A legal status report to the Kaua‘i County Council on Mike Sheehan’s boatyard in Hanalei turned into a debate over whether the county can regulate the facility. Two court decisions since 2001 clearly declare any ban or prohibition of commercial
A legal status report to the Kaua‘i County Council on Mike Sheehan’s boatyard in Hanalei turned into a debate over whether the county can regulate the facility.
Two court decisions since 2001 clearly declare any ban or prohibition of commercial tour boat activities there unconstitutional, Honolulu attorney Richard Wilson said at the council meeting Wednesday.
“There is no question, whatsoever, that boating is not legal in Hanalei,” he said. “It has never been illegal in Hanalei, and it’s not going to be illegal in the future.”
While the county can’t regulate uses in the water, it has jurisdiction over land activities at the boatyard through the county’s Special Management Area Use permit, councilmembers JoAnn Yukimura and Jay Furfaro said.
“(The county) has the power to regulate the use of the lands that may affect the coastal waters under the law,” said Yukimura, referring to the state’s coastal zone management act.
Furfaro said the federal government authorizes the county to regulate land uses.
“The question here, with the federal law dealing with the management of resources of the land and the coastal zoning act putting us in that position, we should at least define ourselves being able to determine the political position of the community when it comes to operating the boatyard itself,” Furfaro said.
The council plans to forward Wilson’s comments to the County Attorney’s office for an interpretation.
Before the debate could escalate between Yukimura, who was mayor when the tour boat controversy raged in the late 1980s, and Wilson, who represented Sheehan, Council Chairman Kaipo Asing quickly shut down the discussion.
Wilson’s presentation provoked protest from Hanalei community leader Carl Imparato, who said North Shore residents don’t want a repeat of the strife that gripped the region when the boatyard housed 44 motorized tour boat operators, with 76 boats at its peak.
The prohibition of tour boat operations began in 1988 and ended in 2000, when then-Gov. Ben Cayetano rousted most of the tour boat industry from Hanalei Bay and river, citing environmental concerns.
But a federal court victory in 2003 allowed Capt. Sundown, Na Pali Catamaran and Hanalei Sport Fishing to continue commercial operations in the bay.
A Ninth Circuit Court judge ruled the state can regulate, but not ban, an activity already licensed by the federal government.
Wilson said a 2001 court ruling gave Sheehan the green light to reopen his boatyard, from which Na Pali Explorer has launched, or plans to launch and retrieve boats.
The decision by federal Judge Helen Gilmore declaring the ban unconstitutional was reaffirmed by a Ninth Circuit Court of Appeals ruling in 2003, Wilson said.
Sheehan subsequently informed the county Planning Department and state government that he would reopen his boatyard near Weke Road in Hanalei, Wilson said.
But when his client approached the county for permission to do so, officials told him he needed a state permit, Wilson said.
State officials then told him they don’t regulate commercial boating anymore, sending Sheehan back to the county, which then cited state jurisdiction, Wilson said.
He said Sheehan essentially “was being rip-sawed back and forth” between government agencies.
Sheehan subsequently filed a lawsuit against the county in federal court, resulting in the case being thrown out based on the representations of attorneys for the state and the county, Wilson said.
County attorneys claimed 18 times in a memorandum that the county does not ban, issue permits or have jurisdiction to regulate commercial tour boat uses in the bay or river, and that Sheehan has necessary county permits for his facility.
When Sheehan informed county Planning Director Ian Costa last year that he planned to restart his boatyard, Costa sent the boatyard owner a letter saying the county has not authorized any commercial launching and retrieval of tour boats at his property.
Wilson said the letter astounded him because the state Department of Land and Natural Resources approved commercial boat uses at the boatyard nearly 20 years ago.
Wilson said Mayor Tony Kunimura originally asked Sheehan in 1984 to use his property as a commercial boatyard to help reduce conflicts at public facilities in the bay and river.
But while Sheehan has county permits for his boatyard, they may have expired, Wilson was told.
Furfaro said the permits are “good for a period of 24 months and must be periodically renewed.”
“That is not what the statute says,” Wilson said, as Sheehan has already built the boatyard, and the county cannot require him to reapply for permits.
“If the county wants to take action, they can go to the Circuit Court for possible revocation,” Wilson said.
But Furfaro said the policy for the county’s comprehensive zoning ordinance stipulates SMA permits are conditional and can be revoked.
Yukimura nodded her head in agreement, said she believes Sheehan may not have complied with all the permit conditions, opening the way for possible modification or revocation of the permits.
When Wilson asked what specific conditions have not been met, Yukimura said it was the planning department’s job to check into the matter.
