Posted on: Thursday, June 28, 2001

Na Pali Coast tour boat owners back in business

By Curtis Lum
Advertiser Staff Writer

A federal judge yesterday granted three Na Pali Coast tour boat operators a temporary restraining order that prohibits the state from enforcing a ban on boating in Hanalei River and Hanalei Bay on Kaua'i.

State rules ban all motorized commercial boat traffic in the river, its estuary and in the bay. But the rules allow nonmotorized boating activities, such as commercial kayak operations.

Three companies — Captain Sundown, Hanalei Sport Fishing and Tours, and Whitey's Boat Cruises — had operated in Hanalei with permits issued by the state and county. They filed a federal lawsuit last year to prevent the state from enforcing the new rules.

In December 2000, U.S. District Judge Helen Gillmor issued a temporary restraining order to allow the companies to resume operations. The three companies argued that their due process was violated by the state Department of Land and Natural Resources.

In February, Gillmor rejected a motion for a preliminary injunction and the boating ban was reinstated. But the three boaters pursued their legal options and yesterday Gillmor granted a second order that will allow the companies to resume operations until an Aug. 6 hearing.

Attorney Jack Schweigert, who represents Captain Sundown owner Robert Butler, said the plaintiffs argued that the rules violated federal law that allows businesses to practice "coastwise trade." Schweigert argued that states can pass environmental laws and restrict activity, but cannot ban activity outright.

He said Gillmor also took into consideration the financial hardship the ban has imposed on the three companies. The businesses have not been allowed to operate since Feb. 23.

"They are on the edge of bankruptcy. They haven't been able to operate and they're going down. There's no reason they should suffer like this," Schweigert said. "(Gillmor) thought there was a substantial question and we face irreparable harm."