Judge narrows Hanauma fee case
By Suzanne Roig
Advertiser East Honolulu Writer
U.S. District Judge Alan Kay yesterday threw out five of seven claims against the city over the Hanauma Bay Nature Preserve entrance fee, but a claim that says the fee illegally singles out tourists was allowed to proceed.
In an oral ruling, Kay dismissed claims that everyone has a fundamental right to access the beaches and shorelines and the city's $3 fee for non-Hawai'i residents was unconstitutional, said Jim Bickerton, the lawyer who filed the suit against the city. But Kay did not rule on whether the city can legally charge visitors the fee.
The judge also allowed to stand a claim that the admission fee violates consumer practices law.
City attorneys said they will file a motion to dismiss the remaining claims.
Bickerton said Kay's ruling was a blow to his case, but he believes the fee may still be struck down.
"It certainly is not a ruling that we wanted because we do think the right (to beach access) is fundamental and we think that saying that it's not fundamental creates too much risk of mischief by government," he said. "The claims that remain alive are directed to the legality of the city charging nonresidents a fee, so it could still be struck down."
The city praised Kay's ruling.
"The city remains committed to preserving the irreplaceable and fragile environment at Hanauma Bay and today's developments are a positive step toward achieving that goal," City Corporation Counsel David Arakawa said in a prepared statement. "We feel that the court made the correct ruling."
Bickerton filed the lawsuit in July 2001 on behalf of a California woman who said the city violated the U.S. Constitution by unjustly discriminating against people on the basis of their state residency. Carol Daly also charged that the city was breaking state law by charging for beach access and restricting freedom of movement along a public right-of-way.
Bickerton based the claim on a 1971 state Supreme Court ruling that everyone in Hawai'i has the right to walk along the beach. The American Civil Liberties Union agreed and said charging a fee to access a shoreline runs counter to the beliefs of Hawai'i residents.
As far back as 1968, the state Legislature adopted laws that ensured public access to beaches and provided for the government to purchase land to establish rights of way to access the shoreline.
The city has maintained that the fee is necessary to pay for rising costs of managing and operating the nature preserve, which is owned by the state, but deeded to the city. Management costs include the costs to educate the public of the fragile environment and to preserve the ecosystem, and to pay for a carrying capacity study, the city has said.
The city spends millions of dollars for maintenance to ensure that visitors don't overfeed the fish or trample the reef and destroy the ecosystem. More than 1 million people go to Hanauma Bay each year. In 1990, the city decided that it needed to control the flow of people and began to close it every Tuesday for maintenance and to charge $3 to tourists. The fee went into effect in 1995.
"We still think that the ordinance will not survive because it's contrary to state law," Bickerton said. "The case is now no longer about fundamental rights. But as long as the practice is stopped by the city, then we don't need to determine if going to the beach or accessing the shoreline is a fundamental right."
The next step in this case will be to hear the remaining issues, Bickerton said. That won't be for several months, he said.
Staff writer Curtis Lum contributed to this report.
