The controversy over boating operations along Kaua’i’s North Shore, simmering for the last 15 years at least, has once more erupted into a full boil. The latest manifestation of the dispute takes the form of a lawsuit in federal court brought by Michael C. Sheehan and Patricia Wilcox Sheehan, owners of a boat baseyard along the Hanalei River.
Named as defendants in the suit, filed on November 29, 1993, are the county of Kaua’i, Mayor JoAnn Yukimura, the county Planning Commission, its Planning Department, three current or former planning directors, three current or former planning commissioners, one former Planning Department staffer, and two current or former county attorneys.
Escalating Action
The grievances alleged in the federal court suit have a long history, much of which was the subject of the September 1991 edition of Environment Hawai’i. (Readers wanting more background than can be provided here are urged to consult that issue by scrolling down to the September 1991 listing.)
But what may have been the last straw, so far as the Sheehans are concerned, was the county Planning Commission’s issuance of an order to the Sheehans to show cause why the various county permits issued to them for operation of the boat baseyard should not be revoked. That show-cause order, issued on September 24, 1993, was approved by the Planning Commission on the basis of a petition by the Planning Department to revoke, amend, or modify the Sheehan permits. That petition, in turn, was made by the Planning Department in response to the Planning Commission’s request last spring.
At the regular Planning Commission meeting of November 9, 1993, action on the show-cause order was continued. The day before, the Sheehans had filed in state Circuit Court a motion for a restraining order barring any Planning Commission action on the proposed revocation. According to statements made to the Planning Commission by Stacy Moniz, one of the attorneys for the Sheehans, and by county attorneys, an agreement had been worked out providing for the Sheehans to withdraw their motion for the restraining order and file instead a complaint in court against the Planning Commission, arguing that it lacked jurisdiction. In return, the Planning Commission would defer action on the revocation petition until after December 9, by which time the Circuit Court would have had time to hear arguments on the merits the Sheehans’ case.
Twenty days later, however, the federal lawsuit was filed.
Undeterred, the Planning Commission scheduled a hearing on the show-cause order to begin December 15. Once more, on the eve of the hearing, the Sheehans again asked the Circuit Court for a temporary restraining order. This time, Judge George Masuoka denied the Sheehans’ request.
On December 15, the Planning Commission took up the matter of the Sheehans’ permits. A vote will probably not be taken for several months.
A Federal Case
In the federal lawsuit, the Sheehans seek damages totaling $35 million – $5 million in compensatory damages, $5 million for special damages (“including loss of contractual rights and anticipated fee collections and taking of private property”), and $25 million in punitive damages. They seek a declaratory judgment that the defendants’ actions “are an illegal attempt to regulate admiralty matters.” Finally, they seek payment of $1 million or more for attorneys’ fees.
According to the federal complaint filed by the Sheehans’ lawyers, Mayor Yukimura “has made it her personal and political goal, regardless of any vested property rights, civil rights or law, to stop tour boats from taking people sightseeing on Kaua’i’s North Shore.” After being elected mayor, the complaint states, Yukimura ordered the Planning Department and her appointees to the Planning Commission to destroy the boating industry. This, according to the Sheehans, “has cost hundreds of people their jobs, and it has cost the economy of Kaua’i millions of dollars.”
The Sheehans’ complaint states that the only reason they became involved in the construction of their boatyard in the first place was because they were asked by former Kaua’i Mayor Tony Kunimura and officials of his administration, as well as by officials in the state Department of Transportation. “To ‘help’ the county government by building a boatyard on their land.” Kunimura’s administration, the complaint continues, “assured the Sheehans that in return for their help … the Sheehans would be allowed to financially recoup their investment.”
The complaint does not discuss the specifics of any agreements or promises that might have been made by the Kunimura administration. In any case, the legality and force of any such agreements might justifiably be regarded as questionable, as would be the degree to which they would be binding on subsequent county administrations.
When Yukimura replaced Kunimura, the complaint states, she “broke these agreements and ignored the permits, and deprived the industry and the Sheehans of their rights and their property. Under her administration, the county breached the agreements with the Sheehans…. Yukimura and her supporters publicly harassed the Sheehans and the industry saying they have been operating illegally. Yukimura also used the county’s attorneys to legally harass the boaters and the Sheehans to try to put them out of business.”
Troubled Waters
Commercial tour boat operations along Kaua’i’s North Shore began in the mid-1970s.
A decade later, the Department of Land and Natural Resources was regulating through the issuance of State Park use permits, the landings of those boats along the coast of Na Pali State Park. In 1985, the DLNR also began to regulate, through the issuance of Conservation District Use Permits and revocable permits for use of state land, the use of beaches in Hanalei and Ha’ena for passenger loading and unloading. But with no ceiling on the total number of permits issued, some 23 operators had obtained permits by the end of September 1985.
And if that were not enough, the Land Board in December of 1985 gave its Division of Land Management authority to issue additional permits, so that by the time the 1986 boating season began, the daily permitted passenger carrying capacity of the permitted operators had grown to nearly 1,000 – an increase of roughly 40 percent over the level of activity permitted in September 1985. The number of permitted operators grew from 23 at the end of September 1985 to 42 by May 1986.
County Involvement
Because the DLNR’s permits were for activities that involved use of the Special Management Area (under county jurisdiction) as well as the Conservation District (under state jurisdiction), in 1985, the county issued the DLNR a SMA (minor) permit whose conditions would be incorporated by the DLNR in its issuance of permits to the boaters. Those conditions included a requirement that there be no parking of cars by passengers or employees of tour boat operators in the public parking lot for Anini Beach Park or Black Pot Beach Park. Instead, passengers would be shuttled from lots elsewhere in the area. In addition, no boat trailers or trucks would be allowed to park on government land.
Out of this ban on the use by boaters and their clients of public land for parking grew the Sheehans involvement with the boating industry. The Sheehan property lies directly across Weke Road from Black Pot Beach Park. By 1986, the Sheehans had applied to the county for permission to use parts of their property for parking of vehicles associated with the tour boat operations.
Expanded Use
That same year, the Planning Department hired Wilson Okamoto and Associates to prepare a Kaua’i Coastal Recreation Management Plan for the North Shore. The plan described four management alternatives: continuing the status quo; having the state Department of Transportation control commercial boating by securing management rights over the lands in front of Black Pot park and at the mouth of the Hanalei River; issuing permits as part of a county concession plan; or, finally removing boating activities from the Black Pot park area to the north bank of the Hanalei River Mouth, at Pu’u Poa Marsh.
According to the Sheehans’ complaint in federal court, that document was instrumental in their decision to establish the boat baseyard. “The Planning Department had determined in its Kaua’i Coastal Recreational Management Plan that the county needed a boatyard for the Kaua’i community and the tour boat industry,” the complaint states. “The county also determined that private interests could develop the boatyard much more quickly than the government. The Sheehans were the logical choice to develop the boatyard, since they owned the land where the boatyard needed to be located and they had the financial resources to make the necessary investment. It was only because the then-mayor and other county officials requested the Sheehans’ ‘help’ that the Sheehans built the boatyard on their property.”
In 1987, the Sheehans applied to the county for a Special Management Area use permit and other county permits to allow the use of their property as a boat baseyard. Although the Sheehans’ original application mentioned boat launching as a proposed activity, the application was later altered to omit launching.
The Permits
On June 24, 1987, the Planning Commission approved the permits “on a temporary basis” with the permits subject to annual review. The commission’s findings of fact associated with the permits makes mention of the Kaua’i Coastal Recreation Management Plan, describing the four alternatives, but does not contain language suggesting that the Sheehans’ boatyard is intended to address any particular alternative. In discussing the agreements arrived at during the contested case held on the application, the commission’s findings are that the agreement is based “on the assumption that sometime in the future, a permanent facility will be built in a less sensitive area on the North Shore that can handle this type of activity.”
(Nonetheless, according to the Sheehans’ complaint in federal court, “the Sheehans’ permits by their terms can only be revoked if and when the state builds an alternative boatyard facility, something the state has not done and does not plan to do.”)
The commission’s decision and order listed 13 conditions altogether, including a ban on boat launching from the Hanalei River side of the Sheehans’ property (unless later allowed by the Department of Transportation) and a restriction on the use of the boat baseyard to operators in possession of DLNR/DOT revocable permits, with the Sheehans to provide the Planning Department annually with a list of boatyard occupants.
Those revocable permits themselves were issued under authority of the umbrella SMA permit that the county issued to the state. Twice that umbrella permit was extended. But in October 1988, in the midst of heated, angry debate over its pending rules for the boaters, the DOT withdrew its application for another extension of the SMA permit. When the SMA permit expired, the boaters’ state-issued permits ran out, too. After that, any boater using the Sheehans’ baseyard put the Sheehans in violation of their county SMA permit.
Anarchy
Immediately after the state-issued revocable permits expired, Sherman Shiraishi, an attorney retained by some of the boaters, asked the Department of Transportation to allow the launching of boats from the Sheehan property.
Responding to the request on November 4, 1988, Dan Kochi, deputy director for harbors at the DOT told Shiraishi that recent events had made it “quite clear that as far as the County Planning Department is concerned, Sheehan’s SMA was intended for the purposes of boat storage and parking, and not for the purposes of launching and landing commercial boats. Sheehan’s SMA will need to be amended to permit the activities to occur off his property” something, Kochi noted, that would require preparation of an environmental assessment. In May 1989, Kochi informed the Planning Department that the Department had “no objection” to the launching of tour boats from the Sheehans’ property – but by this, he said in a later deposition, he did not mean to supersede county SMA rules and regulations.
In October 1989, the county planning director at the time, Tom Shigemoto, asked the county attorney for advice. The Planning Department believed that the intent of the restriction on boats to those “with existing DOT/DOR revocable permits was to prohibit new commercial tour boat operations… However, to our knowledge, all DOT permits that were issued to the commercial boaters at Hanalei expired on October 1988 and have not been renewed. This has raised the question as to whether or not the commercial tour boat operators with DOT permits that were in effect prior to October 1988 can be allowed to utilize the boat baseyard facility.”
Premature Request
In his response, county attorney Warren Perry wrote: “In the contested case on these permits, the participants vigorously provided input on the issues, and the Decision and Order reflects such. For example, there was concern expressed about the need for the users of the facility to have DLNR/DOT permits …; limiting the number of commercial operators…; not increasing the number of commercial operators and boat traffic in the Hanalei River…; and reducing the number of users through ‘attrition.”‘
“Therefore,” Perry concluded, “in order for a commercial operator to use the Sheehan facility the operator needs to have a valid DLNR/DOT revocable permit, and must have been such a permittee at the time that the Planning Commission rendered the subject Decision and Order.” With all valid boat permits having expired in 1988, “there are no operators with the proper permits to use the facility.”
“Further,” Perry stated, “it appears that attrition has occurred, and the DOT will have to decide … whether it will issue revocable permits to all or any of the prior permittees.”
On the basis of Perry’s recommendation, Shigemoto informed Michael Sheehan that his request for a building permit to construct facilities related to the boatyard “may be premature.”
Apparent violations
For the next four years, boats continued to operate from the Sheehans’ property. Records of inspections and observations made by Planning Department staff indicate that the Sheehans’ property was used for boat storage, minor repairs, washdowns, and parking long after the time when no valid boating permits existed.
In addition, the records show that the commercial boaters launched and unloaded from the Hanalei River onto the Sheehans’ property, that a number of unpermitted structures had been placed on the property, that waste oil had been improperly stored with spill stains observed on the ground, that someone was operating a photo developing shop and gift shop on the premises, that repairs of the sort specifically prohibited by the permit – “hulling out of hard-bottom boats,” “bottom work,” “grinding,” “fiberglass work,” “painting and repainting of boats” – were being made on the site, that fill had been placed in the Hanalei River, and that an unpermitted drain pipe emptied into the river. Junked trucks and an abandoned bus were parked on the grounds. The overall impression, according to a Planning Department report in 1993, was one of “a poorly managed and maintained facility without on-site personnel capable of supervising its operations and diverse users.”
The report, dated May 27, 1993 and written by Jeffrey Lacy, continues: “The general condition of the property is one of disarray more resembling an auto graveyard or junkyard. Based upon observations made at the site, an effective hazard mitigation response in the event of any significant flood event is unlikely. An attempt has been made to coordinate the painting of the various buildings in a dark green color and to maintain the customer-waiting area in a more presentable condition.
“The department did note apparent compliance with a number of the conditions of the permit in the area of environmental protection, including the provision of collection sumps in two locations and the installation of a septic system and leaching fields. However, it is questionable whether some of these facilities are actually used. Nevertheless, their presence may be offset by other, more severe threats to the environment.”
— Patricia Tummons
Volume 4, Number 7 January 1994
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