Posted on: Friday, May 24, 2002
Lawsuit on Hanauma fees set for June court hearing
By Suzanne Roig
Advertiser East Honolulu Writer
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| Nonresidents of Hawai'i must pay $3 to enter Hanauma Bay Nature Preserve. A lawsuit against the city alleges the fee violates constitutional guarantees of public access to beaches. The city says the fee is justified.
Richard Ambo • The Honolulu Advertiser |
The attorney arguing that non-Hawai'i residents should not have to pay $3 to get into Hanauma Bay Nature Preserve says there is much more at stake than a few dollars to visitors to a prime tourist spot.
The real issue is access to Hawai'i's beaches.
That's the argument Jim Bickerton made almost a year ago when he filed a lawsuit against the city, and it is still the pivotal point in his case against the city's argument that it is legally allowed to charge fees where there are significant costs involved in maintaining a public area.
The trial has been pushed back several times, and now a hearing is set for mid-June, when U.S. District Judge Alan Kay will ultimately decide whether to throw out portions of the lawsuit or let it proceed to trial.
The case will determine whether the city's fees violate Hawai'i's constitutional guarantee to move freely in public areas, which include beaches, and whether the city has the right to charge a fee for people to get to a public beach, attorneys say.
Should the judge side with the city, it could open the door to entry fees at other parks or beaches maintained by the city, Bickerton said.
The city already charges an admission fee to residents and tourists at the Honolulu Zoo; some recreation centers charge fees for cleanup and closing costs; and with the recent acquisition of Waimea Valley Park, the city probably will charge admission there, said city spokeswoman Carol Costa.
But no other public beach here charges a fee.
The city said the fee is necessary to pay for the rising cost of managing and operating the nature preserve, which is owned by the state, but was deeded to the city in 1928.
"The admission fee is being used to cover the city's cost for management and operation of the nature preserve's fragile environment, educating and orienting the visitors to the nature preserve and its ecosystem, paying for the carrying capacity study and other studies relating to the environmental conditions of the nature preserve," said David Arakawa, city corporation counsel.
As a nature preserve protected from fishing and poaching, the volcanic cove offers visitors a glimpse at nature in its ideal state, with fish that are fully grown, living in their natural habitat, said Peter Rappa, a University of Hawai'i Sea Grant College marine science faculty member in charge of the education program at Hanauma Bay.
The city has been spending millions of dollars for maintenance and education at Hanauma to ensure that visitors don't overfeed the fish or trample the reef and destroy the ecosystem, Rappa said.
With 1 million visitors a year, the city decided in 1990 that it needed to control the flow of people into the nature preserve. It began closing the bay every Tuesday for maintenance and started the $3 fee for tourists, with residents getting in free beginning in 1995 by showing a state ID.
Richard Ambo • The Honolulu Advertiser The admission fee brings in about $3 million a year, and the money is used to maintain the bay, the Koko Head Shooting Complex and the Koko Head Botanical Gardens, according to city finance records. In addition, the city receives more than $1 million from a fee charged to the companies running the food, shuttle bus and snorkeling concessions at the bay, according to records.
Each year it costs the city about $2 million to maintain Hanauma Bay — or about 10 percent of the city's overall parks budget, Rappa said.
"The fee is justified," Rappa said. "Before when we didn't collect the fee, we had to compete with the other parks for maintenance money."
Bickerton said the city considers Hanauma Bay a cash cow, bringing in nearly $100,000 a month from snorkeling, tram and other concession fees that are deposited directly into the city's general fund, to be spent on other programs or projects.
The money from the admission fees goes into a special Hanauma Bay Fund, set up by the City Council, and is used to maintain the park and educate visitors.
"It's heavily exploited," Bickerton said. "The sign on Kahala Avenue says Hanauma Bay, not East Honolulu or points in between. The city is making money with Hanauma Bay."
Costa confirmed that the admissions fund has been running at a surplus, which is how the city intends to pay for the $10-million-plus education center, restaurant and lower-bay improvements now under way.
It was the construction of the center that got Bickerton involved in challenging the city, he said. His firm has been involved in other public-oriented litigation, including the Save Sunset Beach effort, the move to save the natatorium and another to keep news racks in Waikiki.
The fee "runs counter to everything in our cultural history about how beaches are used in Hawai'i," he said. "What the city does in this case will decide our right to shoreline access."
In 1971, the state Supreme Court ruled that everyone in Hawai'i has the right to walk along the beach, said Brent White, the ACLU's legal director. Everyone has the right to hold rallies, picnics or meet on a public beach or in a park.
"Charging people is a violation of the First Amendment right of assembly under the U.S. Constitution," White said. "The right to use the beach is guaranteed. That's why there are no private beaches."
As far back as 1968, the Legislature adopted laws that ensured public access to beaches and provided for the government to purchase land to establish rights of way to get to the shoreline.
The city has recently begun the costly job of ensuring access to beaches around O'ahu and has begun condemnation proceedings in Portlock, Punalu'u, Kahalu'u and the Kaunala Beach subdivision near Velzyland on the North Shore.
That stands in contrast to access restrictions at Hanauma Bay.
The federal government charges a fee for many national parks around the country but in those cases, the fee is charged to everyone, White said.
"Going to the beach is a fundamental right," he said. "There needs to be a compelling government interest to keep people out of the beach, like severe health hazards. Revenue generation is not a compelling government interest."
City officials are confident their position on the admission fee will be upheld.
"The real issue is whether or not the nature preserve's fragile ecosystem should be protected and whether it is reasonable for the hundreds of thousands of visitors who visit the nature preserve to share in some of the costs to protect and preserve this valuable resource," said the city's Arakawa. "We believe the court will agree with the city's position."
Reach Suzanne Roig at sroig@honoluluadvertiser.com or 395-8831.
Hanauma Bay is one of O'ahu's most popular natural attractions and draws about 1 million visitors a year. The nature preserve is closed on Tuesdays.
