Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Water, Land, and Agriculture, to which was referred H.B. No. 1214, H.D. 2, entitled:

begs leave to report as follows:

The purpose of this measure is to protect the State and counties from liability on improved and unimproved public lands when the requirements of this measure are met.

Testimony in support of this measure was submitted by the State Attorney General, the Kauai County Attorney, two council members of the Hawaii County Council, the Sierra Club, the Hawaii Association of Realtors, and a concerned citizen. Testimony in opposition to the measure was submitted by the Consumer Lawyers of Hawaii. The Board of Land and Natural Resources submitted comments on the measure.

The measure also establishes a risk assessment working group attached to the Department of Land and Natural Resources to assist the Department in the design and placement of warning signs and other devices.

Your Committee finds that the State and counties need protection from liability arising from the inherent risks posed by improved and unimproved public lands under their jurisdictions. Your Committee also finds that it is necessary to strike an equitable balance between the personal responsibility of people engaged in recreational pursuits and the duty of the government to take reasonable measures to protect citizens from harm by providing adequate warning.

Your Committee has amended the measure to include two provisions from S.B. 1418, S.D. 2, that were deleted from the House version of the measure. These provisions clarify existing law that the State and counties shall not have a duty to warn for dangerous natural conditions on unimproved public lands. Your Committee finds that it is important to expressly provide that there is no such duty, because governmental entities cannot reasonably be expected to provide warnings for dangerous natural conditions on all lands under their jurisdictions. The reinsertion of these protective provisions will avoid unnecessary litigation and provide appropriate protection.

Your Committee discussed whether there should be an exception to these provisions if the State or counties have actual notice of a dangerous condition that is being utilized by the public in an unimproved area. To include this exception would create a new duty upon government entities: a duty to warn the public of danger on lands where government entities are not inviting people to go.

Your Committee also discussed whether there should be a mandate to perform periodic inspections to check that warning signs have not been removed or vandalized. Your Committee is concerned that it may not be reasonable to have a conclusive presumption of protection if the sign has been removed or made illegible, especially since the measure provides that the presumption remains valid until thirty days after the removal or vandalism is discovered. Although no rules for regular inspection have been adopted by the Department of Land and Natural Resources, regular inspections of trails and improved public lands are made throughout the year. Your Committee believes that staffing needs for such inspections and the permanence attached to including deadlines in statutes needs to be discussed further so that an equitable solution may be fashioned in a manner that will protect the government's interests as well as its citizenry.

Although your Committee has concerns with this measure, it believes this measure should continue in the legislative process to conduct more research and promote further discussion.

Your Committee has also amended the measure to make technical, nonsubstantive amendments for purposes of style and clarity.

As affirmed by the record of votes of the members of your Committee on Water, Land, and Agriculture that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1214, H.D. 2, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1214, H.D. 2, S.D. 1, and be referred to the Committee on Judiciary and Hawaiian Affairs.