The three remaining commercial boaters operating out of the Hanalei River got a belated Christmas present last week from U.S. District Judge Helen Gillmor. In a 41-page order, Gillmor determined the state’s rule banning the three permitted companies from operating
The three remaining commercial boaters operating out of the Hanalei River got a belated Christmas present last week from U.S. District Judge Helen Gillmor.
In a 41-page order, Gillmor determined the state’s rule banning the three permitted companies from operating out of Hanalei violated the U.S. Constitution.
“As currently enforced against Plaintiffs, Hawai’i Administrative Rule 13-256-36 is unconstitutional to the extent that it prohibits Plaintiffs’ vessels from operating on the navigable waters of Hanalei Bay while carrying fare-paying passengers, as it violates (1) the doctrine of conflict preemption based on the Supremacy Clause of the United States Constitution, and (2) the Commerce Clause of the United States Constitution,” Gillmor wrote in her conclusion.
The Commerce Clause gives the U.S. Congress the ability to make laws relating to commerce in the United States, and the Supremacy Clause declares that federal law is the supreme law of the land.
Gillmor granted the plaintiffs’ motion for a permanent injunction prohibiting the state from using the administrative rule – initially enacted in November 2000 – to effectively shut down the three remaining permitted commercial tour boat operations.
However, “permitted” is something of a misnomer in this case, as the permits for the three remaining companies expired in February of last year, and the state Department of Land and Natural Resources would not renew them.
Court rulings allowed the boaters to resume operation in August, near the tail end of the peak summer season, after they were effectively shut down for the first seven months of last year.
The plaintiffs are Ralph A. Young, doing business as Hanalei Sport Fishing & Tours; Whitey’s (John White) Boat Cruises, Inc., a Hawai’i corporation doing business as Na Pali Catamarans; and Robert F. Butler, Jr., doing business as Capt. Sundown Enterprises.
Young feels the state has little choice now but to issue the three plaintiffs permits allowing them to continue operating.
The written order issued last week amplifies Gillmor’s issuance of a permanent injunction in favor of the plaintiffs in August of last year.
The state has a right to appeal Gillmor’s decision to the Ninth Circuit Court of Appeals in San Francisco. Yesterday, Deputy Attorney General Yvonne Izu, who argued the state’s case, did not return a telephone call seeking comment on the case; it’s unknown whether the state will appeal the decision.
“We’re obviously very pleased with the court’s analysis,” said Dennis Niles, attorney for the boaters.
“The court recognized the state’s right to regulate reasonably, the court just agreed with us, though, that this prohibition on fare-paying passengers at Hanalei was unconstitutional,” said Niles.
“We argued that these are navigable waters, and as such they have a special status in that they are subject to state regulation, but the federal government also has an interest in making sure that navigable waterways remain open to commerce,” Niles said.
“And here the court felt that there was really no evidence justifying the ban on fare-paying passengers,” he added.
The ruling doesn’t necessarily open the door for former commercial operators, some of which have relocated to Port Allen Small Boat Harbor, to return to Hanalei, Niles continued.
“We really revert to the status quo that existed before this latest edict (the rule banning the boaters) came down,” that the state has power to issue a set number of permits for commercial boating operations at Hanalei.
“This was not a class action. This was brought on behalf of just the few permitted operators that were affected by the action,” said Niles.
“I’m very pleased that the higher court saw clearly what the state had incorrectly done,” said Young.
It’s also nice to have the level of commercial activity in the river and bay back to what it was before unregulated activity led to the presence of around 30 boats operating in and out of the river and the predictable public outrage to that level of activity, said Young.
“It’s just like the river of old,” said Young, who has operated his business out of the river and bay since 1973.
Even Hanalei resident Dr. Ray Chuan, an outspoken critic of commercialized boating activity in Hanalei, said the present situation at Hanalei is peaceful.
But he feels Gillmor’s ruling could be used for fuel for other challenges to state rule-making processes. “The state failed miserably in defending its ability to make rules,” said Chuan.
Staff Writer Paul C. Curtis can be reached at mailto:pcurtis@pulitzer.net or 245-3681 (ext. 224).
