A tour operator is suing the county, Mayor Mitch Roth and Public Works Director Steve Pause, claiming restrictions placed on the company’s Waipi‘o Valley tours by the mayor’s emergency rules regarding Waipi‘o Valley Road amount to a “taking” of the company without due compensation.
Hilo attorney William Dean filed an amended complaint on Feb. 16 on behalf of Waipio Ohana Corporation, which operates as Waipio Valley Shuttle.
At issue is the traffic emergency zone declaration and Waipi‘o Valley Road Emergency Rule No. 1 issued by Roth on Feb. 25, 2022. The emergency rule closed the steep and poorly maintained road to all except valley residents after a geotechnical evaluation by the engineering firm Hart Crowser found an elevated risk of rockfalls.
The rule was relaxed in September — after a law last April by a community group — to permit Big Island residents and some commercial tour operators to travel the road with four-wheel-drive vehicles.
The lawsuit by the tour company — the principals are Gary Matsuo and Justin Matsuo — said the terms of the declaration and emergency rule “failed to make reasonable accommodations to provide for continued use of Waipi‘o Valley Road by the plaintiff and others to access the ocean and beach at Waipi‘o in exercise of their rights guaranteed by the Hawaii state constitution and the public trust doctrine.”
“Mayor Roth 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,” according to the lawsuit.
The complaint cites both the Fifth Amendment of the U.S. Constitution and Article 1, Section 20, of the Hawaii Constitution, the latter which states “private property shall not be taken or damaged for public use without just compensation.”
“Without extending constitutionally required just compensation to plaintiff, the declaration and emergency rule jeopardized the sustainability of plaintiff’s businesses and the … plaintiff’s rights with respect to property ownership,” the lawsuit alleges.
The suit, like the previous lawsuit by Malama I Ke Kai ‘O Waipi‘o, alleges that Roth overstepped his legal boundaries by closing the road to all but a handful based on allegedly flawed mathematical computations by Hart Crowser overestimating the mathematical chance of death by rockfall on a road where a rockfall death has never been recorded.
Waipio Valley Shuttle’s website, as of Monday, appeared to be accepting bookings. Photos show what appear to be 15-passenger vans as the tour transportation.
Dean didn’t respond to the Tribune-Herald’s request for comment in time for this story.
Cyrus Johnasen, spokesman for Roth, and the Office of the Corporation Counsel, the county’s civil attorneys, cited the county’s practice of not commenting on active litigation.
Email John Burnett at jburnett@hawaiitribune-herald.com.