Preservation groups demand state follow court order and pause commercial permits at Kā‘anapali Beach until study is done

Two West Maui advocacy groups are claiming the state is issuing permit renewals for commercial operators at Kā‘anapali Beach “in open defiance” of a court order that’s part of a yearslong dispute over use of the shoreline.

Na Papa’i Wawae ‘Ula’ula and the West Maui Preservation Association are pushing the state Department of Land and Natural Resources to comply with the order issued in November by Maui Environmental Court Judge Peter Cahill to halt the issuance and renewal of commercial permits until an environmental review of commercial operations can be completed.

The community groups said in a news release on Thursday that the department had approved “at least four commercial use permits” since Cahill’s decision.

“We want DLNR to take accountability and protect our beaches and oceans for everyone, and enforce environmental assessments and implement the safety protocols that show our public is being prioritized,” said Kai Nishiki, one of the plaintiffs in the case.

But commercial operators in Kā‘anapali say the order could force them to shut down if their permits are not renewed this year, jeopardizing jobs for dozens of Maui families who were impacted by the August 2023 wildfires. 

“The weight on the shoulders of folks like myself who are having to communicate with 60 people that are anxious about their mortgages and their families,” said Blake Moore, general manager of Teralani Sailing Adventures, a company that operates out of Kā‘anapali Beach. “What does a person like me tell those people?”

The waters off Kā‘anapali Beach have long been a popular spot for swimmers and beachgoers. But the beach also has been a hub for commercial operators offering parasailing, snorkeling and whale watching tours. Catamarans use the shoreline to load and unload passengers for sunset cruises and other sailing tours.

Commercial catamaran operations at Kā‘anapali are “highly restricted,” with a maximum of 10 catamaran commercial use permits allowed for beach landings, according to court documents. 

Commercial thrill craft and parasail operations at Kā‘anapali are shut down from Dec. 15 to June 15 of each year to protect humpback whales. However, a maximum of three thrill craft commercial use permits are available within a regulated area of Kā‘anapali, and operators must stay in the designated area. 

In 2017, Na Papa’i Wawae ‘Ula’ula and the West Maui Preservation Association sued the Department of Land and Natural Resources over the renewal of six commercial use permits for operators in Kā’anapali. The groups were concerned about tour operator customers taking up public access beach parking spaces at hotels, as well as the potential risks the large vessels posed to paddlers, surfers and divers. They also wanted to know whether the boats were discharging wastewater into nearshore waters, which operators have denied. 

In 2018, the 2nd Circuit Court ruled the permitting system was not subject to environmental review processes, but the groups appealed. 

In April of last year, the state appeals court sent the case back to Maui to have the appropriate environmental review done, which Cahill ordered to happen and issued an injunction in November halting further commercial permit issuance and renewal. 

The Department of Land and Natural Resources said in a statement on Thursday that it is seeking reconsideration of the court’s order.

“DLNR is looking into a solution that addresses the environmental concerns of the plaintiffs and concerned community members, while recognizing the economic impact the court’s order has on Kā’anapali permittees and those businesses that rely on these activities to support their families and employees, as they recover from the Lahaina wildfires,” the department said. 

Cahill is set to consider the state’s request to reconsider the order in 2nd Circuit Court at 9 a.m. on Jan. 17. He also denied the community groups’ attempt to hold the state in contempt of court.

In the meantime, DLNR said: “The department has every intention of following the recent court order but is hoping the court will reconsider or stay its injunction. This would give the DLNR more time to find solutions that comply with the law.”

When asked what some of those solutions might be, the department told the Hawai’i Journalism Initiative that the statement it sent out to the media “is our only comment.” It also declined to address whether it had approved commercial use permits since Cahill’s decision.

Nishiki and attorney Lance Collins say they’ve offered solutions that the state has never embraced. They include:

• Having boat companies secure parking for their customers so they don’t take public access stalls;
• Requiring companies to provide plans for waste management disposal; and
• Creating clear ingress and egress markings on the beach to avoid potential accidents like the Teralani catamaran that grounded in September and injured four people.

A company spokesperson at the time blamed the incident on “bad timing” from the swells and a “jam-packed” shoreline with nowhere to dock. 

In the months after the August 2023 wildfire, Nishiki camped out on Kā‘anapali Beach with other activists as part of a “Fishing for Housing” demonstration. She said she watched commercial sailboats unload passengers onto the popular shoreline nearly every day and raised concerns over the risks to the public when winds are strong and swells are high.  

On Saturday evening, there were no markers along the beach indicating the areas where the catamarans would pull up to the shoreline. At least five docked along the beach to unload passengers, and most beachgoers stayed in place to watch as they did.

Collins and Nishiki were sympathetic to the local workers who rely on the tour companies for a paycheck and said the issue was more the state’s failure to follow through on a study of the Kā‘anapali operators’ environmental impacts, which they say has never been done before.

“We don’t want anybody to lose their job,” Collins said. “It’s very troubling that basically the state has just decided that they aren’t going to do an environmental review and they sort of continue to drag their feet, and it’s very frustrating that basically because of their actions, it’s now potentially putting people’s jobs at risk.”

Teralani employs about 60 people, and Moore said the company has informed workers they will keep them on as long as they can depending on what the state decides to do about their permit renewal this year. The company still isn’t at full staffing levels since it lost all of its skiffs, support vehicles and offices in the August 2023 wildfire. With no work, they were forced to lay off all but four employees, Moore said. 

Three of Teralani’s commercial sailboats survived the fire, and the company restarted tours in October 2023. But Moore said many employees moved off island and the company, like many other local businesses, has struggled to find workers.

Tourism, the island’s primary economic engine, has yet to fully recover since the wildfires, and Moore said the slowdown will force more people to leave. With Lahaina Harbor out of operations while it undergoes post-fire repairs, Moore pointed out that there are even fewer job options for workers in the industry.

He said he was supportive of an environmental assessment for the commercial companies in Kā‘anapali but wanted them to be able to continue operating in the meantime. Teralani has been operating in the area since 1994, and he said incidents like the one in September are rare.

“I don’t think it’s the community against one another,” Moore said. “The question right now is how do we move forward in compliance together as a community without putting the community out of work? Everyone agrees that we need to protect the environment. I hope everyone agrees we don’t want the community out of work. So we can start with those two agreements and move toward something that makes sense.”