Report Title:

University of Hawaii; Mauna Kea Lands

 

Description:

Authorizes the university to manage and regulate public and commercial activities on lands leased or controlled on Mauna Kea.  Establishes the Mauna Kea management special fund and allows the university to assess and collect administrative fines for deposit into the special fund.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1370

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO THE UNIVERSITY OF HAWAII.

 

 

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

 


     SECTION 1.  Pursuant to the constitution and laws of the State of Hawaii, 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.

     This autonomous authority includes the power to supervise, oversee, and permit public activities on lands leased or controlled by the university 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).

     The purpose of this Act is to clarify the law relating to the university's authority to manage and control public activities on the Mauna Kea lands expressly authorizing the university to adopt rules pursuant to chapter 91, Hawaii Revised Statutes, relating to public 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.

     The legislature finds that 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 activities, and to help ensure public health and safety.  Public and commercial activities covered by administrative rules may 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.

Access for traditional and customary native Hawaiian cultural and religious purposes will be accommodated.

     This Act also grants the university the ability to enforce those rules, including the authority to assess fines for rule violations, and 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 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 administrative rules for the Mauna Kea lands is accomplished with community participation and input.

     The legislature finds that this Act is a law of statewide concern.

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

"    .  Mauna Kea Lands

     §304A-A  Definitions.  For the purposes of this subpart:

"Mauna Kea lands" means those lands on Mauna Kea, island of Hawaii, leased from the board of land and natural resources by the university, and includes the Mauna Kea Science Reserve, Hale Pohaku, the connecting roadway corridor between Hale Pohaku and the Mauna Kea Science Reserve, and any other lands that the university leases on Mauna Kea or over which the university acquires control or jurisdiction.

     §304A-B  Powers of board.  The board of regents shall have authority, through the adoption of administrative rules, to regulate public and commercial activities in the Mauna Kea lands to protect cultural and natural resources in the Mauna Kea lands, and to ensure public health and safety.

     The board of regents shall 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 administrative rules for the Mauna Kea lands is accomplished with community participation and input.

     §304A-C  Regulation of public and commercial activities; lease or use of university real property and facilities; rents, fees, and charges.  (a)  The board of regents may regulate and control all public and commercial activities in the Mauna Kea lands, including but not limited to:

     (1)  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;

provided that access for traditional and customary native Hawaiian cultural and religious purposes shall be preserved.

     (b)  The board of regents 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.

     In establishing and amending the rents, fees, and charges, the board of regents shall be exempt from the public notice, public hearing, and gubernatorial approval requirements of chapter 91; provided that the rents, fees, and charges shall be established at an open public meeting subject to chapter 92; and provided further that a copy of the schedule of the rents, fees, and charges shall be filed in the office of the lieutenant governor prior to the schedule's taking effect.

     (c)  All rents, fees, and charges assessed and collected from public and commercial activities on the Mauna Kea lands shall be deposited into the Mauna Kea management special fund created in section 304A-F.

     §304A-D  Violations and enforcement.  (a)  The board of regents may assess and collect administrative fines for violations of any provision in this subpart.  Administrative fines shall be as follows:

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

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

     (3)  For the third and any subsequent violation within five years of the last violation, an administrative fine of not more than $10,000.

Each day of violation shall constitute a separate offense.

     (b)  The board may also assess against a party found to have violated this subpart the costs of any enforcement proceeding, including costs of holding any contested case proceedings.

     (c)  The board may set, charge, and collect additional fines based on the value of any natural resource that is damaged, the market value of the natural resource damaged, 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.

     (d)  The board may institute a civil action to collect any administrative fines and any costs that are or can be attributable to violations of this subpart.

     (e)  Any administrative penalty for any violation of this subpart shall not be deemed to preclude the State from recovering additional criminal penalties or administrative fines, fees, and costs, including attorney's fees and costs.

     (f)  All fines, penalties, and other revenue collected pursuant to this section shall be deposited into the Mauna Kea management special fund created under section 304A-F.

     §304A-E  Rules.  The board of regents may adopt administrative rules pursuant to chapter 91 to effectuate the purposes of this subpart."

     SECTION 3.  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-F  Mauna Kea management special fund.  (a)  There is established a Mauna Kea management special fund, into which shall be deposited all revenues, rent, fees, charges, assessments, fines, and other moneys collected by the university in connection with overseeing and managing the Mauna Kea lands pursuant to part IV, subpart   .

(b)  The university may establish separate accounts within the special fund for major program activities.  The board of regents, or its designated representative, 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 this 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 such a reduction.

     (d)  For purposes of this section, "maintenance" includes repairs, replacement, renewals, operation, and administration."

     SECTION 4.  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 of regents may also adopt rules, pursuant to section 304A‑E, to regulate activities at and within the Mauna Kea lands."

     SECTION 5.  In codifying the new sections added by sections 2 and 3 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 6.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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