Marine sports operators still can’t access Managaha

Russell H. Lorfing, one of the lawyers for the marine sports operators, said they filed yesterday a motion to ask the court to either remove the bond or only require a nominal amount, which according to him are both supported by the law.

He pointed out that operators continue to suffer despite Superior Court associate judge Joseph N. Camacho’s “generous order” granting the preliminary injunction because the bond being asked is too prohibitive.

F. Matthew Smith, Lorfing’s co-counsel, said that Camacho should amend his order given the urgency of the matter, the irreparable harm already being suffered by their clients, the likelihood of success on the merits, and the general lack of financial means.

In his July 19, 2012, order, Camacho granted the marine sports operators’ request to maintain the status quo on Managaha access until their lawsuit against the Department of Public Lands is decided on its merits.

Camacho, however, ordered the marine sports operators-Island Marine Sports Inc., Aquatic Marine Co. Inc. doing business as Amigo Aquatic Sports, Automarine Inc., Seahorse Inc., and BSEA Inc.-to post the $62,034 bond.

Camacho said the preliminary injunction shall take effect once the bond is remitted to the court.

In their motion to modify the bond requirement, Smith said that Camacho “erroneously required the bond where none is required.” Even if the court were to find that a bond is necessary, Smith said the court has discretion to require only a nominal bond.

He pointed out that Camacho’s order makes clear that the only enjoined party is DPL. “Nowhere in the court’s order is Tasi Tours enjoined or restrained from performing a single act,” he added.

Smith said that while Camacho acknowledges that Tasi Tours has proven it might potentially suffer harm, mere harm is not the standard under the Rules of Civil Procedure. Citing a previous court ruling, Smith said Rule 65(c) does not cover potential harm of a third party intervenor.

He said that since the court cannot consider the harm to Tasi Tours since it is only an intervenor in the case, a bond is proper only upon showing that DPL would suffer some harm.

During the two-day hearing on the preliminary injunction, the court heard no testimony nor was any evidence submitted that indicated DPL would suffer harm, Smith said.

“What the court did hear, however, was that DPL was indemnified by Tasi Tours,” he said.

Smith said that tourism and the marine sports industry suffer every day that passes without access to Managaha.

“The purpose of an injunction is to prevent irreparable harm and while the court acknowledges that such harm exists, plaintiffs are at an impasse,” he said.

The lawyer said the court can alleviate this harm and act to ensure that the spirit and intent of the court order be enforced by simply removing the bond requirement.

By Ferdie de la Torre
Reporter