Advocacy panel can't sway state
By Sean Hao
Advertiser Staff Writer
Hilo-based Planet Ocean Watersports plans to close its seven-year-old dive shop today after unsuccessfully battling a state ban on business in the Wai'opae tide pool near Kapoho.
Kevin Dayton • The Honolulu Advertiser
The business had been taking snorkelers to the tide pool, but it had struggled ever since the Department of Land and Natural Resources designated the area off limits to commercial operations last summer.
Thane Milhoan, manager of Planet Ocean Watersports in Hilo, waits for customers at the close-out sale. The dive shop is scheduled to close today after unsuccessfully fighting a state ban on the use of the Wai'opae tide pool.
Planet Ocean owner Mark Willman also faced a lease increase for his Hilo retail outlet at 100 Kamehameha Ave. and said he can no longer keep the dive store open. The snorkeling tours subsidized the store, he said.
"It's the end of the road," Willman said. "This has been financially devastating to me."
Willman's difficulty with the state arose despite support from a business advocacy board charged with preventing state agencies from becoming a burden to small businesses. The Small Business Regulatory Review Board has been largely ineffective because members said they lacked cooperation from state agencies.
The board sided with Willman's small eco-tour company, finding the state had failed to accommodate his business when it made the Wai'opae tide pool the only marine life conservation district of 11 statewide to prohibit all commerce.
DLNR maintains the ban on commercial uses is needed to preserve the natural area's resources.
In a process that's lasted about nine months, the board was unable to get DLNR to change its mind. It also unsuccessfully appealed to Gov. Linda Lingle to issue an executive order changing or overturning the ban. Calls to the Lingle administration for comment were referred to DLNR, which said the state attorney general's opinion is the governor does not have the power to change an existing law.
For several board members, the Planet Ocean case has been a frustrating experience.
"We let this business down," said board member Denise Walker from Hilo.
DLNR suggested Willman find another spot for his snorkeling tour. But Willman maintains moving the tour to another location isn't feasible because no other area along the island's rocky eastern coastline offers comparably protected waters and ease of access.
As a substitute for Wai'opae, Willman's tour now visits the zoo. That has led to fewer bookings and the loss of seven jobs, Willman said.
Complicating matters are Big Island Mayor Harry Kim's ownership of a home near the tide pool and his relationship with Peter Young, DLNR director and land board chairman, who served as former deputy managing director under Kim.
Young has said he recused himself from decision-making in the matter, while Kim has maintained he never used his office to influence decisions concerning Wai'opae.
In addition to taking his case to the review board, Willman said he plans to sue the state for unspecified damages. "I think this is going to be a legal fight all the way to the end," Willman said. What happens now "depends on the court system."
When it was created about six years ago, the board was hailed as a milestone in business advocacy in Hawai'i, commonly criticized as a state unfriendly to business.
The board comprises volunteer business leaders who serve as a court of last resort before businesses take legal action against agency rules they feel are burdensome. So far, only Planet Ocean Watersports has gone through the entire process of petitioning for a rule change.
The board's latest difficulty follows assurances from Lingle last May that it would receive cooperation from state agencies. However, cooperation doesn't always mean siding with the board, said Ted Liu, director for the Department of Business, Economic Development and Tourism.
"At the end of the day, a balancing of these interests needs to be made, which is very different from deciding whether we're supporting the Small Business Regulatory Review Board," Liu said.
The case highlights a flaw in the 1998 law that created the regulatory review board, said Michael Hull, Hawai'i regional advocate in the Small Business Administration Office of Advocacy in Phoenix.
Similar boards in other states typically have the power to force agencies to change regulations and provide businesses the option of seeking a ruling on a regulation from an administrative judge.
"That's something that needs to be looked at next (legislative) session," Hull said. "If there's strong judicial review, it does make the agencies stand up and take notice."
Reach Sean Hao at shao@honoluluadvertiser.com or 525-8093.
