Court injunction blocks commercial ocean permitting in Kāʻanapali

Environmental Court Judge Peter Cahill has ordered the Department of Land and Natural Resources not to issue or renew commercial use permits for state waters in Kāʻanapali until it can complete environmental assessments for their use or determine such permits are exempt from environmental review under Hawaiʻi law.

The department said it has no comment on the ongoing litigation. The department did not respond to a question about the number of pending permits that would be impacted by the ruling.

Cahill’s order comes after the Intermediate Court of Appeals ruled in April that the state’s commercial permits system for Kāʻanapali is subject to the environmental review process.

In 2017, plaintiffs sued the department over its permitting system for tour boat operators off of Kāʻanapali Beach. Activities included operations of personal watercraft and parasailing, snorkeling and whale-watching tours that launch from Kāʻanapali.

Plaintiffs were particularly concerned about the discharge of wastewater into nearshore waters, the use of public beach access parking by tour operator customers and the danger of thrill craft or other vessels hitting canoe paddlers, surfers and divers.

The environmental impacts of these operations has never been studied or reviewed, according to plaintiffs. Multiple other commercial use permits are issued for other areas in West Maui.

In 2018, the Second Circuit Court ruled the permitting system was not subject to environmental review processes. The groups appealed.

Plaintiffs said that, in April, the state appeals court ruled the commercial permitting system “facilitated a deliberate and coordinated effort for each permittee to engage in commercial activity in Kāʻanapali waters for profit through the use of authorized equipment such as thrill craft and other vessels, procedures and techniques.”

The case has been sent back to the Second Circuit Court with orders for the state to comply with environmental review laws before issuing any further permits.

Kai Nishiki of Na Papaʻi Wawae ʻUlaʻula said: “Huge boats come up on the shoreline endangering residents and visitors. There are no ingress/egress markers for the boats to come into the bay so divers, paddlers, surfers and swimmers may be hit at any time. Swimming zone buoys are also missing! The boat passengers also take up our hard won beach parking.”

Plaintiff attorney Lance Collins said: “DLNR is the agency responsible for protecting our natural resources. Appropriate environmental review of these commercial permitting programs is one of the easiest ways that they can maximize that protection in the face of understaffing and underfunding.”