Status quo on Managaha access

Citing the extreme importance of tourism to the CNMI economy, Camacho said that tourists should not be penalized for the inconsistencies created by the various letters from DPL.

“A preliminary injunction will return the parties to the status quo, which in the short run will prevent such confusion and harm to tourism,” said Camacho in his 29-page order.

In granting the marine sports operators’ petition for preliminary injunction, Camacho barred DPL from enforcing its interpretation of the 1993 Regulations in its December 2011 and June 2012 letters.

The injunction also prevents DPL from revoking any marine sports operator’s license to land passengers on Managaha as a penalty for picking up or dropping off their customers.

Camacho also blocked DPL from refusing to renew any marine sports operator’s annual license for a beach concession as a penalty for picking up or dropping off their customers.

The judge determined that the petitioners have demonstrated “a very strong showing” of the likelihood of success on the merits of their Commonwealth Administrative Procedure Act claim.

The petitioners are five marine sports operators: Island Marine Sports Inc., Aquatic Marine Co. Inc. doing business as Amigo Aquatic Sports, Automarine Inc., Seahorse Inc., and BSEA Inc.

Camacho said the balance of hardships tips in the petitioners’ favor and that a preliminary injunction will be in the public interest.

The petitioners are ordered to post a bond in the amount of $62,034. The preliminary injunction, Camacho said, shall take effect once the full bond is remitted to the cashier of the Superior Court.

“Should this case proceed longer than six weeks, the court in its discretion may require an additional bond,” Camacho said.

The petitioners are suing DPL to invalidate its “rule-making,” which forbids the marine sports operators from picking up customers from Managaha Island and taking them on water sports activities such as banana boat rides and parasailing.

Tasi Tours moved to intervene in the lawsuit. The court granted the motion.

Tasi Tours believes that their concessionaire contract and DPL regulations grant them the exclusive right to conduct any “tour” that leaves from Managaha, which includes marine sports activities such as banana boat rides and parasailing.

The marine sports operators, however, believe that the regulation and contract do not prevent their companies from picking up customers on Managaha for water sports activities such as banana boat rides and parasailing as part of their pre-purchased package tours.

DPL, through its counsel, argued that the language in the 1993 Regulation and the 2001 Agreement between Tasi Tours and DPL regarding the commercial use of Managaha is ambiguous.

In particular, the DPL counsel suggested that the meaning of the word “tour” could not be readily equated with taking a tourist on a water sports activity.

In his order issued yesterday, Camacho said a court may issue a preliminary injunction if the moving party demonstrates either a combination of probable success on the merits and the possibility of irreparable harm or the existence of serious questions going to the merits and a balance of hardships sharply tipping in its favor.

At this stage of the proceeding, Camacho said he need not reach the issue of the appropriate interpretation of the 1993 Regulation, or make a finding as to DPL’s view of the regulation prior to the dispute.

Camacho said the petitioners have demonstrated a likelihood of success in showing that the December letter was rule-making under the Commonwealth Administrative Procedure Act.

“It is clear that, without injunctive relief-during the course of this litigation, which could easily last throughout the majority of the high season-each of these companies will continue to lose valuable goodwill that they have built up over the course of many years because they will be unable to fulfill their normal bookings,” he said.

Camacho said that enforcing the December 2011 letter will create a substantial handicap to these businesses during the high season, which is critical to the continued survival of their businesses.

“Thus, absent an injunction these businesses may permanently lose their market share to Tasi Tours during the course of this litigation,” Camacho said.

On the public interest issue, Camacho said the testimony demonstrated that due to enforcement efforts by DPL, some tourists were prevented from returning to Managaha after their water sports activity with one of the petitioners’ companies.

Camacho held a marathon two-day hearing on the petition on July 2 and 3, 2012. He then placed the matter under advisement.

Then DPL secretary Oscar M. Babauta issued the December 2011 letter that told 20 businesses to stop picking up tourists on Managaha for sports activity unless they are Tasi Tours or have an agreement with Tasi Tours, which have the exclusive concession rights to the island.