STAR-BULLETIN / 2001 Judge Alan Kay has not yet decided whether there should be a charge of $3 for tourists visiting Hanauma Bay.

Hanauma entry fees
pass initial court test

A U.S. judge dismisses all but
2 challenges to the city's policies

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By Gordon Y.K. Pang
gpang@starbulletin.com

A federal judge has thrown out a number of the counts challenging the city's admission fees at Hanauma Bay Nature Preserve but held off on deciding whether there is a "rational basis" for the city to charge tourists $3 to enter.

U.S. District Judge Alan Kay dismissed all but two of seven complaints brought against the city by two mainland visitors who argued that the 1996 ordinance is improper because it applies only to those whose cannot show proof of Hawaii residency.

Among Kay's rulings was that the admission policy did not violate Hawaii law granting free access to roads and beaches -- which stunned those challenging the fees.

"We are disappointed that (Kay) did not recognize that we have a fundamental right in Hawaii to move freely in a public space," said Jim Bickerton, attorney for those challenging the admission policy.

"That's the core of what we've been arguing."

Kay also ruled that the nonresident-only fee did not violate the First Amendment rights to free speech and association as was claimed by the lawsuit. He further ruled that being stopped at the turnstile and asked to pay admission does not constitute an impermissible search and seizure.

The city has argued that the bay, as a nature preserve, is in need of special protection and that the funds collected go toward, among other things, an educational program for visitors coming for the first time.

"The city remains committed to preserving the irreplaceable and fragile environment at Hanauma Bay," said Corporation Counsel David Arakawa in a prepared release.

"Today's developments are a positive step toward achieving that goal."

Arakawa added, "We will be consulting with our attorneys to determine how best to follow up on the two motions that weren't granted, and we're hopeful those claims will eventually be dismissed as well."

The two unresolved issues deal with whether the city legally is allowed to charge only one segment of the bay's visitors, and whether the city has a jurisdiction to charge any fee at all.

Kay still wants to hear the "rational basis" the city has for setting up a policy that charges one segment of park visitors and not another.

Bickerton calls the admission fee an "unauthorized taxation," arguing that only the state has the authority to impose such a charge. The city has yet to offer to the court its explanation for charging nonresidents, noting only that the fees go toward maintaining and upgrading the facilities at the site and that giving locals preferential price treatment is a long-standing practice in Hawaii.

Part of the revenues is going toward a controversial project creating new facilities on the upper bay, which includes bermlike structures for an educational center, offices and gift and snack shops on the cliffs above the bay. The cost is approaching $13 million, and opening is now scheduled for July 9. Entrants to the facility will be required to view a film showing do's and don'ts about swimming in reef areas.

But Bickerton said, "The city, by law, can only charge fees for services, and we say they're not providing any services if you just want to walk down to the beach."

The City Council approved the $3 fee for nonresidents in March 1997. A $1 fee for parking was also enacted that applies to both residents and visitors.

Bickerton said he expects the case to be heard in January.