POSTED: 1:30 a.m. HST, Jan 21, 2011
A state judge threw out charges yesterday against five men accused of feeding sharks after federal officials refused to submit a user's manual and related materials for a top-secret tracking device also used in terror and drug-trafficking cases.
The cases against Maurice Lee Chalker Jr., Nickolas Gargaro, Eric Christopher Nourrie, Kohl William Ragragola and Richard Bock Whyte were dismissed yesterday by per diem District Judge Christopher McKenzie .
The five are all current or former employees of the two shark tour companies on Oahu — North Shore Shark Adventures and Hawaii Shark Encounters, both of which are based in Haleiwa.
They were charged with shark feeding, a petty misdemeanor under state law, punishable by up to 30 days in jail and a maximum fine of $1,000.
Shark tours have long split the North Shore community. While some view it as an economic boost for the area, others feel it is wrong and potentially dangerous to attract sharks to tour boats by feeding them.
David Hayakawa, Ragragola's attorney, said he and the attorneys for the four other crew members sought the user's manual and other key materials related to what has been dubbed in court as "the secret law enforcement GPS" that officers with the National Oceanic and Atmospheric Administration used to track the location of the shark tour boats.
The tool is at the center of the cases against the men because the charges allege they fed sharks within 3 nautical miles of shore, which comes under state jurisdiction.
"It's the only thing that could prove that they were within the state's 3-mile limit," Hayakawa said. However, he said, "law enforcement chose to use a device that they could not utilize as evidence in court."
NOAA and the U.S. attorney's office violated the court order to turn over the documents, instead submitting a redacted copy, Hayakawa said.
"They're claiming public safety, that lives could be put at risk if they have to disclose information related to this device."
That spurred McKenzie to throw out any evidence tied to the GPS device, which led city prosecutors themselves to seek a dismissal of the case, Hayakawa said.
Mahina Chillingworth of Hui O Hee Nalu said members of the North Shore group opposed to shark feeding are disappointed by the outcome but resolve to continue their fight.
"It is what it is, but it still doesn't dismiss the fact that they were caught feeding the sharks," Chillingworth said. "They lucked out, I guess."
The group believes the shark-feeding activities by the shark tour boats outside state waters are also illegal and remains hopeful authorities will try the case again in federal court, she said.
Attorney Tom Bush, who represents Nourrie, said the sharks grew used to hanging out near crab boats and they now also gravitate toward shark tour boats, he said.
"The sharks are already there. That's their home."
Chillingworth disagreed. "You just don't go on a shark boat and sharks automatically go by the boats," she said.