Black Pot SMA permits on hold

LIHUE — After withdrawing two motions and amid threats of lawsuits Tuesday, the Kauai Planning Commission unanimously voted to contract a hearings officer for a contested case on the county’s request. The officer will hear a case regarding permits to accommodate tour boat activities at Black Pot Beach Park in Hanalei.

“Guys, you’re playing with a slippery ball,” said John White, of Na Pali Catamarans.

He maintains the county is discriminating against a handful of tour boats in Hanalei.

“When you pick a class of boats and there’s 80 other boats running that day, you’re going to lose in court,” White said.

The county Parks and Recreation Department recently applied for a Special Management Area use permit to start regulating commercial tour boat operations at Black Pot Beach Park, in compliance with the Peddlers and Concessionaires Ordinance passed two years ago by the Kauai County Council.

On July 23, the commission approved two petitions to intervene: North Shore resident Barbara Robeson and the Limu Coalition want to “complete the record” by including information in the SMA application; and North Shore resident Michael Sheehan and Hanalei River Holdings are asking for an environmental impact statement.

Commissioners, however, couldn’t find enough votes three weeks ago on a motion to hear the contested case themselves rather than hiring a hearings officers — one commissioner was absent and two excused themselves for being named on an unrelated lawsuit filed by Sheehan.

With decision pushed to Tuesday, Commissioner Hartwell Blake dropped his motion and made a new one to send the case to a hearings officer, but with an option to break it into piecemeal between the commission and the officer. The motion also included having the hearing broadcast on the county’s website.

Deputy County Attorney Mauna Kea Trask, representing the county in the contested case, said it wouldn’t make sense to separate the ruling authority in the contested case, because the commission already has the authority to rule on it at the end.

Sheehan’s attorney, Richard Wilson, agreed with Trask’s concerns, saying he didn’t see the need for an “interlocutory appeal type of situation,” which he said is rare.

Wilson said no one can forecast what is going to happen in a proceeding that could take one to four days. But from experience, he said, he recommended that rather than going through the regular format of contracting a hearings officer, the commission should consider hiring a retired Circuit Court judge from Dispute Prevention & Resolution, a Honolulu-based legal firm.

After much discussion, Blake dropped his second motion, and the commission agreed on having a hearings officer handle the entire case, which will be webcast. The commission will ultimately be faced with approving or denying the hearings officer’s recommendation.

Court threats

The county is proposing to impose a set of 29 regulations on a handful of tour boat companies operating in Hanalei Bay, and those companies are saying such rules are strict, unnecessary and will cause significant monetary losses.

Brian Lansing, also of Na Pali Catamarans, said nothing has been written about the effects on tour boat companies, and the county doesn’t need to regulate the companies at Black Pot Beach Park, because they don’t need the park.

“We shuttle our people down to walk on the public road right into a canoe and get shuttled out to the bay,” he said.

Lansing said it’s “ridiculous” that the county is making up rules to eventually turn management over to the state.

The fishing boats are “hauling in ahi” and selling it to restaurants, which is also a commercial activity, he said.

“We have live people, they have dead fish; we can’t go,” Lansing said. “What is the federal judge going to say?”

Additionally, the tour boats are in a class “above and beyond” peddlers and concessionaires, he said. They are federally documented vessels on navigable waters.

“We have extra protections under those laws,” Lansing said. “Nobody else is going to pass those picayunish rules.”

He said the tour boat companies will not accept county rules or permits — they will got to the federal court to get a restraining order against the County of Kauai and go for a permanent injunction.

• Léo Azambuja, staff writer, can be reached at 245-0452 or lazambuja@thegardenisland.com

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