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DLNR seeks dismissal of Marina case
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Posted on Jun 14 1999
Assistant Attorney General Sally Pfund has asked the U.S. District Court to dismiss a case filed by the Marine Revitalization Corporation against the Department of Land and Natural Resources since no constitutional right was violated.
According to Pfund, the case talks about a breach of contract between the two parties and a debate on the interpretation of the regulation concerning boat owners.
Both contentions are not considered federal matters and can be heard at the Superior Court, not in the U.S. District Court, she added.
Last March, the MRC asked the Federal court to compel DLNR perform their administrative duties in enforcing the regulation urging boat owners to vacate the Smiling Cove.
The DLNR has issued notices to commercial boat owners informing them to vacate the Smiling Cove since December 1997. But from 1997 to date, commercial vessels have remained at the Smiling Cove.
Pfund, however, pointed out to the court that the regulation does not ban boat owners from the Smiling Cove.
Counsel David Banes, who is representing MRC, argued that his client is asking from the court an order to compel DLNR enforce the regulation.
“This is not a breach of contract. Boat owners can go elsewhere but they don’t want to go elsewhere because they will be charged,” he said.
He added that because of the government’s inaction to enforce the regulation, the value of MRC’s property has diminished. Its inability to act has interfered with MRC’s return of investment expectations and resulted in near bankruptcy.
The MRC borrowed around $2.5 million from Bank of Hawaii and Mobil Corporation after receiving the assurance from DLNR and the Park Service that commercial boat owners will vacate from the Smiling Cove. Businessman Anthony Pellegrino guaranteed the loan.
