Kohala Coast Enterprises, LLC v. Unidentified Shipwrecked Vessel (The)

Filing 151

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT OR ORDER AND DISMISSING VERIFIED COMPLAINT WITHOUT PREJUDICE FOR LACK OF PROSECUTION re 144 .The court dismisses this action without prejudice for lack of prosecution. Kohala Coast has had more than a decade to determine what authorizations are necessary to excavate the Vessel. Kohala Coast has not demonstrated that it has obtained such authorizations or that it is well on its way to do so. The only thing that it has obtained is a permit f rom the U.S.Corps of Engineers that specifically says it does not obviate the need to obtain applicable federal, state, and local authorizations. This court put Kohala Coast on notice that it had a year to identify and obtain (or at least make signif icant progress toward obtaining) such authorizations. Kohala Coast has failed to prosecute this action despite the court's warning that it might dismiss it.Given the dismissal of this action, the court dissolves its orders arresting the vessel and appointing Kohala Coast as substitute custodian.The dismissal of the Complaint is without prejudice to the filing of a new complaint asserting claims against Defendants who may assert ownership of the Vessel or its contents. If any such new complaint is filed in this court in the next twelve months, the action shall be assigned to this judge as a "related case." Kohala Coast should show the Clerks' Office a copy of this order if it does file a new case.The Clerk of Court is directed to close this case after entering judgment against Plaintiff for failure to prosecute.Signed by JUDGE SUSAN OKI MOLLWAY on 11/14/2023. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KOHALA COAST ENTERPRISES,
LLC,
Plaintiff,

vs.
THE UNIDENTIFIED SHIPWRECKED
VESSEL, her apparel, tackle,
appurtenances and cargo, in
rem,
Defendants.
____________________________

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Civil NO. 12-00552 SOM-WRP
ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT OR ORDER
AND DISMISSING VERIFIED
COMPLAINT WITHOUT PREJUDICE
FOR LACK OF PROSECUTION

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT OR ORDER AND
DISMISSING VERIFIED COMPLAINT
WITHOUT PREJUDICE FOR LACK OF PROSECUTION

I.

INTRODUCTION.
Gary Crothers, the owner and principal manager of

Plaintiff Kohala Coast Enterprises, LLC, believes he has located
a shipwreck covered by a coral reef in the near-shore waters of
the Big Island of Hawaii.

Kohala Coast filed this in rem action

more than eleven years ago, seeking a determination that it is
the owner of the vessel’s treasure or that, if someone else is
the owner, it receive a percentage of the value of the treasure
as a maritime salvor.

The court arrested the vessel, and

appointed Kohala Coast as substitute custodian.

On January 4,

2013, the court ordered Kohala Coast to refrain from touching the

vessel until it obtained all necessary federal, state, and local
permits.
Since 2011, very little progress has been made with
respect to obtaining proper permits to excavate the vessel.

In

October 2022, the court ordered Kohala Coast to show cause why
this action should not be dismissed because it had not progressed
with obtaining the necessary permits.

The court ultimately

decided not to dismiss this action at that time because Kohala
Coast had received what it calls a Nationwide Permit from the
U.S. Army Corps of Engineers authorizing it to dredge or excavate
approximately 10.7 cubic yards of material.

That permit

specifically noted that it did not “obviate[] your responsibility
to obtain other Federal, state, and/or local authorizations
required by law before commencing work.”

ECF No. 139-2, PageID

# 824.
In declining to dismiss the action in 2022 because
Plaintiff had demonstrated some progress in the case, this court
stated, “Which local, state, or federal laws apply to this case
may be disputed, but it is Plaintiff’s obligation to show which
laws apply and how it has sought to comply.

No later than a year

from the issuance of this order, Plaintiff shall file a status
report with respect to its attempts to secure all necessary
permits.

In the report, Plaintiff should identify the applicable

local, state, and federal laws and detail Plaintiffs attempts to

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comply with them.”

ECF No. 143.

The court then ordered that,

“if, upon filing its next status report, Plaintiff does not
convince this court that it has obtained all necessary permits
and authorizations or is well on its way to doing so this court
may dismiss the case sua sponte.”

Id.

On October 5, 2023, instead of filing the contemplated
status report detailing what permits are necessary and explaining
how Kohala Coast has obtained those permits or is well on its way
to doing so, Kohala Coast filed the present motion for relief
from the October 2022 order.

The motion demonstrates that

Plaintiff has made little, if any, progress towards obtaining the
necessary permits, instead arguing that the Nationwide Permit
from the U.S. Army Corps of Engineers relieves it from any other
permitting requirement.

That federal permit was obtained before

this court issued its October 2022 order.

In other words, this

case has not progressed at all in the year since that order.
Because the Nationwide Permit on its face does not relieve Kohala
Coast from obtaining all necessary federal, state, and local
authorizations, and because Kohala Coast has failed to prosecute
this action or to clearly identify necessary permits and make
progress towards obtaining them, the court denies the motion and
dismisses the case without prejudice.

Having reviewed the

briefing and conducted a hearing, the court dissolves its orders

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arresting the vessel and appointing Kohala Coast as substitute
custodian.
II.

BACKGROUND.
On or about February 16, 2011, Gary Crothers and his

wife wrote an initial proposal to then-Governor Neil Abercrombie,
then-Hawaii Attorney General David Louie, and state legislator
Mark Nakashima.

Crothers explained that he had recovered two

artifacts from an “Acapulco-to-Manila bound Spanish Treasure
Galleon Shipwreck” (the “Vessel”).

Crothers said that he

believed that this undisturbed sunken vessel, located in shallow
water approximately 100 yards off a Big Island shore, contains at
least thirty tons of silver bullion and coins, hundreds of pounds
of gold coins, many pounds of large emeralds, and various luxury
items.

See ECF No. 142-2, PageID # 850.
This case was filed on October 15, 2012, with Kohala

Coast seeking 1) a declaration that the Vessel is subject to
the admiralty laws of abandonment and the law of finds; 2) a
declaration that no other government has jurisdiction or
authority to interfere with the exploration and recovery of the
Vessel; 3) a determination that Kohala Coast owns the Vessel;
4) a determination that, if someone else is determined to be
the owner of the Vessel, Kohala Coast is entitled to a liberal
salvage award; 5) a determination that Kohala Coast has the
sole and exclusive right to conduct recovery operations with

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respect to the Vessel; and 6) a determination that, if any
artifacts are recovered from the Vessel, Kohala Coast is the
owner of those artifacts or that the artifacts be sold to
satisfy any salvage award.

See ECF No. 1.

On January 4, 2013, in an order authorizing the
issuance of a warrant for the maritime arrest of the Vessel,
this court ordered that
prior to any physical contact with the
Vessel, Plaintiff is responsible for
obtaining any necessary permits and
authorizations from local, state or federal
authorities, including but not limited to
authorities whose areas of expertise and
enforcement are the ocean, environment,
endangered or threatened species, historic
preservation, and/or cultural protections
or preservation. Plaintiff shall also
comply with all applicable local, state or
federal statutes or regulations.
ECF No. 22, PageID # 128.
On August 27, 2014, the court administratively closed
the case because Kohala Coast, while filing a series of status
reports, had not shown that it was actively litigating this
matter.

See ECF No. 75.

Although the case was briefly

reopened with respect to a motion for mandamus and related
appeal, the court again administratively closed it in April
2017.

See ECF No. 115.
In July 2022, following years of administrative

closure, this court reopened the case and ordered Kohala Coast
to show cause why this action should not be dismissed for lack
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of prosecution, as nearly four years had passed since Kohala
Coast had explained what permits it would be seeking.

The

court ordered Kohala Coast to “explain what its end goal is in
this case, how that end goal can be achieved, and how that end
goal is tied to claims in its Verified Complaint.

If Plaintiff

demonstrates that it has been actively pursuing the necessary
permits, this case will not be dismissed . . . .”

ECF No. 138.

Kohala Coast responded that it had been working with
the U.S. Army Corps of Engineers since the fall of 2018 to
secure a Nationwide Permit to conduct the initial stage of its
salvage operation.

ECF No. 139, PageID # 813.

Kohala Coast

attached a letter dated June 16, 2022, from the U.S. Army Corps
of Engineers that approved Kohala Coast’s Project Design Plan.
See ECF No. 139-1.

The following day, June 17, 2022, the U.S.

Army Corps of Engineers issued a formal written notice to
proceed, authorizing Kohala Coast to “dredge/excavate an
estimated 10.7 cubic yards of material within an approximate
total area of 337 square feet (0.008 acre) at three submerged
sites in . . . Hawaii”.

See ECF No. 139-2, PageID #824.

This

is the “Nationwide Permit” that Kohala Coast relies on in its
motion.
The U.S. Army Corps of Engineers’ “Nationwide Permit”
of June 17, 2022, “reiterate[d] that neither the Corps’ [June
16, 2022] NWP verification nor this notification to proceed

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with work in navigable waters of the U.S. obviates your
responsibility to obtain other Federal, state and/or local
authorizations required by law before commencing work.”

ECF

No. 139-2, PageID #824.
On October 5, 2022, based on Kohala Coast’s response
with respect to the Nationwide Permit, the court declined to
dismiss the case.

See ECF No. 143.

However, the court stated:

Plaintiff asked this court to find
that it has actively pursued the necessary
permits. See ECF No. 139. This court will
not make that finding. Since 2013, this
Court has maintained that “Plaintiff is
responsible for obtaining any necessary
permits and authorizations from local,
state or federal authorities[.]” See ECF
No. 22, PageID # 128. Plaintiff has
apparently not obtained all necessary
permits, and the record does not suffice to
allow the requested finding.
Which local, state, or federal laws
apply to this case may be disputed, but it
is Plaintiff’s obligation to show which
laws apply and how it has sought to comply.
No later than a year from the issuance of
this order, Plaintiff shall file a status
report with respect to its attempts to
secure all necessary permits. In the
report, Plaintiff should identify the
applicable local, state, and federal laws
and detail Plaintiffs attempts to comply
with them.
Defendant urges this court to dismiss
Plaintiff’s action. See ECF No. 142. This
court will not dismiss the case at this
time because Plaintiff’s Statement of
Current Status satisfies the court that
Plaintiff has made forward progress in this
case. This is particularly demonstrated by
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Plaintiff’s receipt of the U.S. Army Corps
of Engineers’ Approval of the Project
Design Plan. See ECF No. 139-1, Page ID #
822[-]23. Even if Plaintiff has not
obtained all necessary permits and
authorizations from the authorities,
Plaintiff has continued to advance the
case, making dismissal for lack of
prosecution unwarranted at this time. That
being said, if, upon filing its next status
report, Plaintiff does not convince this
court that it has obtained all necessary
permits and authorizations or is well on
its way to doing so this court may dismiss
the case sua sponte.
ECF No. 143 (emphasis added).
On October 5, 2023, Kohala Coast filed its Motion for
Relief From Judgment or Order instead of filing the requested
status report.

See ECF No. 144.

The motion does not clearly

identify the applicable local, state, and federal laws that
Kohala Coast must comply with before excavating the Vessel or
detail its attempts to comply with them.

Instead, Kohala Coast

attaches a declaration with lengthy emails but little
substance.

The motion argues that it has received a

“Nationwide Permit” from the U.S. Army Corps of Engineers that
allows it to conduct preliminary excavation of the sunken
vessel.

Kohala Coast conceded at the hearing on this matter

that the purported “Nationwide Permit” is the same
authorization from the U.S. Corps of Engineers that Kohala
Coast submitted to the court over a year ago.

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The motion asks this court to determine that the
“Nationwide Permit” is sufficient to allow Kohala Coast to
conduct preliminary excavation of the sunken vessel and that
the State of Hawaii should be precluded from asserting that its
permitting scheme(s) also apply.

The court denies the request.

The “Nationwide Permit” itself states that it does not
“obviate[] your responsibility to obtain other Federal, state
and/or local authorizations required by law before commencing
work.”

ECF No. 139-2, PageID #824.

Kohala Coast’s motion

ignores this language completely.
Kohala Coast’s motion makes clear that over the past
year it has made little or no progress in obtaining all
necessary permits and authorizations, as required by the court
in its order of October 5, 2022.

See ECF No. 143.

Kohala

Coast submitted a Conservation District Use Application for
exploratory excavations, HA-3920.

On or about May 3, 2023, the

State of Hawaii determined that that application was deficient,
noting that the application failed to include a description of
“Best Management Practices or measures that will be taken to
mitigate potential impacts.”

ECF No. 147, PageID # 1160.

The

application allegedly failed to include “the full excavation”
or “the coral remediation plan.”

Id.

The State told Kohala

Coast that the proposed extraction might involve a historic
site such that “written concurrency by the State Historic

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Preservation Division of no historic properties affected; or
effect, with proposed mitigation commitments must be received
prior to decision making . . . .”

Id.

It advised Kohala Coast

that it did not appear that the proposed excavation was exempt
from publication of an environmental assessment under Hawaii
law.

Id.

It stated that Kohala Coast’s environmental

assessment was deficient.

Id.

Kohala Coast sought to keep the

location of the proposed excavation from the public, but the
State said that “the environmental review process is a very
open process that encourages public participation.”

Id.

Kohala Coast has long been concerned that Hawaii’s
public notice provisions would require it to reveal the precise
location of the Vessel, which would be an invitation to
scavengers and others to take artifacts from the Vessel.

For

example, in July 2022, he sent an email in which he stated
that, as the substitute custodian of this court, “I determine
that this process cannot be engaged in as the public release of
this information would pose a direct threat to the health and
safety of all of my crew . . . and a direct and ongoing hazard
to the sensitive environment in the area.”
PageID # 901.

ECF No. 142-5,

Kohala Coast has therefore objected to any

process including public disclosure of the location of the
Vessel (such as the environmental assessment required by the
Hawaii Environmental Policy Act, chapter 343 of Hawaii Revised

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Statutes), arguing that the “law does not have a higher purpose
than the common law of human safety.”

Id.

It appears that Kohala Coast submitted another
Conservation District Use Application for exploratory
excavations, HA-3922.

On or about July 24, 2023, the

Department of Land and Natural Resources (“DLNR”) responded
that it was “unable to process your application because it is
incomplete.

You have not identified a land use that you are

applying for, nor have you responded to the inquiries in the
application.”

ECF No. 147, PageID # 1164.

It is not clear

what “land use” applies here, but, in any event, DLNR said,
“Statements made under Proposed Use in the application indicate
an unwillingness to comply with Hawai`i State law as it relates
to the Conservation District and public trust land.”
PageID # 1165.

Id.,

With respect to historic and cultural

resources, DLNR stated that while Kohala Coast “discusses some
historic events,” Kohala Coast was also saying, “I am not a
‘qualified Historian’ and do not claim to be, and there is no
such ‘requirement’ for a Salv[o]r to be a ‘qualified
historian.’”

Id.

With respect to cultural impacts, Kohala

Coast’s application said that making “any of this public” would
be without Kohala Coast’s consent and would be “reckless,
potentially dangerous, and in general, ill-advised.”
PageID # 1166.

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Id.,

Crothers has indicated that hiring a specialist to
assist Kohala Coast in the regulatory process is “impossible”
because this situation is so unusual or so small that no
consultant will help him.

ECF No. 147, PageID #s 1139-40.

While Crothers may have had difficulty hiring someone to help
him with the regulatory process, at the end of the day this
court ordered that he complete that process before touching the
sunken vessel.

He has had years to do so, but has not done so.

In fact, Crothers appears to misapprehend what this court has
ordered to date.

In an email dated May 1, 2023, Crothers

implies that because this court has ordered him to comply with
the regulatory process, state agencies must provide him with
progress and status updates.
50.

See ECF No. 147, PageID #s 1149-

Neither the court’s appointment of Crothers as substitute

custodian nor its order that he make progress with the
permitting process requires any state agency to act in any
manner.
III.

THE COURT DISMISSES THIS ACTION FOR LACK OF
PROSECUTION.
Rule 41(b) of the Federal Rules of Civil Procedure

allows a defendant to file a motion seeking dismissal of an
action for failure to prosecute or for failure to comply with
court orders.

“District courts have the inherent power to

control their dockets and in the exercise of that power they
may impose sanctions including, where appropriate, dismissal of
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a case.”

The Supreme Court has recognized that, as part of

that inherent discretion, district courts have the power to sua
sponte dismiss an action for lack of prosecution.

See Link v.

Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (“The power to
invoke this sanction is necessary in order to prevent undue
delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.”).

Here,

the State of Hawaii, which is not a named Defendant, has
requested dismissal of this action.

See ECF No. 148.

Whether

under Rule 41(b) or through the court’s inherent power,
dismissal is appropriate for the reasons set forth below.
A district court must weigh five factors when
examining whether to dismiss a case for lack of prosecution:
(1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket; (3) the
risk of prejudice to the defendant; (4) the public policy
favoring the disposition of cases on their merits; and (5) the
availability of less drastic sanctions.

See Bautista v. Los

Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 2000); Fernandez v.
Rice, 2017 WL 988103, at *3 (D. Haw. Mar. 14, 2017).

Balancing

the five factors in this case, the court determines that
dismissal of Kohala Coast’s Verified Complaint without
prejudice is an appropriate sanction for its failure to
prosecute this case.
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Kohala Coast has been on notice since July 2022 that
this court was concerned about its lack of prosecution of this
action.

Following years of administrative closure, this court

reopened the case and ordered Kohala Coast to show cause why
this action should not be dismissed for lack of prosecution.
See ECF No. 138.

In its August 17, 2022, response to the order

to show cause, Kohala Coast demonstrated that it had made some
progress towards getting necessary permits to excavate the
Vessel, as required by the court’s order of January 4, 2013.
Specifically, Kohala Coast had obtained a “Nationwide Permit”
from the U.S. Army Corps of Engineers on June 17, 2022.

In

light of this “forward progress,” the court declined to dismiss
the action on October 5, 2022, ordering that, within a year,
Kohala Coast “shall file a status report with respect to its
attempts to secure all necessary permits.

In the report,

[Kohala Coast] should identify the applicable local, state, and
federal laws and detail [its] attempts to comply with them.”
ECF No. 143.

The court warned Kohala Coast that, “if, upon

filing its next status report, [Kohala Coast] does not convince
this court that it has obtained all necessary permits and
authorizations or is well on its way to doing so this court may
dismiss the case sua sponte.”

Id.

In its filing of October 5, 2023, Kohala Coast did
not demonstrate that it had made any material advancement over

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the past year towards obtaining the permits necessary to
excavate the Vessel.

Instead, it argued that its “Nationwide

Permit” of June 17, 2022, essentially preempted all other
permit requirements, asserting that the “Nationwide Permit,” by
itself, allowed that excavation.

But the “Nationwide Permit”

clearly stated that “neither the Corps’ [June 16, 2022,] NWP
verification nor this notification to proceed with work in
navigable waters of the U.S. obviates your responsibility to
obtain other Federal, state and/or local authorizations
required by law before commencing work.”
#824.

ECF No. 139-2, PageID

This statement is consistent with the administrative

regulations governing U.S. Army Corps of Engineers’ Nationwide
Permits, which state in relevant part, “It is important to
remember that the NWPs only authorize activities from the
perspective of the Corps regulatory authorities and that other
Federal, state, and local permits, approvals, or authorizations
may also be required.”

33 C.F.R. § 330.4(a).

Thus, the

“Nationwide Permit,” by itself, does not establish that no
other state permit or regulatory approvals are necessary before
Kohala Coast may excavate the Vessel.
Kohala Coast also fails to establish the
inapplicability of various Hawaii permit or regulatory
approvals.

In the court’s order of October 5, 2022, the court

unambiguously ordered that Kohala Coast, within one year,

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“should identify the applicable local, state, and federal laws
and detail [Kohala Coast’s] attempts to comply with them.”
No. 143.

ECF

Buried in Footnote 29 of the October 5, 2023, motion,

Kohala Coast says Hawaii’s Department of Land and Natural
Resources has identified three required documents for
excavating the Vessel--1) an environmental assessment pursuant
to section 343-5(2) of Hawaii Revised Statutes; 2) a
Conservation District Use Permit pursuant to section 183C-6 of
Hawaii Revised Statutes; and 3) a Special Activities Permit
pursuant to section 187A-6 of Hawaii Revised Statutes.
No. 144, PageID # 945, n.29.

Kohala Coast says it spent the

last year attempting to obtain those required documents.
ECF No. 144, PageID # 945.

See ECF

See

The documents it submits in support

of that position unequivocally demonstrate the opposite.
Kohala Coast did not meaningfully attempt to comply with
Hawaii’s requirements.

Its applications were either deficient

or demonstrated hostility towards the process.
147, PageID #s 1160, 1164, 1166.

See ECF No.

Nor has Kohala Coast

demonstrated the inapplicability of all of those documents.
Kohala Coast represents that it went through a
lengthy process with the U.S. Army Corps of Engineers to get
its Nationwide Permit.

The details of that process are not

part of the record before the court.

Kohala Coast represents,

for example, that it “submitted an extensive EA to the Corps as

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part of its permitting process” and then argues that it should
not have to submit a duplicative environmental assessment to
Hawaii.

See ECF No. 144, PageID # 954.

It similarly

represents that it submitted a Coral Remediation Plan to the
U.S. Army Corps of Engineers as part of its Nationwide Permit
application and again argues that it should not have to
duplicate that work by getting a Hawaii Special Activities
Permit.

Id.

What was submitted to the U.S. Army Corps of

Engineers is not part of the record.
cannot evaluate those representations.

This court therefore
What is abundantly

clear is that this court ordered Kohala Coast to figure out
what permits are required and to obtain or be well on its way
to obtaining those permits.

Kohala Coast did not do that and

is now belatedly arguing that the process before the U.S. Army
Corps of Engineers should suffice, without providing this court
with any details of that process.

If Kohala Coast believed

that its Nationwide Permit was the only thing necessary to
begin excavation, then it could have, of course, proceeded at
its own risk.

It did not do so.

This court declines to rule

on the sparse record before this court that the Nationwide
Permit is the only permit necessary for Kohala Coast to begin
excavation of the Vessel.

That request is far from any claim

asserted in the Verified Complaint, especially when that permit
expressly states that it does not obviate Kohala Coast’s

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responsibility to obtain other applicable federal, state, and
local authorizations.
This court also declines Kohala Coast’s invitation to
place covenants and conditions on any excavation pursuant to
the Nationwide Permit.

This court is not an expert with

respect to environmental, cultural, or historic considerations.
The reason the court required Kohala Coast to obtain all
applicable federal, state, and local authorizations before
excavating the vessel was to allow persons with such expertise
to weigh in on the excavation process.

While Kohala Coast

argues that, under maritime and admiralty law, the salvage of a
vessel in near shore United States waters should be under
federal supervision, the agency from which it received its
permit noted that it did not relieve Kohala Coast from other
applicable federal, state, and local requirements.

Under the

present record, Kohala Coast fails to demonstrate that it
should be allowed to excavate the vessel solely based on the
Nationwide Permit issued to it by the U.S. Army Corps of
Engineers.
While the court understands the difficulty of
deciphering and negotiating Hawaii’s laws and regulations, that
is something the court expected Kohala Coast to do, giving it
ample time to figure out what laws and regulations applied.
Kohala Coast could not itself determine what laws and

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If

regulations applied, it should have hired an expert to help it.
It did not, saying that it was “impossible” to hire such a
consultant because this situation is too unusual or too small.
Kohala Coast, however, did not detail its attempts to hire a
consultant.
What the court is left with is a statement by
Crothers saying he is “trying to the best of ability to get
these permits from the state of Hawaii.”
# 1141.

ECF No. 147, PageID

Crothers’s efforts fall short of what the court

required Kohala Coast to do.
The court additionally understands that Kohala Coast
did not want to make public the location of the Vessel, as
required by the Hawaii’s environmental assessment requirements.
Kohala Coast was certainly entitled to worry that others might
try to steal the treasure while Kohala Coast was obtaining the
necessary permits.

But when the court appointed Kohala Coast

substitute custodian of the Vessel, it placed it “in its
custody for possession and safekeeping.”
# 135.

ECF No. 24, PageID

Kohala Coast could have hired security to protect the

Vessel and could have sought to charge the costs of such
security as an administrative expense for which it could have
been paid from the sale of artifacts recovered from the Vessel.
Kohala Coast chose not to incur such an expense (possibly
because it was worried that the Vessel would not actually

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contain any treasure).

See ECF No. 139-3, PageID # 828 (“I

think that it’s important to note that there is still a
tremendous amount of speculation as to whether there is even
anything of value at the proposed wreck site.”).

In fact, at

the hearing on this matter, Kohala Coast indicated that it did
not want to spend any money if the Vessel did not contain
treasure.

Having not spent money to secure the Vessel, Kohala

Coast argues that it should be allowed to skirt Hawaii’s public
disclosure provisions in the name of safety and security.
Despite the court’s warning that it might sua sponte
dismiss this action if Kohala Coast failed to “convince this
court that it has obtained all necessary permits and
authorizations or [that it] is well on its way to doing so,”
Kohala Coast is essentially in the same position that it was in
with respect to permits in the summer of 2022.

Given the lack

of progress in this very old case, the court determines that
dismissal of this action is appropriate.

The public’s interest

in expeditious resolution of litigation and the court’s need to
manage its docket weigh heavily in favor of dismissal.

This

case is more than a decade old, and Kohala Coast has failed to
show that it has made sufficient progress towards its ultimate
goal of excavating the Vessel.

This dismissal is not on the

merits and is without prejudice to the filing of a new action.
There is therefore no prejudice to Kohala Coast, the Defendant

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Vessel, or the State of Hawaii, which filed a Verified
Statement of Interest on March 13, 2013.

The Vessel is not

going anywhere and its location is generally a secret.

Kohala

Coast remains free to file another action seeking relief with
respect to the Vessel and the State of Hawaii, which should
likely be named as a Defendant given its claim of possible
ownership of the Vessel.
While public policy favors disposition of cases on
their merits, that factor is clearly outweighed by the age of
this case and the lack of progress.

Finally, less drastic

sanctions would not assist in bringing this case to its end.
Kohala Coast has had ample time to attempt to get necessary
authorizations, but has demonstrated that it either cannot or
will not proceed with Hawaii’s requirements.

When the court

balances the five Bautista factors, it concludes that dismissal
of this action is appropriate.
IV.

CONCLUSION.
The court dismisses this action without prejudice for

lack of prosecution.

Kohala Coast has had more than a decade

to determine what authorizations are necessary to excavate the
Vessel.

Kohala Coast has not demonstrated that it has obtained

such authorizations or that it is well on its way to do so.
The only thing that it has obtained is a permit from the U.S.
Corps of Engineers that specifically says it does not obviate

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the need to obtain applicable federal, state, and local
authorizations.

This court put Kohala Coast on notice that it

had a year to identify and obtain (or at least make significant
progress toward obtaining) such authorizations.

Kohala Coast

has failed to prosecute this action despite the court’s warning
that it might dismiss it.
Given the dismissal of this action, the court
dissolves its orders arresting the vessel and appointing Kohala
Coast as substitute custodian.
The dismissal of the Complaint is without prejudice
to the filing of a new complaint asserting claims against
Defendants who may assert ownership of the Vessel or its
contents.

If any such new complaint is filed in this court in

the next twelve months, the action shall be assigned to this
judge as a “related case.”

Kohala Coast should show the

Clerks’ Office a copy of this order if it does file a new case.

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The Clerk of Court is directed to close this case
after entering judgment against Plaintiff for failure to
prosecute.

It is so ordered.
DATED: Honolulu, Hawaii, November 14, 2023.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Kohala Coast Enterprises, LLC, v. The Unidentified Shipwrecked Vessel, Civil NO.
12-00552 SOM-WRP; ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT OR ORDER AND
DISMISSING VERIFIED COMPLAINT WITHOUT PREJUDICE FOR LACK OF PROSECUTION

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