Is There Light at the End Of the Tunnels Dispute?

posted in: September 1991 | 0

More than anyone else, Clancy Greff has set the standard for what most people have come to think of as the way to see Kaua`i’s Na Pali Coast.

From Ha`ena, passengers are loaded into customized rubber rafts and taken up the coast. Several tours are available. Most include snorkeling stops, with boats anchoring in the coral heads off beaches that are inaccessible by overland routes. More expensive tours include landings on the beaches, with a picnic lunch provided. The return trip, usually against prevailing winds, may be likened to an amusement park ride in one of the world’s loveliest settings. Passengers scream as the boat pitches and rolls on steep waves, but the chance for harm is minimal.

Size and site set Greff apart from other tour operators. He operates more than 10 boats on Kaua`i and has for several years operated tours on other islands as well. And he alone is able to load passengers from Makua Beach, otherwise known as Tunnels, which is closer to Na Pali Coast State Park than is Hanalei, the base of operations for most of his competitors. This gives him an edge in attracting passengers, since they can see and do the same things in his tours in three or four hours that other operators take five or more to see.

‘Captain Zodiac’

Precisely because of their site and size, Greff’s operations — called variously Captain Zodiac Raft Expeditions or Na Pali Zodiac — have set him apart in yet another way: controversy. Elsewhere in this issue the early history of Greff’s business is discussed. The move from Ke`e Beach to Makua Beach was accomplished without property owners at Makua having been given any opportunity to comment. The early protests of adjoining landowners were unavailing.

When Greff’s operations expanded, however, the protests were renewed. Although his Conservation District Use Permit set a two-boat limit, by 1984 Greff was running many more boats than that. An October 23, 1984 letter from a group calling itself the Ad Hoc Committee to Save Tunnels Beach brought this to the attention of the Department of Land and Natural Resources.

That letter, signed by Wayne Ellis, Sr., Charles Forward, H.P. Groesbeck, Marge Groesbeck, and Barbara Robeson, provides some indication of the extent of Greff’s activities at this time: “As many as 92 people at a time have been counted gathering for zodiac rides, and often as many as seven boats at a time arrive for each of the three to four trips a day… Up to four zodiac boats at a time have filled this channel all season for the loading and unloading of passengers and refilling of fuel tanks….

“Passengers … are often observed using the brush or adjacent private property [to relieve themselves]…

“The representation of the operators that the company would transport the customers in their own vehicles has not occurred. Private transportation is used almost exclusively.”

As before, their complaints fell on deaf ears at the DLNR.

To Tell the Truth

Greff had indeed informed the Department of Land and Natural Resources that he would investigate the use of shuttle buses to alleviate the problem caused by passengers parking on private property. On May 31, 1985, however, Greff wrote DLM Administrator James Detor that he “had looked into acquiring special buses … The cost of such vehicles would be around $35,000 each and we would need at least two. To purchase these vehicles would be a bit premature with respect to the controversy in Ha`ena.”

It was not “premature” so far as at least one property owner was concerned. By letter dated July 26, 1985, a lawyer representing the estate of Lyle S. Guslander wrote Greff that “our investigation reveals that you are now, and for some time have been, using the estate’s property in the furtherance of your business… You have been using the property, or a portion thereof, for the purpose of launching your vessels, the parking of your patron’s automobiles … and in general have been utilizing the estate’s property without any authorization or permission whatsoever… You are hereby instructed to cease and desist all and any use of the subject property.”

Greff’s response was flip. He stated that “we have never, in nine years, used your subject’s property… I advise your law firm to take another look at your investigators because they certainly are not doing their job!! You might look in the phone book for Magnun PI [sic], perhaps he can straighten your information out.”

Notwithstanding Greff’s protests of injured innocence, a year later he was telling State Parks Administrator Ralston Nagata that the idea of shuttling passengers to Makua Beach was still premature. Shuttling “200 passengers a day to Ha`ena would require us to purchase four buses at a cost of $40,000 each. Insurance liability would also add about $40,000 to this cost, which would total $200,000 to implement. … Also, the owner of the property adjacent to Tunnels Beach, Grace Guslander, has continued to allow the public to park in this area. She has asked if we are interested in leasing the area and we are waiting to work out a more formal arrangement with her.”

That apparently did not work out. In 1988, Greff finally seems to have requested permission from the Guslanders to use the property for parking, in return for which he would pay property taxes, insurance, and an unspecified monthly fee.

The owners’ response was unambiguous: “The land in question is zoned conservation and therefore may not be the site of commercial activity without special permit from the appropriate government authorities,” Nan Guslander informed Greff on May 19, 1988. “We do not have the authority to grant anyone the right to use the property for commercial purposes. Please be advised that we object to anyone parking on the property and that you should cease and desist from instructing your customers to park there and/or any use of the property yourself or by the company Captain Zodiac Raft Expeditions.”

By June of 1988, Greff was negotiating with the Division of State Parks for use of a state parking lot at Ha`ena, with his customers to be shuttled by bus to Makua. By July, Greff was able to use the parking lot with the blessing of the Board of Land and Natural Resources. Since 1989, he has been using the parking lot in exchange for one quarter of one percent of his gross monthly receipts.

Second-Guessing the Board

One of the most extraordinary aspects of Greff’s business has been the way he parlayed a permit to operate two boats into one allowing him 10 boats (but which at times would appear to exceed even that).

At the time he sought original Board approval, Greff had two boats in operation, but he was seeking to permission for four. The Board denied this, limiting him to two. From that time up to 1985, Greff’s permits clearly stated that they authorized “a maximum of two inflatable boats.”

In 1984, the Division of State Parks should have been tipped off to an increase in Greff’s operation over his permitted limit. For one thing, there were the neighbors’ complaints, mentioned earlier. For another, when he submitted the required proof of insurance, the policy stated that it covered “crew and passengers on seven (7) zodiacs.”

In 1985, the renewal of Greff’s permit, still for just two boats, was handled in routine fashion. On April 1, Ralston Nagata, administrator of the Division of State Parks, sent to Greff four copies of his Special Use Permit 81-02, which had been approved by the attorney general’s office and signed by Board Chairman Susumu Ono and Board Member Douglas Ing. Paragraph number 10 repeated the language in prior permits: “A maximum of two inflatable boats are authorized to operate under this Permit. All boats used in this service shall be clearly identified.”

Greff was asked by Nagata to “notarize, sign and return” the copies. “One of the main reasons the Na Pali Coast became a state park was to control public use of the area,” Nagata reminded Greff. “Thus we anticipate that your tour boat operation may generate more passengers than we wish to accommodate at Nualolo Kai or elsewhere. Please keep in mind that our objective is to maximize the number of visitors only to the extent the natural or cultural resources are not damaged and most visitors do not feel the area is overcrowded.”

When Greff returned the permit, the first sentence of Paragraph 10, which limited Greff to two boats, had been scratched out. In the margins appeared Greff’s signature and the initials of the notary. With a stroke of the pen, unchallenged by any state official, Greff had broken through the two-boat ceiling on his operations.

Post Hoc Justifications

If anyone at the DLNR observed what Greff had done, it is not evidenced in departmental files. However, when Greff’s permit was up for Board renewal in May 1986, staff recommended that Greff be limited to eight boats. According to BLNR minutes for the meeting of May 23, 1986, Greff told the Board that the staff was recommending a cutback in his operations, which would “cause a severe hardship.” At present, he had five 17-passenger boats, three 15-passenger boats, one 8-passenger boat and one 6-passenger boat, he said. Reducing operations to just eight would force him to lay off 15 of his 60 employees, he claimed. In the end, the Board voted to allow Greff to operate 11 boats, one of which was to be used exclusively for service or rescue. Each boat would be allowed up to three landings per day.

Even that was not sufficient for Greff. By March of 1987, Greff’s monthly activity reports listed 13 boats. By May of that year, the number was up to 14.

In 1989, the state Senate was considering resolutions requesting the DLNR to cease issuing landing permits for tour boats along the North Shore of Kaua`i. A memo, apparently written in April 1989, from Board Chairman William W. Paty to Senators Milton Holt and Lehua Fernandes Salling provides an account of what transpired at a hearing on those resolutions on April 11, 1989:

“Senator Fernandes Salling requested we provide information regarding conflicting testimony between Mr. Clancy Greff and Mr. Ralston Nagata as to whether Na Pali Zodiac had obtained a Conservation District Use Permit … regarding Mr. Greff’s boating activity at Tunnels. Mr. Nagata was in error. Mr. Greff obtained Conservation District Use Permit in April 1978. While that permit limited the activity to a two-boat operation, the subsequent increase to ten boats was not considered formally as a CDUA amendment. Such consideration is discretionary for the department.”

Good Years

Greff has represented his business as a small, family-run outfit. Records of what he has paid to the DLNR suggest a contrary view. For the first two years of his permitted operations (1978 and 1979), Environment Hawai`i has been unable to find any record that Greff paid fees for landing at Na Pali Coast State Park beaches. Starting in 1980, he paid $250. In 1981, business was better, with landing fees no longer being the minimum $50 a month, but well in excess of that ($1,160 paid for May-September operations). By 1985, Greff paid $3,920 in landing fees for the year.

Starting in 1986, with boaters out of Hanalei paying fees for landings at Hanalei, Greff was told to begin paying fees for his use of Makua Beach. Landing fees for Makua Beach now are assessed at 2 percent of his gross operating revenues (in addition to set fees for landings in Na Pali Coast State Park). Greff’s payments to the state increased nearly 10-fold from 1985 to 1986, when they reached $36,170. With the exception of 1989 — when payments fell to $33,665.08 — Greff’s revenues have steadily risen. (1989 figures are, however, incomplete: Environment Hawai`i could find no record that Greff made any payment for July in that year. If the July payment was made, and if it was in line with the average level of activity for that month in other years, the overall 1989 payments would be on a par with those of other years.) In 1990, the last year for which figures are available, Greff paid $58,338.48 to the state for the use of Makua Beach and landing sites at the state park.

A Grounded Fleet?

For the last two years, Greff has been warned by the Division of State Parks that the Office of Conservation and Environmental Affairs would be requiring him to submit a Conservation District Use Application if he desired to operate more than two boats at Makua Beach. In May 1989, the Board extended Greff’s permit for 10 boats for the 1989 season, but, according to minutes of the May 26 meeting, that was to be Greff’s last year under the old permit. Thenceforth, the Board decided, permits for landings at Na Pali Coast State Park would be issued on the basis of competitive bidding.

The next year, Greff again was seeking renewal of his permit. The Board was informed that he had been urged to submit a CDUA, but he still had not done so. Nonetheless, the Board decided once more to extend the permit until June 1991. Greff was told by the Board that after July 1, 1991, no more than five boats would be allowed at Tunnels in any case.

In 1991, Greff finally submitted a CDUA, seeking to move five of his boats to Hanalei, with the remainder to be run, as before, out of Makua. The CDUA would not be decided by the Board until after the 1991 summer season ended. Thus, yet again, in June, Greff was seeking Board approval for continued full operation, of at least 10 boats, out of Makua Beach.

Once more, he got what he wanted — at least for the current season. On July 19, 1991, after a prolonged and heated discussion of the issues, the Board allowed him to continue his operations through September 30, 1991. Only after that, it decided, would he be required to reduce his operations at Makua to no more than two boats — the number originally approved by the Board in 1978.

Greff has filed in the courts an administrative appeal of the Board’s decision. Among other things, he claimed that the eight boats that the Board was seeking to remove “make no landings along the Na Pali Coast and therefore no CDUA nor Special Use Permit is required.” Additionally, he alleges that the Board has no legal authority to act in the fashion it did.

Greff is not the only party offended by the Board’s action of July 19, 1991. Wai Ola, a non-profit group organized to protect the Hanalei River, also has appealed the Board’s decision in state circuit court.

Volume 2, Number 3 September 1991

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