Court upholds BLNR fines of unlicensed lava boats

Hilo Circuit Judge Greg Nakamura upheld administrative fines levied by the state Board of Land and Natural Resources totaling $48,500 against three illegal commercial lava boat tours on Hawaii Island in a ruling issued Sept. 27.

Those fined are Henry K. Pomroy, Bill A. Fujimoto and Ho‘okupu Fish Company LLC.

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“We are very satisfied with this ruling,” said Edward Underwood, administrator for the state Department of Land and Natural Resources Division of Boating and Ocean Recreation, in a statement. “The purpose of the commercial use permit rules is to ensure that companies are following all federal, state and county laws and conducting their operations with proper regard to public safety and natural resource protection.”

The DLNR Division of Conservation and Resources Enforcement also issued Pomroy a criminal citation for violating Hawaii Administrative Rules, but it was dismissed by the county’s Prosecuting Attorney’s Office.

DOBOR brought the administrative enforcement action before BLNR at its April 28 meeting, alleging multiple instances of illegal commercial activity and requesting a total of $140,000 in administrative fines. Steve Strauss, then-managing member of Ho‘okupu Fish Company, and attorney for Pomroy and Fujimoto, requested and was granted a contested case hearing on the enforcement action.

According to DOBOR, Pomroy was warned that he was operating illegal commercial lava boat tours because he did not have a valid commercial permit authorizing the tours. Pomroy continued to repeatedly conduct illegal lava tours from the Pohoiki boat ramp, then instituted a “membership” scheme with assistance from Strauss, where customers would pay to enter into an agreement for “Conveyance of Membership Interest in Ho‘okupu Fish Company LLC.”

Pomroy argued that members of Ho‘okupu Fish Company were taking boat rides as members of the company and therefore were not paying customers.

“We recognized this scheme as an attempt to circumvent our commercial permit system and took action to put an end to it,” Underwood said. “Unpermitted commercial operations not only pose a threat to public safety and natural resource protection but are also unfair to the other commercial operators who comply with permitting requirements.”

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The hearing officer ruled there was commercial activity taking place and the agreement for membership interest did not void the commercial use permit requirement. BLNR voted to impose the fine, including attorney fees and administrative costs at $48,500.

Pomroy, Fujimoto, and Ho‘okupu Fish Company then appealed BLNR’s decision to the Circuit Court.

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