Honolulu, Hawaii

, 2002

RE: H.B. No. 2659

H.D. 2

S.D. 1



Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii


Your Committees on Hawaiian Affairs and Water, Land, Energy and Environment, to which was referred H.B. No. 2659, H.D. 2, entitled:


beg leave to report as follows:

The purpose of this measure is to protect caves as unique cultural and natural resources of the State of Hawaii by:

(1) Limiting or prohibiting certain uses and activities within these caves;

(2) Making theft of funerary objects, theft in the first degree; and

(3) Allowing the Department of Land and Natural Resources (DLNR) to keep the location of a cave undisclosed.

Testimony in support of the measure was received from the Office of Information Practices and a member of the Maui County Council. The Department of Transportation and the Office of Hawaiian Affairs supported the measure with amendments. The DLNR and the Hawaii Leeward Planning Conference testified that they preferred the Senate version (S.B. No. 2898, S.D. 2) of the proposed cave protection law.

Your Committees find that this measure is the first step in protecting an often hidden, fragile natural and cultural resource. While there is general support for the importance of such a step, implementation and enforcement will require considerable effort on the part of many parties.

Your Committees are supportive of this measure and have amended it by:

(1) Adding a definition of "construction context";

(2) Clarifying that prohibitions shall not apply to caves encountered during normal construction context;

(3) Requiring persons or entities seeking to qualify for noncommercial entry into caves to prove that the fees charged by the person or entity are strictly to cover costs;

(4) Including public agencies in the definition of "owner";

(5) Referencing, rather than reiterating, the definition of "person" contained in section 1-19, Hawaii Revised Statutes;

(6) Authorizing the situating of septic systems to be installed near caves if certain standards are met;

(7) Clarifying that the measure is not meant to prohibit activities conducted above a cave;

(8) Grandfathering lawfully authorized commercial cave visiting operations; provided that the operators file, within sixty days of the measure's enactment, a declaration of its intent to continue cave visiting operations and to comply with all applicable laws;

(9) Prohibiting the establishment of any new cave visiting operations until such time that rules governing such activities are established by the DLNR;

(10) Requiring that written permission of the landowner be obtained prior to accessing a cave;

(11) Requiring burial discoveries be reported as required under section 6E-43.6, Hawaii Revised Statutes;

(12) Providing that the owner of the cave has the final say over regarding whether the cave's location is to be kept confidential;

(13) Making the imposition of the fine for the taking or destruction of a cave resource specimen permissive rather than mandatory;

(14) Deleting provisions relating to the taking of funerary objects; and

(15) Making numerous technical, nonsubstantive amendments for the purposes of clarity and style.

Although your Committees received oral testimony from a representative of the Consumers Lawyers of Hawaii voicing concern over the potential conflict between the waiver of liability provisions contained in this measure and Chapter 520, Hawaii Revised Statutes, your Committees believe that there is sufficient time and opportunity left in the legislative process to ameliorate such concerns.

As affirmed by the records of votes of the members of your Committees on Hawaiian Affairs and Water, Land, Energy and Environment that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 2659, H.D. 2, as amended herein, and recommend that it pass Second Reading in the form attached hereto as H.B. No. 2659, H.D. 2, S.D. 1, and be referred to the Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committees on Hawaiian Affairs and Water, Land, Energy and Environment,