Report Title:

NATURAL RESOURCE VIOLATIONS

Description:

Establishes a civil natural resource violations system within the Department to process violations of departmental regulations.

THE SENATE

S.B. NO.

2968

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO NATURAL RESOURCE VIOLATIONS.

 

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

SECTION 1. Hawaii's fragile natural resources demand the highest level of protection from overuse and abuse. An effective enforcement program is essential for proper stewardship of Hawaii's natural resources. Part of an effective enforcement program is to allow for tiered penalties that provide serious consequences for the most serious violations and allow for lesser penalties for lesser violations. It should also include the ability to process quickly and efficiently the more minor infractions of the regulations that govern the use of our natural resources so that greater enforcement resources can be dedicated to more serious violations.

Ten years ago, the department of land and natural resources had a major backlog of pending cases of alleged violations of sections 183-41 and 183-43, Hawaii Revised Statutes, governing the use of the conservation district (now chapter 183C, Hawaii Revised Statutes). Most of the alleged violations were minor but under sections 183-41 and 183-43, Hawaii Revised Statutes, the only way to resolve violations was to go to the board of land and natural resources and be subject to a fine of up to $2,000 per day.

In an effort to streamline the process and reduce the sizable backlog of cases, the board of land and natural resources approved a voluntary program whereby the alleged violator could opt out of appearing before the board of land and natural resources and either pay a fine or request a hearing from a hearings officer under section 171-6(8), Hawaii Revised Statutes. The hearings officer administrative penalty system has been a pilot program at the department of land and natural resources since 1994. The system allows an alleged violator to opt out for a hearings officer who presides over minor violations of title 12 and chapter 6E, Hawaii Revised Statutes, in the same way a traffic court does for minor traffic violations. This system has expedited the processing of minor violations, resulting in surer punishment for offenders and more time for departmental enforcement officers to concentrate their limited resources on more serious violations, and has resulted in more enforcement of departmental rules. Given the success of the pilot program, the department of land and natural resources would like to implement this system department-wide but cannot do so without specific statutory authority.

The purpose of this Act is to give the department of land and natural resources authority to implement a system similar to the administrative hearing system as a mandatory department-wide program.

SECTION 2. The Hawaii Revised Statutes is amended by adding to title 12 a new chapter to be appropriately designated and to read as follows:

"CHAPTER

CIVIL NATURAL RESOURCE VIOLATIONS ACT

-1 Civil natural resource violations system authorization. (a) There is established, within the department of land and natural resources, a civil natural resource violations system, whose purpose shall be to process violations of departmental regulations for which administrative penalties have been authorized by law or rules adopted thereunder.

(b) The department may adopt, amend, and repeal rules, subject to chapter 91, for the purposes of this chapter.

(c) The rules may include, but are not limited to, the following:

(1) Notice of natural resource infraction;

(2) A form of the answer that shall be made pursuant to a notice of natural resource infraction, which answer may be an admission of the infraction, a denial of the infraction, or an admission of the infraction with mitigating circumstances;

(3) The action to be taken after an answer is received or when a person fails to answer the notice of natural resource infraction;

(4) Administrative hearings under this chapter;

(5) The imposition and enforcement of monetary assessments made pursuant to this chapter; and

(6) Means of assuring that the alleged violator who answers the notice of natural resource infraction by an admission of the infraction or an admission of the infraction with mitigating circumstances has knowingly and voluntarily elected to use the civil natural resource violations system and waive the appeal provided for in section 91-14.

-2 Applicability. Notwithstanding any other provision of law to the contrary, all natural resource infractions that the department identifies as subject to administrative penalties may be adjudicated pursuant to this chapter. This chapter may be applied by all of the divisions of the department."

SECTION 3. Chapter 6K, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"6K- Administrative violation system. With the mutual consent of both the commission and the department, the commission may use the civil natural resource violations system of the department of land and natural resources; provided that the commission shall act whenever the board is authorized to act, to process violations of chapter 6K or any rules adopted thereunder."

SECTION 4. Chapter 171, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"171- 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 or any rule adopted pursuant to 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;

(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 or any rule adopted pursuant to 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 pursuant to this chapter 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.

171- Criminal penalties. (a) In addition to any other penalties, any person violating this chapter or any rule adopted under this chapter, shall be guilty of a petty misdemeanor and shall, in addition to any other penalty for a petty misdemeanor authorized by chapter 706, be fined not less than:

(1) $100 for a first offense;

(2) $200 for a second offense;

(3) $500 for a third or subsequent offense.

(b) The fines specified in this section shall not be suspended or waived. Each day of each violation shall constitute a separate offense.

(c) Any criminal action against a person for any violation of this chapter or any rule adopted 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 under this chapter 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 5. Chapter 174C, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"174C- Administrative violation system. With the mutual consent of both the commission and the department, the commission may use the civil natural resource violations system of the department of land and natural resource; provided that the commission shall act whenever the board is authorized to act, to process violations of chapter 174C or any rules adopted thereunder."

SECTION 6. Section 174C-15, Hawaii Revised Statutes, is amended to read as follows:

"[[]174C-15[]] Penalties and common law remedies. (a) The commission may enforce its rules and orders adopted pursuant to this chapter by suit for injunction or for damages or both.

(b) Any person who violates any provision of this chapter, or any rule adopted pursuant to this chapter, may be subject to a fine imposed by the commission. Such fine shall not exceed [$1,000.] $5,000. For a continuing offense, each day during which the offense is committed is a separate violation.

(c) No provision of this chapter shall bar the right of any injured person to seek other legal or equitable relief against a violator of this chapter.

(d) Except as otherwise provided by law, the commission 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 or any rule adopted pursuant to this chapter."

SECTION 7. Section 171-6.5, Hawaii Revised Statutes, is repealed.

["[171-6.5] Unencumbered public lands; penalty. Any person violating any of the rules regulating unencumbered public lands adopted by the department pursuant to this chapter shall be guilty of a violation and upon conviction thereof shall be fined not more than $500 for each offense."]

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST