Published September 15, 2012
HONOLULU – Hawaii officials on Friday revoked a permit for a kayak tour company that led a group of teens when one from New York was swept out to sea on the Big Island.
But Bob Frame, a lawyer for Hawaii Pack and Paddle, suggested the teens or the Colorado guides along for the trip pressured the local guides to deviate from the planned route. Frame asked the Hawaii Board of Land and Natural Resources for more time to talk with witnesses and piece together what happened.
"The company had a sterling safety record prior to this incident," said Frame, a lawyer for company owner Bari Mims. "Unusual circumstances resulted in the deviation."
Frame said he didn't know more specifics because he hadn't yet spoken with witnesses. But he said the guides can do only so much to keep customers on the proper route, and can't use physical force if the customers choose to a different path.
The board rescinded Hawaii Pack and Paddle's permit but will allow Frame to present more details at an Oct. 12 meeting. The company still will be operating then because the revocation takes effect in 30 days.
The state Department of Land and Natural Resources had recommended revoking the permit after three violations on July 4, when 15-year-old Tyler Madoff was swept away by large waves. His body was never found, and he is presumed dead.
The family of the teen from White Plains, N.Y., filed a lawsuit, claiming tour guides were negligent.
Curt Cottrell, assistant state parks administrator, said the group walked roughly a quarter-mile from the approved route in Kealakekua Bay to an off-limits tide pool.
The group included 12 teens, plus two Hawaii Pack and Paddle guides and two guides from a Colorado company that organized the larger trip. The teens and guides were hiking near a monument to British explorer Captain James Cook when they stopped to rest at the tide pool. That's when large waves washed away Madoff and another 15-year-old boy. The other teen, from Miami, Fla., eventually was rescued.
Susan Karten, a lawyer for Madoff's family, said both tour companies are at fault and Hawaii Pack and Paddle is doing nothing but pointing fingers elsewhere.
Karten said the Colorado guides decided to lead the teens on a detoured hike, while Hawaii Pack and Paddle guides followed and recommended the teens get into the tide pool.
"They didn't have a gun to their head," Karten said of the Hawaii guides.
Cottrell said the company was out longer than permitted and initially reported fewer customers on the tour.
He said regulators have depended on an honor system among the handful of tour companies to abide by department rules at the bay, which is considered an important cultural site by the state. Cook, the first European to visit Hawaii, was killed in the bay in 1779, during a skirmish with Native Hawaiians.
After companies are given permits, it's tough to actively enforce limits unless accidents or other unusual events happen, Cottrell said.
"They tend to get sloppy," he said.
Cottrell said in an interview that even before Madoff's disappearance highlighted the issue, the state had been considering denying all kayak permits after they expire at the end of December as officials consider ways to better regulate commercial activity in the area. Cottrell said unlicensed boat rentals by companies that don't have permits have been common and are hurting natural resources.
A ban would affect thousands of tourists yearly who go on guided kayak tours with one of four local companies, and potentially those going out with their own plastic boats.
Frame said the loss of the permit would likely force Hawaii Pack and Paddle to shut down.