Pea­man case not over yet

Is­sue over race per­mits could go be­fore state land board

West Hawaii Today - - Front Page - BY CAMERON MICULKA cmiculka@west­hawai­ito­

KAILUA-KONA — More than four months af­ter a judge dis­missed a case against Sean “Pea­man” Pagett af­ter he was cited for run­ning an un­per­mit­ted race, Pagett’s at­tor­ney said the is­sue might not be set­tled just yet.

Pagett’s at­tor­ney, Ja­son Braswell, said they are still wait­ing to see whether the Di­vi­sion of Boat­ing and Ocean Recre­ation will bring an ad­min­is­tra­tive ac­tion against his client even af­ter the case was dis­missed in court.

Pagett, who’s been or­ga­niz­ing biathlons for about 30 years, re­ceived a ci­ta­tion last De­cem­ber from the en­force­ment branch of the Depart­ment of Land and Nat­u­ral Re­sources, which DOBOR is un­der. Pagett got a ticket for host­ing the Doc Fer­ren Hall of Fame Biathlon. The event is a half-mile swim from the pier on the water­front in Kailua-Kona fol­lowed by a 3.9-mile run on Alii Drive on Christ­mas Day. About 150 peo­ple par­tic­i­pated in the run and swim.

The depart­ment ar­gued that Pagett’s events fall un­der

ad­min­is­tra­tive rules for re­gat­tas, marine pa­rades, boat races or ex­hi­bi­tions. State law also re­quires the pur­chase of riskman­age­ment in­sur­ance to cover those events once a per­mit is is­sued.

In March though, prose­cu­tors moved to dis­miss the ci­ta­tion against Pagett, say­ing the man was in com­pli­ance with the in­sur­ance and that the al­le­ga­tion levied against him didn’t ap­ply.

But that wasn’t the end of it.

DOBOR, Braswell said Fri­day, then con­tacted Pagett and told him they were bring­ing an ad­min­is­tra­tive en­force­ment ac­tion against him.

Un­like ci­ta­tions, which go be­fore a judge, ad­min­is­tra­tive ac­tions play out be­fore the Board of Land and Nat­u­ral Re­sources.

Pagett sued in court, say­ing that DOBOR didn’t have the au­thor­ity to pass or im­ple­ment the rule they were try­ing to cite Pagett over.

A cir­cuit court judge dis­missed the suit on Thurs­day, say­ing he didn’t have ju­ris­dic­tion to hear the is­sue. He didn’t, how­ever, rule on the ques­tion of whether DOBOR had the au­thor­ity to adopt the rule in ques­tion.

The judge’s rul­ing frees DOBOR to move for­ward.

Should DOBOR put the is­sue be­fore BLNR, Pagett could face fines for hold­ing fu­ture races with­out the per­mits. Pagett has main­tained over the months that the re­gatta per­mit clas­si­fi­ca­tion doesn’t ap­ply to his free com­mu­nity runs that have been a sta­ple of West Hawaii for the last three decades.

As of yet though, Braswell said DOBOR hasn’t yet taken the of­fi­cial step of putting that ac­tion be­fore the Land Board.

“I think all in­di­ca­tions are that they will pro­ceed be­fore the Land Board,” Braswell said, “but they haven’t.”

A draft sub­mit­tal sent to Braswell said that in­stead of fin­ing Pagett, DOBOR is ask­ing the board to, one, find that Pagett vi­o­lated ad­min­is­tra­tive rules by hold­ing the events with­out the re­quired per­mits and ap­proval from DLNR and, two, is­sue Pagett a warn­ing let­ter.

The draft sub­mit­tal said they are rec­om­mend­ing against a fine “be­cause of Mr. Pagett’s will­ing­ness to com­ply with per­mit­ting re­quire­ments.”

“DOBOR staff rec­om­mends that the let­ter of warn­ing in­clude a no­tice to Mr. Pagett that any fu­ture vi­o­la­tions will re­sult in the max­i­mum al­low­able penal­ties pur­suant to (the law) and any such vi­o­la­tions will be con­sid­ered,” added the let­ter.

A spokesman for DLNR said the depart­ment doesn’t com­ment on pend­ing le­gal mat­ters.


A Peawee zips through the course dur­ing the Pea­man Thrash and Dash Biathlon event in 2015 on Alii Drive.

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