HB1174 HD3.DOC

SECTION 1. Pursuant to the Hawaii Constitution and the Hawaii Revised Statutes, the University of Hawaii is vested with autonomous authority to control and manage its educational and proprietary affairs. This authority extends to the use and oversight of lands and real property owned by the university or leased, demised, or transferred to the university from various owners, including state, federal, or private entities, for the furtherance of the university's educational, research, and agricultural activities.

Such autonomous authority presumably carries with it the necessary legal means to supervise, oversee, and permit public activities on lands it leases and controls on Mauna Kea, including the Mauna Kea Science Reserve, Hale Pohaku, and the connecting roadway corridor between Hale Pohaku and the Mauna Kea Science Reserve (collectively the Mauna Kea lands), and may be implied from the autonomous character of the university. Nevertheless, the purpose of this Act is to clarify and add certainty to the law relating to the university's authority to manage and control public and commercial activities on the Mauna Kea lands by granting express authority to the university to adopt rules pursuant to chapter 91, Hawaii Revised Statutes, relating to public and commercial activities permitted or occurring on the Mauna Kea lands. In adopting these rules, the university shall address and reconcile any conflicts with other statutes or rules that are applicable to the Mauna Kea lands.

Administrative rules governing public and commercial activities on the Mauna Kea lands are necessary to provide effective protection of cultural and natural resources from certain public and commercial activities, and to help ensure public health and safety. Administrative rules currently in effect for the surrounding forest reserve and natural area reserve lands managed by the department of land and natural resources do not apply to the Mauna Kea lands. Examples of public and commercial activities that could be covered by administrative rules include:

(1) General access to sensitive resource areas, such as specific cultural features and identified natural resource habitat areas;

(2) Traffic and off-road vehicle management and control;

(3) Alcohol consumption;

(4) Snow play activities; and

(5) Commercial tour activities.

Together with the authority to adopt administrative rules with respect to the Mauna Kea lands, the university would also require the ability to enforce the rules, including the authority to assess fines for rule violations. Thus, another purpose of this Act is to grant the university the authority to:

(1) Create and establish a system for assessing and collecting fines for rule violations; and

(2) Provide an appeal process, in a manner consistent with the Hawaii Administrative Procedure Act, for those accused of committing one or more violations to contest the allegation or allegations.

Additionally, the university shall:

(1) Encourage and foster a process of collaboration and involvement between its Mauna Kea lands advisory bodies and community interests to ensure that the process of developing any administrative rules for the Mauna Kea lands is accomplished with community participation and input; and

(2) Accommodate access to the Mauna Kea lands for traditional and customary native Hawaiian cultural and religious purposes.

SECTION 2. Chapter 304A, Hawaii Revised Statutes, is amended by adding a new section to part V, subpart C, to be appropriately designated and to read as follows:

"§304A- Mauna Kea management special fund. (a) There is established the Mauna Kea management special fund, into which shall be deposited all revenues, rents, fees, charges, assessments, fines, and other moneys collected by the university in connection with overseeing and managing the public and commercial activities within the Mauna Kea lands, including any of the following collected in connection with such public and commercial activities:

(1) Rents, fees, and charges for the use of land and facilities within the Mauna Kea lands;

(2) All moneys collected for violations of administrative rules adopted pursuant to this chapter relating to the Mauna Kea lands; and

(3) All revenues, rents, fees, charges, and other moneys collected from entities conducting or receiving moneys attributable to commercial activities within the Mauna Kea lands.

The board of regents of the university may establish rents, fees, and charges, including those for the lease or use of university real property and facilities within the Mauna Kea lands; provided that the university shall comply with all statutory requirements in the disposition of ceded lands. The rents, fees, and charges payable in connection with public and commercial activities within the Mauna Kea lands, shall be established at an open public meeting subject to the requirements of chapter 92; provided that a copy of the schedule of the rents, fees, and charges is filed in the office of the lieutenant governor prior to the effective date of the rents, fees, and charges.

(b) The university may establish separate accounts within the special fund for major program activities. The board of regents, or its designated representative or representatives, may expend the moneys deposited in the Mauna Kea management special fund for:

(1) Enforcement of the administrative rules adopted pursuant to this chapter relating to the Mauna Kea lands; and

(2) Oversight and management of the Mauna Kea lands, including maintenance, administrative expenses, salaries, wages, and benefits of employees, contractor services, supplies, security, furnishings, equipment, janitorial services, insurance, utilities, and other operational expenses.

All expenditures from the special fund shall be subject to legislative appropriation.

(c) Moneys deposited into the Mauna Kea management special fund shall not be used as a basis for reducing any current or future budget request or allotment to the university, unless the university requests the reduction.

(d) For purposes of this section, "maintenance" includes repairs and replacement of equipment, furnishings, and facilities.

(e) For purposes of this section and section 304A-105:

(1) "Commercial activity" means any activity for which compensation is requested, required, or received by any person for goods or services, or both, rendered, furnished, provided, or made available to members of the public, including commercial tour activities, film and video taking and production activities, concessions, resource extraction, and special events;

(2) "Mauna Kea lands" means the lands that the university is leasing from the board of land and natural resources, including the Mauna Kea Science Reserve, Hale Pohaku, the connecting roadway corridor between Hale Pohaku and the Mauna Kea Science Reserve, and any other lands on Mauna Kea that the university leases or over which the university acquires control or jurisdiction; and

(3) "Public activities" means all non-commercial activities in which any member of the public could lawfully engage within the Mauna Kea lands, including recreational activities such as:

(A) Sightseeing;

(B) Hiking;

(D) Stargazing;

(E) Access to sensitive resource areas (such as specific cultural features and identified natural resource habitat areas);

(F) Alcohol consumption;

(G) Traffic and off-road vehicle management;

(H) Parking; and

(I) The use of vehicles and other modes of transport within the Mauna Kea lands (including recreational and other motor vehicles, jeeps, ATVs, scooters, carts, mopeds, motorcycles, and any wheeled device or other device in, upon, or by which any person or property is or may be transported)."

SECTION 3. Section 304A-105, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The board of regents shall have management and control of the general affairs, and exclusive jurisdiction over the internal structure, management, and operation of the university. The board may:

(1) Appoint a treasurer and other officers as it deems necessary;

(2) Authorize any officer, elected or appointed by it, to approve and sign on its behalf any voucher or other document that the board may approve and sign;

(3) Delegate to the president or the president's designee the authority to render the final decision in contested case proceedings subject to chapter 91, as it deems appropriate;

(4) Purchase or otherwise acquire lands, buildings, appliances, and other property for the purposes of the university; and

(5) Expend any sums of money as, from time to time, may be placed at the disposal of the university from whatever source; provided that notwithstanding any other law to the contrary, all documents regarding expenditures and changes thereto, made by the board shall be disclosed in open meetings for the purpose of public comment; provided further that all expenditure requests, proposals, and any other budgetary documents used by the board at an open meeting shall be made available to the public at least six calendar days before the meeting.

All lands, buildings, appliances, and other property so purchased or acquired shall be and remain the property of the university to be used in perpetuity for the benefit of the university. The board, in accordance with this section and other law, shall manage the inventory, equipment, surplus property, and expenditures of the university and, subject to chapter 91, may adopt rules, further controlling and regulating the same. The board may also adopt rules, subject to chapter 91, to regulate public and commercial activities at and within the Mauna Kea lands, as identified in section 304A- . The board may adopt rules, subject to chapter 91, to establish and provide for the assessment and collection of administrative fines for violations of any administrative rule relating to the Mauna Kea lands. The board shall establish procedures to enforce its rules relating to the Mauna Kea lands. Fines for violation of rules relating to the Mauna Kea lands shall be established as follows:

(1) For the first violation, an administrative fine of not more than $ ;

(2) For the second violation within five years of a previous violation, an administrative fine of not more than $ ; and

(3) For the third and any subsequent violation within five years of the last violation, an administrative fine of not more than $ .

Each day of violation shall constitute a separate offense.

The board may also assess against a party found to have violated an administrative rule relating to the Mauna Kea lands adopted pursuant to this chapter, the costs of any enforcement proceeding, including costs of holding any contested case proceedings.

The board may institute court action to collect any administrative fines and any costs that are or can be attributable to violations of administrative rules relating to the Mauna Kea lands."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on January 1, 2046.

HOUSE OF REPRESENTATIVES	H.B. NO.	1174
TWENTY-FIFTH LEGISLATURE, 2009		H.D. 3
STATE OF HAWAII