Thursday, November 18, 1999

State of Hawaii

office sidesteps
Kauai boating

Cayetano's office says
he merely 'offered an opinion'
on the Hanalei River dispute

By Anthony Sommer
Kauai correspondent


HANALEI, Kauai -- Gov. Ben Cayetano had no legal authority in August 1998 to order all tour boats out of Hanalei, a lawyer for two remaining tour boat operators planned to tell a judge today.

The governor's office insists Cayetano didn't order anybody to do anything, he merely "offered an opinion." It was the Boating Division that did it, a spokeswoman for the state's chief executive claims.

Meanwhile, the Boating Division tomorrow will ask the state Board of Land and Natural Resources to approve a public hearing on proposed changes to the Hanalei boating rules.

The proposed changes match exactly what the governor did more than a year ago: They would forbid any commercial tours except by kayak in the Hanalei area.

"It just brings the rules into conformance with what already exists," said Boating Division chief Howard Gehring. The Boating Division comes under the Land Board and the Land Board is appointed by the governor.

Existing state laws and rules and regulations allow up to 15 tour boats to operate out of Hanalei.

But today there are only three and they are operating only because of a court order halting the state from kicking them out of Hanalei.

Dennis Niles, attorney for boaters Ralph Young and John White, planned to argue to Kauai Circuit Judge George Masuoka:

Bullet The governor did not go to the Legislature to change the law.
Bullet The Department of Land and Natural Resources did not go through the hoops required by the Hawaii Administrative Procedures Act to change the existing rules and regulations.
Bullet Cayetano didn't even sign an executive order. And, if he had, it would have been illegal because nothing in the laws or rules had been changed.

All Cayetano did was make a speech as part of his re-election campaign, Niles planned to argue, and that isn't legally binding on anyone including the candidate.

Meanwhile, the governor's office is pointing the finger at the Department of Land and Natural Resources, which technically forced the boaters off the North Shore.

DLNR says it was only following orders. The governor's office insists it gave no orders.

"The governor didn't issue an edict. He issued an opinion," said Jackie Kido, Cayetano's spokeswoman who is generally credited as the authoress of whatever it was the governor uttered.

Kido's husband, UH biologist Mike Kido, led the effort to have the Hanalei designated as an "American Heritage River."

"The governor provided a view of what Hanalei could and should be. That's his role. He's a leader," Jackie Kido said.

Indeed, the governor's news release at the time says Cayetano "is in favor" of moving all boats out of Hanalei. Michael Wilson, then chairman of the Land Board, is the one quoted as saying the boaters "will be phased out."

Kido punted the ball to the Land Board and its current chairman, Tim Johns, who did not return a call requesting his comments.

Whether an order to the Land Board or an opinion to no one in particular, Cayetano's words in 1998 created two classes of boat operators.

Immediately banished were 11 boating companies operating from Mike Sheehan's boatyard at the mouth of the Hanalei River. All had been running without required permits but no state or county agency had cited them.

At the same time, the state neglected to collect hundreds of thousands of dollars in taxes the boaters owed. Most are now operating on Kauai's south shore with the same casts of characters but new corporations that can't be held liable for the old corporations' taxes.

Three others who held both state and county permits -- Young, White and Bob Butler (who is not a named plaintiff in the lawsuit but who will be affected by the outcome) -- were allowed to operate for one more year.

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