Ban puts commercial, residential interests at odds

By Sean Hao
Advertiser Staff Writer

Thane Milhoan is Mark Willman's partner at Planet Ocean Water Sports, which brought tours to Wai'opae tide pools. Kevin Dayton • The Honolulu Advertiser

Willman, owner of Hilo-based Planet Ocean Watersports, said he has lost about $90,000 in sales and has laid off three employees since the state banned all commercial activity last summer at the site near Kapoho.

"I'm holding on by a thread," he said. "I have everything tied up in this."

His claim comes despite a state assessment that turning the area into a marine life conservation district would have little effect on business. The assessment and a ban on business in the tide pool has drawn criticism from an independent board created about five years ago to prevent state agencies from stifling small businesses.

The state Department of Land and Natural Resources maintains that the ban is needed to preserve the natural area's resources.

However, in the case of the Wai'opae tide pool, Willman and board members want to know whether the state ignored the rights of a local business and bowed to nearby homeowners, including Big Island Mayor Harry Kim, who own property near the only marine life conservation district out of 11 statewide that now prohibits all commerce.

KIM

Willman's case also could set a precedent for the taxpayer-financed Small Business Regulatory Review Board, which has struggled since inception to get cooperation from the state to do its job.

The review board, which received assurances from Gov. Linda Lingle last May that state agencies would start cooperating with the panel, recently asked the officials to reconsider the ban on businesses at the tide pool. However, the Board of Land and Natural Resources denied the request last month.

The move leaves Willman pursuing a lawsuit seeking an injunction to stop enforcement of the rule. And it also has left some review board members disenchanted.

"This may be a test case to find out does this board have any function or purpose?" said board member Brian Zinn. "I can't understand why we would all go through this just to be ignored."

Created in 1998, the review board is comprised of 11 volunteer business leaders who are a court of last resort before businesses take legal action against agency rules they feel are overly burdensome. So far, only Planet Ocean Watersports has gone through the process of petitioning for a rule change.

The push to ban businesses in the tide pools came from the Vacationland Hawaii Community Association, which includes homeowners with property that abut

the pond, said Dan Davidson, DLNR's deputy director for land. Though the tide pool area is public, the surrounding land is privately owned.

He said DLNR is open to business interests but pointed to a study submitted to the land board in December that found commercial use inconsistent with preserving the tide pool.

The high percentage of private land surrounding the pond also weighed in favor of the ban, Davidson said, as did other factors including a letter from Big Island Planning Director Chris Yuen stating that commercial tours were not allowed under the area's residential zoning.

Willman said he leased a home in the area to run his tours, but he claimed he did so only after being denied access to the tide pool.

The letter from Yuen also states that the state marine life conservation district, which consists mainly of ocean and tidal areas, falls outside the county's jurisdiction.

The state's Davidson said, "In this instance, we don't believe it's appropriate" to allow commercial activity at Wai'opae.

The only Wai'opae-specific research included in the study cited by Davidson was by Leon Hallacher, a professor of biology at the University of Hawai'i-Hilo.

Hallacher said his study did not include the area of the tide pools where Willman contends his tours were conducted. Hallacher's work focused on what is called the tide pool's "coral garden," which contains luxuriant coral growth, an important habitat for juvenile fish.

Hallacher said he couldn't comment on whether a total ban on commercial activity throughout the area was warranted. He did say some form of protection is needed.

"I just think that the state in this (area needs to) be concerned that it doesn't get loved to death by too many people, not just commercial people," he said.

Farther back from the ocean is a tide pool that was artificially opened to the sea in the 1960s, Willman said. Tours are limited to that spot, which contains far less coral, but is ideally protected from harsh seas, he said.

Moving the tour to another location, which was suggested by DLNR and nearby homeowners, isn't feasible because no other area along the island's rocky eastern coastline offers comparable protected waters and ease of access, Willman said.

As a substitute for Wai'opae, Willman's four-stop tour now visits the zoo, which he said has led to fewer bookings.

Complicating matters in the debate is the Big Island mayor's ownership of a home near the tide pool, said Zinn. And Peter Young, DLNR director and land board chairman, who has recused himself from voting on the matter, served as former deputy managing director under Kim.

Kim said he never exercised political influence in the decision.

"If I was not mayor, I would have done one hundred times more to try to get this passed," he said.

"The only issue is how to protect this area," particularly from commercial harvesting of tropical fish.

Kim said that while he supports public access to the tide pool, allowing any type of commercial activity would be a problem because the nearby land is privately owned.

"This is strictly a residential area and (the right) to run a business in a strictly residential area still needs to be addressed," he said.

Given the political prominence of some of the players in the debate, the state's failure to try to accommodate Willman seems unseemly, Zinn said.

"That's one of the things that makes it look fishy and I think that's one of the things that bothered us when we heard the story," he said. "It creates an impression."

Zinn said eco-tourism is growing and the state should be encouraging businesses that cater to that interest. "This is the kind of thing people want to see. They can see it here or they can see it in Cancun."

More marine conservation districts could face commercial bans should public sentiment favoring protection of the state's resources increase.

"Situations, ideas, values (are) different than they were 40 years ago," when Hanauma Bay was designated a conservation area and commercial use allowed, said Francis Oishi, a DLNR program manager with the division of aquatic resources.

Reach Sean Hao at 525-8093 or shao@honoluluadvertiser.com.