit or a waiver from the county before the DLNR will continue processing their application.
In this case, officials at the county Planning Department determined that because Greff’s operations involved state land below the high-water mark, the actions were makai of the county’s SMA jurisdiction. The county did recommend, however, that no expansion of the existing operation be allowed.
Traditional Activity?
At a public hearing on Greff’s CDUA, held February 16, 1978, Roger Evans of the Planning Office made a statement to the Board of Land and Natural Resources that captures the inchoate thinking of departmental staff with regard to the boating issue. “[T]o those who express a concern over the possible adverse effects to unique, beautiful and sensitive characteristics of the Na Pali area, what has been their contribution to date to resolve the ongoing problems now caused by transients at Kalalau Valley and beyond. All the well-meaning words, written or spoken, cannot succeed within the implementation of a practical means to protect the environment. Moreover, it is with a high degree of certainty that a historical research of the area will find such activities as part of the past. The only apparent difference at this time is that a price tag is included.” (To date, historical research has not borne out the idea that ancient Hawaiians motored down the coast in inflatable rubber rafts.)
Evans said that Greff’s proposed use would help control litter and pollution in the more remote coastal areas. “Let it be noted,” he added “that the sharing of a wilderness experience should not be limited to only the affluent or the physically able. The proposed use and other co-existing activities should be accepted as inevitable and controlling, practical measures should be developed for early implementation to curb unwanted exploitation of the Na Pali area.” Greff himself acknowledged the need for such control in a letter to Chairman William Thompson January 27, 1978. In that letter, Evans told the Board, Greff had said that “if by giving me a permit opens the door to all the big time businessmen with all this money, … the Board [should] deny my permit in order to stop mass exploitation.”
April 19, 1978: The Board of Land and Natural Resources meets. Agenda item H-2 is Greff’s CDUA. The Board hears Roger Evans recommend approval of Greff’s application. It concurs, but sets further conditions on his operations: “that only those operations occur in which the passengers are landed directly on the beach itself, for safety reasons; and that no use of Ke`e Beach be authorized.” Although Greff requests permission to operate two more boats besides the two now in use, the Board limits him to a maximum of two Zodiac boats.
If Greff’s success gave hope to other charter boat operators who had applied for Conservation District Use Permits, that hope was short-lived. Tom Hegarty, Patrick Hanes and Alan Esposito, all proposing charter operations from Hanalei Bay to Na Pali Coast, were told by the Planning Office that — unlike Greff — they would need to prepare full environmental impact statements. Because of the difficulty of complying with EIS requirements, Esposito withdrew his CDUA voluntarily. Hegarty and Hanes saw their requests denied by the Board based on their inability to comply with EIS requirements by the end of the 180-day review period for CDUAs.
Forgotten Conditions
In approving Greff’s application, the Board authorized the Division of State Parks to regulate the loading and unloading of passengers by commercial boat operators at beaches in Na Pali Coast State Park. The other end of Greff’s operation, at Ha`ena, was moved from Ke`e Beach, within the state park, to Makua Beach, popularly known as Tunnels.
Makua is a rural area. Land along the beach is privately owned. To the extent development has occurred, it has been in the form of single-family houses. An easement over private land provides access to the beach. Ha`ena Beach Park, half a mile away, provides the closest public restrooms and showers. No other amenities or services — snack bar, sundries shop, grocery store, snorkel concession — are within half a day’s walk.
Despite the lack of facilities, notwithstanding the residential character of the neighborhood, and in the face of the DLNR’s own rules that would seem to require notice to adjoining landowners as well as a public hearing prior to siting commercial activity at Makua, the Board of Land and Natural Resources planted Greff’s operations there. All it required of him was that he “obtain from the Division of Land Management proper disposition” of the state-owned beach land he intended to use.
This Greff did not do — at least not at once. On September 18, 1978, Michael Doran, an attorney representing landowners at Makua, wrote Board Chairman Thompson: “For the last four weeks I have been attempting to find out your department’s position as to the legality of Mr. Greff’s operation. According to the newspaper reports and also to Mr. Roger Evans of your department, a determination has been made that Mr. Greff has been operating illegally because he does not have a permit allowing him to operate on state land. Mr. Evans has also informed me that a letter to Mr. Greff had been placed on your desk for your signature requiring that he cease operating. However, numerous phone calls to you during the last four weeks have failed to elicit any response as to whether this letter actually has been signed and sent out.”
“As I mentioned to employees of your department,” Doran continued, “Mr. Greff’s customers trespass and throw garbage on [clients’] land, disrobe on the beach in front of their houses and generally make a nuisance of themselves. We are, however, unable to advise our clients as to what actions they should take because of our inability to get any answers from you. It would be appreciated if you give us a straightforward answer on this matter immediately.”
The Buck Is Passed
When Thompson responded to Doran on October 23, 1978, he stated that indeed Greff was required to “take the necessary steps to acquire land disposition.” A request for this was made by Greff, on September 29, 1978, Thompson wrote. “I trust this clarifies our position in the matter.”
It did not. Doran wrote again on November 2. He pointed out that by Thompson’s own admission, Greff had not yet obtained disposition of the land from the Division of Land Management. Doran asked Thompson if it was “your department’s position that he can continue operating until the Division of Land Management makes its decision?” Would Greff be required to submit an environmental impact statement before disposition was granted? Was there any procedure “for having your department reconsider its issuance of a permit to Mr. Greff?”
As Doran was striving to get straight answers, activity at the Department was taking ever stranger turns. While Greff’s permit clearly required him to obtain “proper disposition of the land” from the Division of Land Management, when Greff sought this (in his September 29 letter), his request was forwarded not to Land Management, but to State Parks.
And by November 29, 1978, when Thompson answered Doran’s second letter, he brushed aside any talk of Greff’s needing clearance from the Division of Land Management. “No land disposition is required, provided the boater … does not involve the use of state lands for landings,” he wrote. “Conceivably, it would be possible for any seacraft to remain offshore for pickup and dropoff of passengers and equipment” — this despite the specific instructions of the Board to Greff that “only those operations occur in which the passengers are landed directly on the beach itself.”
“In the situation at hand,” Thompson wrote, “the Division of State Parks will issue the permit, following Land Board approval.”
Regarding the trespass of private lands by Greff’s customers, Thompson suggested that Doran’s clients summon police assistance.
Doran tried yet again, writing the entire Board on February 12, 1979. Thompson’s past responses had left Doran and his clients “in a quandary as to Mr. Greff’s status.” “One of the most troublesome issues that arises out of all this confusion,” Doran wrote, “is that it appears that there has been no recognition by the state of its responsibility to control Mr. Greff’s embarkation point.”
When Thompson replied on May 7, 1979, he gave up any claim to the very ability to control such activity. “Please be advised that there is no statute or regulation in effect at the present time which would preclude Mr. Greff from taking on and discharging passengers on state beaches, provided he does not solicit business on the beach itself… Mr. Greff’s customers are considered part of the ‘general public’ and, therefore, have the right of free access and use of state beaches.”
On June 7, 1979, Greff signed his first Special Use Permit issued by the Division of State Parks. It limited him to a maximum of two boats carrying no more than 360 persons per calendar month. He was required to pay $50 per month or three fourths of one percent of his gross receipts, whichever figure was higher.
Uncontrolled Growth
For several years, Greff was the only charter operator with official Board approval to land at Na Pali Coast beaches. He was not the only operator, however. In the early 1980s, the charter boat trade along Na Pali Coast grew steadily, with almost all of the boats picking up passengers along Hanalei Bay or at the mouth of the Hanalei River.
Anticipating the need to control visitor traffic to Na Pali Coast State Park, the Board of Land and Natural Resources had instructed the Division of State Parks to prepare a management plan for the State Park. On August 22, 1980, the Board gave preliminary approval to a plan, but told the Division of State Parks to proceed with developing a more detailed approach to managing visitors in the park.
In March 1983, the Division submitted a revised management plan to the Board, which approved it with minor changes. The plan called for the Division of State Parks to regulate commercial use through the award of concessions. “High intensities of use will not be allowed in the Na Pali Coast State Park,” except for Ha`ena and Polihale, which are accessible by road, the plan stated. “Medium intensity will be established at Miloli`i where access is limited to boats… Light intensities of use will be established beyond Hanakapiai Valley to the end of the trail at Kalalau Valley, and medium intensity at Nualolo Kai. Lightest use will be at Honopu Beach which has no facilities and will be left entirely in its natural condition.”
In discussing visitor use, the focus was exclusively on land activities, such as hiking, camping, and picnicking. At no point does the plan mention off-shore activities, despite the rise in snorkeling and sight-seeing tours over the previous few years.
Hanalei Free-for-all
By 1984, at least five charter boat operations were operating out of Hanalei Bay. Smaller boats would load passengers directly from either the sandbar at the mouth of the Hanalei River or from the beach alongside Hanalei pier. Owners of larger boats, moored in the bay, would use dinghies or small inflatables to shuttle passengers from the beach to their boats and back.
Several of the operators had tried to determine whether state permits were needed for their business, but to no avail. In December 1983, for example, Don Moses and Ann Kawamoto Moses, doing business as Lady Ann Cruises, wrote the DLNR inquiring what, if any, state permits would be needed for their operation of larger, solid-hull charter boats. For the next two years, they operated out of Hanalei without benefit of a reply.
In August 1984, an officer with the DLNR’s Division of Conservation and Resource Enforcement made the following report of charter activity observed in Hanalei Bay between 9 and 11 in the morning. “Five charter boats were seen anchored close to shore at the site ready to load passengers which they all did after a half-hour and left. Inquiry of the boat captains revealed none held Conservation District use permits and were advised to apply for it.”
Tom Hegarty, one of the operators, had applied for a Conservation District Use Permit in 1978, but had been denied. In 1984, he made another application to the Land Board — this time not seeking a CDUP, but rather asking for Board approval of a Special Use Permit to be issued by the Division of State Parks, granting him landing rights along Na Pali Coast State Park. This he received August 24, 1984.
At the same time, another operator out of Hanalei, Richard Marvin of Blue Water Sailing, submitted a Conservation District Use Application, not for the use of state park land but for the use of the beach next to the Hanalei Pier as a site for embarkation and debarkation of passengers on his tours. At the public hearing on his CDUA, Marvin gave this background to his request:
“When I took over the operation of Blue Water Sailing after last summer and in the winter months started putting together what we needed to do first with the conversation with Mr. [Sam] Lee to see if we did need a permit to load and unload people off the beach, and he said he was not sure and to inquire with your office [the Planning Office], which I did.” (Sam Lee is the Kaua`i agent for the Division of Land Management.) The Planning Office responded by sending him a CDUA form to complete, Marvin said, leading him to believe a Conservation District Use Permit was required for his operation.
Marvin may have thought that his application would give him the edge over the competition. It did not work out quite that way.
First of all, the Planning Office recommended that the Board fine Marvin $500 for past “land use violations.”
Marvin protested: “Never was I told or instructed by any department, federal state or county, never was I led to believe that I was indeed operating in violation. A $500 fine is unwarranted and out of line with my honest efforts to secure the first state permit to operate here in Hanalei Bay.”
Adding to the injustices Marvin listed was the fact that boat operators loading and unloading from the mouth of the Hanalei River appeared to be altogether beyond the reach of DLNR concern. “I was never aware,” Marvin told the Board, “that a CDUA was not required in the Hanalei River. The jurisdictions in this area are not always clear. I would have willingly originated my charters from the Hanalei River had I information and had a clear understanding for the need or lack of need for permits … in the pier and river areas.”
On May 23, notwithstanding the warnings of Lee, Wilcox and others, the Board of Land and Natural Resources extended the permits of all operators through June 30, 1987. As it turned out, that was the last time the Board would do so. In response to recommendations by the Ad Hoc Committee, the DLNR in 1987 cheerfully turned regulation of commercial boating activities in Hanalei Bay and the Hanalei River over to the Department of Transportation. Had anyone hoped the DOT would better manage the charter boaters at Hanalei, those hopes were soon dashed.
Lines in the Sand
Before the story gets confused even further, it may be helpful to review the situation as it existed in July 1986. The County of Kaua`i had issued a minor Special Management Area use permit to the Department of Land and Natural Resources. The DLNR, in turn, under the authority of the county permit (for activity mauka of the beach) and under statutory authority (for activity on the beach and on submerged lands), had issued permits for charter boat operators loading and unloading passengers at Hanalei Bay and Anini Beach. (Anini Beach was little used, however.)
Almost 50 boats, owned by more than 40 operators, were allowed to operate under DLM so-called revocable permits. Boaters were charged from $10 to $30 per trip as a landing fee, depending on passenger capacity. Each month they were to report on the number of trips made and submit a check in the appropriate amount. The DLNR had to trust the boaters to make honest reports; it had no ability to monitor permit compliance on a routine basis.
According to the county’s “Kaua`i Coastal Recreation Management Plan, North Shore, Kaua`i,” prepared by Wilson Okamoto and Associates, Inc., nearly all the boats fueled in the water. Trucks hauling fuel tanks would back into the water either from the beach alongside the pier or from the boat ramp. Hoses would transfer the fuel from the tanks to the boats, despite the clear language in the permits prohibiting this. That same document noted that boaters were using water and electricity from county park facilities, contrary to the terms of their revocable permits. The report noted that “operators of larger boats moored next to the wharf, hooked up garden hoses to the park hose bibs and filled water tanks on board prior to departure. After the tour, the garden hoses were reconnected and the boats were extensively rinsed.” Operators of Zodiac-type boats launched and retrieved from the county boat ramp also would use county hose bibs to rins their boats off. On one occasion, an operator was observed hosing down his boat for nearly half an hour.
The Board of Land and Natural Resources had given authority for three operators to land at beaches in Na Pali Coast State Park (Greff, Hegarty, and Lady Ann Cruises). Greff and Lady Ann had been issued CDUAs for their landings; Hegarty, on the other hand, was landing on the basis of a Board-awarded Special Use Permit, issued through the Division of State Parks.
At Makua Beach, Greff’s operation had swollen to at least 10 boats, but he had not yet received (nor, apparently, would he ever obtain) the “land disposition” from the Division of Land Management regarding his use of Makua Beach as point of embarkation.
The Boat Yard
1987 was a watershed year. In January, Michael Sheehan proposed to the county his plan to develop a boat yard on property owned by his wife’s family. The previous season, Sheehan had been providing parking on his land to tour boat customers, with operators paying the fees. Now, Sheehan was asking for a Shoreline Management Area permit and related permits to allow him to develop about 9 acres as a base of operations for some 15 charter boat companies. Boats could load passengers along the river bank fronting his land, he said, relieving congestion at Black Pot Beach Park and alongside the Hanalei Pier. Sheehan also wanted to allow boat repair and maintenance on the site.
On June 24, 1987, the commission granted approval “on a temporary basis,” with the permit to be reviewed the following year. As a condition of the permits, Sheehan could let no operators other than those holding valid state permits use his facilities. Another permit condition called for Sheehan to provide “a listing of occupants … to the Planning Department for verification on a yearly basis.” Also, Sheehan was told that “any request for boat or vessel substitution, additional boats, transfer of revocable permits, increase in passenger capacity … shall be subject to the review of the Planning Commission.” There was to be no “industrial” use of the property. It would not be a boat repair yard; nothing more serious than spark-plug changes or engine tune-ups would be allowed. Except for an office waiting area, the permit conditions stated, “no permanent facility shall be constructed on the project site.”
Anarchy in the Bay
As Sheehan’s application was being considered by the county Planning Commission, the state was preparing for the transfer of boating regulation on Kaua`i’s North Shore from the DLNR to the DOT. In May and June of 1987, administrators in the two departments agreed that the DOT would honor all revocable permits issued by the DLNR. When the county SMA permit came up for renewal in May, the DLNR asked that the DOT be made “co-applicant,” “pending transfer of management responsibilities” from the DLNR to the DOT. (The county complied.)
On May 26, staff from the DOT met with boaters to explain the transfer of regulatory responsibility. According to a progress report submitted to the director of transportation, the meeting was “to explain the procedures and requirements for obtaining” a commercial permit from the DOT. “We will use our Commercial Permit procedures in effect under our Small Boat Harbors Rules, as modified by a special addendum to incorporate the additional restrictions existing on the DLNR permits which are imposed by the Kaua`i County SMA permit issued for this activity.”
On June 12, 1987, the Land Board granted the DOT a “right of entry to state land” at Hanalei and Anini Beach, necessary if the DOT was to be able to monitor and enforce compliance by boaters with their permitted conditions of operation. Transfer of responsibility was accomplished July 1, 1987.
But when responsibility was finally transferred, it was on paper only. At the end of September, when the DOT sought a one-year extension of the SMA permit from the county, officials informed the Planning Commission that they had undertaken no enforcement actions during the preceding season. They had no authority to do so, they claimed, since they had no administrative rules in place. “DLNR rules are for DLNR people,” Charles Scharsch, Kaua`i district manager for DOT’s Harbors Division, told the Planning Commission, according to a report of the meeting published in The Garden Island. “My marine patrolman has three pages of violations and infrations that have occurred in Hanalei,” Scharsch was quoted as saying. He was unable to issue a citation, he reportedly said, because he was unable to cite any DOT regulations that were being broken.
According to a deputy county attorney, at least two boats had been operating out of Hanalei without any state permit, while seven boats were carrying more passengers than was allowed under the old DLNR permits.
Dead in the Water
The county extended the DOT’s Shoreline Management Area permit, not for the year requested, but for just six months — through the end of March 1988. Over objections from many in the Hanalei area, the county planning director determined that the activity was still eligible for a minor SMA permit — a determination, in other words, that the boaters’ operations met all three of the following conditions: they did not constitute “development,” as defined in Chapter 205A: they did not have a value of more than $65,000; and they did not have a significant adverse effect on the Shoreline Management Area.
Under the renewed SMA permit, the Department of Transportation would be allowed to approve boat substitutions, so long as total daily passenger loads would not increase. The Planning Commission also authorized the transfer of permits, subject to “review and approval by the Planning Commission.”
These two provisions eroded the foundation on which key recommendations of the Ad Hoc Committee’s were built. First, by leaving the door open to substitution of larger boats for smaller ones, the strain on already insufficient facilities might well be expected to increase. Second, by allowing the transfer of permits, they would become assets of the permit-holders. Attrition would not occur, and the likelihood grew dramatically that large businesses from outside the immediate area would buy out existing operators.
Although the Transportation Department’s SMA permit lasted only through March 1988, the department renewed boaters’ permits through the end of June 1988. On learning this, county officials were piqued. However, they gave the DOT an extension of the SMA permit through September, with the clear warning, however, that before this extension was up for renewal, the DOT would have adopted the long-promised rules for charter boat operators on Kaua`i’s North Shore — rules, the DOT was reminded, that would “take into consideration the recommendations of the … Ad Hoc Committee relative to controlling the total number of tour boat operations and shall address boat substitutions or additions, passenger capacities, transfer of permits and the maximum number of trips per day.”
A Great Leap Backward
In September, the Department of Transportation had those rules ready for public comment. By that time, the county was under increasing pressure from community and environmental groups with regard to its continued issuance of minor SMA permits to the DOT. Evidently growing weary of taking the heat, the county informed the Department of Transportation that it would also have to provide an environmental assessment of the impact of boating activity, “if required by the planning director.” The DOT did submit an environmental assessment, finding that no adverse environmental impacts would result from boating activity at the levels anticipated in the proposed rules.
Although the DOT said its rules were modeled on the Ad Hoc Committee’s recommendations (per instructions from the county and the Legislature), the rules were harshly criticized by, among others, members of the Ad Hoc Committee. One of those members, Carol Wilcox, described the DOT rules for Hanalei as “a proposal that, without saying the word, is a harbor, if not a marina. It is a proposal which accommodates private enterprise wishing to use these public lands for a for-profit industry. These administrative rules imply a marina and a dredged and very likely channelized river mouth. This is a proposal that makes no accommodations for the traditional uses of the area nor does it provide protection or controls for an environmentally important and sensitive ecosystem.”
At a hearing September 28, 1988, before the county Planning Commission, the DOT’s proposals again came in for strident attack. The Sierra Club, Kaua`i’s Thousand Friends, and Wai Ola all recommended that before any further extensions of the umbrella SMA permit to the Department of Transportation, a baseline study of the ecology of the Hanalei River be completed. The 1988 Legislature had appropriated funds for just such a study, following recommendations of the Ad Hoc Committee. At the time of the DOT’s permit renewal request, no study had begun.
The Planning Commission granted standing to Wai Ola as an intervenor in the case. Wai Ola challenged not only the DOT’s rules, but also the determination by the county planning director that an environmental assessment from the DOT would be sufficient. In Wai Ola’s view, boating operations were of sufficient magnitude to count as “development” by the standards included in the Chapter 205A, thus triggering a full-blown environmental impact statement. The commission also allowed the North Shore Charter Boat Association and Napali Kaua`i Charters, Inc., to intervene, in support of the Department of Transportation.
It was all too much for the Department of Transportation. It withdrew its SMA use permit application on October 11, 1988. All it was intending to do, it claimed, was promulgate administrative rules — and for this, no environmental consequence would result. In what appears to be a fit of bureaucratic pique, it suspended enforcement of its new rules; if everyone was so upset by them, it seemed to be saying, then see how they like it if we do nothing.
The DOT’s withdrawal of its SMA permit application upset the boaters, who, since October 1, 1988, had been operating without permits. Without the DOT obtaining the umbrella permit, the only recourse the boaters had was to acquire individual SMA use permits from the county.
Suddenly the Kaua`i court was doing land office business. The boaters sued the DOT, in Weghorst v. State of Hawai`i, seeking to force the DOT to prepare an environmental impact statement. The county sued the boaters (Planning Commission of Kaua`i v. Paradise Adventure Cruises, et al.), seeking to force them to obtain county SMA permits for their activities. The environmentalists sued the state (Wai Ola v. State of Hawai`i), alleging the DOT rules were insufficient.
The most significant outcome of the proliferating litigation was the injunction issued by Judge George Masuoka of the Fifth Circuit Court. On April 5, 1989, in Planning Commission v. Paradise Adventure Cruises, et al., Masuoka sided with the county, finding that since October 1, 1988, boaters operating in the area of the Hanalei River mouth had been doing so without the necessary SMA permits. Under Chapter 205A, the county was within its rights in determining that the boating activity constituted development, the judge ruled. The 15 tour boat operators named by the county in its suit, therefore, were enjoined by Judge Masuoka “from ordering, initiating, conducting, performing or executing any tour boat activity within the Special Management Area that includes the Hanalei Rivermouth area.” “Tour boating activity,” he further specified, “shall be defined as the launching or retrieval of tour boats, the loading or unloading of passengers onto or off of tour boats, fueling or washing down of tour boats, or flushing of tour boat engines.” The injunction was to remain in effect “until further order of the court.”
By the time of the injunction, however, most boaters had moved out of the river mouth (the area of clearest county jurisdiction). They were either leaving their boats in the water or launching and retrieving them from the state-owned launch site beside Hanalei Pier. Passengers were loaded from the beach fronting Black Pot Park rather than from the river. The county’s jurisdiction did not extend to these areas of activity, and the boaters continued to operate — inconvenienced, perhaps, but not injured.
That year, the boaters turned to the Legislature for help, seeking to exempt their activity from the definition of development in Chapter 205A. (Nothing came of their efforts.) And in Lihu`e, within a week of Masuoka’s order, they organized a demonstration in front of the county building. Mayor JoAnn Yukimura told the 60 or so protesters she would ask the Planning Commission to expedite permits for the boaters if they could show that their operations did not harm the Hanalei River.
On April 20, 1989, the North Shore Charter Boat Association, acting on behalf of most of the boaters, applied to the county Planning Department for a Shoreline Management Area permit. Accompanying the application was an environmental assessment, stating that the environmental consequences of the industry were negligible.
In the meantime, Yukimura was seeking a negotiated settlement to the conflict. Mediators from the state’s Alternative Dispute Resolution Center were invited to help, and for three weeks, they met separately with Wai Ola and representatives of the boaters. When the warring parties finally were brought together with county officials, the boaters immediately walked out. From that time to the present, they have been operating in the Hanalei River and in Hanalei Bay virtually free of any effective state or county regulatory control.
The Department of Transportation has not issued state permits to the boaters at Hanalei since 1988. The county has been attempting to get the boaters to submit satisfactory applications for SMA permits, but has yet to award any.
In June, the County of Kaua`i began issuing citations to boaters without SMA permits. In August, Wolff challenged the authority to issue such citations. On July 15, 1991, the Department of Transportation, which for nearly three years had not seen fit to enforce its boating rules, began also to cite boaters without DOT permits. (Eight days later, the order went out to DOT officers to stop any enforcement actions “until further notice.”)
In July, Wolff received court approval to withdraw as legal counsel for most of his boater clients, the chief reason being their failure to pay legal fees to him. He continues to represent the larger operators, however.
There is little reason to think that a resolution of the boating issue will come quickly. If it does not, the Legislature — which has stood on the brink of enacting amendments to Chapter 205A that attempt to settle the matter, one way or another — might finally be pressed into action.
Volume 2, Number 3 September 1991
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