Metropolitan News-Enterprise


Thursday, November 29, 2007


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Ninth Circuit Upholds Hawaii Law Limiting Parasailing

State Effort to Protect Whales Takes Precedence Over Federal License, Court Says




Federal law licensing commercial vessels to operate off the coast of Hawaii does not bar the state from enforcing a partial ban on parasailing, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The state’s interest in protecting humpback whales is strong enough to overcome any implication that the grant of maritime coasting licenses by the federal government preempts the ban, Judge Richard Tallman wrote for the court.

Two Hawaii companies that offer parasailing excursions off Maui and off the Big Island of Hawaii, under license by the Coast Guard, challenged the state law designating part of their territory as “Humpback Whale Protected Waters” and prohibiting them from doing business there between Dec. 15 and May 15. Parasailing and similar activities that may harm the whales are banned during that time, which corresponds to the mammals’ mating season.

The companies had a short-lived victory when U.S. District Judge Susan Oki Mollway ruled, in July 2004, that the state law was preempted by the Marine Mammal Protection Act and permanently enjoined the state from enforcing it.

While the state’s appeal was pending, Congress passed the Fiscal Year 2005 Omnibus Appropriations Bill, a section of which expressly allows Hawaii to “enforce any State law or regulation with respect to the operation in State waters of recreational and commercial vessels, for the purpose of conservation and management of humpback whales.” After President Bush signed the bill into law, the state moved to stay the injunction and asked the Ninth Circuit to send the case back to the district judge.

Mollway granted the stay, and after the Ninth Circuit granted remand, she ruled that the change in federal law meant the state statute was no longer preempted, and rejected the companies’ other challenges to the law.

Tallman, writing for the Ninth Circuit, said the judge was correct. He distinguished an earlier case holding that Hawaii could not ban federally licensed commercial tour boats from the Hanalei River or Haeanei Bay ocean waters year-round.

Tallman pointed out that the parasailing ban applies only during part of the year,  that the plaintiffs did not show that it was economically infeasible to operate the business only seven months out of the year, and that nothing in the state law frustrated the purpose behind federal licensing.

“By enacting section 213 of the Omnibus Bill, Congress permitted the State of Hawaii to regulate the operation of commercial vessels for the purpose of protecting humpback whales,” the judge wrote. “Although the Omnibus Bill does not address the preemptive effect of federal Coast Guard licenses, it nonetheless suggests that Congress meant the Hawaii legislation protecting humpback whales to continue in force, despite a known impact on parasailing and similar commercial boating activity.”

The judge went on to say that the Hawaii law was not unreasonable or discriminatory, and thus did not violate the Commerce Clause.

The case is UFO Chuting of Hawaii, Inc. v. Smith, 05-16545.


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