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Hanalei boating HANALEI, Kauai >> Four years ago, Gov. Ben Cayetano appeared to end the lengthy war over commercial tour boats using Hanalei as a base for excursions along the Na Pali Coast by simply evicting the boaters.
debate flares up
A court order allows commercial
tour boats to use Hanalei as
an operations baseBy Anthony Sommer
tsommer@starbulletin.comBut today, it appears it's just begun.
In August, U.S. District Judge Helen Gillmor granted a permanent injunction prohibiting the state Department of Land & Natural Resources from shutting down the three remaining boaters regularly operating out of Hanalei: Bob Butler, Ralph Young and John White.
In late December, Gillmor issued a lengthy opinion explaining the reasoning behind her earlier order: No state has the right to prohibit commercial vessels properly licensed by the U.S. Coast Guard from operating in navigable waters of the United States -- including Hanalei Bay.
The ruling applies to any federally licensed commercial boating company.
It was like firing the starter's pistol at the Oklahoma Land Rush. Within weeks, boaters forced by Cayetano to operate from harbors on Kauai's south shore -- much more distant from the Na Pali Coast -- began exploring how they can get back into Hanalei.
And Mike Sheehan, owner of the boatyard at the mouth of the Hanalei River used by the boaters to maintain their vessels and load passengers, has been discussing reopening his facility.
Meanwhile, longtime opponents of commercial boating in Hanalei have not yet reacted. But they make it clear they are sharpening their spears for another legal battle.
The DLNR has filed notice it will appeal, although what its arguments will be are being held close to the state vest. Appeals to the 9th U.S. Circuit Court of Appeals take, on average, about a year and a half.
Friction with Hanalei residents opposed to tourism development dates back to the summer of 1977, when a single company began taking tourists from Kauai's north shore to the Na Pali Coast in rubber boats.
In 1985 the DLNR issued permits allowing 23 boating companies to operate out of Black Pot County Park at the mouth of the Hanalei River. The next year, the state agency increased the number of permits to 47.
In 1987 the Kauai Planning Commission approved a permit application from Sheehan to open a boatyard on the Hanalei River to serve as a base for the boating industry.
Also in 1987, a committee formed by the Legislature in 1985 to study the growing dispute over Hanalei boating recommended allowing interim use of Sheehan's boatyard in Hanalei until a permanent commercial boat landing facility on the Princeville side of the river could be built. The Princeville boatyard never was built.
In 1992 the Kauai Planning Commission passed a rule limiting the number of boating companies operating out of Hanalei to two motorized vessels, three sailboats and two kayak companies.
But the county never enforced the limit. More than 20 companies continued to operate with state permits but without county permits.
In 1997 the county tried to turn the dispute over to the DLNR. The state promptly recommended rules increasing the number of permits.
A coalition of environmental groups, north shore retirees and Hawaiian activists shouted down the proposal in an 18-hour marathon public hearing. The Kauai business community, which is deeply rooted in tourism, supported the increase in boating permits.
The proposal was never voted on.
In the summer of 1998, Cayetano, lagging far behind Linda Lingle in the polls, told the DLNR to toss all the boaters out of Hanalei except the few with county permits. Cayetano campaign signs immediately began sprouting in the front yards of north shore boating opponents. And the boaters without county permits moved to Port Allen.
By 2000 only three boating companies operated regularly out of Hanalei -- those owned by Butler, Young and White -- and the DLNR attempted to throw them out as well. The trio took the state to Kauai Circuit Court and won an order telling the DLNR it was acting in violation of the State Administrative Procedures Act and that it had to amend its internal rules to evict the three companies.
Last year, the DLNR adopted new rules outlawing all commercial tour boat operations in Hanalei Bay. The three boat owners made a beeline for U.S. District Court in Honolulu and won an injunction in August.
Now, the court's written ruling behind that injunction appears to throw the doors wide open for any tour boat company licensed by the U.S. Coast Guard to operate in Hanalei Bay and on the Hanalei River, which is also a navigable waterway.
"It's a great decision. It's a major wake-up call," said Sheehan, the boatyard owner.
But Sheehan is not slapping a new coat of paint on his boatyard facilities quite yet. "But I spent the whole day today with a lot of government officials," he said last week.
As it did a decade ago, the regulatory battle now seems likely to shift again from the bay to the land. Not addressed in the judge's ruling is whether tour boats have a right to use the land adjoining the bay to launch boats and load customers.
Boating opponents note that the state controls the beaches, and the county regulates the land adjoining them.
"Tour boats may be able to sail in Hanalei Bay, but if they want to use the land, they're going to need permits for a launch site, parking areas, restroom facilities. We can still limit the number of boats able to use the land," said County Planning Director Bee Crowell.
"I don't know what's going to happen," said Barbara Robeson, one of the most outspoken critics of Hanalei boating, who chaired the Planning Commission when the county's seven-vessel limit was written. "The judge's ruling covers the bay but not the land."