HOUSE OF REPRESENTATIVES	H.B. NO.	958
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO ENFORCEMENT ACTIONS BY THE BOARD OF LAND AND NATURAL RESOURCES.

 

 

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

 

     SECTION 1.  Chapter 286, Hawaii Revised Statutes, is amended by adding to part III a new section to be appropriately designated and to read as follows:

     "§286-     Denial of application for failure to discharge a condition imposed by the board of land and natural resources.  In addition to any other acts or conditions provided by law, the director of finance of the appropriate county shall deny any application for registration if the director of finance has received notification from the board of land and natural resources pursuant to section 171-6(21) that the applicant has failed to discharge a condition imposed by the board of land and natural resources pursuant to any of the provisions of title 12 or chapter 6D or 6E, or any rule adopted thereunder.  Unless otherwise provided by law, the director of finance shall not approve the application for registration until receipt of certification of satisfactory compliance from the board of land and natural resources pursuant to section 171-6(21)."

     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] the 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)  Use 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:

         (A)  Be fined not more than $1,000 a day for the first offense;

         (B)  Be fined not less than $1,000 nor more than $4,000 per day upon the second offense and thereafter;

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

         (D)  Assume [such] costs [as may] that result from adverse effects from [such] 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] The 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] title 12 and chapters 6D and 6E, or any rule adopted thereunder.  Any person engaging in any prohibited use of public lands or conducting any prohibited activity on public lands, or violating any of the other provisions of [this chapter] title 12 or chapter 6D or 6E, or any rule adopted thereunder, for which violation a penalty is not otherwise provided, shall be:

         (A)  Fined not more than $5,000 per violation for a first violation or a violation beyond 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;

         (B)  Fined not more than $10,000 per violation for a second violation 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;

         (C)  Fined not more than $20,000 per violation for a third or subsequent violation within five years of the last violation; provided that, after written or verbal notification from the department, an additional $4,000 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 the fines, administrative costs, and damages provided for hereinabove, for damage to or theft of natural resources, the board may also set, charge, and collect a fine that, in its discretion, is appropriate considering the value of the natural resource that is damaged or the subject of the theft.  In arriving at an appropriate fine, the board may consider the market value of the natural resource damaged or taken and any other factor it deems appropriate, such as 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 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;

    (19)  Notwithstanding part II of chapter 205A to the contrary, plan, design, construct, operate, and maintain any lands or facilities under the jurisdiction of the division of boating and ocean recreation of the department without the need to obtain a special management area minor permit or special management area use permit; [and]

    (20)  Suspend or revoke a license or permit issued under the authority of the board or department, or deny any application for the issuance or renewal of such a license or permit, if the board finds that the licensee, permittee, or applicant has failed to discharge a duty imposed by the board pursuant to any of the provisions of title 12 or chapter 6D or 6E, or any rule adopted thereunder, until satisfactory compliance is certified by the board or its designated agent;

    (21)  Direct the appropriate county motor vehicle authorities to deny any application for the registration of a motor vehicle if the board finds that the applicant has failed to discharge a duty imposed by the board pursuant to any of the provisions of title 12 or chapter 6D or 6E, or any rule adopted thereunder, until satisfactory compliance is certified by the board or its designated agent; and

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

     SECTION 3.  Section 171-6.4, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§171-6.4[]]  General administrative penalties.  (a)  Except as otherwise provided by law, the board or its authorized representative by proper delegation may 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 resulting from a violation of [this chapter] the provisions of title 12 or chapter 6D or 6E, or any rule adopted [pursuant to this chapter.] thereunder.  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;

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

     (b)  Any criminal action against a person for any violation of [this chapter] the provisions of title 12 or chapter 6D or 6E, or any rule adopted [pursuant to this chapter.] thereunder, shall not be deemed to preclude the State from pursuing civil legal action against that person.  Any civil legal action against a person to recover administrative fines and costs for any violation of [this chapter] the provisions of title 12 or chapter 6D or 6E, or any rule adopted [pursuant to this chapter.] thereunder, shall not be deemed to preclude the State from pursuing any criminal action against that person.  Each day of each violation shall constitute a separate offense."

     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 upon its approval.

 

INTRODUCED BY:	_____________________________
	BY REQUEST

 

 

Report Title:

Cultural and Natural Resources; Civil Enforcement of Resource Violations

 

Description:

Provides alternative civil enforcement options that may be utilized by the Board of Land and Natural Resources in the processing of natural and cultural resource violation cases.

 

 

 

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