UFO CHUTING OF HAWAII, INC. v. SMITH
The Ninth Circuit Court of Appeals today released an opinion in UFO CHUTING OF HAWAII, INC. v. SMITH, No. 05-16545, a civil rights appeal. The panel consisted of David R. Thompson, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.
TALLMAN, Circuit Judge:
UFO Chuting of Hawaii, Inc. and K.M.B.S., Inc. (collectively “UFO”) appeal the district court’s summary judgment in favor of Defendants, the State of Hawaii and the United States as Intervenor (collectively “State”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales. Because UFO does not qualify as a “prevailing party,” the district court did not abuse its discretion in denying UFO’s motion for attorney’s fees. I UFO operates a commercial parasailing business offering parasailing excursions to adventure seekers off the coast of Maui and the Big Island of Hawaii. Parasailing is an “activity in which an individual is transported or carried aloft by a parachute, sail, or other material attached to a towline which is towed by a vessel.” Haw. Code R. § 13-250-5. The United States Coast Guard inspects and licenses UFO’s two vessels –the M/V UFO and the M/V CASEY ANN–to carry up to twelve passengers in the “coastwise” trade between McGregor Point and Lipoa Point on the western coast of Maui. A portion of this area is located within the “Maui Humpback Whale Protected Waters.” See Haw. Code R. § 13-256-112. Between December 15 and May 15 of each year, when humpback whales are mating, bearing calves, and caring for their young, Hawaii state law prohibits any person from “operat[ing] a thrill craft, or engag[ing] in parasailing, water sledding, or commercial high speed boating, or operat[ing] a motor vessel towing a person engaged in water sledding or . . .