HB2332 HD1

SECTION 1. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§171‑ Transiting public lands; commercial activity. (a) No person shall transit unencumbered public lands in the conservation district for the purpose of participating in any commercial activity without the proposed commercial activity first obtaining a conservation district use permit, unless proposed transiting of the unencumbered land is within an area of the conservation district that is regulated by a management plan approved by the board of land and natural resources or any other governmental or community-based organization that permits the commercial activity.

(b) When determining whether to grant a conservation district use permit for the transiting of the unencumbered public lands in the conservation district for the purpose of a commercial activity, the board shall evaluate whether:

(1) The proposed commercial activity, singularly or as part of cumulative commercial activities, will have a significant effect on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State;

(2) The proposed commercial activity, singularly or as part of cumulative commercial activities, will significantly burden public agencies to provide streets or roads, sewers, water, drainage, or other public services or facilities;

(3) There are measures to mitigate the adverse effects or burdens referred to in paragraphs (1) and (2); and

(4) There are specific procedures for emergency and minor transits.

(1) Personnel or agents of the department of land and natural resources; or

(2) Emergency personnel, including medical, fire, and police personnel, in their official capacity.

(d) As used in this section:

"Commercial activity" means to engage in any action or to attempt to engage in any action for compensation in any form, including but not limited to providing, or attempting to provide, guide services, charters, tours, and transportation to and from the location for which services are provided.

"Emergency transit" means an action by the board authorizing a transit in cases of emergency requiring immediate action to prevent substantial physical harm to persons or property.

"Minor transit" means an action by the board authorizing transit situations that have no significant effect on the quality of the environment, nor adversely affect the economic welfare, social welfare, or cultural practices of the community or the State.

"Transit" means to pass over or through the unencumbered lands.

(e) The department shall adopt rules pursuant to chapter 91 necessary for the implementation and enforcement of this section."

SECTION 2. Section 171-6, Hawaii Revised Statutes, is amended to read as follows:

"§171-6 Powers. Except as otherwise provided by law, the board of land and natural resources shall have the powers and functions granted to the heads of departments and the board of land and natural resources under chapter 26.

In addition to the foregoing, the board may:

(1) Adopt a seal;

(2) Administer oaths;

(3) Prescribe forms of instruments and documents;

(4) Adopt rules which, upon compliance with chapter 91, shall have the force and effect of law;

(5) Set, charge, demand, and collect reasonable fees for the preparation of documents to be issued, for the surveying of public lands, and for the issuing of certified copies of its government records, which fees, when collected, shall be deposited into the state general fund, unless otherwise specified in this chapter;

(6) Establish additional restrictions, requirements, or conditions, not inconsistent with those prescribed in this chapter, relating to the use of particular land being disposed of, the terms of sale, lease, license, or permit, and the qualifications of any person to draw, bid, or negotiate for public land;

(7) Reduce or waive the lease rental at the beginning of the lease on any lease of public land to be used for any agricultural or pastoral use, or for resort, commercial, industrial, or other business use where the land being leased requires substantial improvements to be placed thereon; provided that such reduction or waiver shall not exceed two years for land to be used for any agricultural or pastoral use, or exceed one year for land to be used for resort, commercial, industrial, or other business use;

(8) Delegate to the chairperson or employees of the department of land and natural resources, subject to the board's control and responsibility, such powers and duties as may be lawful or proper for the performance of the functions vested in the board;

(9) Utilize arbitration under chapter 658A to settle any controversy arising out of any existing or future lease;

(10) Set, charge, and collect reasonable fees in an amount sufficient to defray the cost of performing or otherwise providing for the inspection of activities permitted upon the issuance of a land license involving a commercial purpose;

(11) Appoint masters or hearing officers to conduct public hearings as provided by law and under such conditions as the board by rules shall establish;

(12) Bring such actions as may be necessary to remove or remedy encroachments upon public lands. Any person causing an encroachment upon public land shall [~~be subject to a fine of~~]:

(A) Be fined not more than $500 a day for the first offense [~~and shall be liable for administrative costs incurred by the department and for payment of damages. Upon the second offense and thereafter, the violator shall (A) be~~];

(B) Be fined not less than $500 nor more than $2,000 per day[~~; (B) if~~] for a second or any subsequent offense;

(C) If required by the board, restore the land to its original condition if altered and assume the costs thereof; [~~and (C) assume such~~]

(D) Assume any costs [as] that may result from adverse effects from [~~such~~] the restoration; and

(E) Be liable for administrative costs incurred by the department and for payment of damages;

(13) Set, charge, and collect interest and a service charge on delinquent payments due on leases, sales, or other accounts. The rate of interest shall not exceed one per cent a month and the service charge shall not exceed $50 a month for each delinquent payment; provided that the contract shall state the interest rate and the service charge and be signed by the party to be charged;

(14) Set, charge, and collect additional rentals for the unauthorized use of public lands by a lessee, licensee, grantee, or permittee who is in violation of any term or condition of a lease, license, easement, or revocable permit, retroactive to the date of the occurrence of the violation. Such amounts shall be considered delinquent payments and shall be subject to interest and service charges as provided in paragraph (13);

(15) Set, charge, and collect reasonable fines for violation of this chapter or any rule adopted thereunder. Any person engaging in any prohibited use of public lands, conducting any prohibited activity on public lands, or violating any of the other provisions of this chapter or any rule adopted thereunder, for which violation a penalty is not otherwise provided, shall be [~~fined~~]:

(A) Fined not more than [~~$500 a day~~ ~~and shall be liable~~] $2,500 per violation for a first violation or a violation occurring after five years of a previous violation; provided that, after written or verbal notification from the department, an additional $500 per day per violation may be assessed for each day in which the violation persists;

(B) Fined not more than $5,000 per violation for a second violation occurring within five years of the last violation; provided that, after written or verbal notification from the department, an additional $1,000 per day per violation may be assessed for each day in which the violation persists;

(C) Fined not more than $10,000 per violation for a third or subsequent violation occurring within five years of the last violation; provided that, after written or verbal notification from the department, an additional $2,000 per day per violation may be assessed for each day in which the violation persists; and

(D) Liable for administrative costs and expenses incurred by the department and for payment for damages[;], including but not limited to natural resource damages.

In addition to fines, administrative costs, and damages provided for in this paragraph, when violations include or result in damage to or theft of natural resources, the board may also establish, charge, and collect a fine that, in the board's discretion, is appropriate considering the value of the natural resource that is damaged or stolen. In determining an appropriate fine, the board may consider the market value of the natural resource damaged or stolen and any other factors that it deems appropriate, including the loss of the natural resource to its natural habitat and environment and the cost of restoration or replacement. The remedies provided for in this paragraph are cumulative and are in addition to any other remedies allowed by law.

No person shall be sanctioned pursuant to this section for the exercise of native Hawaiian gathering rights and traditional cultural practices as authorized by law or as permitted by the department pursuant to article XII, section 7, of the Hawaii State Constitution;

(16) Issue revenue bonds, subject to the approval of the legislature. All revenue bonds shall be issued pursuant to part III of chapter 39, except as provided in this chapter. All revenue bonds shall be issued in the name of the department and not in the name of the State. The final maturity date of the revenue bonds may be any date not exceeding thirty years from the date of issuance;

(17) Pledge or assign all or any part of the receipts and revenues of the department. The revenue bonds shall be payable from and secured solely by the revenue derived by the department from the industrial park or parks for which the bonds are issued;

(18) Reimburse the state general fund for debt service on general obligation bonds or reimbursable general obligation bonds issued by the State for purposes of this chapter; and

(19) Do any and all things necessary to carry out its purposes and exercise the powers granted in this chapter."

SECTION 3. Section 183C-2, Hawaii Revised Statutes, is amended by amending the definition of "land use" to read as follows:

""Land use" means:

(1) The placement or erection of any solid material on land;

(2) The grading, removing, harvesting, dredging, mining, or extraction of any material or natural resource on land;

(3) The subdivision of land; [or]

(4) The construction, reconstruction, demolition, or alteration of any structure, building, or facility on land[.]; or

(5) The transit of unencumbered lands in the conservation district for the purpose of conducting a commercial activity."

SECTION 4. This Act does not affect rights and duties or community agreements that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. New statutory material is underscored.

SECTION 6. This Act shall take effect on January 1, 2009.

HOUSE OF REPRESENTATIVES	H.B. NO.	2332
TWENTY-FOURTH LEGISLATURE, 2008		H.D. 1
STATE OF HAWAII