Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS OR, ALTERNATIVELY FOR PARTIAL SUMMARY JUDGMENT FILED JANUARY 3, 2002 KAY, District Judge. BACKGROUND This lawsuit involves a challenge to the City and County of Honolulu’s practice of charging non-residents a $3.00 fee to enter Hanauma Bay, which is designated a marine life conservation district and nature preserve and serves as an underwater park and fish sanctuary (hereinafter “Ha-nauma Bay”). Hanauma Bay contains a beautiful cove and beach located on the south-east side of Oahu and is popular with both local residents and particularly tourists for activities such as snorkeling amongst the protected fish, swimming, learning about our marine ecosystem, exploring the shoreline, sunbathing and picnicking. The Hanauma Bay Marine Life Conservation regulations prohibit Hawaii residents, as well as non-residents, from fishing, taking any marine life, coral or sand, boating and from certain other activities. See Haw. Admin. R. § 13-28-2. (2) For vehicles entering the preserve, a $1.00 parking fee shall be assessed; provided that this parking fee shall be refunded for all vehicles departing from the preserve within 15 minutes of their entry. In 1996, the Honolulu City Council enacted Ordinance Number (“No.”) 96-19 which instituted a $3.00 fee for non-residents seeking entry to Hanauma Bay and a $1.00 parking fee for all visitors. Ordinance No. 96-19, codified at Sec.10-2.11 of the Revised Ordinances of Honolulu (“ROH”), provides in relevant part: (a) The following fees shall be assessed for entrance to the Hanauma Bay Nature Preserve: (1) For nonresidents of Hawaii, 13 years of age and older, to enter the lower preserve (beyond the scenic lookout): $3.00 per person. (b) The director of parks and recreation is authorized to waive the fees provided by this section and to allow entry of any person to the Hanauma Bay Nature Preserve as part of an educational or promotional program or package made available or authorized by the city. Revised Ordinances of Honolulu § 10-2.11 (2001). Ordinance No. 96-19 also establishes the Hanauma Bay Nature Preserve Fund, the related provisions of which are codified at ROH Sections 6-51.1 through 6-51.4. ROH Section 6-51.2, regarding the Purpose of the Fund, provides: There shall be deposited into the Ha-nauma Bay Nature Preserve fund all receipts from the fees imposed under Section 10-2.11 and all concession revenues from the Hanauma Bay Nature Preserve concessions. All moneys deposited into this fund shall be used for the following purposes in order of priority as indicated: (1) First, for the operation, maintenance and improvement of the Ha-nauma Bay Nature Preserve; (2) Second, for educational and orientation programs for visitors to the preserve; (3) Third, for carrying capacity study of the preserve and for other studies relating to the environmental condition of the preserve; and (4) Fourth, if funds are available, for the operation, maintenance and improvement of the following park facilities: Koko Head District Park, Maunalua Bay Beach Park, Koko Head Rifle Range, and the Koko Crater Botanical Garden. Revised ORdinances of Honolulu § 6-51.2 (2001). In October of 2000, Plaintiff Carol Daly, a California resident, visited Hanauma Bay. As she proceeded along the walkway to the beach, she came upon a city-erected turnstile at which she paid the $3.00 fee assessed for entry. In June of 2001, Plaintiff Cathy Burgess, then and currently a resident of Colorado, but formerly a Hawaii resident, visited Hanauma Bay for the purpose of having a family gathering. Plaintiff Burgess alleges that she and her family “sought to associate with each other, enjoy each other’s company and communicate with each other about their respective lives and experiences.” Second Amend. Compl. (“Compl.”) ¶ 36. Unlike Plaintiff Daly, when Plaintiff Burgess arrived at the turnstile, she refused to pay the $3.00 fee and left without entering. On July 10, 2001, Plaintiff Daly and Burgess (collectively “Plaintiffs”) initiated this lawsuit against Defendants Jeremy Harris (in both his individual capacity and his official capacity as Mayor of the City and County of Honolulu), Caroll Takahashi (as Director of the Department of Budget and Fiscal Services), William Balfour (as Director of the Department of Parks and Recreation), and the City and County of Honolulu to challenge the $3.00 entry fee. Plaintiffs’ Second Amended Complaint, filed on November 20, 2001, asserts the following claims: Count I (First Amendment), Count II (Violation of Hawaii Constitution), Count III (Violation of Hawaii Revised Statutes (“H.R.S.”) § 7-1 and Chapter 115), Count IV (Unauthorized Taxation), Count V (Privileges and Immunities), Count VI (Equal Protection), Count VII (Fourth Amendment), Count VIII (International Covenant on Civil and Political Rights), Count IX (H.R.S. Chapter 480), Count X (Declaratory Judgment), Count XI (Injunctive Relief), Count XII (Common-Law Recovery Remedy), Count XIII (Unjust Enrichment Remedy), Count XIV (Constructive Trust) and Count XV (Punitive Damages). On January 3, 2002, Defendants filed eight separate Motions to Dismiss with Prejudice or Alternatively, for Partial Summary Judgment with respect to Plaintiffs Claims relating to: (1) Count I (First Amendment), (2) Privilege and Immunities Clause, (3) Equal Protection Clause, (4) Fourth Amendment, (5) Count V (Violation of the International Covenant on Civil and Political Rights), (6) H.R.S. § 7-1, (7) H.R.S. Chapter 480, and (8) Claims against Jeremy Harris (“Defendants’ Motions to Dismiss”). Plaintiffs filed Oppositions to all of Defendants’ above-listed Motions, save Defendants’ Motion regarding Count V (Violation of the International Covenant on Civil and Political Rights), on February 28, 2002. Likewise, Defendants replied with respect to all of its Motions except the Motion regarding Count V on March 7, 2002. The hearing on Defendants’ Motions to Dismiss were originally scheduled for March 18, 2002, however, on March 8, 2002, Plaintiffs filed a Motion for Class Certification pursuant to Federal Rules of Civil Procedure (“FRCP”) Rule 23; consequently the March 18, 2002 hearing date was vacated. Defendants opposed class certification on April 4, 2002 and Plaintiffs replied on April 11, 2002. The hearing on Plaintiffs’ Motion for Class Certification was held on April 22, 2002. Three days later, on April 25, 2002, the Court- issued an Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification. While the Court found that the Class, sub-class 1 and sub-class II (as-sumedly for analytical purposes) met the requirements of Rule 23(a), it denied certification of the Class and sub-class II and conditionally certified sub-class I (with respect to Counts II, III, IV, V, VI, VII, IX, X, XI, XII, XIII, XIV and XV), defined as (1) non-residents of Hawaii (2) who paid $3.00 to enter the beach area of Hanauma Bay (3) after July 10, 1999(4) who at the time of payment were U.S. Citizens, as a Rule 23(b)(3) class. Plaintiffs timely sought partial reconsideration of the Court’s April 25, 2002 Certification Order on May 9, 2002. After confirming that sub-class I alleged no consequential damages other than recovery of the $3.00 entry fee, the Court denied Plaintiffs’ Motion for Reconsideration and revised, pursuant to FRCP 23(c)(1), its April 25, 2002 Order such that certification of sub-class I would be pursuant to Rule 23(b)(2) rather than (b)(3). The Court heard oral argument on Defendants’ Motions to Dismiss on June 17, 2002. STANDARD OF REVIEW I. MOTION TO DISMISS Under Rule 12(b)(6), in determining whether a motion to dismiss for failure to state a claim upon which relief can be granted, this Court must accept as true the plaintiffs allegations contained in the complaint and view them in a light most favorable to the plaintiff. Scheur v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir.1990); Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir.1986). Thus, the complaint must stand unless it appears beyond doubt that the plaintiff has alleged no facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. Balistreri, 901 F.2d at 699; Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In essence, as the Ninth Circuit has stated, “[t]he issue is not whether a plaintiffs success on the merits is likely but rather whether-the claimant is entitled to proceed beyond the threshold in attempting to establish his claims.” De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs’ claims. Id. A motion under Rule 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the Complaint, such as lack of jurisdiction or the statute of limitations. 2A J. MooRE, W. TaggaRT & J. Wicker, Moore’s Federal Practice ¶ 12.07 at 12-68 to 12-69 (2d ed.1991 & supp. 1191-92) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)) (emphasis added). II. SUMMARY JUDGMENT Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). The standard for summary adjudication is the same. See State of Cal. v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The United States Supreme Court has declared that summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. See id. at 322, 106 S.Ct. 2548. “If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment.” T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citations omitted). Rather, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. at 630. At least some “significant probative evidence tending to support the complaint” must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978). The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, the question is whether “reasonable minds could differ as to the import of the evidence.” Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. The Ninth Circuit has established that “[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.” California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Moreover, the United States Supreme Court has stated that “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, “if the factual context makes the nonmoving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Franciscan Ceramics, 818 F.2d at 1468 (emphasis in original) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). Of course, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. See T.W. Elec. Serv., 809 F.2d at 630-31. DISCUSSION I. DEFENDANTS’ MOTION TO DISMISS OR ALTERNATIVELY FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I (FIRST AMENDMENT) Through their Motion, Defendants move the Court to dismiss, or alternatively to grant partial summary judgment in their favor, on Count I (First Amendment) of the Second Amended Complaint. Defendants argue that the activities Plaintiff Burgess seeks to engage in at Hanauma Bay do not fall within the speech and associational rights afforded by either the First Amendment to the United States Constitution or Article I, Section 4 of the Hawaii Constitution. Plaintiff Burgess, on the other hand, argues the following: Ha-nauma Bay is a traditional public forum and as such, Defendants cannot restrict access to it for a class of persons without a compelling justification; that the $3.00 fee unconstitutionally burdens/places a tax on expression; that the ordinance is over-broad; and that the fee is not necessary to serve a compelling state interest nor narrowly drawn to achieve that interest. The First Amendment to the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. CONST, amend. I. Similarly, Article I, Section 4 of the Hawaii Constitution provides in relevant part: No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. Haw Const. Art. I, § 4. The rights afforded by Article I, Section 4 of the Hawaii Constitution are identical to that of the First Amendment to the United States Constitution. See In re Doe, 76 Hawai'i 85, 94 n. 16, 869 P.2d 1304 (1994) (“The rights specified in this section virtually unchanged since statehood, are often referred to as ‘first amendment rights’ because they are identical to those found in the first amendment to the United States ' Constitution.”); see also Estes v. Kapiolani Women’s & Children’s Med. Center, 71 Haw. 190, 197, 787 P.2d 216 (1990) (language of Hawaii Constitution nearly identical to First Amendment and thus adoption of federal cases construing First Amendment rights appropriate). As the courts of Hawaii have relied on federal caselaw interpreting the First Amendment to the United States Constitution in defining the rights afforded by Article I, Section 4 of the Hawaii Constitution, so too will this Court. In establishing the right to free speech, the Framers sought “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The First Amendment, however, clearly does not sanction “every utterance.” Id. at 483, 77 S.Ct. 1304. Logically, therefore, the first step in the Court’s “free speech” analysis is to determine whether Plaintiffs’ contemplated activities constitute “speech” protected by the First Amendment. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (“we need go no further” if speech is not protected by the First Amendment). If answered affirmatively, it then becomes necessary to identify the nature of the forum, and then finally to “assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard.” Id. Insofar as Plaintiff Burgess challenges the entry fee as having effected a violation of her First Amendment free speech and associational rights, she alleges that she and her relatives “sought to associate with each other, enjoy each other’s company and communicate with each other about them respective lives and experiences.” Compl. ¶ 36. Plaintiff Burgess further alleges that individuals “have engaged and continue to engage in expressive and associational activities” at Hanauma Bay. Compl. ¶ 39. The Court finds that the communications Plaintiff Burgess alleges were suppressed by ROH Sec. 10-2.11 do not constitute speech protected by the First Amendment. While the Court acknowledges that “speech is protected ... even if it is merely informative and does not actually convey a position on a subject matter,” Giebel v. Sylvester, 244 F.3d 1182 (9th Cir.2001) (quoting Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)), conversations about one’s life experiences with relatives is akin to unprotected “[cjasual chit-chat between two persons or ... confined to a small social group.” Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir.1990); see also Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1189 (6th Cir.1995) (“The linchpin of the inquiry is ... the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.”). The contemplated conversation and association for the purposes of engaging in such conversation, though literally speech and association, do not advance “knowledge, the transformation of taste, political change, cultural expression, and the other objectives, values and consequences of the speech that is protected by the First Amendment.” Swank, 898 F.2d at 1251. Additionally, Plaintiff Burgess does not suggest that the purpose behind her contemplated conversations was to take positions on public questions or matters of social concern. See City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989); Bd. of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 538-39, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (association for purpose of providing humanitarian service). Thus, ROH Sec. 10-2.11 did not effect a constitutional deprivation as applied to Plaintiff Burgess. Relying on Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), Plaintiff Burgess vigorously argues that Hanau-ma Bay’s status as a traditional public forum prohibits the City from burdening her right to converse about her personal life and associate with her relatives for the purpose of pursuing these conversations. However, as set forth above, consideration of the nature of the forum is secondary to deciding whether the contemplated activity is speech protected by the First Amendment. See Cornelius, 473 U.S. at 797, 105 S.Ct. 3439 (if contemplated activity is not speech protected by the First Amendment, “we need go no further”). Perry, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), does not hold otherwise. In Perry, unlike their rival teacher union, the Perry Local Educator’s Association (PLEA) was denied access to a school’s internal mailbox system. Id. at 40-41, 103 S.Ct. 948. PLEA’s contemplated activity, the transmission of messages and communication with current and potential members regarding matters of union concern, though the Court did not explicitly state, ostensibly falls within the parameters of protected speech. Thus, the Pe'try Court’s consideration of the nature of the mailbox system as either a public or private forum cannot be seen as dispensing with the requirement that the contemplated activity must first constitute protected speech. See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948 (“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.”) (emphasis added). As the Court has concluded that the activities alleged by Plaintiff Burgess do not constitute speech protected by the First Amendment, it does not reach the question of whether Hanau-ma Bay is properly characterized as a traditional public forum or whether the $3.00 entrance fee is narrowly tailored to achieve a compelling state interest. In addition to challenging the ordinance as applied to herself, Plaintiff Burgess also mounts an overbreadth challenge. Plaintiffs “may seek directly on their own behalf the facial invalidation of overly broad statutes that ‘create an unacceptable risk of the suppression of ideas.’ ” Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir.1997) (quoting Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984)). The Ninth Circuit permits facial attacks of statutes (or ordinances) that chill exercise of First Amendment rights only if “the challenged statute ‘is directed narrowly and specifically at expression or conduct commonly associated with expression.’ ” Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir.1996) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). Like the juvenile curfew ordinance challenged in Nunez v. City of San Diego, 114 F.3d 935 (9th Cir.1997), the $3.00 fee inhibits conduct, not speech. Id. at 950. ROH Section 10-2.11 “does not disproportionately burden those engaged in First Amendment activities more than it burdens [those engaging in] other activities.” Id. Thus, whether the ordinance is facially overbroad turns on whether the conduct burdened-going to Hanauma Bay or engaging in recreational and educational activities at Hanauma Bay-is “conduct commonly associated with expression.” Id. at 950 (“[Generally applicable regulations of conduct implicate the First Amendment only if they (1) impose a disproportionate burden on those engaged in First amendment activities; or (2) constitute governmental regulation of conduct with an expressive element.”). The line separating unprotected conduct from sufficiently expressive conduct is not easily drawn. While it is well-settled that the activity need not involve spoken or written words to constitute “speech,” see Spence v. State of Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), Roulette v. City of Seattle, 97 F.3d 300, 302-03 (9th Cir.1996), the United States Supreme Court has rejected, on more than one occasion, the “view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Spence, 418 U.S. at 409, 94 S.Ct. 2727 (1974) (citing United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); see also City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (“It is possible to find some kernel of expression in almost every activity a person undertakes-for example, walking down the street or meeting one’s friends at a shopping mall-but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”). The First Amendment affords protection to activity when “combined with the factual context and environment in which it [is to be] undertaken” is “sufficiently imbued with elements of communication.” Spence, 418 U.S. at 409-10, 94 S.Ct. 2727. The Court finds that lying or sitting on the beach, snorkeling amongst protected fish, learning about Hanauma Bay’s ecosystem, swimming or engaging in other recreational beach activities, as is commonly done at Hanauma Bay, is conduct not “sufficiently imbued with elements of communication.” The typical visitor does not, through his or her mere presence at Hanauma Bay or by partaking in activities common to Hanauma Bay, wish to communicate a message or express support for some cause. Nor does the average visitor view those who he or she encounters at the beach as making such a statement. See Roulette, 97 F.3d at 303 (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), for the proposition that conduct amounts to expression when “an intent to convey a particularized message [is] present, and ... the likelihood [is] great that the message would be understood by those who viewed it”); cf Giebel v. Sylvester, 244 F.3d 1182, 1186 (9th Cir.2001) (handbills posted for the purpose of conveying information and that do convey information to the extent they are observed constitute protected speech). Going to the beach and engaging in common beach activities lacks the requisite expressive element necessary to bring such conduct within the realm of First Amendment protection. Cf. Roulette, 97 F.3d at 303-04 (sitting or lying on sidewalk not integral to or commonly associated with expression), Stanglin, 490 U.S. at 25, 109 S.Ct. 1591 (association for purposes of recreational dancing not protected by the First Amendment), MacDonald v. Newsome, 437 F.Supp. 796, 797-98 (E.D.N.C.1977) (listing cases that “demonstrate that certain ‘conduct’ which involves an individual’s participation with the natural elements does not warrant First Amendment protection”). As ROH Section 10-2.11, by its terms, merely inhibits going to Hanauma Bay, “conduct [not] integral to, or commonly associated with, expression,” the Court rejects Plaintiff Burgess’ facial challenge. Roulette, 97 F.3d at 305. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss with Prejudice, or, Alternatively for Partial Summary Judgment as to Count I of the Second Amended Complaint. II. DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE, OR, ALTERNATIVELY FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFFS’ CLAIMS FOR VIOLATIONS OF THE PRIVILEGES AND IMMUNITIES CLAUSE Succinctly stated, Defendants argue that the Privileges and Immunities Clause of the United States Constitution is of no avail to Plaintiffs because it protects “fundamental rights,” none of which are at stake in the instant litigation. Plaintiffs contend that the rights claimed-right of access to a public forum, right to intrastate travel, right of access to the beach and shoreline in Hawaii—are “fundamental.” Plaintiffs further contend that the discriminatory $3.00 entry fee does not pass Constitutional muster because “nonresidents are not the source of any evil the city seeks to remedy.” See Pits’ Opp. at 12. Article IV, Section 2 of the United States Constitution, insofar as it is relevant to the instant case provides: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. U.S. Const, art. I, § 2. The purpose of the Privileges and Immunities Clause, as stated by the United States Supreme Court, is to: place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (quoting Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1868)); see also Toomer v. Witsell, 334 U.S. 385 395, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) (Privileges and Immunities Clause “designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy”). Though these oft-cited propositions seemingly insure nonresidents’ rights to a range of activities enjoyed by instate residents, the Privileges and Immunities analysis has evolved such that this Court must first determine whether the right at stake is “fundamental.” See United Bldg. & Const. Trades Council of Camden County & Vicinity v. Mayor & Council of City of Camden, 465 U.S. 208, 218-19, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984); Baldwin v. Fish & Game Comm’n of Montana, 436 U.S. 371, 387, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). Rights that are not “fundamental” do not “come within the purview of the Privileges and Immunities Clause.” Hawaii Boating Ass’n v. Water Trans. Facilities Div., 651 F.2d 661, 667 (9th Cir.1981); City of Camden, 465 U.S. at 218, 104 S.Ct. 1020. A state need not apply all of its laws and all of its services equally to residents and nonresidents alike, see Baldwin, 436 U.S. at 384, 98 S.Ct. 1852 (citing Canadian N.R. Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920)), but must justify its choice to discriminate if the right at stake is “fundamental” in the context of the Privileges and Immunities Clause. See Hawaii Boating Ass’n, 651 F.2d at 667 (noting that Hicklin did not “signal abandonment of the ‘fundamental’ right approach”); see also City of Camden, 465 U.S. at 222, 104 S.Ct. 1020 (even if privilege protected, discrimination not precluded where there is a substantial reason for the difference in treatment). The “privileges” and “immunities” (i.e. “fundamental rights”) afforded constitutional protection are limited to that which “bear upon the vitality of the Nation as a single entity” and those “basic and essential activities, interference with which would frustrate the purposes of the Union.” Baldwin, 436 U.S. at 383, 387, 98 S.Ct. 1852. The specific right to practice one’s occupation (or engage in lawful commerce, trade, or business) in the State, to procure medical services, to own and dispose of privately held property within the state, to access the courts of the State, and to interstate travel have been judicially recognized as “fundamental” in the context of the Privileges and Immunities Clause. See Saenz v. Roe, 526 U.S. 489, 502, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), Baldwin, 436 U.S. at 383, 98 S.Ct. 1852; Hicklin, 437 U.S. at 524, 98 S.Ct. 2482. Plaintiffs argue that the following rights qualify as “fundamental” for purposes of the Privileges and Immunities Clause: (1) right of access to a public forum, (2) right to intrastate travel and (3) right of access to the beach and shoreline. The Court will consider each in turn. With respect to Plaintiffs’ alleged right to access a public forum, the Court finds that such a right is secured for all United States citizens, regardless of their residency in a particular state, by the First Amendment. Thus, the Court finds that the right to access a public forum is properly analyzed against First Amendment jurisprudence rather than the Privileges and Immunities Clause. Alternatively, the Court is unaware of, and Plaintiffs have failed to identify, authority recognizing that the right of access to a public forum is “fundamental” in the context of the Privileges and Immunities Clause. Plaintiffs argue next that the right to intrastate travel-in the sense that one has the right to physically move about the state and through the state-is “fundamental.” In the recently decided ease Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), the United States Supreme Court recognized three components of the “right to travel”; Plaintiffs intrastate travel/freedom of movement argument seems most akin to the first component: “the right of a citizen of one State to enter and to leave another State.” Id. at 501, 119 S.Ct. 1518; see also Pits’ Opp. at 9 (“The Baldwin court endorsed the articulation of fundamental rights ... including] the ‘right of a citizen to pass through, or to reside in any other state ....’”). Notably, while attributing the second component of the right to travel, namely “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” as arising from the Privileges and Immunities Clause, id. at 501, 119 S.Ct. 1518, the Saenz Court did not pass upon the Constitutional source of the first component. See id. (“[W]e need not identify the source of that particular right in the text of the Constitution.”). The Court finds that Plaintiffs’ right to intrastate travel/freedom of movement (component 1 of the right to travel) claim is most appropriately addressed in conjunction with Plaintiffs’ Equal Protection challenge. Cf. Nunez, 114 F.3d at 944-946 (fundamental right of free movement part of Equal Protection analysis); Int'l Org. of Masters, Mates & Pilots v. Andrews, 831 F.2d 843 (9th Cir.1987) (Privileges and Immunities analyzed separately from “right to travel” argument); Hawaii Boating Ass’n, 651 F.2d at 664 (“right to travel” analyzed as part of Equal Protection analysis); Zobel v. Williams, 457 U.S. 55, 60, 102 S.Ct. 2309, 72 L.Ed.2d 672 n.6 (1982) (“right to travel analysis refers to little more than a particular equal protection analysis”). Finally, Plaintiffs argue that (1) the right of access to the beach and shoreline is basic and fundamental in the State of Hawaii and thus (2) the right of beach access is fundamental under the Privileges and Immunities Clause (by virtue of the Equal Protection Clause). It appears that Plaintiffs argue that equal protection of the law is a “fundamental” Privilege and Immunities Clause right. The Court disagrees with Plaintiffs’ contention, however. First, Plaintiffs cite no support for this proposition. Second, it is well-settled that the Equal Protection Clause “confers no substantive rights and creates no substantive liberties.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring) (noting one exception not applicable here); Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (Equal Protection Clause “creates no substantive rights,” but “embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly”). Last, the Court rejects Plaintiffs’ contention that the Privileges and Immunities Clause mandates the State of Hawaii to provide the same beach privileges (under the laws of Hawaii) to 'non-residents as it does for its own residents. The United States Supreme Court has clearly stated that the Privileges and ^Immunities Clause does not require that a “State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do;” it is only those distinctions that “hinder the formation, the purpose or the development of a single Union of those States” that are prohibited. Baldwin, 436 U.S. at 383, 98 S.Ct. 1852 (citations omitted). Insofar as Plaintiffs argue that access to the beach is a cognizable fundamental right under the Privileges and Immunities Clause, this Court cannot agree. Like the right to hunt elk in Montana, see Baldwin, 436 U.S. at 388, 98 S.Ct. 1852, the right to participate in interscholastic sports, see Alerding, 779 F.2d at 317, and the right to a berth in a recreational boat harbor, see Hawaii Boating Assoc., 651 F.2d 661, neither the “vitality of the Nation as a single entity” nor the “maintenance or well-being of the Union” hinges on ensuring nonresidents’ equality in access to Hanauma Bay. Baldwin, 436 U.S. at 383, 388, 98 S.Ct. 1852. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss, or Alternatively, for Partial Summary Judgment With Respect to Plaintiffs’ Claims for Violation of the U.S. Constitution’s Privileges and Immunities Clause. III. DEFENDANTS’ MOTION TO DISMISS, OR ALTERNATIVELY, FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFFS’ CLAIMS FOR VIOLATION OF THE U.S. CONSTITUTION’S EQUAL PROTECTION CLAUSE. Defendants argue that Plaintiffs’ reliance on the Equal Protection Clause is futile because Plaintiffs do not have a federally recognized fundamental right to go to the beach. Plaintiffs, on the other hand, contend that strict scrutiny review should be applied because the following rights are fundamental: (1) access to a public forum, (2) freedom of movement (which the Court interprets as including the right to travel, see supra Section II) and (3) the right to beach access in Hawaii. The Fourteenth Amendment to the United States Constitution provides in relevant part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST, amend. 14, § 2 (emphasis added). The Equal’Protection Clause seeks to ensure that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). While statutes that classify on the basis of “race, alienage, or national origin” (suspect categories) and that “impinge on personal rights protected by the Constitution” are subject to strict scrutiny and will be upheld only if they “are suitably tailored to serve a compelling state interest,” as a general rule, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. (citations omitted). As a preliminary matter, the Court notes that although ROH § 10-2.11, on its face, classifies on the basis of residency, non-residents are not a judicially recognized suspect class. Plaintiffs do not argue the contrary. Thus, if heightened scrutiny is to be applied, the ordinance must infringe upon a “fundamental right.” Plaintiffs first argue that ROH Sec. 10-2.11 infringes on their fundamental right to access a public forum. The state’s ability to restrict access to public forums is “sharply circumscribed” only when one seeks to engage in expressive activity. See Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. Where First Amendment rights are involved, a heightened level of scrutiny should be applied. See Donrey Media Group v. Ikeda, 959 F.Supp. 1280, 1285 (D.Haw.1996). For reasons discussed in Section I of this order, the Court finds that ROH Sec. 10-2.11 regulates conduct, and does not impinge on Plaintiffs’ right to partake in First Amendment activity. Consequently, the Court .will not apply heightened scrutiny on this ground. Plaintiffs next argue that ROH Sec. 10-2.11 impinges on their fundamental right to free movement and to interstate travel. The Ninth Circúit recognizes that citizens enjoy a “fundamental right of free movement” and a “fundamental right to interstate travel.” Nunez, 114 F.3d at 944. The Supreme Court, in Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), stated that one component of the “right to travel” is the right of a citizen to enter and leave another state. Id. at 500, 119 S.Ct. 1518. The parameters of this component of the “right to travel” are far from clear. See Chavez v. Illinois State Police, 251 F.3d 612, 649 (7th Cir.2001) (noting that “the scope of this component is not well defined because it has received only limited treatment from the Supreme Court”). Prior Supreme Court cases have vindicated the “right to go from one place to another, including the right to cross state borders while en route” and have “afforded protection to the ‘right to travel freely to and from the state of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.’ ” See Saenz, 526 U.S. at 500-01, 119 S.Ct. 1518 (referring to Edwards v. California, 814 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941), and United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966)). The right prohibits “erection of actual barriers to interstate movement,” Zobel, 457 U.S. at 60, 102 S.Ct. 2309, and statutes that “directly impair the exercise of the right tq free interstate movement.” Saenz, 526 U.S. at 501, 119 S.Ct. 1518. Although there exists support for Plaintiffs’ contention, the Court is skeptical that the right to free interstate movement is so broad as to encompass the right to physically move about every part of a state (“intrastate travel”). See Nunez, 114 F.3d at 944 n. 7 (“Other circuits are split as to whether the Constitution guarantees the right of intrastate travel. The Supreme Court has declined to decide the issue. We need not decide the issue in order to resolve this appeal, so we express no opinion on it.”) (internal citations omitted). However, even assuming that such an expansive (equal protection) right exists, the Court finds that ROH Sec. 10-2.11 does not “impinge” upon it. See Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.1999) (“minor burdens impacting interstate travel, such as toll roads do not constitute a violation of that right”); Barber v. State of Hawaii 42 F.3d 1185, 1197 (9th Cir.1994) (“To infringe upon a fundamental right, the regulation must impose a penalty effecting a genuinely significant deprivation ....”). The $3.00 fee is simply not a “significant penalty” on either the right to free movement or Boating Assoc., 651 F.2d at 665;; Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 903, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (“A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses ‘any classification which serves to penalize the exercise of that right’ ”) (citations omitted). Consequently, application of heightened scrutiny is inappropriate on these grounds. [12] Finally, Plaintiffs argue that the right to free shoreline access is fundamental in Hawaii and that pursuant to the Ninth Circuit’s decision in Charfauros v. Bd. of Elections, 249 F.3d 941 (9th Cir.2001), such right “should be deemed fundamental for purposes of Equal Protection analysis.” Pits’ Opp. at 21. Defendants, relying on United States v. Clark, 195 F.3d 446 (9th Cir.1999), California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), and Devereaux v. Perez, 218 F.3d 1045 (9th Cir.2000), contend that Plaintiffs must establish that a fundamental federal right is at stake. Defs’ (Equal Protection) Mot. to Dismiss at 6. Defendants further argue that Hawaii does not recognize a fundamental right of free access to beaches. See Defs’ Reply at 8. It is well-settled in this, as well as in every jurisdiction that strict scrutiny is triggered when a statute “impinges upon a fundamental right.” See Nunez, 114 F.3d at 944. Fundamental rights and liberty interests have been said to emanate from the penumbras of the Bill of Rights, see Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). These rights are elevated to “fundamental” status because they are “so rooted in the traditions and conscience of our people” and “implicit in the concept of ordered liberty.” See Michael H. v. Gerald D., 491 U.S. 110, 127 n. 6, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (citing Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934), and Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). Logic dictates that “fundamental rights” as protected by the United States Constitution (on a national basis) are not particular to or created by individual states. Charfauros v. Board of Elections, 249 F.3d 941 (9th Cir.2001), does not hold the contrary. In Charfauros, four registered Republican voters were disqualified from voting in an election in the Northern Mariana Islands. The Ninth Circuit Court of Appeals, consistent with Equal Protection jurisprudence, first inquired and concluded that a fundamental right-the right to vote-was at stake. Id. at 950. Having reached this conclusion, the court noted that “the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees each and every person that they will not be denied their fundamental rights ... in an arbitrary or discriminatory manner.” Id. at 951. The court then stated: In addition to protecting the exercise of federal constitutional rights, the Equal Protection Clause also prevents violations of rights guaranteed to the people by state governments-including the government of CNMI [Commonwealth of the Northern Mariana Islands]. The CNMI Constitution provides CNMI residents not only the right to vote but the right to vote by secret ballot. Thus, any restrictions placed on those rights must be scrutinized under the Equal Protection Clause. Id. Plaintiffs would have this Court read the above passage so as to elevate all rights recognized by state law as “fundamental” for Equal Protection purposes. See Pits’ Opp. at 21. Charfauros does not support this contention. The “fundamental right” triggering Equal Protection concerns was not created by CNMI law; it was the long-recognized fundamental right to vote. See Charfauros, 249 F.3d at 950 (“Over a century ago, the United States Supreme Court held that the right to vote was a ‘fundamental political right.’ ”). This right “is protected in more than the initial allocation of the franchise” as “[e]qual protection applies as well to the manner of its exercise.” See Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Contrary to Plaintiffs’ contention, in stating that “the Equal Protection Clause also prevents violations of rights guaranteed to the people by state governments,” the Charfauros Court recognized that “having once granted the right to vote on equal terms, [a] State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another’s,” Bush, 531 U.S. at 104-05; it did not proclaim that all rights guaranteed by a state to its residents are “fundamental rights” for equal protection purposes. See Charfauros, 249 F.3d at 951 (referencing Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 530, 148 L.Ed.2d 388 (2000)); see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 59 n. 2, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring) (“one notable exception” to the general rule that “the Equal Protection Clause confers no substantive rights and creates no substantive liberties” is that “the Equal protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State’s population”). Additionally, Charfauros involved a dispute between CNMI residents over disparate treatment, not discrimination against non-residents. Surely, a non-resident could not successfully argue that (s)he was entitled to vote in a CNMI election because such right was provided to CNMI residents. See Baldwin, 436 U.S. at 384, 98 S.Ct. 1852 (“Suffrage ... always has been understood to be tied to an individual’s identification with a particular State.”). Plaintiffs interpretation of Charfauros is not consistent with the Supreme Court’s holding in Baldwin or the Ninth Circuit’s decisions in Hawaii Boating Alssoc. and Barber. In these cases, according to Plaintiffs’ reading of Charfauros, the right to hunt elk and to preferential mooring privileges, respectively, would have been deemed “fundamental” by virtue of the state statute’s provision of the right to its own residents. Plaintiffs’ reading of Char-fauros is not supported by current Equal Protection jurisprudence or logic. As the right to free access to Hanauma Bay cannot seriously be compared with rights emanating from the penumbras of the Bill of Rights and is far from being “implicit in the concept of ordered liberty,” without passing upon whether Hawaii law provides such a right for its own residents, the Court concludes that ROH Sec. 10-2.11 simply does not invoke heightened scrutiny under the Equal Protection Clause. Accordingly, the appropriate standard of review is rationality. In reviewing the rationality of the statute or ordinance as the case may be, this Court is reminded that “where neither a fundamental right nor a suspect classification is implicated, a classification ‘must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis’ for it” and that “the drafters need not actually articulate this basis.” Hooks v. Clark County Sch. Dist, 228 F.3d 1036, 1042 (9th Cir.2000). Moreover, “when social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude .... ” City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Defendants do not provide evidence or argument in support of the rationality of ROH § 10-2.11’s distinction between Hawaii residents and non-residents. Though the Court is inclined to find that there exists “a conceivable state of facts” that justifies drawing a distinction between residents and non-residents, Defendants have not come forth with any evidence to so establish. Plaintiffs, on the other hand, proffer some (though not authenticated) evidence that the Hanauma Bay Nature Preserve Fund has been operating at a surplus and that funds from the preserve have been used for purposes not directly associated with maintenance of the bay. See Defs’ Concise Statement of Facts at ¶ 22. Thus, on the current record, Plaintiffs have generated an issue of material fact sufficient to withstand Defendants’ Motion for Partial Summary Judgment. With respect to Defendants’ Motion to Dismiss, Plaintiffs’ allege in their Second Amended Complaint that “there is no rational connection (i) between the residency status of Plaintiffs and others similarly situated and (ii) the problem, if any, which the city sought to remedy through the enactment of ROH § 96-19 and its continued administration and enforcement,” Pits’ Compl. ¶ 61(F), and that non-residents do not impose a greater burden on Hanauma Bay’s resources than individual residents. See id. at ¶ 65G. Accepting these allegations as true, as this Court must on a motion to dismiss, Plaintiffs’ state a viable Equal Protection claim. Accordingly, the Court DENIES Defendants’ Motion to Dismiss, or Alternatively, for Partial Summary Judgment Regarding Plaintiffs’ Claims for Violations of the U.S. Constitution’s Equal Protection Clause at this time. The Court GRANTS Defendants leave to file, by July 15, 2002, a subsequent motion for partial summary judgment with respect to the issue of whether a rational reason-supports ROH Sec. 10-2.11’s classification. IV. DEFENDANTS’ MOTION TO DISMISS, OR ALTERNATIVELY, FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFFS’ CLAIMS UNDER COUNT VII FOR VIOLATIONS OF THE FOURTH AMENDMENT Defendants move the Court to dismiss Count VII, which relies on the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Hawaii Constitution. Plaintiffs admit that the facts of the instant case do “not fit neatly within the mold of the typical Fourth Amendment search and seizure case.” Pits’ Opp. at 1. Nevertheless, Plaintiffs argue that because they “were not free to proceed on their way,” and because Plaintiff Burgess was escorted away from the turnstile area, her Fourth Amendment rights were violated. The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend IV. Similarly, Article I, Section 7 of the Hawaii Constitution provides in relevant part: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated .... HAW. Const, art. I, § 7. “[A] seizure occurs when an officer, through some form of physical force or show of authority, restrains the liberty of a citizen such that in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Summers, 268 F.3d 683, 686 (9th Cir.2001) (citations omitted). However, “when an encounter is voluntary, no constitutionally protected right is implicated.” Id. (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). A “seizure” under the Hawaii Constitution is defined similarly. See State v. Barrickman, 95 Hawaii 270, 272, 21 P.3d 475 (Hawaii Ct.App.2001) (“Generally, a person is ‘seized’ if, ‘from an objective standpoint and given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave.’ ”) (citation omitted). The Court finds that stopping to pay the $3.00 fee at the turnstile does not constitute an impermissible seizure. Visitors go to Hanauma Bay voluntarily. See Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (“the encounter will not trigger Fourth Amendment scrutiny unless it'loses its consensual nature”). Moreover, a reasonable person, when approaching the turnstile, would surely believe that (s)he had the option of turning around so as to avoid stopping. Notably, visitors do not run the risk of being arrested by the turnstile operators. Thus, the Court finds, as a matter or law, that Plaintiffs and Plaintiff Burgess were not “seized” in violation of the Fourth Amendment to the United States Constitution or Article I, Section 7 of the Hawaii Constitution. V. DEFENDANTS’ MOTION TO DISMISS OR ALTERNATIVELY FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFFS’ CLAIMS UNDER HAWAII REVISED STATUTES § 7-1 Defendants move the Court to dismiss, or alternatively to grant partial summary judgment in their favor, on Plaintiffs’ claims related to H.R.S. Section 7-1. Defendants assert that Plaintiffs’ activities do not fall within the purview of H.R.S. Section 7-1. Plaintiffs, on the other hand, contend that Hawaii law entitles them to pursue a private cause of action to enforce the public’s right to shoreline access. Plaintiffs also argue that H.R.S. Section 7-1 inures to the benefit of the public, not merely tenants of the ahupuaa. The context in which H.R.S. Section 7-1 came into existence bears on the statute’s import. In ancient Hawaiian times, the King “owned” all of the land. Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 6, 656 P.2d 745 (1982). Pie-piece shaped parcels of land running from the sea to. the mountains, called ahupuaas, were distributed from the King to a chief, at the King’s discretion. Id. The land sustained the chief and his people, providing “a fishery residence at the warm seaside, together with the products of the high lands, such as fuel, canoe timber, mountain birds, and the right of way to the same, and all the varied products of the intermediate land as might be suitable to the soil and climate of the different altitudes from the sea soil to mountainside or top.” Id. (citing In Re Boundaries of Pulehunui, 4 Haw. 239, 241 (1879)). “Traversing of an ahupuaa to gather items naturally found there was therefore a matter of practical necessity” and “governance and control of ahupuaa also conformed with the exercise of this privilege.” Id. Significant changes in Hawaii’s traditional land system occurred in the mid-1800s. A series of acts: (1) The Great Mahele of 1848 (granting chiefs fee simple title to Crown lands), (2) the Act of July 10, 1850 (allowing foreigners to own land in fee simple), and the Kuleana Act of 1850 (allowing commoners to obtain fee simple interests in the lands they cultivated) were designed to provide vested rights in the government, the landlord and the tenant. See Pai ‘Ohana v. United States, 875 F.Supp. 680, 686 (D.Hawai‘i 1995); Kalipi 66 Haw. at 7, 656 P.2d 745. The last section of the Kuleana Act is what we now know as H.R.S. Section 7-1. Id. The Statute provides: Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or M leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use. Haw.Rev.Stat. § 7-1 (Michie 1998). The Hawaii Supreme Court acknowledges that the statute serves to “insure that commoners would be able to exercise those rights in connection with their tenancy in order to ensure the utilization and development of their lands.” Kalipi 66 Haw. at 7, 656 P.2d 745. While Defendants devote their attention to the activities permitted under Section 7-1, the Court finds that it need not reach this question due to the fact that by the clear language of the statute and Hawaii caselaw interpreting it, Plaintiffs, non-residents of the State of Hawaii, are not entitled to the rights afforded by Section 7-1. Plaintiffs acknowledge this impediment. See Pits’.Opp. at 12. Nevertheless, they argue that the rights conferred by the portion of Section 7-1 stating that “the springs of water, running water and roads shall be free to all” applies not only to ahupuaa tenants, but to the public generally. The Court finds otherwise. In Kalipi, the Hawaii Supreme Court, in interpreting H.R.S. Section 7-1, concluded that actual residency in the ahupuaa, not merely ownership of property within it, was required. Kalipi, 66 Haw. at 8, 656 P.2d 745. Although the Hawaii Supreme Court may be inclined to relax this strict requirement to some degree, cf. Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 79 Hawaii 425, 448, 903 P.2d 1246 (1995) (noting “article XII, section 7 ... obligates the State to protect customary and traditional rights normally associated with tenancy in an ahupua‘a, [and] may also apply to exercise of rights beyond the physical boundaries of that particular ahupua'a”), given the historical context in which the statute came into existence, the Court finds that the rights secured by H.R.S. Section 7-1 were not intended to inure to those who, at the time access is sought, reside thousands of miles outside the State of Hawaii. Because ROH Sec. 10-2.11 imposes a fee on nonresidents only, the ordinance does not contravene H.R.S. Section 7-1. Accordingly the Court GRANTS Defendants’ Motion to Dismiss, or Alternatively, for Partial Summary Judgment As to All Claims Under Hawaii Revised Statutes Section 7-1. VI. DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE, OR ALTERNATIVELY, FOR PARTIAL SUMMARY JUDGMENT AS TO ALL CLAIMS UNDER HAWAII REVISED STATUTES CHAPTER 480 Defendants argue that H.R.S. Section 480 does not permit suit against a municipality because the statute “was intended to prohibit certain conduct of private businesses/entities, rather than governmental entities.” Defs’