[SUBTITLE 8.]  OCEAN RECREATION AND

COASTAL AREAS

 

Note

 

  Subtitle added by L 1991, c 272, §2.

 

CHAPTER 200

OCEAN RECREATION AND COASTAL AREAS PROGRAMS

 

        Part I.  General Provisions

Section

    200-1 Definitions

    200-2 Board of land and natural resources, powers and duties

    200-3 Ocean recreation and coastal areas programs

    200-4 Rules

    200-5 Commercial harbors excluded

    200-6 Limitation of private use of ocean waters and

          navigable streams

    200-7 Waiver of mooring charges

    200-8 Boating program; payment of costs

    200-9 Purpose and use of state small boat harbors

   200-10 Permits and fees for state small boat harbors

 200-10.5 Sailing school vessels; rules

   200-11 Existing permits

   200-12 Administration of state small boat harbors

   200-13 Marine inspections

   200-14 Violation of rules; penalty

 200-14.5 General administrative penalties

   200-15 Vessels or property taken into legal custody;

          unauthorized control

   200-16 Mooring of unauthorized vessel in state small boat

          harbors and offshore mooring areas; impoundment and

          disposal proceedings

 200-16.5 Responsibility of vessel owner; evidence of

          unauthorized mooring

   200-17 Designated slip for Coast Guard auxiliary

   200-18 Records of suspensions and revocations of

          operating privileges to be maintained

   200-19 Private financing of small boat harbor improvements

   200-20 Hawaiian outrigger canoes on state shoreline areas

 

        Part II.  Boating Law

   200-21 Declaration of policy

   200-22 Purpose

   200-23 Definitions

   200-24 Rules

   200-25 Fines and penalties

   200-26 Arrest or citation

   200-27 Police reports

   200-28 Duty of operator involved in, and at the scene of, a

          boating accident; limitations on liability

   200-29 Accident reports by operators; confidential nature

   200-30 Reciprocal agreements and courtesy

   200-31 Vessels required to be registered and numbered

   200-32 Fees and charges

   200-33 Future fee and charge increases or decreases

   200-34 Disposition of revenues

   200-35 Uniformity

   200-36 Preemption of local law and special rules

   200-37 Operation of thrill craft; parasailing; water

          sledding; commercial high speed boating

 200-37.5 Emergency communication devices

   200-38 Ocean recreation management areas

   200-39 Kaneohe Bay ocean use activities; permits;

          restrictions

 

        Part III.  Abandoned Vessels on Public and Private

                   Property Generally

   200-41 Disposition by chairperson of certain abandoned

          vessels

   200-42 Notice to owner

   200-43 Public auction

   200-44 Possession by interested party

   200-45 When public auction not required

   200-46 Effect of sale

   200-47 Disposition of proceeds

 200-47.5 Vessel aground on state property

   200-48 Derelict vessel

   200-49 Disposition of derelict vessel

 

        Part IV.  Vessels Abandoned on Business Premises of

                  Persons Engaged in Repair Business, Private

                  Marinas, and Yacht Clubs

   200-51 Disposition of vessels by persons in vessel repair

          business, private marinas, or yacht clubs

   200-52 When vessel deemed abandoned

   200-53 Sale or disposition of vessel

   200-54 Disposition of proceeds

   200-55 Effect of transfer of title

 

        Part V.  Trespass to Vessel

   200-61 Definitions

   200-62 Trespass to vessel; penalty

   200-63 Questioning and detaining suspected persons aboard a

          vessel

 

        Part VI.  Vessel Identification Numbers

   200-71 Hull, defined

   200-72 Defacing, etc., vessel hull identification numbers

   200-73 Unlawful to possess certain vessels or hulls

   200-74 Penalty

 

        Part VII.  Alcohol and Boating Safety

   200-81 Operating a vessel under influence of intoxicating

          liquor

   200-82 Operating a vessel after privilege suspended for

          operating a vessel under the influence of intoxicating

          liquor; penalties

   200-83 Records of convictions and suspensions of operating

          privileges to be maintained

   200-84 Evidence of intoxication

   200-85 Implied consent of operator of vessel to submit to

          testing to determine alcoholic content of blood

   200-86 Persons qualified to take blood specimen

   200-87 Additional tests

   200-88 Consent of person incapable of refusal not withdrawn

   200-89 Suspension of privilege to operate a vessel underway

          upon refusal to submit to testing

   200-90 Hearing before a district judge

   200-91 Appeal to supreme court

   200-92 Interpretation of the tests

   200-93 Proof of refusal; admissibility

   200-94 Other evidence not excluded

   200-95 Test results to be collected

   200-96 Applicable scope of part

 

Note

 

  Transfer of functions.  L 1991, c 272, §§27 to 37; L 1992, c 300, §5(133), (134).

  Conclusive presumptions relating to duty of public entities to warn of dangers at public beach parks (repealed June30, 2007).  L 1996, c 190, §3; L 1999, c 101; L 2002, c 170, §2.

  Waianae baseline environmental study for preparation of draft ocean recreational management area rules (report to 2007 legislature).  L Sp 2005, c 6.

 

Cross References

 

  Enforcement, see §199-3.

  Recreational activity liability, see §663-10.95.

  Unencumbered public lands; penalties for violations, see §171-6.5.

 

Case Notes

 

  Mooring and anchoring fees imposed by state regulations not an unconstitutional duty of tonnage.  42 F.3d 1185.

  No commerce clause violation by state anchoring and mooring regulations where State's interest in having regulations for public safety is substantial and there is little burden on interstate commerce.  42 F.3d 1185.

  No implied preemption of state mooring and anchoring regulations where congressional intent to preempt state action is not clearly manifest, federal regulation has not occupied the field of navigation, and federal interest in navigation is not so dominant as to assume federal preemption of state laws.  42 F.3d 1185.

  No preemption of state mooring and anchoring regulations by Submerged Lands Act where there was no actual conflict between federal Act and Hawaii's regulations.  42 F.3d 1185.

  Small boat harbor mooring and anchoring regulations imposing higher fees on nonresidents than residents not violative of equal protection clause of Fourteenth Amendment.  42 F.3d 1185.

  State regulation that prohibited commercial tour boat operators from operating their tour boats in Hanalei Bay, in conjunction with relevant federal shipping laws, violated the supremacy clause.  340 F.3d 1053.

  Constitutionality of mooring regulations, discussed.  823 F. Supp. 766.

  Hawaii regulatory scheme not preempted by federal law, where plaintiff failed to demonstrate that Congress intended to occupy entire field of navigation, and there was significant evidence to the contrary; and there was no actual conflict between the Hawaii regulations and federal law; Hawaii regulatory scheme did not implicate commerce clause.  57 F. Supp. 2d 1028.

  State and department of land and natural resources immune from suit, where plaintiff sought to enjoin State and city and county of Honolulu from implementation or enforcement of any and all state statutes and city ordinances that might apply to the business that plaintiff claimed to be developing, involving a commercial boating activity on the Ala Wai canal; plaintiff lacked standing; plaintiff's case not ripe for adjudication.  57 F. Supp. 2d 1028.

  Division of boating and ocean recreation's assessment of a two per cent ocean recreation management area fee against vessel was an impermissible tax in violation of prohibition against tonnage duties; two per cent use fee assessed other vessel was not a prohibited duty of tonnage.  195 F. Supp. 2d 1157.

  Having created a permit structure for commercial vessels, having issued and reissued such permits in the past, and having promised plaintiff renewal, division of boating and ocean recreation violated the due process clause by summarily withholding the promised "vessel moored elsewhere" permit for reasons that were undisclosed or tested through a fair administrative hearing process.  195 F. Supp. 2d 1157.

  Two per cent use fee did not violate right to substantive due process of plaintiff, a corporation engaged in offering boating excursions from state boating facilities on the island of Kauai. 195 F. Supp. 2d 1157.