THE SENATE

S.B. NO.

1176

THIRTY-FIRST LEGISLATURE, 2021

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE TAKING OF NATURAL RESOURCES.

 

 

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

 


SECTION 1. The legislature finds that the State of Hawaii has shown a substantial interest in regulating the extraction of its natural resources under the Hawaii State Constitution and from its general statutory and administrative regulatory framework to conserve, protect, and propagate the State's natural resources and its development and uses for the benefit of the people and future generations. Many laws and administrative rules are created to regulate the extraction of natural resources associated with hunting and fishing, establish the taking of such resources as highly regulated activities, including commercial and sport harvesting, and monitor the subsequent use or trade and distribution of wildlife, aquatic resources, and related products. This regulatory framework includes various issues such as:

(1) Licensing and permitting, including educational and scientific study permits;

(2) Bag, size, gender, seasonal, and species limitations for wildlife and fisheries;

(3) Gear restrictions and limits on method of harvest;

(4) Recognition of traditional practices related to the use of cultural resources;

(5) Prohibition on the introduction of potentially competitive, harmful, noxious, or predatory nonnative species; and

(6) Establishment of protected areas, wildlife sanctuaries, game management areas, and limited entry areas (including freshwater reservoirs, game and fisheries management areas, and even privately owned lands subject to agreement as a state game management area).

The regulatory framework for natural resources associated with hunting and fishing in Hawaii is both extensive and pervasive, and often overlaps with the regulations of other departments and agencies.

Considering the number and nature of regulations that apply and the procedures needed to enforce such regulations, the legislature further finds that persons who participate in natural resource extractive activities, especially for commercial uses of economically important species, have a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution, particularly while engaged in such activities and while present in the immediate area where the activity took place. These regulations, whether addressing extractive or even non-extractive activities, cannot be effectively enforced without a proper inspection authority as a check and balance against unfettered harvesting, considering the geographically complex and expansive milieu of Hawaii's ocean surface, submerged areas, coastlines, forests, and valley terrain, and the limited enforcement personnel available to police such areas. Hawaii's natural environment is overlaid with a multitude of recreational, sport, aesthetic, political, cultural, religious, and otherwise non-extractive pursuits of persons in the same areas as hunters and fishers as well.

Currently Hawaii law gives the department of land and natural resources' division of conservation and resources enforcement officers express statutory authority to:

(1) Inspect a required hunting license upon demand under section 183D-25, Hawaii Revised Statutes;

(2) For those persons with a hunting license, inspect a person's game bag, container, hunting coat or jacket, carrier, or vehicle that may conceal game under section 183D-25, Hawaii Revised Statutes;

(3) Inspect the contents of any bag, container, vehicle, or conveyance used to carry aquatic life upon probable cause under section 187A-15, Hawaii Revised Statutes; and

(4) Search and seize various items; provided that there is probable cause to believe that a violation of a rule or statute has occurred under section 199-7, Hawaii Revised Statutes.

This probable cause standard makes effective enforcement unlikely, as officers are rarely able to meet this standard without having personally observed the hunter or fisher taking proscribed wildlife or aquatic life by illegal means. For example, a fisher could illegally have a cooler of undersized fishes, but if the officer observed the take of an undersized fish or fishes at a distance, the officer may lack probable cause to inspect the contents of the cooler, causing violations like these to continue undetected. Specialized training is necessary to identify regulated species from those that are not subject to regulation, and the difficulty of discerning subtle differences in length, sex, color, or other marks or measures from a distance or under less than suitable lighting conditions decreases the likelihood of catching a hunter or fisher in the act of an illegal take. Instead of requiring an officer to spend hours observing an unlicensed hunter or fisher to establish probable cause for an inspection, this Act would enable the officer to inspect the bag or catch of dozens of hunters or fishers, thereby protecting an entire coastline or valley.

The legislature also finds that the limited inspections authorized by this Act may recover illicitly obtained wildlife or aquatic life and lead to either returning the natural resource to the natural environment before it expires, if feasible, or recovering it for any economic value if not. Conducting inspections with greater immediacy increases the chance that the illegally extracted natural resource could survive a return to the wild.

This Act would allow the division of conservation and resources enforcement officers, upon reasonable belief that a person is or was recently engaged in hunting or fishing, to briefly detain that person as necessary, to review any relevant licenses, permits or related documents to allow conduct of the activity, and to inspect the wildlife or aquatic life in that person's possession.

SECTION 2. Chapter 199, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"199-   Inspection; exhibit upon demand; penalty. (a) Section 199-7 notwithstanding, any conservation and resources enforcement officer of the department of land and natural resources upon whom the board of land and natural resources has conferred police powers may, in the performance of the officer's official duties, stop and temporarily detain any person whom the officer reasonably believes is, or recently has been, engaged in hunting or fishing.

During this brief detention, the officer, upon lawful demand, shall be permitted to inspect any license, permit, stamp, tag, or other documentation required for hunting wildlife or for taking aquatic resources, as well as any game or aquatic life in the person's possession, including the contents of any receptacle or container of any kind that could reasonably be used to carry the regulated game or aquatic life, and any equipment, article, or device capable of taking the game or aquatic life, while reasonably proximate to the respective hunting or fishing area, to determine whether the person is in compliance with any provision of title 12, and any rules adopted thereunder, relating to the protection and the conservation of natural resources.

Unless otherwise allowable under section 183D-25, upon probable cause or incident to arrest, the officer shall not inspect the clothing upon the person who is subject to a natural resource inspection related to hunting or fishing, nor shall the officer inspect the contents of any receptacle or container that could not reasonably be used to carry game or aquatic life.

For purposes of this section, "fishing" shall refer to the taking of any regulated aquatic life as defined in section 187A‑1, and references to "game" or "wildlife" shall include any animal parts thereof.

(b) Any inspection shall be conducted:

(1) Within a reasonable distance from the environment that the fishing or hunting took place; and

(2) Shall not include mobile inspection unless upon:

(A) Probable cause; or

(B) Failure to heed a demand to stop and submit to an administrative inspection for title 12 resources or for capture equipment used to hunt wildlife or take aquatic resources;

by any officer authorized by the department of land and natural resources to enforce title 12, and any rule adopted thereunder, relating to the protection and conservation of natural resources.

(c) For violations of this section, the administrative

fines shall be as follows:

(1) For a first violation, a fine of not more than $1,000;

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

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

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. New statutory material is underscored.

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


 


 

Report Title:

Natural Resources; Inspection; Penalties

 

Description:

Clarifies that any officer of the Department of Land and Natural Resources (DLNR) upon whom the Board of Land and Natural Resources (Board) has conferred police powers may, in the performance of their official duties, inspect certain items for compliance with protection and conservation of natural resources regulations related to hunting and fishing. Establishes penalties for refusal to comply with inspection requests made by any officer of DLNR upon whom the Board has conferred police powers. (SD1)

 

 

 

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