Challenge to Hanauma Bay entry fee foreseen in 1995
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By Dan Nakaso
Advertiser Staff Writer
Almost as soon as the idea came up in 1995, the city's corporation counsel told council members that charging tourists a higher fee to enter picturesque Hanauma Bay put the city on shaky legal ground.
"Ultimately," then-corporation counsel Darolyn Lendio wrote, "we anticipate that someone will challenge any fee imposed for beach or park use and that a court will decide its legality."
Six years later, that day has come. A San Diego woman on Tuesday filed a class-action lawsuit in federal court arguing that it was wrong for the city to charge her $3 to get into Hanauma Bay last October when local residents were let in for free.
The lawsuit raises a fundamental question about whether tourists share the same right as local residents to Hawai'i's famous beaches.
"Clearly the city cannot charge Hawai'i residents to go to the beach," said Brent White of the American Civil Liberties Union of Hawai'i, which is not a party to the lawsuit. "If they can't charge state residents, I don't see how they can charge out-of-state residents, either."
Reimbursements possible
The city could potentially be required to reimburse thousands of tourists' $3 fees or to pay punitive damages if Carol Daly, a health care worker, and her Honolulu attorney, Jim Bickerton, win their lawsuit.
The lawsuit focuses on the city's decision to charge different fees for different people to get to a beach. So it probably will have no effect on senior citizen's discounts, military rates and kama'aina fees offered by hotels and other private companies, White said.
"This is the government wanting to charge different rates for individuals to get to a public beach," White said. "What private companies want to do is up to them, clearly. If they want to give discounts to kama'aina, that's no problem."
The state Attorney General's office in 1995 believed the city could defend charging tourists a higher fee at Hanauma Bay, citing cases of two-tiered payment systems around the country.
Although there is plenty of case law on both sides, none seems to speak directly to the circumstances surrounding one of Hawai'i's most popular attractions.
Hanauma Bay belongs to the state, with access controlled by the city.
Over the years, Hanauma Bay officials worried about the economic damage caused by more than 1 million visitors a year — 85 percent of whom are tourists.
In 1995, the City Council also struggled to balance its $1 billion budget without increasing property taxes. The council decided, instead, to raise bus fares and fees for municipal golf courses and the city zoo. At the same time, the council considered a two-tiered payment at Hanauma Bay that charged tourists $5 and local residents $1.
Eventually, the council settled on a $3 charge for tourists only.
'Fundamental right'
One case that is almost certain to be cited by both sides is the U.S. Supreme Court's 1978 decision in Baldwin v. the Montana Fish and Game Commission. The court ruled tourists could be charged higher fees than Montana residents for elk-hunting licenses because elk hunting is not a "fundamental right."
The difference in the Hanauma Bay case is that beach access has long been considered a fundamental right in Hawai'i. The question will be whether tourists share the same right, White said.
"If the city's going to restrict a fundamental right, then it has to show that it's necessary to support a compelling government interest," White said. "That's a very, very high threshold. If it's not a fundamental right, then they'll have to show that there's a substantial reason to charge a fee."
David Arakawa, the city's corporation counsel, argues that Hawai'i has a history of charging reduced rates for kama'aina. The city, he said, also needs the fees to reduce the environmental damage at Hanauma Bay.
Bickerton argues that charging tourists to get to the beach is different than imposing different rates for places such as the city zoo.
"Walking on a beach is a fundamental right," he said. "It's like breathing air or standing in the sun. ... You cannot rope off part of the United States and say that 'In this part of the United States only Hawai'i residents can go. If you're from out of state, you have to pay money.' That's what the city is doing."
You can reach Dan Nakaso at dnakaso@honoluluadvertiser.com or 525-8085.
