Editorial: Foot-dragging Agencies No Match for Runaway Boats

posted in: Editorial, September 1991 | 0

For the last 14 years, public officials in Hawai`i have talked a lot about controlling boating activity on Kaua`i’s North Shore. They have drawn up plans for regulating boaters through bids and concessions. They have jawed on about carrying capacities of Na Pali Coast State Park, of Hanalei River and Bay, of Makua Beach. They have promulgated rules.

Most recently, they have been led into arcane and scholastic discussions about their very ability to regulate commercial activity at the state’s beaches.

Enough already.

State law clearly empowers the Board of Land and Natural Resources to regulate commercial activity in the Conservation District and on state land (beaches fall into both categories). Just as plainly, it gives counties power to regulate development that occurs within the Special Management Area on the mauka side of the beach.

For any number of reasons – many of which we would rather not speculate on — both county and state authorities have had to be dragged into enforcement actions against the boaters, and even then, only the most anemic knuckle-raps have resulted.

The outcome is a situation that is now egregiously out of control. Boaters operate with impunity. Enforcement efforts are half-hearted. Courts are filled with cases that may take years to bring to completion.

Worst of all, the rule of law has been eroded. Political favors, traded liberally, have ensured that operators who scorn the state and county rules and regulations are now doing land-office business. Operators who have played by the rules have taken a financial drubbing. The lessons one can draw from the experiences of Kaua`i’s charter boaters do not strengthen civics-class notions of fair play and equality under the law.

“Mess” is not quite the four-letter word that comes to mind when attempting to describe the present situation. It will do for print purposes, however.

A Turning Point

The Board of Land and Natural Resources took a small corrective step at its July 19, 1991 meeting on Kaua`i. The permits of three operators to make landings at beaches along Na Pali Coast State Park were renewed. One of the operators, Clancy Greff, was told, however, that he would have to cut back his Makua Beach operations by 80 percent when this year’s summer season ends on September 30.

The Board had little choice in the matter. Since 1989, it had been telling Greff to move his operations. Facing a certain court challenge whatever it did, it no longer had an easy out.

The County of Kaua`i played a role in shaping the political climate in which the Board’s action occurred. In June, the administration of Mayor JoAnn Yukimura decided to crack down on boaters operating in the Hanalei River without SMA permits. The state Department of Transportation followed suit, enforcing (albeit briefly) their rules for the first time since 1988.

The enforcement actions are being challenged in court by the boaters — or, at least, the ones who continue to be represented by Martin Wolff. Still, it is a welcome change to see county officials no longer waiting for a white knight (Legislature, courts, mediators) to bail them out of their difficulties. And in any event, unless the county badly botches its case (it has done this in the past), it will probably prevail in court. Wolff’s argument rests largely on the premise that the boaters do not need an SMA permit because Michael Sheehan, owner of the boat yard out of which the boaters operate, has an umbrella SMA permit that covers all his clients. Actually, a condition of Sheehan’s permit is that anyone using it would be required to have whatever permits the state was requiring. No state permits have been issued by the Department of Transportation for boaters operating in the area of the Hanalei River mouth for the last two years. Thus, not only the boaters, but Sheehan as well, would seem to be operating in violation of county rules.

Mass Transit, Beach-style

As we report in this issue, for as long as the boating operations have been in place on Kaua`i’s North Shore, the Division of Land Management and the Office of Conservation and Environmental Affairs, both agencies within the Department of Land and Natural Resources, have been at loggerheads over the proper regulation of the use of the beach by patrons of commercial operators. Last month, this dispute finally came to the attention of the Land Board.

The position of the Division of Land Management — that no regulation is desired or required — is untenable and flies in the face of state law. Be that as it may, since 1978 the DLM has managed to subvert the clear intention of the Board, as set forth in the conditions it attaches to approved Conservation District Use Applications. Specifically, the Board has uniformly required applicants to obtain from the DLM some “disposition” (a permit, lease, or license of one sort or another) for the applicant’s occupancy of state beach land. Not once has the DLM acquiesced in providing such disposition.

The appearance of this dispute on the Land Board agenda of August 23 may have resulted from oversight on the chairman’s part (Paty quite obviously did not want to have the department’s dirty linen aired in public). Still, embarrassment or no, it is wholly appropriate for the Board to be informed of what is going on at the divisional level, especially when a division’s actions contravene the Board’s clearly stated directives.

So far as the specific issue of “beach transiting” is concerned, it would appear to be far more difficult for the DLNR to get out of the business of regulating beach activity than Mason Young, DLM administrator, might wish. Legislation enacted this past session shifts responsibility for recreational boating activity back to the DLNR from the Department of Transportation, starting July 1, 1992. In addition, the law specifies that the DLNR is to include in its regulatory purview the “embarking and disembarking of passengers” at public beaches.

Board Games

The fact that in 1985 Clancy Greff unilaterally altered the conditions of his Conservation District Use Permit we find to be most distressing. Equally distressing is the fact that no one in state government called him on it. For his impudence he was rewarded the following year with formal Land Board approval of his expanded operations, which were presented to the Board as a fait accompli.

But perhaps most distressing of all is the statement that appears in a memo from Board Chairman William Paty four years later. In that memo, to Senators Milton Holt and Lehua Fernandes Salling, Paty said that Greff indeed had permission to operate 10 boats, even though the original permit limited him to two. The department has the discretion to alter Board-awarded permits, Paty told the senators.

We doubt seriously whether Bill Paty wrote the memo. It certainly does not seem to be in keeping with his refreshing efforts to make the Board and the Department in general more responsive to public opinion than in the past. After all, if Board action, taken after agonized consideration of frequently fractious public comment, can be reversed or altered on the whim of a faceless, nameless staff person, the whole process by which the Board makes its decisions is turned into a farce.

Our own thinking is that Paty should track down the insubordinate idiot who put such words in his mouth (the Division of Land Management would probably be a good place to start looking), haul him out to the woodshed for a serious talking-to, and inform the entire DLNR staff in strong language that Board-established conditions are subject to amendment the Board alone. Whoever drafted this memo has attempted to justify unauthorized staff by action by inventing a discretionary power for the department that cuts the heart out of the statutory purpose and authority of the Board. Such discretionary powers are unacceptable to the public and, we submit, to Paty and other Board members as well. If staff continues to exercise such ill-considered “discretion,” then the DLNR is truly out of control.

That ‘Draft EIS’

Finally, the actions of Wilson Okamoto and Associates, Inc., deserve special attention. Wilson Okamoto prepares many of the environmental impact statements submitted in connection with projects throughout the state. One can only wonder what caused their work on the boaters’ draft environmental impact statement to be so shoddy. They should have known better than to think that Chapter 343 provisions could be waived. They certainly should have known that the cursory responses to early criticisms of the draft EIS would be inadequate.

By submitting a document that stands a very good chance of being rejected, Wilson Okamoto would seem to have put its own reputation at risk of substantial damage. Surely no one who faces the lengthy process of obtaining permits for development in Hawai`i would want to have that process prolonged by the shoddy product of the EIS consultant.

Ultimately, of course, the responsibility for submitting a complete and satisfactory environmental impact statement rests with the applicant — in this case, any boater who wishes to operate out of Hanalei River. That EIS may be a long time coming, but neither the county nor the state has any obligation to the boaters to rush the process.

Volume 2, Number 3 September 1991

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