Some old cases relevant to Kauai's suit against the Hanalei boat tour operator

Hawaiioceanlaw.com has provided some interesting history relevant to Kauai County's suit alleging permit violations against a Hanalei boat tour operator -

The State of Hawaii attempted to require boat operators to obtain permits to operate in Hanalei Bay and Hanalei River. A boat operator challenged the regulations, citing the Supremacy Clause of the Constitution. The regulations were struck down by the Ninth Circuit. Young v. Coloma-Agaran, 340 F.3d 1053 (9th Cir. 2003).

Separately, rival tour boat operators brought suit against the Hanalei boat operators asserting that their alleged failure to obtain necessary state and county permits were unfair competition. The Hawaii Supreme Court rejected the suit. Whitey's Boat Cruises, Inc. v. Napali Kauai Boat Charters, Inc. No. 26334 (2006).

In Whitey's Boat Cruises, some tour boat operators claimed that a bunch of other tour boat operators were conducting tours in the area of Hanalei and along the Na Pali coast without the requisite county and state permits. The court held that the county and state permitting regulations didn't provide a private right of action for the kinds of economic harms alleged.

In the Young case, three commercial tour boat operators had successfully challenged a state regulation that prohibits them from operating their tour boats in Hanalei Bay -

In 1999, the state considered a proposal to prohibit commercial boating in Hanalei Bay. A report from the public hearing on the proposal indicates that regulators were concerned about putting to rest "years of turmoil" over tourist activities in Hanalei, as well as maintaining the natural beauty of the Hanalei area. Comments from the public were by and large hostile to continued commercial tour boat activities in Hanalei Bay. Approximately five months later, the ban took effect and the Department revoked the plaintiffs' use permits.
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We conclude that the ban, in conjunction with the relevant federal shipping laws, violates the Supremacy Clause. Simply stated, the ban completely excludes the plaintiffs from conducting their federally-licensed tour boat businesses in Hanalei Bay. We are sympathetic to the challenges posed by the user conflicts occurring in the bay. We hold, however, that the state's refusal to issue use permits under any conditions has effectively rendered it impossible for the plaintiffs to comply with both federal and state law in order to ply their trade. See Florida Lime, 373 U.S. at 142-43, 83 S.Ct. 1210.

The state argues that the Department was exercising the state's police power to alleviate user conflicts at Hanalei when it adopted the ban. Indeed, the Supreme Court has held that "[i]n the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government." Huron Portland, 362 U.S. at 442, 80 S.Ct. 813. However, the Court went on to point out the "basic limitations" of such power: "Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action." Id. at 443, 80 S.Ct. 813 (emphasis added). Thus, even if the ban is an exercise of concurrent power, the state's contention is immaterial to our analysis; as we have explained above, the ban actually conflicts with the federal licensing scheme.