On February 24, 1997, the Department of Attorney General released a letter disclos ing its findings that the Division of Boating and Ocean Recreation had failed to carry out the intent of the Kane’ohe Bay Master Plan and had also ignored the law giving force to most of the terms in that plan.
The letter was addressed to Rep. David Tarnas, chairman of the House Commit tee on Ocean Recreation and Marine Re sources; Rep. Terrance Tom, whose dis trict includes Kane’ohe; and Sen. Mike McCartney, also representing the Kane’ohe Bay area. On February 4, the three legisla tors had written the attorney general, seek ing answers to six questions about DOBOR’s regulatory actions raising two additional concerns.
Here are some highlights of Tam’s re sponse.
As to whether the moratorium should still be in effect, Tam responds: “Yes, sub ject to the additional restrictions in the Master Plan,” which were placed into law by Act 317 of the Legislature in 1993. “[T]he moratorium and the other limitations es tablished in the Kane’ohe Bay Master Plan remain in effect until the department adopts rules consistent with the Master Plan … or until section 200-39(c) is re pealed on July 1, 1998, whichever occurs first,” Tam writes.
The second question asked by legislators was whether any permit issued after the moratorium took effect other than for “replacement of existing equipment at equal or smaller capacity” – would be illegal and therefore null and void.
Again, Tam answers in the affirmative: “Yes (until July 1, 1998), unless the new permit issued after the moratorium complied with both the transition rules and the new limitations in the Kane’ohe Bay Mas ter Plan… Except as provided in the Master Plan (or otherwise provided by law), no other permit is authorized after the date of the moratorium until the adoption of rules carrying out the plan.”
The legislators asked if Act 317 requires the DOBOR to carry out all provisions of the master plan. Certain things in the master plan are binding on the DLNR, pursuant to Act 317, Tam answers, and the department is required to adopt rules regulating thrill craft, snorkeling tours, glass-bottom boats, and other commercial operations.
The fourth question: Do permits issued by the DLNR have to be consistent with the master plan? “Yes,” Tam writes, adding that, as noted earlier, “the transition to the new limits requires that any new permit conform to the restrictions established in the Master Plan.”
The question was raised specifically in regard to permits issued by DOBOR to the two large full-service commercial opera tors. Referring to the master plan, Tam notes that each of the two allowed commer cial operators is limited to 150 passengers a day on its “host” vessels.
“[T]he 180-person capacity for the Royal Princess exceeds the aggregate total regis tered vessel capacity of 150 passengers” that the master plan establishes, Tam writes.
In addition, the increase in capacity violates the transition rules set by the mas ter plan, Tam says. The transition rule “prohibits new vessels with a greater capacity than the old vessels,” he writes. “Old vessels obtaining new permits must still comply with the 150-passenger aggregate carrying capacity requirement…
“Thus, new vessels that have a larger capacity than the vessels in use on July 1, 1990 (baseline census date) or vessels which do not conform to the master plan’s transi tion rules and the new overall limitations on commercial activities are, by definition, not in compliance with the Kane’ohe Bay Master Plan requirements.”
In response to Question No. 5 of the legislators – whether the Ale Ale Kai and the Royal Princess exceed the master plan limits – Tam states: “The available evi dence appears to indicate that both the passenger capacity and the vessel capacity of the Royal Princess exceed the limita tions… We do not have sufficient informa tion at the present time to fully evaluate the status of the Ale Ale Kai.”
The last question of the legislators con cerned whether permits other than those on record as of October 1, 1991, are legal, and, if so, whether they are limited by the plan.
Tam notes that the October 1, 1991, date is “significant” under the transition rules set forth in the master plan, since that is the date “for determining incumbent permit holders of record who have a right of first refusal in the permit category in which they are operating.” Still, he adds, “for purposes of conforming with the Kane’ohe Bay Mas ter Plan,” there is no distinction between permits issued before or after that date.
The legislators raised two other con cerns in their letter, Tam notes. First, that the DLNR Division of Boating and Ocean Recreation “has not provided the 30-day advance public notice requirement for an nual commercial permit renewals,” as re quired by the master plan. Second, they noted that the DLNR has not proposed administrative rules to implement the plan, contrary again to the master plan and legis lative directive.
“Finally,” Tam notes, “the plan requires DOBOR to submit a Conservation District Use Permit Application and environmen tal assessment for the commercial uses of the submerged lands.” This, too, DOBOR has failed to do.
Volume 7, Number 11 May 1997
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