Superior Court Associate Judge Joseph N. Camacho issued yesterday a temporary restraining order preventing the Department of Public Lands from enforcing its decision to prohibit marine sports operators from picking up customers on Managaha Island unless they are Tasi Tours or its subcontractors.
Camacho granted the order at the request of five marine sports operators: Island Marine Sports Inc., Aquatic Marine Co. Inc. doing business as Amigo Aquatic Sports, Automarine Inc., Seahorse Inc., and BSEA Inc.
The five marine sports operators, through counsel Mark A. Scoggins, sued DPL yesterday to ask the court to invalidate the department's rule promulgated on Dec. 13, 2011, and June 14, 2012.
On Monday, July 2, the court will hear the case to determine if the restraining order is proper and if any extension is needed.
In his restraining order, Camacho barred DPL and any of its agents or representatives from taking any action to enforce the rule or interpretation of contract issued on Dec. 13, 2011, and on June 14, 2012.
DPL's rule restricts the ability of marine sports tour operators, including the five petitioners, from picking up tourists from Managaha for water sports activities, and later returning the same tourists to Managaha after the water sports activities.
Camacho ordered DPL not to restrict licensed and permitted Managaha-to-Managaha water sports activities of the petitioners.
The judge directed the Department of Public Safety to enforce the restraining order.
In December 2011, DPL barred marine sports operators from picking up tourists on Managaha unless they are Tasi Tours or its subcontractors. Tasi Tours holds an exclusive concession contract to operate on Managaha.
In May 2012, DPL reversed its December 2011 position. In June 2012, acting DPL secretary Pedro I. Itibus rescinded his May position.
This prompted the petitioners to file the lawsuit.
The petitioners asked the court to issue a judgment declaring DPL's rule and interpretation to be invalid for failure to follow the requirements of the Administrative Procedure Act.
The petitioners also sought a court order finding that DPL's interpretation of its concession agreement is unenforceable.
The marine sports tour operators provide services such as a jet ski rental, parasailing, banana boating, and other activities.
According to Scoggins, transportation to and from Managaha, together with water sports activities that take place on the way to or on the return trip from Managaha, have always been the primary focus of the five companies.
Scoggins said the five companies have engaged in Managaha-to-Managaha water sports for many years, some for 20 years or more.
The lawyer asserted that there is no question that the rule-making of Dec. 13, 2011, was not taken in observance of any of the procedural requirements of the Administrative Procedure Act.
The requirements, Scoggins said, include the necessity for notice and an opportunity to comment, approval by the attorney general, and publication in the Commonwealth Register, among others.
“None of these steps were ever taken by DPL,” he said.
Even if DPL properly followed the procedural requirements, Scoggins said that DPL has no constitutional or statutory authority to regulate business taking place off Managaha, or to regulate the marine sports activities themselves.
He said that access to Managaha is critical to the success and survival of petitioners' businesses.
“Some or all of the businesses will be forced to shut down or drastically scale back operations, throwing many employees out of work, if enforcement of the new rule continues much longer,” he added.