 Aloha everybody. I'm Mark Coleman and I'm here as your co-host of this latest episode of Talking Tax with my colleague and the main man really here, Tom Yamachika, president of the Tax Foundation of Hawaii. I'm with the Grassford Institute of Hawaii and we're going to have a good time today actually talking about a column that Tom wrote published on the Tax Foundation website and also in newspapers throughout the state. He has a weekly column and and this week he wrote about the headline was Keep Tourists Out and it was about the gradual reopening of tourism on in the Lahaina area, the West Maui area, the protests against tourism reopening in that area and some of the implications of what that all means. You know, is it a good idea? Does the government really have a right to keep people out in the first place and similar similar situation problems like that? So I thought it was a really great article, a prompt that a lot of thought about the issues involved. It didn't go real, it wasn't a super deep dive but it touched a lot of bases. The basis for the article was, or the jumping off point to talk about it was the fact that a little town in Vermont recently did a similar thing in blocking tourists from coming through their town during those during the fall period. It was in early October, late September, early October. Apparently a lot of people were tracing through the through the little town to take pictures of the of the leaves turning to their beautiful colors during the fall and they weren't being very respectful of the neighborhood, violating property rights, trespassing, polluting, etc. So that was kind of an interesting thing. I think it's, I think they lifted that ban. I don't think anybody challenged it constitutionally but they did get away with it for a little while and we'd like to see how they how they managed to be able to, what the thinking is behind those who think we can ban tourism in Hawaii, whether temporarily and for whatever good reason it might be. Tom, I think that the phrase, phrases in your article that I really liked were that there's only, one thing we need to realize is that there's only so much our government has allowed to do and this relates to the constitutional right to travel. If people on Maui are allowed to go to West Oahu or West Maui, excuse me, then tourists. Well, let's, yeah, let's kind of open up what the context is and I'm sure you've heard of Sleepy Hollow from, is that the headless horseman? Headless horseman and Sleepy Hollow, yeah. We were talking about the town of Pomfret in Vermont, which has one of the most picturesque areas of the country for fall foliage called Sleepy Hollow Farm and that's the town that decided to close two of its main roads to tourists for the seasons because some of the tourists who did show up, damaged roads, had accidents, required towing out of ditches, trampled gardens, defecated on private property, that's pretty tough, parked in fields and driveways and were not nice to residents. They actually put no trespassing signs on private property and tourists basically didn't respect those who went into the property anyway as the videos showed. This was on NBC News. A lot of white coverage, that whole idea was picked up by BBC and Travel and Leisure and all kinds of places. Right. Obviously, this wasn't true of all tourists. Some of the tourists, of course, were good and respectful people but there were a lot that weren't and there were enough of the ladder to make the town close the roads to tourists and see if they could get away with it. I kept looking for follow-up articles to see if anyone had challenged the constitutionality of that ban but I guess they lifted it relatively soon before anybody could, it wasn't a permanent thing. I guess all the leaves fell off the trees or already or something, I don't know why. The fall foliage time is not permanent. It only happens for a few weeks. But the reason it seemed relevant to me was because the West Maui residents had given our governor a petition with 14,000 signatures saying, hey, we're not ready to reopen this area to tourists. Keep the tourists out. I was thinking, well, why is that? Then the people who were pushing the petition had kind of the same complaints. People who worked in the visitor service industries were bothered by tourists asking them about whether they were displaced and making them relive the horrific day. I'm sure it makes good stories but if people wanted their privacy, couldn't they just say, I don't want to talk about it, even if they're bartenders or stuff like that? They saw some tourists doing dumb or disrespectful things like taking selfies with the burned-out shells of some of the cars or what used to be cars on Front Street in Lahaina. Yeah, I can imagine it's pretty offensive in a sense and real sensitive if you're there. I don't know if you have been to Lahaina recently. I think certainly people in your shop have been. What's animating the sentiment to sign such a petition? Well, I have not been there myself. Joe's been there. Joe Kent, our executive director, he actually used to live there. As you know, we had him on the show here a couple of shows ago to talk about what was going on there. Without any real personal insight, just gleaning from media reports, I think it might be just tied in with this general anti-tourism sentiment that we see for the entire state in recent years, which is understandable considering how many tourists there are and the burden they place on our infrastructure and our environment and whatever. Yeah, I mean one thing that we have in our state is a love-hate relationship with tourism. Yes. We need it. It's basically a whole economy, but not everybody likes it. Not everybody likes lots of tourism where they might be able to stand a little bit of it. When it gets more and more, it gets more offensive, I guess, because you have more folks coming and doing dumb things like not respecting private property and pooping on sidewalks or whatever you have. Well, the other point you made in your article was that, well, first of all, you said, as I pointed out, that there's only so much our government is allowed to do. Now, that made me wonder, well, by what authority were they blocking, basically to go back a little bit, the petition by those 14,000 people to postpone reopening West Maui to tourism, that implied that there was already a ban on people going there. So I tried to figure out, well, where did that ban come from? And it turns out that the governor's executive order on that issue never really did ban travel to that area. He only said that he wanted to discourage travel to West Maui. Well, there was an actual ban that was placed on the area because of... It was Mayor Bison who did it. The toxic substances in the soil. The wildfire disaster area. And not only did he impose a ban on visitors going into that area, unauthorized visitors, to go in there, you had to show proof of residency, your driver's license or your unelectrical utility bill or something that showed that you actually used to live there if you don't still. But tourists, the only exception for them was if you already had reservations at one of those hotels in the area. So there were some exceptions. But... And he even imposed a curfew for people who were in the wildfire's disaster area, which is, you know, stretches from here to there somewhere in West Maui. It's basically West Maui. So I wondered when the governor said he was going to reopen it on October 8th, I thought, oh, well, he never really closed it. But then Mayor Bison had an emergency order that did technically close it to unauthorized people. And so he came and said, I want a phase reopening. And that's what the big tourist petition, the anti-tourist petition was all about. And maybe it's not fair to call it anti-tourism petition. Maybe it's better to just say they wanted more time to not have tourists around. And that's where we got into the idea of, well, there's a government even allowed to do that. But I guess they can because it was on an emergency order. And as we know, as we've discussed, government can pretty around here can pretty much do whatever they want if they call it an emergency. So that's... Well, I mean, at the time, there were a couple of things going forward. And that is, the order didn't apply just to tourists. It applied to everybody. And there were concerns about health and safety, like the toxic substances in the ash, which we're kind of dealt with by EPA. I think they're still doing it right now. Applying the chemical to seal off the ash from the rest of the world. That would be the primary justification to promote public safety, health and safety, right? So you could do it on that basis, as long as it's not discriminatory. Yeah. But when you're talking about just saying, you know, to risk go home, then you've got, I think, two more things to think about. One is whether government can do it. And two is whether government should do it. Well, whether government can do it, then you kind of have to worry about things like the U.S. Constitution, the Privileges and Immunities Clause, which basically gives us the right to travel. We as citizens of the U.S. have the right to go anywhere in the U.S. And it's okay if a state says, well, nobody's allowed to go here because of danger or whatever reason. If they keep everybody away from a certain area, that's fine. But if they only keep tourists away, that's not fine. And they can't tax tourists for being in a certain place because of that Constitution right to travel. We saw that nature come up. Like the green fee, the green fee tax? Yeah, as it was originally proposed. You bring a lot of background to bear on this particular topic in your work with the Tax Foundation and tracking bills in the legislature. Oh, I really have this pension at Tourism Aside for trying to prevent interstate commerce in a sense. That's what we're talking about, right? The interstate commerce clause or the right to travel. I mean, are they the same thing? Or what's the overlap there? Well, I mean, with the right to travel, it's, you know, rights held by individuals in the U.S. whether or not they're doing commerce. Right, right, right. Okay, okay. Yeah. And commerce is more economic. Right. Okay, so people are allowed to travel. Do you think that an emerge? I know that during the COVID era, the emergency powers of the state were presumably limited by did it violate a constitutional right? Like a freedom of assembly or freedom of speech or and that was supposedly a guideline. So I'm wondering if someone could challenge an emergency order travel ban that extended beyond matters of public health and safety. Like, for example, if the mayor and the governor had agreed to that petition, which is, I think, now moot because I did go ahead and start to reopen it. Would that have been considered if they hadn't done that and they'd left the ban in place? Would that be challengeable, do you think, in court? Oh, yeah, I think so. There's only so much the government can do. Restricting travel is something that, you know, the, you know, our U.S. Supreme Court has already said, you know, violates constitutional rights of people. So, you know, the government can't do it number one. And number two, you know, there really is a moral debate on whether government should be, you know, blocking off people from such an area even when you have the 14,000 signatures. Yes. Like in my view, there's a lot of personal choices that happen when you go through a disaster. It's like a wildfire. And, you know, if you're living in Lahaina, you have a choice to either, you know, stay home and heal or, you know, you have a choice to open up your own business, especially if you had it going before, to see if you can feed your family. And to me, it's, it raises some questions if you're using government to tell these people, look, you know, you can't do that. You can't conduct business because, you know, the rest of us haven't healed yet. So, so we're going to kind of like lock you up until the rest of us are ready. Yeah. Yeah. Well, you know, the state is kind of in a bind as far as tourism goes. It's kind of in the state, it's in the Hawaii Revised Statutes, you know, the State Planning Act that they're supposed to support tourism and support and assist in the promotion of Hawaii's visitor attractions and facilities. So, you know, that's been sort of shifting the whole conversation recently. I wonder if that's something that, that would be something that all those 14,000 people and other people that are concerned about inappropriate activities by the government, if that would be, if that would make sense to argue for a change in this, in the Hawaii Revised Statute, that the government shouldn't necessarily, on the one hand, they shouldn't bar tourists from going to West Hawaii, but they also shouldn't be promoting tourists coming to Hawaii in the first place. Well, I mean, you got people on two sides of that. I mean, we have something called the Hawaii Tourism Authority, which is there to do just that. It's right to promote and it's funded by public money. Certainly, you know, it's a legitimate choice and that's kind of made in the legislature every year to keep on funding that agency or making it change direction. I mean, that's a matter of legitimate legislative choice whether we want to promote tourism or not. Well, the other thing you bring up in your article is that, you know, it's the distinction between public and private property, which I fully agree with on the one hand, if you're a private property owner and you want to let somebody come and visit you, that's good. I mean, that should be fine if you don't want someone to come into your neighborhood. But then it gets to that broader question of like, well, who owns the neighborhood? It's kind of like zoning. Do these 14,000 people have a right to control those actual property owners? Because a lot of those 14,000 people do not own property. A lot of them are renters, you know, I'm sure, or maybe people that don't even live in the area. I don't really know quite who they all are. So private property is really the guiding factor on these decision-making situation. That's what you were saying in your article, which I think makes a lot of sense. Yeah, I mean, if you've got private property, if you have a business, isn't it a personal choice as to whether you want to or can continue it or not? I mean, does the government have a right to say, you know, if there's no overriding health or safety concern, for example, do they have the right to say, no, you can't do what you want. You can't open a business if you wanted to. You need to be held back because 14,000 people want to hold you back. Right, right. Yeah, as a tax attorney, you see this kind of legislation a lot, don't you, where I seem to recall you having flagged a number of tax bills because you felt like they violated the federal constitutional provisions that like were part of America. You can't treat people from out of state differently than people who live here. Well, yeah, I mean, that is a problem that occurs everywhere. People in states want to promote their own activities, commerce, industries, whatever, and they would prefer it if competition from other states wasn't there. There were a lot of cases, for example, in the 30s and 40s that dealt with milk. The milk-producing states didn't want competition from other states. They wanted to have their own milk and they wanted to protect their own cows. Yeah. Well, remember in the 70s, I think it was arioshi, when there was all the hubbub about pop too many people as population, there was a lot of concern in the 70s about population bomb and all of that, that we had too many people in Hawaii. In fact, the state- That's no longer a concern. Yeah. Well, they were trying to keep cars out, remember? Don't you remember that? Do you remember that when arioshi was trying to find out if there was a way to limit the number of cars that could be imported to Hawaii? I tried to look it up. I couldn't find anything, but I have this firm memory of, and that got shot down. No, you can't restrict importing cars to Hawaii. I mean, they're going to do that under the energy mandates. No more gas-powered cars after 2030 or something like that, at least in some states, if not here. But that went down and a lot of the bills that you've opposed went down precisely because of the constitutional provisions for free travel, economic commerce should be at the interstate commerce clause. Yeah. I mean, the point is that we're supposed to be one big happy country here, and it's not good to leave your sister states out of something that you allow your own states of people to do in the world of commerce. So if you're going to allow people to sell milk in your state, you have to allow outsiders to do that too. To foster competition, not restrict it, even though you have dairy cows and farmers who want to sell their own milk. I'm wondering if there's a point at this point to questioning the ability of the government to restrict tourism to Hawaii. I mean, like this Lahaina situation, is this something that we're not going to have to face this on a broader scale? I don't think ever. That doesn't seem reasonable, right? This is pretty much restricted to this particular situation. Well, so far. But whatever you so often you see bills in the legislature to limit the amount of tourists or jack up the TAT, the Transient Accommodation Tax, depending on how many tourists there are, like if it's 8 million jack it up one point, it's 9 million jack it up two points, it was 10 million jack it up four points until, I mean, there have been such proposals. Yes. Hopefully, thank God they didn't get very far. But Well, do you think those are fundraising proposals or are you suggesting their attempts to limit, you know, to discourage people from coming, trying to get the more higher end big spenders? Oh, I think both. Yeah, I think the other point you made in your column, which was very important, which it was that it might not even be a good idea. I mean, despite the sensitivities of the survivors, a lot of people even they even they might not even realize how important it is to them that tourism resume. It's such a major driver of our economy in Hawaii. It certainly has its drawbacks, but essentially it's a it's a it was originally perceived as a really clean industry. You know, it's not manufacturing, it doesn't produce a lot of smoke or or or ravage the the hillsides or anything. There is overuse of the environment to some extent, a lot of people going to the beaches and whatever. But it's a it's a clean industry. And it seems to me that Well, it's our only industry. Yeah, I mean, you have to you have to look at it for what it is. Right now, it's the number one industry that we have. And in economic terms, you know, we may have, you know, a little bit of agriculture here and there, we may have a little manufacturing here and there, we may have a little, you know, high tech business here and there, but nothing on the same scale. So government has an interest in getting the economic activity back on track as well. Particularly since it's it will help Lahaina recover. I mean, it's that's where the jobs are for the people over there. And if there's no tourism, there won't be very many jobs. And that will just delay recovery for Lahaina forever. Yep, that's that's exactly right. Well, Tom, I think we've covered the field here on this topic. I look forward to talking more about this and other things in future episodes. I want to thank all our viewers today for tuning in. I'm Mark Coleman, the Grassroot Institute, my co-host here, the main man Tom Yamachika, president of the Tax Foundation of Hawaii. Please join us again next episode. Take care. Have a great day. Aloha.