Posted on: Friday, October 18, 2002

Hanauma fee policy ruled valid by judge

By David Waite
Advertiser Courts Writer

A federal judge yesterday ruled that the city can continue charging residents from outside Hawai'i a $3 fee to visit Hanauma Bay, rejecting the claim that it violates the U.S. and state constitutions.

In upholding the controversial admissions policy, Judge Alan Kay said the fee imposed by the city was not to make a profit from its operation of one of the premier snorkeling spots in Hawai'i, but to help defray expenses.

Kay ruled that because Hawai'i residents essentially underwrite the costs of operating the park in the form of taxes, "it is appropriate to exempt or preclude them from being charged an admission fee."

The judge, however, said that all the money collected from the fees must be applied toward Hanauma Bay and that the city cannot spend it on other parks.

According to city finance records, the admission fee brings in about $3 million a year.

The lawyer who represented the California woman who challenged the fee said Kay's decision sets a dangerous precedent that could lead to admission fees at other city and state beach parks.

"Right now, the people of Hawai'i have no right of free beach access," attorney Jim Bickerton said.

But Mayor Jeremy Harris said he was pleased with Kay's ruling.

"Education has always been our primary focus,and this will allow us to provide everyone — especially Hawai'i's children — with the chance to learn about the geology, marine life and fragile ecosystems in the natural wonder that is Hanauma Bay," Harris said. "The city has always been and remains committed to preserving Hanauma Bay. Today's ruling will allow us to do that for generations to come."

The case started with a lawsuit filed by California resident Carol Daly in July 2001, claiming that the Hanauma admission fee, which the city began charging in 1995, violated the U.S. Constitution by unjustly discriminating against people on the basis of their residency.

Daly also charged that the city was violating the state constitution by charging for beach access and restricting freedom of movement along a public right of way.

Kay said Daly paid $3 and "engaged in free expression" at the park. He termed the admission fee "only an incidental impediment" to her enjoyment of the park.

Kay also ruled the entrance fee was not a significant impediment to the state constitution's "free movement clause."

"It is a permissible fee for a specific purpose, not an unauthorized tax," Kay said.

Kay did take issue, however, with the city's using some of the money generated by Hanauma Bay to offset costs at other parks such as the Koko Head Shooting Complex and the Koko Head Botanical Gardens. Whatever money has been allotted to the other parks should be returned and used for the betterment of Hanauma Bay, Kay said.

Kay gave attorneys for each side until Oct. 31 to submit written arguments on how much money should be returned to Hanauma Bay.

Bickerton said Kay's decision could ultimately lead to the city, as well as the state, charging residents and tourists alike to visit popular parks and beaches. And, the decision could hurt the state's number one industry, he said.

"People who visit here already get charged a lot for everything else," he said.

Bob Kern, a former member of the Friends of Hanauma Bay board of directors, praised the ruling, particularly because it keeps all the money raised at the bay, ensuring its education mission will continue.

"I personally support the fees," Kern said. "You go to the Big Island and the National Park Service charges you $10 to get in."

Advertiser staff writer Suzanne Roig contributed to this report.