TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO THE MAUNA KEA LANDS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that there is a need to ensure transparency, consistency, and accountability in the disposition and management of the Mauna Kea lands currently leased to the University of Hawaii.
Mauna Kea is of particular significance to the Native Hawaiian community, and to the cultural and historical heritage of our State. Many Native Hawaiians consider Mauna Kea to be a place of deep cultural significance, as a cultural piko that connects the island-child of Hawaii to the heavens, as an "abode of the gods," and as a leina, from which souls leap into the spirit world. Numerous cultural sites -- including ahu, kuahu, an adze quarry, and Lake Waiau -- support a range of Native Hawaiian practices. Lands on Mauna Kea held by the State also constitute "ceded" lands, acquired through the illegal overthrow of the Kingdom of Hawai‘i, to which Native Hawaiians have never relinquished their claims. Thus, the cultural and historical significance of Mauna Kea counsels particular care in the management of its lands.
As ceded and public land trust lands, the Mauna Kea lands are held in trust for the benefit of Native Hawaiians and the general public. Accordingly, the State and the University of Hawaii have fiduciary duties related to the disposition and management of these lands, including the obligation to deal impartially and equally with regard to all trust beneficiaries, and to use reasonable skill and care to make these lands productive.
Unfortunately, the University of Hawaii's failure to use a transparent, consistent, and accountable process to issue subleases for the Mauna Kea lands raises serious concerns about whether it is appropriately managing these lands or fulfilling its fiduciary obligations to the beneficiaries of the public lands trust. Notably, the University of Hawaii has failed to charge sufficient sublease rent consistent with the cultural, environmental, and economic value of the subleased parcels or the actual costs of appropriate management. Furthermore, any direct benefits realized from subleases have flowed to only a small subset of one beneficiary class -- namely, members of the public associated with the University of Hawaii's astronomy program -- at significant expense to the Native Hawaiian community and larger public. In order to ensure better management in the future, this Act ensures that the University of Hawaii will minimally consider key management-related factors, including impacts to natural and cultural resources, while continuing to give the University of Hawaii flexibility to tailor lease terms and conditions.
Accordingly, the legislature finds that the State's moral and fiduciary duties counsel greater transparency, consistency, and accountability in subleasing procedures for the Mauna Kea lands.
The purpose of this Act is to ensure that subleasing of the Mauna Kea lands occurs through a standardized, consistent, and transparent process, pursuant to administrative rules describing the method for determining sufficient fees for lease rent.
SECTION 2. Section 304A-1902, Hawaii Revised Statutes, is amended to read as follows:
Mauna Kea lands; fees; lease agreements. (a) The board of regents
may charge a fee for use of the Mauna Kea lands and for the use of facilities
and programs related to the Mauna Kea lands.
(b) The board of regents may enter into lease
agreements for the Mauna Kea lands; provided that the University of Hawaii
shall comply with all statutory requirements in the disposition of ceded lands[
and the requirements of this section. The board shall adopt rules, pursuant
to chapter 91, describing the method by which fees for lease rent on leases are
determined and established. Any method of determining fees for lease rent
shall ensure a fair rate of return for the use and development of state ceded
land and public land trust resources, which shall consider:
(1) The cost of administering a management plan approved by the board of land and natural resources;
(2) Compensation for loss of the use of the leased land for other uses;
(3) Compensation for loss of access to the leased land and other areas;
(4) The potential costs of mitigating environmental degradation resulting from activities by the lessee; and
(5) Additional considerations, including but not limited to the impact of the lease on native Hawaiian rights, wildlife habitat, and the health of the ecosystem.
Provided further that a written statement describing how the above factors were considered in determining the fair rate of return shall be required.
(c) Prior to entering into a lease agreement, the board of regents shall hold an open public meeting on the proposed lease, as described in section 92-3. The board shall give at least thirty days' notice for the meeting. The notice shall include:
(1) A description of the area to be encumbered by the proposed lease;
(2) The proposed fee for lease rent;
(3) A statement that a copy of the proposed lease will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;
(4) A statement of when, where, and during what times the proposed lease may be reviewed in person;
(5) A statement of when, where, and during what times a written description of how the proposed fee for lease rent was determined may be viewed; and
(6) The date, time, and place where the public meeting will be held and where members of the public may be heard on the proposed lease.
Notice shall be mailed to all persons who have made a timely written request for advance notice of lease agreements. The board shall fully consider all data, views, and arguments submitted by the public on the proposed lease. The board may make its decision to enter into the lease and establish the fee for lease rent at the public meeting or announce the date when it intends to make its decision. All fees for lease rent shall be deposited into the Mauna Kea lands management special fund established under section 304A-2170.
(c)] (d) In establishing the
fees[ ,] other than fees for lease rent, the board of regents
shall be exempt from the public notice, public hearing, and gubernatorial
approval requirements of chapter 91; provided that the fees shall be
established at an open public meeting pursuant to chapter 92. The fees shall
be deposited into the Mauna Kea lands management special fund established under
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect upon its approval.
OHA Package; Mauna Kea Lands
Requires the UH BOR to adopt rules describing the method for determining sufficient fees for lease rent of Mauna Kea lands. Requires the BOR to hold an open meeting prior to entering into a lease agreement for Mauna Kea lands. Requires the BOR to prepare a written description of how the fee for lease rent in a proposed lease agreement was determined.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.