The state Land Board is scheduled to decide Friday whether Sean Pagett should pay a $10,000 fine for holding two “Peaman” biathlons without marine ocean water event permits.
The Department of Land and Natural Resources is requesting the maximum $5,000 fine each for Peaman run/walk swimming events held in and around the Kailua-Kona Pier on Nov. 27 and Dec. 25.
“(The Division of Boating and Ocean Resources) believes that unless there are consequences for violating (state law and administrative rule) provisions, people do not have an incentive to abide by the rules and directions of (DLNR divisions),” a staff report dated Friday and signed by DOBOR Administrator Ed Underwood states. “In order to encourage compliance and curb present and future violations of the rules, DOBOR recommends that the board issue the maximum ten thousand-dollar fine to Mr. Pagett.”
Pagett, along with his attorney, Jason Braswell, contend the swimming contests don’t fall under DOBOR’s rules covering regattas, marine parades, boat races or exhibitions. District Court Judge Margaret Masunaga agreed, dismissing a criminal complaint March 13 against Pagett with prejudice, meaning he can’t again be charged in court for the same criminal offense.
“It’s a boating rule and these events don’t involve boats,” Braswell said Monday. “It’s a boating rule that they’re trying to apply to a swimming event.”
He accused DLNR of trying to make “an end run,” around the court ruling by taking it down to an administrative level.
The state administrative code defines “regatta” or “marine parade” as: “an organized water event of limited duration which is conducted according to a prearranged schedule.”
The department defines the code to mean the requirements of issuance of a marine ocean water event permit would include “paddling events, canoe regattas, and swimming events, as well as the type of organized scheduled water events that Mr. Pagett conducts.”
Federal regulations state, “regatta or marine parade means an organized water event of limited duration which is conducted according to a prearranged schedule,” according to Underwood’s report. In addition, he said, an event of more than 50 swimmers is cited as an example of a situation where an event organizer is required to obtain a Coast Guard marine permit.
Underwood said in his report that by not obtaining a permit, Pagett isn’t notifying the department about the event, so staff can’t notify vessels in the area that there will be participants in the water, thus creating a safety hazard.
If the Land Board agrees to the fine, Pagett said he plans to ask for a contested case hearing, a quasi-judicial proceeding before a hearing officer.
County Prosecutor Mitch Roth said the report provided the Land Board has a conspicuous omission as it doesn’t mention the criminal case that was dismissed with prejudice, while mentioning a civil case Pagett filed against DLNR that was dismissed in civil court Aug. 14 for lack of jurisdiction.
Roth has had his own run-ins against Underwood when Underwood earlier this year filed an unsuccessful ethics complaint against him for testifying to the Land Board in an unrelated boating case.
“He’s trying to paint his own picture,” Roth said. “These guys are ethically challenged.”
