The Hanalei boating controversy is, hands down, one of the most complex in the state. No comprehensive history of the subject has yet been published, nor do we pretend to fill this need here. Many aspects of the conflict are not even mentioned much less explained. What follows is merely an overview of a few of the most notable events in the history of boating on Hawai’i’s North Shore.
The tour-boat industry began in the mid-1970s, when owners of rubber-hulled Zodiac boats started carrying passengers from Hanalei and Ha’ena along Na Pali coast.
By the mid-1980s, the industry had grown substantially and the community was feeling the effects. While boating provided some employment, it detracted from residents’ ability to enjoy public beaches (especially Black Pot Beach Park, where boat passengers parked their rental cars) and Ha’ena State Park. In addition, the Board of Land and Natural Resources, which had determined that boat operators needed to obtain permits to use state-owned beach land to launch and retrieve their boats and load and unload passengers on beaches, showed no sign of limiting the growth of the industry.
The county of Kaua’i, meanwhile, was also grappling with the problem. The county has jurisdiction over the use of land within the Special Management Area that runs like a thin belt around the island’s coast. Under the state Coastal Zone Management Act (Chapter 205A, Hawai’i Revised Statutes), the county has responsibility for issuing SMA permits. To deal with the launch, retrieval, loading and unloading of tour boats, the country had issued an umbrella SMA (minor) permit to the DLNR, allowing the DLNR in turn to issue permits to the boaters.
In 1987, under direction of the Legislature, the DLNR transferred its Boating Division to the Department of Transportation. This transfer was one of the recommendations of a panel, called the Ad Hoc Committee, that the Legislature had advised the Department of Transportation to establish in 1985. The DOT also took over the “umbrella” SMA permit issued by the county, which the county renewed every six months. (Eventually, in 1992, the Division of Boating was returned to the fold of the DLNR, where it remains.)
When the SMA permit came up for renewal in the spring of 1988, the county informed the DOT that it would have to adopt rules for boating along the North Shore of Kaua’i before the permit would be renewed again in the fall. The DOT promulgated rules, but when it sought to have the county renew the permit, which was to expire September 30, the county planning director determined that the level of boating activity anticipated in the draft rules was so high as to constitute “development” within the SMA. And, under the Coastal Zone Management Act, the county could require – and indeed, was requiring – an environmental impact statement to be prepared.
The DOT responded by saying all it was doing was proposing rules, and for this, there was no requirement to prepare an EIS. With the DOT refusing to comply with the county’s request, the SMA permit expired, leaving the boaters without the shelter of the DOT’s umbrella permit and instantly making all their state permits invalid, effective October 1, 1988 – the very day, coincidentally, that the DOT’s Ocean Recreation Management Area rules for Kaua’i’s North Shore took effect.
A lot of lawsuits followed from this action. Boaters sued the state, seeking to require the state to prepare the EIS. An environmental group, Wai Ola, sued the state, saying the DOT rules were inadequate. And the county sued the boaters, asking the court to enjoin them from operations until they obtained SMA permits.
As an outcome of the county’s suit, on April 5, 1989, Third Circuit Judge George Masuoka enjoined 15 tour boat operators from conducting any activity within the Special Management Area of the Hanalei River mouth until they obtained county SMA permits. The county had been within its rights, under the Coastal Zone Management Act, in determining that boating constituted “development” as defined in that law, the judge ruled.
An association or boating companies called the North Shore Charter Boat Association attempted to obtain an umbrella SMA permit. These efforts sputtered along for a few years, but ultimately failed, owing (among other things) to the association’s refusal to identify to the county the operators who would be covered by the permit.
In 1989, then-Mayor JoAnn Yukimura attempted to resolve the conflicts through mediation. That ended abruptly, when the boaters walked out of a meeting with representatives of the county and environmentalists.
By mid-April 1991, the North Shore Charter Boat Association had given up on its efforts to obtain an umbrella permit and withdrew its application. Two months later, the Department of Transportation gave notice that it would begin to enforce its rules, and in July, it did so – for a total of eight days. Then the order came, from high within the DOT, for the enforcement effort to stop. Eventually, the citations were withdrawn.
The county had relied on the state to enforce state and county rules. Unable to rely on enforcement to achieve compliance, the Yukimura administration undertook a community planning effort known as the Hanalei Estuary Management Plan. From December of 1991 to June of 1992, community meetings were held and a plan developed. In September 1992, on the very eve of hurricane ‘Iniki, HEMP was adopted by the county Planning Commission and, to the present, remains the county’s guideline for boating on the North Shore.
In June 1993, the city issued seven commercial permits under rules implementing HEMP – two to operators of motorized craft; three to sailing vessels; and two to kayak companies. Those remain the only operators who have county permits and who have continually paid 2 percent of their gross receipts into the state Boating Special Fund.
In August 1993, Yukimura was frustrated by the ongoing activities of unpermitted boaters. She wrote then-Governor John Waihe’e, asking him to provide “vigorous enforcement” of the state’s boating regulations, which required boaters to obtain SMA permits as a condition of state permits.
Roughly a year later, the state cracked down, issuing more than 100 citations. The enforcement effort came to naught, however, when the citations were withdrawn because of difficulty of prosecution.
Shortly after that last enforcement effort, Yukimura lost her bid for re-election. The new mayor, Maryanne Kusaka, has been more sympathetic to the unpermitted boaters and has asked the state to withhold enforcement of its regulations.
At the same time Kusaka was elected, the state administration also changed. Appointed by newly elected Governor Benjamin Cayetano to head the DLNR was Mike Wilson, a lawyer who had a record of certain environmental causes. Environmentalists and others wishing to see curbs on the unpermitted boaters were for a time hopeful Wilson would finally enforce state rules. At his confirmation hearing in April 1995, Wilson stated that he would be sending two enforcement officers to Kauai specifically “to try to help the county of Kauai with some major enforcement situations that have to do with the number of boats.” He noted, however, that he had been in close communication with Kusaka, “and we’re interested in helping the county of Kaua’i when they decide which policy [on boating] they want to pursue, which I understand is probably going to be 15” boats.
Throughout 1995 and into 1996, an ad-hoc committee – whose meetings were not advertised and whose membership remakes for the most part undisclosed – met, at the instigation of Kusaka’s administration, in an effort to decide what to do in Hanalei.
By mid-1996, however, Kusaka was apparently frustrated by the state’s lack of any enforcement presence. “We had a commitment from Mike Wilson and the governor” to enforce county regulations, the Honolulu Advertiser quoted her as saying in its July 21 edition. With the Kauai office of the Marine Patrol having been shut down, there was no enforcement at all. “I cannot say how disappointed I am,” Kusaka reportedly said.
A year later, as the 1997 summer season was beginning, the state continued to show no interest in enforcement. At a town meeting in Lihue last June, Wilson said no enforcement would occur until summer 1998 at the earliest. “We will let the boaters know when we’re coming to enforce,” news reports quoted him as saying.
For More Information
“[url=/members_archives/archives_more.php?id=953_0_28_0_C]Boater’s Bounty Offer Casts Chill on Hanalei Activists[/url],” Environment Hawai`i, January 1996.
“[url=/members_archives/archives_more.php?id=1240_0_30_0_C]Owners of Hanalei Boatyard Allege Former Mayor Promised Them Profits[/url],” Environment Hawai`i, January 1994.
“[url=/members_archives/archives_more.php?id=954_0_28_0_C]County Boating Regulations Are Nearly Impossible to Enforce, Prosecutor Says[/url],” Environment Hawai`i, January 1996.
“[url=/members_archives/archives_more.php?id=996_0_28_0_C]Supreme Court Throws Boating Dispute Back to Kaua’i Planning Commission[/url],” Environment Hawai`i, June 1996.
“[url=/members_archives/archives_more.php?id=1023_0_28_0_C]County Has Right to Regulate Hanalei Boaters, Federal Judge Finds[/url],” Environment Hawai`i, October 1996.
[url=/members_archives/archives1991.php]September 1991[/url], entire issue of Environment Hawai`i. Scroll down to view article links.
Volume 8, Number 6 December 1997