HB1499

SECTION 1. The legislature finds that the department of land and natural resources conservation and resources enforcement officers must conduct investigations, field observations, and inspections as required or assigned, check and verify all leases, permits, and licenses issued by the department, and enforce fisheries regulations.

Section 187A-15, Hawaii Revised Statutes, allows any department agent upon whom the board of land and natural resources has conferred powers of police officers, or any other enforcement officer of the State, to search any bag or container used to carry aquatic life, or any vehicle or conveyance used to transport aquatic life, if the agent or officer has probable cause, as provided by law, to believe that the bag, container, vehicle, or conveyance contains evidence of a violation of laws on aquatic resources and wildlife.

The legislature finds that in addition to consent, there is an exception to the probable cause requirement when searches are conducted as part of a "valid regulatory scheme, done in furtherance of administrative goals rather than to secure evidence of a crime". (U.S. v Bulacan, 156 F.3d 963, 967 (9^th Cir. 1998)). This is the exception under which the department of agriculture is authorized to conduct its inspections at airports. "[T]ime element is a major consideration...the objects of the search...can easily be transported out of Hawaii to the continental United States. (United States v. Schafer, 461 F.2d 856, 868 (1972)). "[T]he general administrative determination of the necessity for these baggage searches at the Honolulu airport satisfies 'probable cause'." (Schafer at 859. See also Camara v. Municipal Court, 387 U.S. 523 (1967)).

Section 189-14, Hawaii Revised Statutes, authorizes the department of land and natural resources, without requiring probable cause, to "board any vessel, whether commercial or non-commercial, capable of being used in taking marine life...for purposes of investigation and inspection...."

Section 183D-25, Hawaii Revised Statutes, provides as a condition of receiving a hunting license that "[n]o person, upon the request of an officer, shall refuse to show the license or withhold permission to inspect the person's game bag, container, hunting coat or jacket, or carrier, or vehicle of any kind where game might be concealed." No probable cause is required, because the consent to a search occurs when a hunting license is issued.

The department of land and natural resources does not yet have a valid administrative search scheme in place for inspections in furtherance of the goals of enforcing aquatic regulations such as closed seasons, bag limits or minimum size limits, nor does it currently have statutory authority to monitor the transport of aquatic life out of the State.

Although the department of land and natural resources is authorized to adopt rules to create a scheme for monitoring the export of aquatic resources, it has not yet done so because of the probable cause language in section 187A-15, Hawaii Revised Statutes. Section 188-31.5, Hawaii Revised Statutes, requires the department to "adopt rules in accordance with chapter 91 to monitor the aquarium fish catch report and fish dealer's report for export of aquarium fish taken from the waters of the State for aquarium purposes pursuant to section 188-31."

Recent reports indicate that more than forty-four per cent of required monthly aquarium catch reports are not filed and the numbers of fish exported have been grossly underestimated. In addition, there is an unknown amount of marine mollusks being exported for the shell collection trade, which currently is not monitored or regulated.

The purpose of an administrative inspection scheme is to provide accurate information on the types and numbers of species that are being removed from Hawaii's reefs for sale and export, as well as to monitor compliance with the conditions of permits and licenses; it is not to gather evidence for a criminal case. These types of inspections are considered valid administrative searches. (See State v. Hanson, 97 Haw. 71, 77 (2001)). The department of land and natural resources has, in fact, drafted export monitoring rules, but the attorney general has made a preliminary determination that section 187A-15, Hawaii Revised Statutes, is a bar to the implementation of those rules.

The purpose of this Act is to amend section 187A-15, Hawaii Revised Statutes, to standardize its administrative inspection requirements with those of section 183D-25, Hawaii Revised Statutes, which governs the enforcement of the State's hunting laws; and to authorize and direct the department of land and natural resources to create a valid administrative search scheme to enforce its aquatic regulations.

SECTION 2. Section 187A-15, Hawaii Revised Statutes, is amended to read as follows:

"§187A-15 Rights of inspection [~~of catch~~]. Any agent of the department upon whom the board has conferred powers of police officers or any other enforcement officer of the State shall have the authority to conduct examinations and [~~searches~~] inspections of:

(1) The contents of any bag or container of any kind used to carry aquatic life; or

(2) Any vehicle or conveyance used to transport aquatic life;

[~~if such agent or officer has probable cause, as provided by law, to believe that such bag, container, vehicle, or conveyance contains~~] for evidence of a violation of the conditions of any license or permit issued under subtitle 5 of title 12 or any rule adopted thereunder. Written consent to inspection shall be a condition of any license or permit issued under subtitle 5 of title 12 by the department. No person shall refuse any enforcement officer of the department or any other enforcement officer of the State [~~such~~] an examination and [~~search.~~] inspection for purposes of determining compliance with the terms of any license or permit relating to aquatic life. Refusal to grant an examination or inspection shall result in immediate revocation of the license or permit.

The department shall create a valid administrative inspection scheme to enforce its aquatic rules."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1499
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII