Hanalei tour boat operator prevails against county's motion to shut it down

According to a Garden Island breaking news alert -

Fifth Circuit Judge Kathleen Watanabe Thursday denied the county’s request for a preliminary injunction to prohibit Lady Ann Cruises from operating commercial boat tours out of Hanalei Bay.

The ruling clears the way for Lady Ann to continue operating, after Watanabe ruled the county didn’t show enough evidence the county could prevail on the merits of its case (that Lady Ann lacked requisite permits necessary to operate out of Hanalei), show irreparable harm, or that approval of the preliminary injunction was in the public’s interest, said Richard Wilson, attorney for Lady Ann.
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Honolulu attorney David Minkin is the special counsel representing the county in this matter.

The paper featured a lengthy piece yesterday providing some of the procedural and factual details -

The motion before her is a Kaua‘i County request for a preliminary injunction prohibiting Lady Ann Cruises from operating commercial boat tours out of Hanalei Bay, arguing the company lacks a necessary Special Management Area use permit to do business there.

Attorney Richard Wilson, representing Lady Ann Charters, said his client has the requisite SMA permit, but doesn’t need one because technically they aren’t operating within the SMA.

The SMA is defined by state law as the area extending inland from the shoreline.

Attorney David Minkin, representing Kaua‘i County, said two letters warning Lady Ann Cruises that they are operating without a necessary county permit, one sent each summer in 2007 and 2008, went unheeded, prompting this summer’s lawsuit seeking a preliminary injunction.

The county employees who testified were Ian Costa, Planning Department director, and Les Milnes, Coastal Zone Management planning inspector in the Planning Department, both witnesses for the plaintiff Kaua‘i County.

Wilson earlier said he would call as many as three witnesses, but didn’t call any, and at the end of testimony Tuesday was prepared to ask for a motion to dismiss the injunction, until Minkin said he had trouble with such a motion because, if it failed, it might allow Wilson to then call his witnesses and continue with the proceedings.

Watanabe agreed with Minkin.

Minkin in his closing statement said his client showed they’re representing the public interest, and does not have to show irreparable harm in order to be granted the preliminary injunction.

There was a violation of law, Lady Ann Cruises owner Mary Kagawa-Garcia was put on notice that she needed a permit to continue to operate in Hanalei, and she didn’t come before the county to get the permit, nor did she seek court relief, Minkin said.

Because there were new vessels or new owners in the Lady Ann Cruises case, they needed to come before the Planning Department or Planning Commission, and didn’t, Minkin said.

Wilson in his closing said Costa testified that Lady Ann Cruises does not need an SMA use permit, in direct conflict with Costa’s June 30 written declaration that says Lady Ann Cruises does need an SMA use permit.

“My clients aren’t engaged in any activities within the SMA,” Wilson said.

Minkin countered that the motion was brought pursuant to several laws, including the SMA rules of Kaua‘i County and a condition in permits approved for Mike Sheehan’s boatyard along the Hanalei River, as well as the state Coastal Zone Management Act and other provisions.

The paper promises more coverage in tomorrow's edition.