A lawsuit brought by the owners of a Hanalei boatyard against several private citizens and the county of Kaua`i has been dismissed by a federal judge. The lawsuit, which had asked for $35 million in damages, probably is the largest SLAPP suit filed to date in Hawai`i.
(SLAPP stands for strategic lawsuit against public participation. Increasingly, SLAPPs are being used across the United States as a means of intimidating environmental activists and other concerned citizens from speaking out against the interests of developers.)
Judge David A. Ezra granted the defendants’ motions for summary judgment and dismissal of the claims of the plaintiffs, Michael G. Sheehan and Patricia Wilcox Sheehan. Basically, those claims center on an allegation that the county deprived the Sheehans’ of constitutionally protected due process when it adopted a management plan for the Hanalei estuary that impaired their ability to turn a profit from the boatyard they own at the mouth of the Hanalei River. In addition, the Sheehans argued that the state — not the county — has exclusive jurisdiction to regulate boating. (For background on this case, see the [url=/members_archives/archives_more.php?id=1240_0_30_0_C]Cover story in the January 1994 issue of Environment Hawai`i[/url].)
In his 28-page ruling of September 12, Ezra dismissed both claims. In reviewing the state Coastal Zone Management Act, he determined that the county was entirely within its rights to establish an estuary management plan intended to regulate boating traffic. Nor did the county violate the Sheehans’ constitutionally protected right of due process in adopting this plan, he found.
Stacy Moniz, attorney for the plaintiffs, has said he plans to appeal.
Ezra’s order is a vindication for the Kaua`i Planning Department and the regulations it has promulgated to control commercial tour boat traffic in the Hanalei area. As yet, the order has not put a damper on any boating operations, most of which lack county permits. The county has little ability to enforce regulations and relies on the state for this task. In July, Mayor Maryanne Kusaka said she had “a commitment from Mike Wilson [head of the Department of Land and Natural Resources] and the governor” to enforce county regulations if the department had funds for at least 36 Marine Patrol officers. The Legislature provided funds for just half that number.
What follow are excerpts from Ezra’s 28-page ruling. (We have added headings.)
While plaintiffs concede that their boatyard falls within an SMA, that it constitutes a ‘development’ pursuant to [state law], and that the county has a legitimate interest to regulate developments within the SMA [Special Management Area], plaintiffs nevertheless maintain that the county’s regulations of the Hanalei River pursuant to HEMP [Hanalei Estuary Management Plan] and to Chapter 19 of its SMA rules is illegal, arbitrary, and capricious, and without rational relationship to any legitimate county purposes.
‘Arbitrary’ Regulations
Plaintiffs contend that their SMA permit conclusively governed the land-based activities of existing boaters. Plaintiffs further argue that the county’s laws, rules, and ordinances regarding boating activities were pre-empted by state Ocean Recreation Management Rules and Area (ORMA) regulations as of September 30, 1988, and the county’s attempts to regulate commercial boaters at Hanalei after that date had no legitimate basis. The court disagrees.
Plaintiffs have the extraordinarily high burden of demonstrating that the legislative enactment at issue is ‘arbitrary and irrational.’ In order to survive the motion for summary judgment, plaintiffs must demonstrate the irrational nature of the defendants’ actions by showing that they ‘could have had no legitimate reason’ for their decisions. If it is ‘at least fairly debatable’ that the decision is rationally related to a legitimate government interest, there can be no violation of substantive due process.
The thrust of plaintiffs’ substantive due process claims seems to be their contention that the county overstepped its authority without just cause into an arena regulated by the state. Defendants, on the other hand, maintain that the county was acting under authority delegated to it by the state under the Coastal Zone Management Act. On a substantive due process claim, the court need not resolve the precise jurisdictional boundaries of state and county authority. The standard simply requires the court to look to see if the governmental agency, the county in this case, could have had a legitimate reason for acting as it did. Here, as demonstrated below, the answer is clearly yes.
The Coastal Zone Management Act is ‘a comprehensive state regulatory scheme to protect the environment and resources of our shoreline areas.’ The CZMA imposes special controls on the development of real property along the shoreline areas in order ‘to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawai`i.’ … ‘Development’ within an SMA is controlled by a permit system administered by the counties…
Under the language of the statute, however, it is also clear that one of CZMA’s goals is to protect the coastal waters from adverse environmental or ecological impact. ‘Development’ in an SMA is defined as ‘any of the uses, activities, or operations on land or in or under water within an SMA that [cause a] … change in the intensity of use of water, ecology related thereto, or of access thereto’ (emphasis added). Plainly read, this statute grants the county authority to regulate even non-land based activities that affect the intensity of use of those portions of Hanalei River which are included within an SMA. Furthermore, at least one state judge has ruled that commercial boating constitutes a ‘development’ within the meaning of the [CZMA], noting that ‘daily activities of loading and unloading hundreds of passengers, flushing of boat engines, and fueling and washing down of boats, at the very least, [could] cause a change in the ecology of the water at the Hanalei Rivermouth.’ For these reasons, the court finds that (a) the county’s interpretation of ‘development’ as including commercial boating in the Hanalei Estuary for purposes of CZMA/SMA regulations is neither arbitrary or irrational, and (b) under CZMA, the county has authority to regulate the activities of tour boat operators, who undoubtedly affect the intensity of use of the Hanalei River within the disputed area.
No State Pre-emption
Moreover, the court finds no merit to plaintiffs’ claims that the county’s authority to regulate activity in the Hanalei Estuary was pre-empted by state ORMA regulations. While it is true that the state’s Department of Transportation had jurisdiction over all ‘ocean waters and navigable streams,’ the county’s authority is not pre-empted by the Department of Transportation.
Second, the state Attorney General’s office has opined, based on its assessment of the statutes and their legislative history, that ‘compliance with Chapter 205A (CZMA) is primary before any agency can issue permits that authorize ‘developments’ within the special management area.’ According to the Attorney General, this means that ‘if the Kaua`i County Planning Director or Planning Commission requires commercial tour boat operators to obtain SMA use permits, then DOT cannot issue any commercial permits for the tour boat operators unless they comply with SMA requirements.’ From this opinion, the court concludes that, at the very least, the county has overlapping jurisdiction with the state over tour boat operators in so far as they impact the coastal areas around the Hanalei Estuary that fall within the SMA.
HEMP Guidelines
Likewise, plaintiffs’ objections to the Hanalei Estuary Management Plan guidelines (HEMP guidelines) based on substantive due process grounds also fail. The County of Kaua`i Planning Commission adopted the Hanalei Estuary Management Plan (HEMP) in 1992 to complement CZMA and other county regulations of the Hanalei Estuary. HEMP was developed, at the request of then-Mayor JoAnn Yukimura, to provide guidance in decision-making for all commercial boating within the Hanalei Estuary; the commission reviewed existing documents and held various town meetings to discuss environmental and economic concerns, infrastructure or the region, and the social impact of boating on the Hanalei community. Upon analyzing the information collected, the Planning Commission drafted recommendations to restrict commercial boating, invited comments to its preliminary drafts, and then issued the instant plan ‘for the protection and preservation of the natural ecological balance and visual qualities of the Hanalei Estuary.’
On their face, the HEMP guidelines are not arbitrary or irrational. The protection and preservation of the natural ecological balance and visual qualities of the Hanalei Estuary are legitimate county interests.
Plaintiffs do not dispute the county’s interest in preservation of the area, they direct their objections at (a) the fact that boating is water-based activity and the state has, in their view, exclusive jurisdiction to regulate boating in the Hanalei ‘harbor,’ and (b) the county pre-empted state regulations in bad faith. They contend that county’s infringement on an exclusively state arena is arbitrary and irrational.
Having carefully reviewed the plaintiffs’ objections, and the HEMP guidelines in their entirety, the court finds that plaintiffs fail to meet their high burden of making a ‘clear showing’ that the HEMP guidelines are arbitrary and irrational. Plaintiffs do not, and the court finds they cannot, demonstrate that defendants ‘could have no legitimate reason’ for adopting HEMP. It does not matter that the HEMP guidelines overlapped with other state and county laws; the fact is that the county has a legitimate interest in protecting the Hanalei Estuary, in involving the community in those preservation efforts, and in determining the maximum level of commercial boating within the framework of such involvement.
Motives Are Immaterial
Additionally, plaintiffs’ reliance on defendants’ alleged motives as the basis for their constitutional challenge is misplaced. Motives and the ultimate effect of a disputed action are immaterial where it is at least ‘fairly debatable’ that the actions are rationally related to a legitimate government interest. The court is not convinced by plaintiffs’ arguments that there was no change in intensity of use of the estuary in October 1988 that would give the county just cause under CZMA to regulate commercial boating. Even assuming that plaintiffs are statistically correct that use of the Hanalei River by boaters was decreasing, the court finds that the county’s interest in preserving the delicate ecological balance of the area was still implicated by the cumulative effect of commercial boating in the region over time.
Due Process Observed
Plaintiffs argue that they were deprived of the constitutional right to due process with respect to that property right [in their boatyard operations] in two ways: First, plaintiffs argue that the decision by the Planning Commission to require individual boating operators to obtain SMA use permits had the practical effect of destroying plaintiffs’ vested property rights; they challenge this decision because it was made without public notice or a public hearing.
Second, plaintiffs contend that the adoption of HEMP violates their procedural due process rights because the notice and meetings were constitutionally deficient. Specifically, plaintiffs insist that they were entitled personal notice of the meetings because of the direct affect of the legislation on their property. Also, they dispute the validity of the town meetings on grounds of bias because of the organizational role played by Kaua`i’s 1,000 Friends, who they contend are ‘a noted anti-growth, anti-commercial boating, environmentalist organization.’
Procedural due process is required only where there is a protectable property interest involved. The property interests protected by the due process clause are defined by state law. Under Hawai`i law, there is no protected property rights to discretionary special use permits. [T]he court finds no protectable property interest with respect to the regulation of commercial boating which gives rise to procedural due process protection here.
Similarly, the adoption of HEMP does not implicate the procedural due process clause. As a general rule, procedural due process protections are only available for administrative actions, not for legislative actions. For the most part, the enactment of general plans and zoning ordinances are characterized as legislative acts because they affect a large number of people.
The HEMP guidelines at issue in the instant case establishes a general plan to provide guidance for the regulation of commercial boating in the Hanalei Estuary. The HEMP guidelines are similar in nature to zoning ordinances and general plans in that they are all general laws or regulations affecting the public at large. Although the HEMP guidelines may have had a significant impact on plaintiffs’ boatyard operations, HEMP was not an administrative decision. [P]laintiffs’ due process claims regarding lack of notice and potential bias at the hearings ring hollow.1
- 1. The court notes for the record, however, that the Planning Commission held four ‘town meetings’ in Hanalei, Kaua`i, on December 6 and 19, 1991, and January 10 and 18, 1992. The Planning Commission presented a draft of HEMP at ‘public information meetings’ on February 5 and 7, April 2, and June 30, 1992. It appears that the town meetings were publicized through notices in the newspaper, on radio and television, and posted in the community. And apparently, Plaintiff Michael Sheehan was present at all four town meetings and the February 5, April 3, and June 30, 1992 public meetings.
Volume 7, Number 4 October 1996