THE SENATE	S.B. NO.	2441
TWENTY-FIFTH LEGISLATURE, 2010		S.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO ENDANGERED SPECIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The number of species of plants, animals, and microorganisms; the enormous diversity of genes in these species; and the different ecosystems on the planet, such as deserts, rainforests, and coral reefs, are all part of a biologically diverse Earth.  Biodiversity ensures natural sustainability for all life forms and healthy ecosystems that can better withstand and recover from a variety of disasters.  Human activity is causing a tremendous number of species extinctions, from animal species, forests, and the ecosystems that forests support, to marine life. 

     The federal Endangered Species Act establishes a process of identifying species that are in danger of becoming extinct.  The green sea turtle, the nene goose, and the Hawaiian monk seal are all endangered species.  Despite the protections provided by the federal Endangered Species Act, these animals continue to be at risk.  Two recent incidents of intentionally killed Hawaiian monk seals on Kauai and one on Molokai have brought attention to the human threat to Hawaii's endangered species.  In September, a Kauai man pleaded guilty to shooting a Hawaiian monk seal in violation of the federal Endangered Species Act.  The man received a ninety-day prison term, one year supervised release, and a $25 fine.  The legislature finds that this sentence is not sufficient to deter future harassment of Hawaii's endangered species.  In order to protect endangered species from future harassment and death, greater penalties need to be imposed.

     The purpose of this Act is to:

     (1)  Establish the crime of intentional or knowing taking of an endangered species as a class C felony; and

     (2)  Provide a private right of action against persons who violate the laws or rules regarding the conservation of aquatic life, wildlife, and land plants, which includes the protection of endangered species.

     SECTION 2.  Section 195D-9, Hawaii Revised Statutes, is amended to read as follows:

"§195D-9  Penalty.  (a)  Any person who violates any of the provisions [[or]] of this chapter [of] or the provisions of any rule adopted [hereunder] under this chapter shall be guilty of a misdemeanor and shall be punished as follows:

     (1)  For a first offense by a fine of not less than $250 or by imprisonment of not more than one year, or both; and

     (2)  For a second or subsequent offense within five years of a previous conviction by a fine of not less than $500 or by imprisonment of not more than one year, or both.

     (b)  In addition to the above penalties, except for violations under approved habitat conservation plans under section 195D-21 or approved safe harbor agreements under section 195D-22 as determined by the board, a fine of $5,000 for each specimen of a threatened species and $10,000 for each specimen of an endangered species intentionally, knowingly, or recklessly killed or removed from its original growing location, shall be levied against the convicted person.

     (c)  The disposition of fines collected for violations of the provisions concerning wildlife conservation shall be subject to section 183D-10.5.

     (d)  Except as otherwise provided by law, the board or its authorized representative by proper delegation is authorized to set, charge, and collect administrative fines or bring legal action to recover administrative fees and costs as documented by receipts or affidavit, including attorneys' fees and costs, or bring legal action to recover administrative fines, fees, and costs, including attorneys' fees and costs, or payment for damages or for the cost to correct damages resulting from a violation of this chapter or any rule adopted [thereunder.] under this chapter.  The administrative fines shall be as follows:

     (1)  For a first violation, a fine of not more than $2,500;

     (2)  For a second violation within five years of a previous violation, a fine of not more than $5,000; and

     (3)  For a third or subsequent violation within five years of the last violation, a fine of not more than $10,000.

     (e)  In addition, an administrative fine of up to $5,000 may be levied for each specimen of wildlife or plant taken, killed, injured, or damaged in violation of this chapter or any rule adopted [thereunder.] under this chapter.

     (f)  Any criminal action against a person for any violation of this chapter or any rule adopted [thereunder] under this chapter shall not be deemed to preclude the State from pursuing civil legal action to recover administrative fines and costs against that person.  Any civil legal action against a person to recover administrative fines and costs for any violation of this chapter or any rule adopted [thereunder] under this chapter shall not be deemed to preclude the State from pursuing any criminal action against that person.

(g)  Notwithstanding any law to the contrary, any person who intentionally or knowingly takes an endangered species in violation of this chapter shall be guilty of a class C felony; provided that the maximum fine shall be not more than $50,000."

     SECTION 3.  Section 195D-32, Hawaii Revised Statutes, is amended to read as follows:

"[[]§195D-32[]]  Citizen suits.  (a)  Except as provided in subsection (b), any person, acting as a private attorney general, may commence a civil suit on the person's behalf:

     (1)  Against any other person, or any state or county agency or instrumentality, that is alleged to be in violation of [the terms of, or [fails] to fulfill the obligations imposed and agreed to under any habitat conservation plan or safe harbor agreement and accompanying license for public lands as authorized under sections 195D-21 and 195D-22;] this chapter or any rule adopted under this chapter; or

     (2)  Against the department or board, where there is alleged a failure of the department or board to perform any act or duty required under [a habitat conservation plan or safe harbor agreement and accompanying license issued for public lands.] this chapter or any rule adopted under this chapter.

     (b)  The circuit courts shall have jurisdiction to enforce this section or to order the department or board to perform any act or duty required under this [section,] chapter or any rule adopted under this chapter, provided that:

     (1)  No action may be commenced under subsection (a)(1) less than sixty days after written notice of the alleged violation has been given to the department, and to the person, or state or county agency or instrumentality, alleged to be in violation of this [section,] chapter or any rule adopted under this chapter, except that the action may be brought immediately after the notification in the case of an emergency posing a significant risk to the well-being of any species of fish, wildlife, or plant; and

     (2)  No action may be commenced under subsection (a)(2) less than sixty days after written notice of the alleged violation has been given to the department, except that the action may be brought immediately after the notification in the case of an emergency posing a significant risk to the well-being of any species of fish or wildlife, or plant.

     (c)  Any suit brought pursuant to this section may be brought in the judicial circuit where the alleged violation occurred or is occurring.  In any suit brought pursuant to this section, where the State is not a party, the attorney general, at the request of the department, may intervene on behalf of the State as a matter of right.

(d)  The court, in issuing any final order in any suit brought pursuant to this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any party, when deemed appropriate.

     [(d)] (e)  The injunctive relief provided by this section shall not restrict any right that any person or class of persons may have under any other law, including common law, to seek enforcement of any standard or limitation or to seek any other relief, including relief against any instrumentality or agency of the State."

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

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect on July 1, 2050.

Report Title:

Endangered Species; Felony; Private Right of Action

Description:

Establishes the crime of intentional or knowing taking of an endangered species as a class C felony; provides a private right of action to enforce conservation of aquatic life, wildlife, and land plants laws.  Effective 7/1/50.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.