Report Title:

Administrative Inspections; Aquatic Life

Description:

Authorizes administrative inspections of bags or containers used to carry aquatic life or vehicles or conveyances to transport aquatic life. Repeals the probable cause requirement. Directs DLNR to create an administrative search scheme. (HB126 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

126

TWENTY-THIRD LEGISLATURE, 2005

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ocean reSources.

 

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

SECTION 1. 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 183D-25, HRS, 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.

Section 187A-15, HRS, 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 such 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 (9th Cir. 1998)). This is the exception under which the department of agriculture is allowed 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)).

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 bag limits and minimum size limits and needs to implement such a scheme.

Although the department is authorized to adopt rules to create such a scheme for aquarium fish export monitoring, it has not yet done so. Section 188-31.5, HRS, 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 forty-four per cent of required monthly aquarium catch reports are not filed, and the numbers of fish exported have been grossly underestimated.

The purpose of an export inspection scheme is to provide accurate information on the types and numbers of species that are being removed from Hawaii's reefs for the aquarium trade; 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 (HI.S.Ct. 2001)). The department has, in fact, drafted aquarium fish export monitoring rules, but the attorney general has made a preliminary determination that section 187A-15, HRS, is a bar to the implementation of those rules.

The purpose of this Act is to amend section 187A-15, HRS, which governs the enforcement of the State's aquatic laws, to standardize its administrative inspection requirements with those of section 183D-25, HRS, which governs the enforcement of the state's hunting laws, as well as to authorize and direct the department 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 a 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 examination and [search.] inspection for purposes of determining compliance with the terms of a license or permit relating to aquatic life."

SECTION 3. The department is hereby authorized and directed to create a valid administrative search scheme to enforce its aquatic regulations.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.