WHEREAS, the history and culture of Hawaii are rich with the traditions of farming, ranching, gathering, and hunting, which have been and continue to be practiced by its people--from the first Polynesian settlers to the diverse, multi-ethnic residents of today; and

WHEREAS, these activities of survival, sustenance, interaction, and interdependence rely heavily upon the access of Hawaii's people to the precious lands of Hawaii's rural areas; and

WHEREAS, the Fish and Wildlife Service of the United States Department of the Interior intends to protect 47 endangered plant species by designating 437,285 acres of land on the island of Hawaii as critical habitat; and

WHEREAS, this acreage represents about 17 percent of the total land and 20 percent of state land on the island of Hawaii; and

WHEREAS, the designation of such a large portion of rural lands will severely diminish the ability of the people of our State to engage in activities so inextricably and vitally linked to Hawaii's existence, identity, and heritage; and

WHEREAS, federal laws require that the designation of an area as critical habitat be based on the best scientific data available and must take into account the economic impact and any other relevant impacts of specifying a particular area as critical habitat; and

WHEREAS, relevant impacts that may not have been considered include the likely restrictions on Hawaii's residents from using the lands proposed to be designated as critical habitat; and

WHEREAS, other concerns of statewide interest that are significant and that could have long-term ramifications include:

WHEREAS, the Endangered Species Act, 16 U.S.C. §1533(b)(1)(A), requires the Secretary of the Interior (Secretary) to base the Secretary's determination on whether any species is an endangered or threatened species "solely on the basis of the best scientific and commercial data available to [the Secretary] . . . after taking into account those efforts, if any, being made by any State . . . or any political subdivision of a State . . . to protect such species"; and

WHEREAS, the State of Hawaii does, in fact, have its own version of the Endangered Species Act, codified within chapter 195D, Hawaii Revised Statutes; and

WHEREAS, the Secretary must submit to "[a] State agency" written justification for regulations that were adopted despite being inconsistent with the state agency's comments or petition; and

WHEREAS, it appears that the United States Department of the Interior notified the Division of Forestry and Wildlife of the state Department of Land and Natural Resources about the proposed rule but did not notify any other state agencies that could be affected, such as the Department of Agriculture, the Department of Hawaiian Home Lands, and the Department of Business, Economic Development, and Tourism; and

WHEREAS, it seems that it would be even more important to involve policy-making entities, including the Hawaii County Council and the Hawaii State Legislature, because they are the bodies that could best analyze the proposed rules and respond most effectively, pointing out areas of conflict and possible solutions; and

WHEREAS, notification to the Hawaii County Council and the Hawaii State Legislature would also have enabled them to take steps toward conforming state or county policy with the proposed federal policy in case of inconsistencies between the policies; and

WHEREAS, the designation of state lands as critical habitat is apparently being performed under the authority of the Commerce Clause (Article I, Section 8) of the United States Constitution; and

WHEREAS, recent decisions by the United States Supreme Court have clearly and unambiguously held that there must be a "substantive nexus" between the activity of a state and interstate commerce if Congress wishes to regulate state activity under the Commerce Clause; and

WHEREAS, such a "substantive nexus" does not seem to exist in this situation, since there appears to be no economic activity occurring that could substantially affect any sort of interstate commerce; and

WHEREAS, one possible argument for the application of the Commerce Clause in this case could be that the migratory nature of the species intended for protection under this proposed action facilitates an economic activity that crosses state boundaries; and

WHEREAS, however, this argument is largely countervailed by the fact that few of the native species intended for protection are actually migratory and, therefore, the "substantive nexus" required by the Commerce Clause is tenuous at best; and

WHEREAS, there is a continuing effort to designate more and more lands in the State as critical habitat; and

WHEREAS, the current situation on the island of Hawaii should be addressed now as a precedent for future actions with implications across all the counties and for people throughout the State; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2003, that the United States Department of the Interior has not satisfied the requirements for designating the proposed lands on the island of Hawaii as critical habitat; and

BE IT FURTHER RESOLVED that in light of the need to properly protect endangered species while also remaining sensitive to the native culture and to the practices and activities of all of Hawaii's residents, who coexist with such species on the same land, the United States Department of the Interior is requested to postpone the process of designating lands as critical habitat until further notification can be made to the appropriate state and county entities; and

BE IT FURTHER RESOLVED that further legal research be undertaken by the Department of the Attorney General to determine the applicability of the Commerce Clause of the United States Constitution to the enforcement of the federal Endangered Species Act in this instance; and

BE IT FURTHER RESOLVED that the Office of Environmental Quality Control of the Department of Health work with the Department of the Attorney General to determine if an environmental assessment, environmental impact statement, or both, should be conducted in order to provide the necessary scientific information required by the Endangered Species Act; and

BE IT FURTHER RESOLVED that should it be determined that an environmental assessment, environmental impact statement, or both, are necessary, the agency conducting the assessment, impact statement, or both, shall work with appropriate federal, state, and county bodies, including the Hawaii State Legislature and Hawaii County Council, to collaborate in the possible subsequent designation of lands as critical habitat; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Fish and Wildlife Service of the United States Department of the Interior; United States Department of the Interior; Hawaii's Congressional delegation; state departments of Agriculture and Transportation; Department of Land and Natural Resources; Department of Hawaiian Home Lands; Department of Business, Economic Development, and Tourism; Department of the Attorney General; county councils of Hawaii, Maui, Kauai, and Honolulu; and Governor and Lieutenant Governor of Hawaii.

Report Title:

Critical Habitat Designations