Tour company sues mayor, Hawai‘i County over Waipi‘o Valley Road access

A tour operator is suing Hawai‘i County Mayor Mitch Roth, Public Works Director Steve Pause and Hawai’i County regarding access to Waipiʻo Valley Road. The lawsuit claims the emergency rules Roth issued a year ago that restricted access to the road violated the tour company’s rights by curtailing its operations without compensation.

“Mayor Roth has seized without compensation the plaintiff’s property, by completely eliminating the ability of the company to operate on Waipi‘o Valley Road, in effect forcing its closure,” states an amended complaint filed Feb. 16 by Hilo attorney William Dean on behalf of Waipi‘o ‘Ohana Corp., owner and operator of tour company Waipi‘o Valley Shuttle.

Roth issued Waipi‘o Valley Road Emergency Rule No. 1 on Feb. 25, 2022 after a geotechnical evaluation by engineering firm Hart Crowser found an elevated risk of rockfalls on the steep and poorly maintained road.

Following a lawsuit filed in April of last year and protests, Roth relaxed the emergency rule in September 2022. The new order allows road access for all Big Island residents, county-permitted tour operators and those seeking to practice their Native Hawaiian traditional or customary rights, as long as they have four-wheel-drive vehicles.

The road remains closed to visitors not with tours, uncovered vehicles, ATVs, horses and pedestrians.

Waipi‘o Valley Shuttle is the only fully licensed tour company currently operating in the valley, according to the tour operator’s lawsuit. Waipi‘o ‘Ohana Corp. has owned and operated the company for more than 25 years.

It says it is the original guided tour company in the valley and had operated almost uninterrupted since the late 1960s until what the suit calls the County’s “illegal actions” closing the access road.

In October 2022, the County unveiled plans to repair the road and make it safe from rockfalls.

The tour operator lawsuit — similar to the previous suit brought last April by community group Malama I Ke Kai ‘O Waipi‘o — claims Roth “acted beyond the scope” of his authority by closing the road to most, allowing some groups access with no safeguards at all while arbitrarily denying others.

The most recent lawsuit also sites allegedly flawed computations by the engineering firm that overestimated the chance of someone dying because of a rockfall on the road where such an incident has never been recorded.

The complaint cites the Fifth Amendment of the U.S. Constitution and Article 1, Section 20, of the Hawai‘i Constitution, alleging the County’s traffic emergency zone declaration and Roth’s emergency rule adversely impacted Waipi‘o Valley Shuttle’s use of personal property, i.e. the company itself, to such an extent that — at least temporarily — “the orders entirely diminished the economic benefit of the company.”

Article 1, Section 20, of the state constitution provides that private property shall not be taken or damaged for public use without just compensation. The lawsuit claims Roth’s “arbitrary and capricious” restrictions on the tour company’s use of the road went too far and must “be recognized as a taking.”

“Otherwise, without just compensation guaranteed by the Takings Clause, plaintiff will be privately saddled with the cost of paying for government action undertaken for the common good,” the lawsuit says.

The suit also claims the declaration and emergency rule “failed to make reasonable accommodations” to provide for continued use of Waipi‘o Valley Road by the tour company — principals of which are Gary Matsuo and Justin Matsuo — and others to access the beach and ocean at Waipi‘o Valley “in exercise of their rights guaranteed by the Hawai‘i State Constitution and the public trust doctrine.”

Without extending constitutionally required just compensation to the tour company, the lawsuit says, the declaration and emergency rule jeopardize the sustainability of the businesses and its rights to property ownership.

“The declaration and emergency rule are unlawful, unnecessary and continue to cause division among longtime users of Waipi‘o Valley Road and the Hāmākua community,” the lawsuit says.

As of Tuesday, the company’s website was accepting bookings for $67 for an adult or $36.50 for a child age 3 to 11. The website said: “Experience one of the wonders of Hawai‘i! Lush valleys, flowing rivers, swelling surf and other natural beauties make the Waipi‘o Valley a must-visit destination.”