NEW & NOTEWORTHY: Updates on Lawsuits over Ka`anapali Tours, Mauna Kea Plan

posted in: March 2012 | 0

Off With Their Heads! The owner of the catamaran Queen’s Treasure is not giving up plying the waters off Ka`anapali without a fight.

On Valentine’s Day, two weeks after a federal judge denied its motion for a temporary injunction preventing the state Department of Land and Natural Resources (DLNR) from interfering with vessel operations, Ka`anapali Tours, LLC (KTL) filed a motion for reconsideration.

Last September, the DLNR barred KTL from adding Queen’s Treasure to its commercial use permit, claiming it allowed for monohull vessels only. (For more on this, read last month’s cover story and our EH-xtra item, both available at www.environment-hawaii.org.)

In its motion for reconsideration, KTL’s attorneys argue that the company has the right to operate any vessel from its inventory — either monohull or multihull — and that its current and previous permits anticipated the use of multiple vessels and the substitution of vessels. They point out that even owners with catamaran-only permits have a shuttle vessel registered with their catamarans.

The state failed to prove it erroneously renewed KTL’s permit and the court can’t assume, based on “unsubstantiated allegations,” that an error was made, they wrote. They suggested the court find that KTL has established a likelihood of success on its due process claim against the state.

KTL’s current owners believed the permit was valid when they bought it in 2009, the motion states. “They paid extra money [$200,000+] … because of the fact that it was a multihull/monohull permit. … Instead of attempting to take advantage of any improprieties, they sought the advice of government officials responsible and received assurances that their intended use of the permit was valid,” they wrote.

If the DLNR, which is responsible for ensuring compliance, failed to do so, “they created and caused the irregularities they currently complain of,” they wrote.

They added that regardless of whether the permit was erroneously issued or contains erroneous conditions, KTL should be given a catamaran permit.

They point out that only nine of the 10 Ka`anapali catamaran permits are active and KTL is the only company on the waiting list that has turned in the required catamaran registration. The 10th catamaran permit has been available since 2009 and should have been offered to the first person on the list, but no catamaran owner had paid the fee to be placed on the catamaran list until KTL did so in July 2011, they wrote, adding, “[KTL] … should be first on any catamaran wait list.”

A competitor of KTL prompted the DLNR investigation that led to its decision to block Queen’s Treasure from operating. And in its motion for reconsideration, KTL attacks its competitors right back. KTL points out that catamaran owner and operator Peter Wood, second on DOBOR’s list, is barred by DLNR rules from having more than one permit. KTL also argues that Ka`anapali Kai Charters, Inc., which already holds two permits, should have one of them revoked.

“Clearly, the DLNR is not doing its due diligence in maintaining the wait list and is thereby harming people who have applied for Ka`anapali Permits and paid the fees,” they wrote.

Thrice Denied: Parties opposed to the state Department of Land and Natural Resources’ comprehensive management plan for Mauna Kea, prepared by a University of Hawai`i consultant and approved in April 2009, were dealt a setback on January 25. That day, the Intermediate Court of Appeals affirmed a February 2010 3rd Circuit Court dismissal of their appeal of the Land Board’s decision to deny their contested case hearing requests.

The petitioners — which include KAHEA: the Hawaiian-Environmental Alliance, Mauna Kea Anaina Hou, Clarence Ching, the Royal Order of Kamehameha I, and the Sierra Club, Hawai`i Chapter — argued that the Land Board had violated statutory and constitutional due process rights when it denied their petitions in August 2009. The 3rd Circuit Court found that because the plaintiffs had failed to show that a contested case hearing was required, the court lacked the jurisdiction to review the Land Board’s approval of the CMP or its denial of the petitioners’ contested case hearing requests.

In its decision, the ICA stated it had found no statute or rule requiring a hearing on a comprehensive management plan submitted for approval separately from a permit application. Therefore, it reasoned, a contested case hearing was not required by law.

Constitutional due process also failed to apply in this case, the ICA found, because the petitioners did not demonstrate how the CMP restricted public access or interfered with their cultural practices.

References in the plan to the University of Hawai`i’s management of access, parking, visitor traffic, off-road vehicle use, hiking, etc., are “nothing more than considerations for the future,” the ICA stated.

Volume 22, Number 9 — March 2012

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