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Document Type

Article

Abstract

Located on the southeastern tip of Oahu, Hawaii, Hanauma Bay is a geological remnant of a volcanic eruption that took place more than 32,000 years ago. Historically, the Bay was a sacred site in Hawaiian culture and had relatively few visitors. Today, with its myriad of colorful marine life and striking underwater views, Hanauma Bay is one of the most popular sightseeing attractions in Hawaii. The beach area surrounding Hanauma Bay is part of the larger Koko Head Regional Park and is managed by the City and County of Honolulu. The Bay itself, however, is under the management jurisdiction of the state. All shore-based access to the Bay is through the city-operated beach park. Designated as Hawaii's first Marine Life Conservation District (MLCD) in 1967, and as an Underwater State Park in 1970, Hanauma Bay is recognized internationally as a unique underwater sanctuary. Recently renamed Hanauma Bay Nature Park, the site is second only to Waikiki Beach as Hawaii's top beach destination. The Bay's tremendous popularity is due largely to its accessibility. Hanauma Bay is within nine miles of the Waikiki resort area, where most visitors to the island stay. In addition, because the Bay's waters are calmed and protected by fringing reefs offshore, it is an excellent location for viewing Hawaii's nearshore reef communities by snorkeling or scuba diving. In 1975, an estimated half-million people, both residents and tourists, visited the Bay. By 1985, park attendance had more than tripled to 1.6 million visitors. By 1990, annual attendance had almost doubled from that of 1985, reaching 2.8 million, or approximately 8,000 persons each day. These figures far exceed the "recommended optimal use level" for Hanauma Bay, which in 1977 had been set at 1,363 persons per day. The surge in the Bay's popularity has not come without a price. The last three decades of intense recreational use have greatly accelerated environmental events in Hanauma Bay. The recent damage to the Bay is perhaps best summarized in the words of Lisa King, former coordinator of the Hanauma Bay Education Program: The nearshore water became murky from people kicking up and resuspending sediment. Washed-off sunscreen created a noticeably oily film by the end of each day. Litter overflowed onto the beach and into the water. Park toilets overflowed regularly because the septic system was not designed for so much use. Visitors urinated in the water, increasing dissolved nutrients which damaged the reef ecosystem and frequently elevated bacteria levels. Reef fish were fed all sorts of human foods including bread, corn, peas, potato chips and Cheeze Whiz. But worst of all, thousands of tourists were trampling on the living coral daily with their feet, flippers and booties. They were touching, bumping and holding onto the coral. Tourists accidentally or ignorantly broke off coral fragments. The coral could not withstand the constant abuse. As a result, over 90% of the nearshore reef has been killed. The overuse of Hanauma Bay threatened not only the natural environment, but also the quality of the visitor experience. During the late 1980s it became evident that an effective management plan was needed to preserve the Bay and prevent further human-induced degradation. In 1990, the Honolulu Department of Parks and Recreation implemented an eight point general plan that included measures designed to restrict vehicular access to the Bay, improve the facilities and infrastructure, and educate visitors. Although the number of visitors to Hanauma Bay has been reduced significantly since the plan's implementation, the Park's managers felt the need to further limit access to the Bay in order to preserve the fragile ecosystem. Park officials recently called for measures to limit the number of visitors who use the park at any one time to approximately 2,000, down from the estimated 4,000 who currently use the park at a given time. They claim 2,000 to be the maximum number of visitors the park can support without damaging the environment. In response, the Honolulu City Council passed a bill on May 24, 1995 instituting a $5 admission fee for non-Hawaii residents over the age of thirteen and a $5 to $35 dollar admission fee for tour busses making brief sightseeing stops. The city began collecting fees under the new ordinance on July 1, 1995. The projected annual income from the collection of fees was more than $4 million. Because the current annual operating cost for Hanauma Bay Nature Park approximates only $1 million, and the fees were expected to generate four times that amount, concerns were raised that the fees may be deemed an illegal tax. As a result, on January 8, 1996, the City Council elected to repeal all admission fees at Hanauma Bay until a new fee schedule could be devised. As an interim measure, all visitors were asked to pay a $5 "suggested donation" prior to gaining entry to the beach portion of the park. In January of 1996 the Honolulu City Council unveiled its new fee schedule for Hanauma Bay in the form of Bill 1, which was formally adopted on April 10, 1996. Under the newly adopted fee schedule, all vehicles entering the parking lot on the park's upper level will be assessed a $1 parking fee. Non-Hawaii residents over the age of thirteen will be charged $3 to enter the beach portion of the park, while native Hawaiians who claim to be visiting the park for cultural or religious purposes, will be exempt from paying parking and beach entry fees. Both the parking fees and non-resident admission fees will be deposited into a special fund created for the maintenance and improvement of the park. The new fee schedule also provides that excess funds may be put toward the operation and maintenance of other facilities within the Koko Head Regional Park. The collection of admission fees as a way to discourage visitors has raised quite a bit of controversy, not only because the amounts initially collected greatly exceeded those needed to maintain the park, but also because thus far, the collection of fees has not served its intended purpose of reducing the number of visitors to the park. Results of a recent survey indicate that it would take fees between $30 and $40 to discourage people from visiting the Bay. What is perhaps most controversial, however, is the discriminatory nature of the fees-the fact that only non-residents will be required to pay a fee to enter the beach portion of the park, while Hawaii residents will be exempt from paying to enter the beach, and native Hawaiians will be exempt from all fees if visiting the park for cultural purposes. This Comment examines the legality of the management strategy most recently proposed for Hanauma Bay Nature Park. Part II of the Comment chronicles the management history of the park up through the adoption of the new fee schedule. Part III evaluates the constitutionality of the discriminatory admission fee under the Privileges and Immunities Clause and the Fourteenth Amendment of the U.S. Constitution. Part IV considers the legality of a non-resident admission fee under Hawaii's Public Trust Doctrine and coastal access laws. Part V provides analysis regarding whether the collection of parking and non-resident admission fees could be deemed a tax under Hawaii law. Lastly, Part VI concludes that while the use of a discriminatory fee structure may survive challenges under both the U.S. Constitution and Hawaii's Public Trust Doctrine, alternative management strategies may prove easier to administer and less susceptible to litigation.

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