The Board of Land and Natural Resources (BLNR) voted on May 11, 2018 to approve administrative fines against Henry K. Pomroy, Bill A. Fujimoto, and Ho‘okupu Fish Company, LLC, regarding instances of illegal commercial lava boat tours on Hawai‘i Island. Pomroy was issued a criminal citation for violation of Hawai‘i Administrative Rules, but the Hawai‘i County Prosecuting Attorney’s Office dismissed the criminal citation, leading the DLNR Division of Boating and Ocean Recreation (DOBOR) to bring a civil enforcement action to the BLNR. A contested case hearing was held on the enforcement action and BLNR voted to adopt the Hearing Officer’s findings of fact, conclusions of law and decision and order.
DOBOR brought the civil enforcement action against the parties at BLNR’s regularly scheduled April 28, 2017 meeting, alleging multiple instances of illegal commercial activity and requesting a total of $140,000 in civil penalties. Steven D. Strauss, then-managing member of Ho‘okupu Fish Company, LLC, as well as 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 lava boat tours because he did not hold a commercial use permit authorizing the activity. The division said Pomroy continued to repeatedly conduct illegal lava tours from the Pohoiki Boat Launching Ramp. Pomroy then instituted a “membership” system with assistance from Strauss; a scheme 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, LLC were taking boat rides as members of the company and therefore were not paying customers.
The Hearing Officer ruled that there was commercial activity taking place and that the agreement for membership interest in Ho‘okupu Fish Company, LLC did not remove the commercial use permit requirement. The hearing officers proposed decision was adopted without change by the BLNR which amended fines, attorney’s fees and administrative costs to $48,500.
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