"The tour operator also disputed the state's contention that the coral was valuable."
http://www.mauinews.com/page/content.detail/id/521268.html?nav=5031
Proposal would lower fine for coral reef damage
POSTED: July 21, 2009
HONOLULU - The state is proposing to reduce a fine to a Maui tour boat operator from $542,950 to $130,000 - a reduction of more than 75 percent - for damaging coral off the coast of the Maui Prince Hotel in July and August 2007.
The proposed settlement is on the agenda for the state Board of Land and Natural Resources' meeting Wednesday, starting at 9 a.m. in the land board's conference room in the Kalanimoku Building in Honolulu.
The board imposed the heavier fine Oct. 24 after it found Makena Boat Partners killed, damaged or dislodged 538 individual coral colonies when its Kai Kanani catamaran dropped anchor off shore of the hotel.
Responding to a complaint, officials with the department's Division of Aquatic Resources inspected and found the boat's heavy chain had dragged along the bottom, scouring and knocking over the coral reef.
Lawyers for Makena Boat Partners immediately appealed the board's decision by requesting a contested case hearing, which was granted. Attorneys for the tour operator also petitioned the U.S. District Court for exoneration from or limitation of any liability. The contested case proceeding was stopped, pending a resolution of the federal case.
Through negotiations between the state and Makena Boat Partners, the parties agreed that the tour operator would pay $127,621.75 to the state's Commercial Fisheries Special Fund, plus administrative costs of $2,378.25.
"Staff believes the settlement value of $130,000 represents a fair resolution of the pending dispute," a staff report to the board said, noting that the original fine was the maximum amount the panel could have imposed.
Now, the proposed settlement "reflects staff's detailed evaluation of the value of resources damaged. Staff believes that the proposed settlement amount properly balances the extent of harm caused to the stony corals, the ecological service value of the coral specimens and the relative value of the overall area impacted.
"Staff is also in favor of the proposed settlement due to the uncertainties and risks of litigating this matter in the federal courts," the report said.
It also says the settlement "compares favorably" with the resolution of the Kai Anela case, which was settled in September for $396,915, "given the relative quality of the impacted resource." At the time, it was the largest fine imposed for damaging coral.
The Kai Anela was a dive boat operated by Maui Snorkel Charters Inc., which operates as the Maui Dive Shop. The 32-foot boat sank twice, once in September 2006 and again two days later when it was being raised for salvage. Both times it crushed the reef, damaging an estimated 1,230 to 1,494 coral colonies in a 14,600-square-foot area.
Maui Dive Shop also had its permit to operate within the Molokini Shoal Marine Life Conservation District suspended for three months.
The damage from the Kai Kanani occurred when it dropped anchor on a coral reef in July 2007 to make room for a second boat, the Kai Kanani II, at the permitted mooring.
The second boat had been brought over from the Caribbean, and the Kai Kanani was to have been donated to the Polynesian Voyaging Society.
Makena Boat Partners objected to the state's research methods and its assessment of damage caused by the Kai Kanani's anchor and chain. The tour operator also disputed the state's contention that the coral was valuable.
In November 2007, Makena Boat Partners paid criminal penalties of $200 for damage to stony coral and $200 for damage to live rock in a case prosecuted in District Court.
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2 comments:
At 1st read the initial reaction is: you've got to be f@*#ing kidding me! But the lawyers as lawyers are wont to do, have certainly done their jobs in putting the argument of fair quantification for damages in play, as bold-faced as it is.
Am no expert at the cascading effect of coral damage but I suspect that the same argument can be used against them. I.e., what's the sum value of damages down the nature chain and subsequent real cost for cleaning and fixing all that up? Have a suspicion that it dwarfs the $130K and even original $542K assessed by the court.
The unfortunate thing is that they're positioning this in comparison to a $396K precedence and a ruling disproportionate to that would be tantamount to admittance by the courts that they didn't get it quite right the last time around.
And of course, we all know how much courts like to admit they were wrong ...
It really doesn't surprise me. Hawaii takes so little care of its water environment. Overfishing, little enforcement of protected areas and backing down when they do enforce the laws. I believe the dive shop should pay the full amount. How can a dive shop whose is existence is based on the reefs question the value of the reefs. Obviously they do not care about the reefs so force them to pay and let them go out of business.
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