Wailua River boat captain loses license for a year

A Waialeale Boat Tours boat captain has had his license suspended for a year by the Coast Guard for a “road-rage” incident on the Wailua River nearly two years go.

Donald Nihipali, 54, of Anahola was initially accused of driving a 50-foot boat in a threatening manner toward a Riverbank, Calif. couple and their young son aboard a rental kayak on the river on Dec. 21. 2000.

No one was hurt, but an administrative judge ruled Nihipali placed the couple, their child and a handful of passengers on the tour boat in danger.

The Sept. 26 ruling by Thomas E. McElligott, an administrative law judge representing the Coast Guard, sent a sharp message to boaters, water skiers and kayakers that the Coast Guard will not tolerate incidents in which people’s safety is jeopardized.

The river is the largest navigable river on Kaua’i and is a popular site for water sports.

In the ruling, McElligott found Nihipali responsible for misconduct, negligent and in violation of two Coast Guard rules. The judge also put Nihipali on probation for 24 months, which if violated and proven, will result in suspension of the license for another 18 months.

The judge also ordered Nihipali to take and pass a “proper course on inland navigation rules,” essentially operating practices on a river.

If Nihipali can’t pass a course and test within six months of the effective day of the ruling, his license will be revoked, McElligott said. Nihipali’s license was recently taken from him at his home.

Nihipali maintains his innocence, saying he never put anyone in any danger.

“It never happened like that,” Nihipali said in an interview. “The guy splashed water in my boat and hit the boat with his oars.”

Nihipali said there was no collision, a contention disputed by the judge and some witnesses, and that it was the kayakers that created the disturbance.

Nihipali said the loss of his job over the incident has brought financial hardship for his family. As a result, he said he isn’t likely to appeal the ruling.

The Coast Guard conducted the hearing into the incident on Nov. 14, 2001 in Lihu’e.

On the day of the incident, Nihipali said he pulled out of the Wailua marina before 12:30 p.m. with eight passengers and a hula dancer aboard the boat, the Mana ‘O Kalani.

With few boats or kayakers around, Nihipali said he drove the boat up the middle of the river to allow his passengers a better view of the surroundings.

Halfway between the marina and the Fern Grotto, Nihipali said he saw the California couple and their son in a bend in the river.

The couple was headed down the river to the marina, about 12 to 15 feet from the river bank, Nihipali said. In Nihipali’s mind, the kayakers were too far out for their safety.

Before the guided kayak tour, the California couple was told repeatedly to stay close to the Kapa’a side of the river bank while going up and down the river, according to the Coast Guard ruling.

Halfway through the tour, the couple approached a slight bend in the river and was about three feet from the river bank, according to the testimony.

The ruling noted Nihipali’s boat suddenly appeared about seven feet from the kayak and “continued to approach head on.”

Deferring to the smaller boat and to avoid a collision, Nihipali said he stopped his boat “dead in the water” and “gave him a signal (a blast from the ship’s horn).”

When the kayakers failed to stop, Nihipali said he gave another “five blasts.”

But the Coast Guard, based on witness accounts, contended Nihipali didn’t sound one or five blasts as he approached a river bend, hence the violation of Coast Guard rules for navigation on a river.

Nihipali said his boat was “not anywhere near the bend, so there was no need to blast the horn,” and did so only to catch the attention of the kayakers.

The judge’s order noted that another kayaker, a firefighter from San Diego, was 50 yards behind the California couple and saw Nihipali make a u-turn in the river.

The turn caused Nihipali’s boat to come in close contact with the California couple, the witness said.

When Nihipali said he first saw the couple, they were coming toward him, forcing him to try to make a hard left turn to avoid a collision.

This action, however, caused the kayak to be caught in the boat’s wake, according to the testimony.

The man aboard the rental kayak used his oars to keep the kayak away. As a result water splashed into the Nihipali’s boat and onto four passengers, a hula dancer and “implements.”

The passengers, however, may have gotten wet as well because the day was rainy and windy, according to the testimony.

The man then hit his boat with the oars and “told me where I belong,” Nihipali said.

Nihipali said he then drove the boat around the kayak, went up the river, made a u-turn and headed back to the paddlers and told them “what the violations were and what he was doing wrong.”

It was this juncture that Nihipali violated a provision of the “Inland Navigation Rules,” by not sounding the boat’s whistle or horn when he neared the river bend, the Coast Guard contends.

Nihipali said because there was no boat or kayaker around his boat, it seemed pointless to him to sound his horn as he made the u-turn.

Nihipali noted though that he approached the California couple because Waialeale Tours requires its boat captains to gather as much information as possible in incidents on the river involving company boats.

Nihipali said the kayakers refused to give their name, but he said he reported the kayak’s registration number and the incident to his office in the marina via a phone aboard the boat.

Nihipali said he then resumed his trip to the Fern Grotto and finished the tour around 2 p.m.

That was not how the California couple saw it. As the couple paddled down the river towards the marina, they said they felt the front of Nihipali’s boat strike or ram into the back of their kayak.

The couple contended the impact pushed them toward the starboard side of the boat, putting them in harm’s way, according to the court ruling.

At the same time, the couple continued to paddle closer to the river bank and “away from the tour boat,” the administrative ruling noted.

The couple believed Nihipali was attempting to dump them into the water and hurt them, the ruling said. But Nihipali denied steadfastly that he intended to harm them, adding that “I was up at the Fern Grotto” with his passengers when the couple claimed they were nudged or hit by his boat.

When Nihipali got back to the marina, a law enforcement officer took statements from the passengers, some of whom corroborated Nihipali’s interpretation of the incident.

Nihipali said he took offense to the officer’s conduct in investigating the incident. “He interrogated me, and I didn’t give him anything. And I told the passengers they had the right to remain silent.”

Tarey Low, who heads the state Department of Land and Natural Resources’ Conservation and Resources Enforcement, also arrived on the scene to begin his investigation, Nihipali said. DLNR has jurisdiction over lands around the river.

During the Coast Guard hearing, Nihipali was represented by Robert Frame and Randall Geuy from Frame, Formby & O’Kane, a Honolulu law firm hired by Waialeale Boat Tours Inc. Among those who attended the hearing in his behalf was Troy and Jade Waialeale, members of the family that owns the company.

In Nihipali’s defense, his attorneys argued that:

– Nihipali didn’t assault the California couple.

– Nihipali followed the rules of good seamanship by stopping the boat and avoiding a collision.

– Although Nihipali failed to sound one prolonged signal blast as he entered the bend, an appropriate danger signal was given.

Nihipali contended the judge’s decision was flawed. The judge didn’t have a complete grasp of boating conditions on the river, the river’s location or Coast Guard rules for warning vessels on a river, Nihipali contended.

The judge, however, noted that Nihipali “fails to recognize that the ALJ (administrative law judge) is the decider or arbiter of facts.”

Nihipali said the ruling is upsetting and frustrating. In 20 years as a boat captain for Waialeale Tours and Smith’s Motor Boat Service, he said he has never been charged with being derelict on the job.

Nihipali, who is part Hawaiian and part Portuguese, said he approached the state Office of Hawaiian Affairs and Alu Like for funding to appeal the decision. He found he was not eligible.

“The only people who have approached me are the (sovereignty) activists,” Nihipali said. “I can’t do that. I was in the Navy, I am a Vietnam veteran. I love my country.”

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