HOUSE OF REPRESENTATIVES

H.B. NO.

2024

THIRTY-FIRST LEGISLATURE, 2022

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO MAUNA KEA.

 

 

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

 


PART I

     SECTION 1.  The legislature finds that Mauna a Wākea serves as an important cultural and genealogical site to the people of Hawaii, particularly to Native Hawaiians.  The summit region of Mauna a Wākea is a spiritual and special place of significance that is home to cultural landscapes, fragile habitats, and historical and archaeological artifacts.  Due to its topographical prominence, Mauna a Wākea is also a highly valued site for astronomical study, which produce many significant discoveries that contribute to humanity's study and understanding of the universe.  However, in recent years, Mauna a Wākea has come to symbolize a rigid dichotomy between culture and science, often leading to polarization between stakeholders on Mauna a Wākea and local communities.  Therefore, resolving the management issues of Mauna a Wākea is an issue of the highest priority in the State.

     The legislature further finds that on March 4, 2021, the Hawaii house of representatives adopted House Resolution No. 33, H.D. 1, Regular Session of 2021, to reconcile this mismanagement, mistrust, and polarization by convening a working group to develop recommendations, building on the findings of the Independent Evaluation of the Implementation of the Mauna Kea Comprehensive Management Plan, for a new governance and management structure for Mauna a Wākea that collaboratively engages with all stakeholders, particularly the Native Hawaiian community.

     The legislature also finds that there are four Kumu Kānāwai, or laws of nature, that guide the care of Mauna a Wākea and provide foundational principles for this Act.  These are:

     (1)  Hookikī Kānāwai is the edict of continuum, in which flows of magma move; water basins flow; clouds move; air and ocean currents are active; and islands continue to be shaped, formed, and conditioned naturally;

     (2)  Kuaā Kānāwai is the edict of gestating landscapes, in which craters erupt; marshes are active; coral heads are in season; and wet forest produces;

     (3)  Kaiokia Kānāwai is the edict of natural boundaries, including the path of the sun, moon, and stars from north, south, east, and west; and vertical and horizontal divisions of land, ocean, and space above; and

     (4)  Kīhoihoi Kānāwai is the edict of regeneration, that nature will fix itself, including immediate restoration of landscape after a flood, lava flow, windstorm, and fire.

     Based upon the recommendations of the working group and the four Kumu Kānāwai, the purpose of this Act is to establish the Mauna a Wākea stewardship authority.

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

"Chapter

MAUNA A WĀKEA STEWARDSHIP AUTHORITY

     §   -1  Definitions.  As used in this chapter, unless the context otherwise requires:

     "Authority" means the Mauna a Wākea stewardship authority.

     "Chairperson" means the chairperson of the Mauna a Wākea stewardship authority.

     "Executive director" means the executive director of the Mauna a Wākea stewardship authority.

     "Land" includes all interests therein and natural resources including water, minerals, and all things connected with land, unless expressly provided otherwise.

     "Lease" means the right to possess and use land for a term of years.

     "Mauna a Wākea" means all real property that is situated on the mountain on the island of Hawaii known variously as Mauna Kea, Maunakea, Mauna O Wakea, Ka Mauna a Kea, or Mauna Akea.

     "Mauna a Wākea lands" means all lands held in trust or otherwise controlled by the Mauna a Wākea stewardship authority.

     "Person" includes an individual, a partnership, a corporation, or an association, except as otherwise defined in this chapter.

     §   -2  Mauna a Wākea stewardship authority; established; guiding operational values and principles.  (a)  There is established the Mauna a Wākea stewardship authority, which shall be a body corporate and a public instrumentality of the State for the purpose of implementing this chapter.  The authority shall be placed within the department of land and natural resources for administrative purposes.

     (b)  The authority shall consist of ten voting members:  seven members who shall be appointed by the governor subject to section 26-34 and three ex officio members.  The members shall include:

     (1)  The chairperson of the board of land and natural resources, or the chairperson's designee;

     (2)  The chairperson of the board of trustees of the office of Hawaiian affairs, or the chairperson's designee;

     (3)  The president of the University of Hawaii, or the president's designee;

     (4)  An individual with āina resource management expertise and a track record of Hawaii island-based management, nominated by the nominating committee;

     (5)  An individual with infrastructure and land management experience and a track record of Hawaii island-based management, nominated by the nominating committee;

     (6)  An individual with educational expertise in p-12 public education; community, culture, and Hawaiian language medium-based education; or post-secondary education, nominated by the nominating committee;

     (7)  An individual with business and finance experience, nominated by the nominating committee;

     (8)  A Native Hawaiian individual who is a lineal descendent of a practitioner of Native Hawaiian traditional and customary practices associated with Mauna a Wākea, nominated by the office of Hawaiian affairs, in coordination with the Edith Kanakaole Foundation and I Ola Hāloa Hawaiian studies program at Hawaii community college;

     (9)  A Native Hawaiian individual who is a recognized practitioner of Native Hawaiian traditional and customary practices associated with Mauna a Wākea, nominated by the office of Hawaiian affairs, in coordination with the Edith Kanakaole Foundation and I Ola Hāloa Hawaiian studies program at Hawaii community college; and

    (10)  A Native Hawaiian individual with expertise in Native Hawaiian traditional and customary practices, nominated by the office of Hawaiian affairs, in coordination with the Edith Kanakaole Foundation and I Ola Hāloa Hawaiian studies program at Hawaii community college;

provided that four of the seven non-ex officio members of the authority shall be Native Hawaiian residents of the county of Hawaii, with a preference for Native Hawaiian residents of the county of Hawaii for all seven non-ex officio members.

     A majority of all members shall constitute a quorum to do business, and the concurrence of a majority of all members shall be necessary to make any action of the authority valid.  All members shall continue in office until their respective successors have been selected, or appointed and confirmed.

     (c)  The authority shall elect the chairperson from among its non-ex officio members; provided that the chairperson shall not be the executive director.

     (d)  The members of the authority shall serve for a term of four years and shall not serve more than two terms; provided that the initial terms shall be staggered, as determined by the governor.

     (e)  The authority's day-to-day operations shall be led by the executive director, who shall serve as the authority's chief executive officer.

     (f)  The authority shall determine its administration organizational structure and expertise needs, including but not limited to employing rangers to serve as education, general safety, and outreach resources.

     (g)  The authority shall establish its offices in the county of Hawaii.

     (h)  The authority shall adopt and follow the following guiding operational values and principles:

     (1)  Mauna Aloha – We understand the reciprocal value of the mauna and a long-term commitment to maintaining the integrity of Mauna a Wākea;

     (2)  Ōpū Kupuna – We understand and embrace a duty and accountability to Mauna a Wākea, the natural environment, and to perpetuate the Hawaiian cultural values embedded in the sacred landscape of the mauna; and

     (3)  Holomua Oi Kelakela – We are driven by creativity and innovation, constantly challenging the status quo, with a stewardship of Mauna a Wākea that is informed based on existing knowledge and traditions, as well as on new and expanding knowledge.  We are mindful and observant of needs, trends, and opportunities and seek new knowledge and opportunities in ways that enhance the ability to serve as stewards without jeopardizing the foundation of āina aloha.

     §   -3  Nomination process; nominating committee; office of Hawaiian affairs.  (a)  There shall be established a nominating committee composed of three members.  One member shall be appointed by the speaker of the house of representatives; one member shall be appointed by the president of the senate; and one member shall be appointed by the chairperson of the board of trustees of the office of Hawaiian affairs, or the chairperson's designee; provided that consideration shall be given to residents of the county of Hawaii.

     (b)  Prior to developing a list of nominees, the nominating committee shall provide adequate public notice to ensure that the public is aware that applications are being accepted for nominees.  The nominating committee shall develop a list of three nominees for each vacancy for a position identified in section    -2(b)(4), (5), (6), or (7).  The nominating committee shall submit the list of nominees for each vacancy to the governor for consideration for appointment, and all nominees submitted to the governor for appointment shall be made public at the time their names are submitted to the governor.

     (c)  The office of Hawaiian affairs, in coordination with the Edith Kanakaole Foundation and I Ola Hāloa Hawaiian studies program at Hawaii community college, shall develop a list of at least two nominees for each vacancy for a position identified in section    -2(b)(8), (9), or (10).  In developing the list of nominees, the office of Hawaiian affairs shall seek input from the Native Hawaiian community and work in coordination with the Edith Kanakaole Foundation and I Ola Hāloa Hawaiian studies program at Hawaii community college, using the existing selection process for island burial council candidates as a model.  The office of Hawaiian affairs shall submit the list of nominees for each vacancy to the governor for consideration for appointment, and all nominees submitted to the governor for appointment shall be made public at the time their names are submitted to the governor.

     §   -4  Powers and responsibilities; generally.  (a)  Upon transfer of the lands to the authority pursuant to section    ‑8, the authority shall hold title to the lands situated on Mauna a Wākea as identified in section    -7 and shall establish access, stewardship, and management policies for Mauna a Wākea lands, including but not limited to policies pertaining to the protection of natural and cultural resources, all recreational activities, and all commercial uses.

     Except as otherwise limited by this chapter, the authority may:

     (1)  Sue and be sued;

     (2)  Have a seal and alter the same at its pleasure;

     (3)  Make and execute contracts, leases, and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter;

     (4)  Make and alter bylaws for its organization and internal management;

     (5)  Adopt rules pursuant to chapter 91 for the purposes of this chapter;

     (6)  Appoint officers, agents, and employees, prescribe their duties and qualifications, and fix their salaries, subject to chapters 76 and 89;

     (7)  Provide advisory, consultative, training, and educational services; technical assistance; and advice to any person, partnership, or corporation, either public or private, to carry out the purposes of this chapter, and engage the services of consultants on a contractual basis for rendering professional and technical assistance and advice;

     (8)  Procure insurance against any loss in connection with its property and other assets and operations in amounts and from insurers as it deems desirable;

     (9)  Contract for and accept gifts or grants in any form from any public agency or from any other source;

    (10)  Adopt rules governing the procurement and purchase of goods, services, and construction, subject to the requirements of chapter 103D;

    (11)  Prevent trespassing and other illegal activities on Mauna a Wākea lands;

    (12)  Cause all persons trespassing on or unlawfully occupying Mauna a Wākea lands, and their effects, and all unauthorized animals to be removed therefrom and be impounded according to law;

    (13)  Enter any Mauna a Wākea lands in order to take possession thereof, and to resume possession of any Mauna a Wākea lands in case of surrender, forfeiture, or escheat;

    (14)  Enforce contracts respecting leases, licenses, permits, or other disposition of Mauna a Wākea lands;

    (15)  Recover money due the authority for damage done to any Mauna a Wākea lands by wrongful entry and occupation or by wrongful removal therefrom or destruction of any property;

    (16)  Bring actions and proceedings as may be necessary to carry out the powers and duties of the authority in the name of the State and to defend actions brought against the State as may be authorized;

    (17)  Enforce laws and rules within all Mauna a Wākea lands; and

    (18)  Do any and all things necessary to carry out its purposes and exercise the powers granted in this chapter.

     (b)  Notwithstanding any other law to the contrary, the authority shall:

     (1)  Be the sole authority for the management of state-managed lands on Mauna a Wākea under its jurisdiction, as identified pursuant to section    -7;

     (2)  Protect traditional and customary native Hawaiian rights, as set forth in the Hawaii State Constitution, and not unduly burden individuals exercising such rights;

     (3)  Provide a specific process that ensures transparency, analysis, and justification for lease terms;

     (4)  Be prohibited from selling, gifting, transferring, or exchanging its land;

     (5)  Engage in community dialogue, outreach, engagement, and consultation processes, as appropriate, on significant matters on at least an annual basis and more frequently, as needed;

     (6)  Be subject to chapters 91, 92, 103D, 183C, 205, 205A, and 343;

     (7)  Work with the department of land and natural resources' conservation and resources enforcement program and Hawaii county police's enforcement structure to enforce rules and monitor public safety through cooperative agreement;

     (8)  Create operational procedures that are informed by its guiding operational values and principles and implemented by enforcement partners;

     (9)  Consider various supplemental revenue sources to be deposited into the Mauna a Wākea management special fund pursuant to section    -14, including but not limited to, to the extent allowed by law:

          (A)  Renegotiated lease terms and fees;

          (B)  Astronomical observatory use fees;

          (C)  Common area maintenance;

          (D)  Toll fees;

          (E)  General funds;

          (F)  Ecosystem service fees;

          (G)  User fees;

          (H)  Other surcharges or fee structures; and

          (I)  State, county, or federal funding; and

    (10)  Adopt rules that establish requirements for new or renegotiated leases for astronomical observatories that are in addition to the lease requirements under sections    -18,   -19, and    -20.

     §   -5  Transition; management plan.  (a)  The authority shall have a transition period of three years after the effective date of this Act to assume management of its designated Mauna a Wākea lands.

     (b)  The authority shall develop a single plan that dictates the management of land uses; human activities, uses, and access, including permitted uses for frequent and seasonal users; stewardship; education; research; disposition; and overall operations.  The plan shall:

     (1)  Be developed during the transition period;

     (2)  Be finalized, approved, and operational by the end of the transition period;

     (3)  Be updated every ten years with a focus on long-term, comprehensive, coordinated planning for all of the Mauna a Wākea lands;

     (4)  Consider the State's energy and sustainability goals, as well as impacts to climate change, including adapting to climate change and developing mitigation measures to climate change;

     (5)  Incorporate indigenous management and cultural processes and values; and

     (6)  Include an aspirational statement to acknowledge and contextualize unresolved social justice issues that underpin Mauna a Wākea.

     §   -6  Astronomy development; framework.  The authority shall develop a framework to limit astronomy development on Mauna a Wākea that may include limitations on the number of astronomy facilities or an astronomy facility footprint limitation; provided that in establishing a framework to limit astronomy development on Mauna a Wākea, the authority shall establish a plan to return the mauna above the nine thousand two hundred feet elevation line to its natural state when ground-based observatories are rendered obsolete due to developments in space-based astronomical technology.

     §   -7  Jurisdiction.  (a)  The authority shall have jurisdiction over Mauna a Wākea lands that are state-managed lands above the six thousand five hundred foot elevation line, inclusive of Puu Huluhulu to the summit of Mauna a Wākea.

     (b)  For lands outside of the authority's jurisdiction on Mauna a Wākea above the six thousand five hundred foot elevation line, the authority shall enter into cooperative agreements, as necessary, with the department of Hawaiian home lands, county of Hawaii, and private landowners whose lands are within the jurisdictional boundaries.

     §   -8  Transfer.  The department of land and natural resources shall transfer to the authority the title to the lands described in section    -7(a), together with all existing encumbrances.  The lands under the jurisdiction of the authority shall be held in trust as part of the public land trust; provided that the lands under the jurisdiction of the authority shall not be deemed public lands as defined in section 171-2; provided further that the State shall transfer management and control of the lands to a sovereign Native Hawaiian entity upon its recognition by the United States and the State of Hawaii.

     §   -9  Advisory groups; astronomy; native Hawaiian culture.  (a)  The authority may establish advisory groups to advise the authority in its management of Mauna a Wākea; provided that the authority shall establish an astronomy advisory group and native Hawaiian advisory group, with preference for Hawaii island resident participation, to provide advice and guidance to the authority on their respective subject matters.

     (b)  Any advisory groups established pursuant to this section shall convene regularly and be consulted on a broad range of issues relating to their respective purview.

     §   -10  Annual report.  The authority shall submit an annual report to the legislature at least twenty days prior to the convening of each regular session.  The report shall include:

     (1)  A review of the authority's management actions;

     (2)  A review of the implementation of all legislatively required plans, including financial and management plans;

     (3)  A review of the impacts of human uses on the natural and cultural resources of Mauna a Wākea;

     (4)  An assessment of cumulative impacts to Mauna a Wākea; and

     (5)  A review of all community dialogue, outreach, engagement, and consultation.

     §   -11  Access and use; restrictions; orientation; entryway.  (a)  The authority may prohibit commercial use and activities, except for astronomy use and activities, above Hale Pōhaku and adopt rules to designate areas for permissible use; provided that the authority's rules shall define "commercial use".

     (b)  The authority shall require an application for all recreational uses, including fees; consider restrictions on Mauna a Wākea to ensure user compliance; and create guidelines on limits by monitoring the impacts of recreational use over time.

     (c)  The authority shall require all individuals accessing Mauna a Wākea to undergo an annual orientation anchored by the authority's guiding operational values and principles; provided that all employees, contractors, leaseholders, and others who regularly access Mauna a Wākea shall have more extensive and frequent training on the authority's guiding operational values and principles.

     (d)  The authority shall determine an appropriate site for an entryway to Mauna a Wākea as a way to capture information about users, establish an education outreach post, collect fees, and close access to Mauna a Wākea in case of an emergency.

     §   -12  Lease provisions; generally.  Every lease issued by the authority shall contain:

     (1)  The specific use or uses to which the land is to be employed;

     (2)  The improvements required; provided that a minimum reasonable time be allowed for the completion of the improvements;

     (3)  Restrictions against alienation as set forth in section    -13;

     (4)  The rent, as established by the authority or at public auction, which shall be payable no more than one year in advance, in monthly, quarterly, semiannual, or annual payments;

     (5)  Where applicable, adequate protection of forests, watershed areas, game management areas, wildlife sanctuaries, and public hunting areas, reservation of rights-of-way and access to other public lands, public hunting areas, game management areas, or public beaches, and prevention of nuisance and waste; and

     (6)  Such other terms and conditions as the authority deems advisable to more nearly effectuate the purposes of the state constitution and of this chapter.

     §   -13  Lease restrictions; generally.  (a)  Except as otherwise provided, the following restrictions shall apply to all leases:

     (1)  Options for renewal of terms are prohibited;

     (2)  No lease shall be for a longer term than sixty-five years;

     (3)  No lease shall be made for any land under a lease that has more than two years to run;

     (4)  No lease shall be made to any person who is in arrears in the payment of taxes, rents, or other obligations owed to the State or any county;

     (5)  No lease shall be transferable or assignable, except by devise, bequest, or intestate succession; provided that with the approval of the authority, the assignment and transfer of a lease or unit thereof may be made in accordance with current industry standards, as determined by the authority; provided further that prior to the approval of any assignment of lease, the authority shall have the right to review and approve the consideration to be paid by the assignee and may condition its consent to the assignment of the lease on payment by the lessee of a premium based on the amount by which the consideration for the assignment, whether by cash, credit, or otherwise, exceeds the depreciated cost of improvements and trade fixtures being transferred to the assignee; provided further that with respect to state agricultural leases, in the event of foreclosure, the premium, if any, shall be assessed only after the encumbrances of record and any other advances made by the holder of a security interest are paid;

     (6)  The lessee shall not sublet the whole or any part of the demised premises, except with the approval of the authority; provided that prior to the approval, the authority shall have the right to review and approve the rent to be charged to the sublessee; provided further that in the case where the lessee is required to pay rent based on a percentage of its gross receipts, the receipts of the sublessee shall be included as part of the lessee's gross receipts; provided further that the authority shall have the right to review and, if necessary, revise the rent of the demised premises based upon the rental rate charged to the sublessee, including the percentage rent, if applicable, and provided that the rent may not be revised downward;

     (7)  The lease shall be for a specific use or uses and shall not include waste lands, unless it is impractical to provide otherwise; and

     (8)  Mineral and metallic rights and surface and ground water shall be reserved to the State.

     (b)  The authority, from time to time, upon the issuance or during the term of any intensive agricultural, aquaculture, commercial, mariculture, special livestock, pasture, or industrial lease, may:

     (1)  Modify or eliminate any of the restrictions specified in subsection (a);

     (2)  Extend or modify the fixed rental period of the lease; provided that the aggregate of the initial term and any extension granted shall not exceed sixty-five years; or

     (3)  Extend the term of the lease,

to the extent necessary to qualify the lease for mortgage lending or guaranty purposes with any federal mortgage lending agency, to qualify the lessee for any state or private lending institution loan, private loan guaranteed by the State, or any loan in which the State and any private lender participates, or to amortize the cost of substantial improvements to the demised premises that are paid for by the lessee without institutional financing.

     (c)  Any extension authorized pursuant to subsection (b) shall be based on the economic life of the improvements as determined by the authority or an independent appraiser; provided that the approval of any extension shall be subject to the following:

     (1)  The demised premises have been used substantially for the purpose for which they were originally leased;

     (2)  The aggregate of the initial term and any extension granted shall not be for more than sixty-five years;

     (3)  In the event of a reopening, the rental for any ensuing period shall be the fair market rental at the time of reopening;

     (4)  Any federal or private lending institution shall be qualified to do business in the State;

     (5)  Proceeds of any mortgage or loan shall be used solely for the operations or improvements on the demised premises;

     (6)  Where improvements are financed by the lessee, the lessee shall submit receipts of expenditures within a time period specified by the authority or else the lease extension shall be canceled; and

     (7)  The rules of the authority setting forth any additional terms and conditions, which shall ensure and promote the purposes of the demised lands.

     (d)  The authority, at any time during the term of any intensive agricultural, aquaculture, or mariculture lease and when justified by sound economic practices or other circumstances, may permit an alternative agricultural, aquaculture, or mariculture use or uses for any portion or portions of the land demised.  As a condition to permitting alternative uses, the authority may require any other modifications, including rental adjustments or changes in the lease, as may be necessary to effect or accommodate the alternative use or uses.  An alternative use or uses may be allowed by the authority upon:

     (1)  The application of the lessee;

     (2)  Consent of each holder of record having a security interest in the leasehold; and

     (3)  A finding by the authority that the alternative use or uses are in the public interest.

     (e)  The authority, from time to time during the term of any agriculture, intensive agriculture, aquaculture, commercial, mariculture, special livestock, pasture, or industrial lease, may modify or eliminate any of the restrictions specified in subsection (a), extend or modify the fixed rental period of the lease, or extend the term of the lease upon a showing of significant economic hardship directly caused by:

     (1)  State disaster, pursuant to chapter 209, including seismic or tidal wave, tsunami, hurricane, volcanic eruption, typhoon, earthquake, flood, or severe drought; or

     (2)  A taking of a portion of the area of the lease by government action by eminent domain, withdrawal, or conservation easement; provided that the portion taken shall not be less than ten per cent of the entire leased area unless otherwise approved by the authority; provided that the authority determines that the lessee will not be adequately compensated pursuant to the lease provisions.

     (f)  The approval of any extension granted pursuant to subsection (e) shall be subject to the following:

     (1)  The demised premises have been used substantially for the purposes for which they were originally leased;

     (2)  The aggregate of the initial term and any extension granted shall not be for more than fifty-five years;

     (3)  The rental shall not be less than the rental for the preceding term;

     (4)  The rules of the authority setting forth any additional terms and conditions, which shall ensure and promote the purposes of the demised lands; and

     (5)  The length of the extension shall not exceed a reasonable length of time for the purpose of providing relief and shall in no case exceed five years.

     §   -14  Astronomical observatory lease provisions; generally; decommissioning costs.  (a)  Any lease issued by the authority for the purposes of an astronomical observatory shall ensure that the astronomical observatory shall plan for and finance its decommissioning process on Mauna a Wākea and return and restore the impacted areas, to the greatest extent possible, to their pre-construction condition; provided that the authority shall determine what site restoration shall be based on, including but not limited to the protection of the natural and cultural resources on Mauna a Wākea and in accordance with the authority's guiding operational values and principles.

     (b)  The authority shall develop a process to enforce compliance with lease requirements, including but not limited to establishing fines.

     (c)  The authority shall establish a trust fund, special fund, or other funding mechanism designated for decommissioning costs that the astronomical observatories shall be required to contribute toward as a condition of their leases; provided that the authority shall determine the required contribution.

     §   -15  Auction.  Except as otherwise specifically provided, all disposition of lands to which the authority holds title shall be made at public auction after public notice as provided in section 171-16.  All such auctions shall be held at the door of the office of the authority or at such other place as is convenient in the district in which the land is located, and shall be conducted by the authority or by any other authorized employee of the authority under the direction of the authority, all of whom shall perform this service without extra compensation.

     §   -16  Appraisals.  (a)  The appraisal of lands to which the authority holds title for lease at public auction for the determination of the upset price may be performed by an employee of the authority qualified to appraise lands, or by one but not more than three disinterested appraisers whose services shall be contracted for by the authority; provided that the upset rental shall be determined by disinterested appraisal whenever prudent management so dictates.  No such lands shall be leased for a sum less than the value fixed by appraisal; provided that for any lease at public auction, the authority may establish the upset rental price at less than the appraisal value set by an employee of the authority and the land may be leased at that price.  The authority shall be reimbursed by the lessee for the cost of any appraisal required to be made by a disinterested appraiser or appraisers contracted for by the authority.

     (b)  The lease rental of lands to be disposed of by drawing or by negotiation shall be no less than the value determined by:

     (1)  An employee of the authority qualified to appraise lands; or

     (2)  A disinterested appraiser or appraisers whose services shall be contracted for by the authority, and the appraisal, and any further appraisal with the approval of the authority, shall be at the cost of the lessee;

provided that the lease rental shall be determined by disinterested appraisal whenever prudent management so dictates; provided further that if the lessee does not agree upon the lease rental price, the lessee may appoint an appraiser who shall conduct an appraisal on behalf of the lessee.  If, after the lessee's appraisal, the authority and the lessee do not agree on the lease rental price, the parties shall make a good faith effort to resolve the dispute through nonbinding mediation by a single mediator, appointed by mutual agreement of the parties.  The cost of mediation shall be borne equally by the parties.  If mediation does not resolve the dispute, the lessee's appraiser together with the authority's appraiser shall appoint a third appraiser, and the lease rental price shall be determined by arbitration as provided for in chapter 658A, which shall be final and binding.  The lessee shall pay for all appraisal costs, except that the cost of the third appraiser shall be borne equally by the lessee and the authority.

     (c)  If a reopening of the rental to be paid on a lease occurs, the rental for any ensuing period shall be the fair market rental at the time of reopening.  At least six months prior to the time of reopening, the fair market rental shall be determined by:

     (1)  An employee of the authority qualified to appraise lands; or

     (2)  A disinterested appraiser whose services shall be contracted for by the authority;

and the lessee shall be promptly notified of the determination and provided with the complete appraisal prepared by the authority or the authority's appraiser; provided that if the lessee does not agree upon the fair market rental, the lessee may appoint the lessee's own appraiser and the lessee shall provide the authority with the complete appraisal prepared by the lessee's appraiser.  Each party shall pay for its own appraiser.  If the authority's and the lessee's appraisers do not agree upon the lease rental, the lessee and the authority shall in good faith attempt to resolve the dispute by nonbinding mediation by a single mediator mutually agreed upon by the parties.  If the dispute is not resolved by the mediation, the fair market rental shall be determined by arbitration as provided in chapter 658A, which shall be final and binding.  Either the authority or the lessee may initiate arbitration by a written demand to the other party.  The arbitration shall be conducted by a single arbitrator, who shall be an attorney licensed in the State, a person with experience in contracts and real estate valuation, or another qualified person, who shall be mutually agreed upon by the parties.  If an arbitrator is not selected within fifteen days of the demand for arbitration, appointment of an arbitrator may be requested by either party by motion made to the circuit court in the circuit in which the land is located.  The cost of mediation or arbitration shall be borne equally by the lessee and the authority.  Any language in present leases to the contrary notwithstanding, the provisions of this subsection, when possible and notwithstanding the six-month notice required, shall apply to leases with original lease rental reopening dates effective before and after July 1, 1996.

     (d)  Complete appraisal reports, including all comparables relied upon in the appraisal reports, shall be available for study by the public.  All complete appraisal reports shall be provided to the opposing party prior to the commencement of mediation or arbitration, if applicable, of the valuation dispute.

     §   -17  Planning; generally.  Prior to any notice of intended disposition, the authority shall:

     (1)  Determine the specific use or uses for which the disposition is intended;

     (2)  Parcel land into units of minimum size areas related to the intended specific use or uses and sufficient for an economic operation, hereinafter called an "economic unit";

     (3)  Determine the upset price or lease rental, based upon the fair market value of the land employed to the specific use or uses for which the disposition is being made, with due consideration for all of the terms and conditions of the disposition;

     (4)  Determine the necessary conditions of disposition which will discourage speculation;

     (5)  In the case of leases, determine the minimum tenure necessary to support the intended use or uses and the necessity for periodic rent openings in long-term leases to assure the State a fair return;

     (6)  Prepare the proposed documents and make them available for public inspection; and

     (7)  Determine, two years before the expiration of the term of any lease, whether the premises are to be demised for the same use or uses under a new lease or whether all or any part thereof is to be reserved for other use or uses and then promptly notify the lessee of the determination.

     §   -18  Lease to eleemosynary organizations.  The authority may lease, at a nominal consideration, by direct negotiation and without recourse to public auction, lands to which it holds title to an eleemosynary organization that has been certified to be tax exempt under section 501(c)(1) or 501(c)(3) of the Internal Revenue Code of 1986, as amended.  The lands shall be used by such eleemosynary organizations for the purposes for which their charter was issued and for which they were certified by the Internal Revenue Service.

     §   -19  Lease to state and federal agencies.  Notwithstanding any limitations to the contrary, the authority may, with the prior approval of the governor, lease lands to which it holds title without recourse to public auction to state and federal agencies.  The manner of disposition and the terms and conditions thereto shall be in accordance with sections    ‑12,    -13, and    -17.

     §   -20  Lease to foreign governments.  Notwithstanding any limitations to the contrary, the authority may, with the prior approval of the governor, lease lands to which it holds title for consulate purposes without recourse to public auction to foreign governments.  The manner of disposition and the terms and conditions thereto shall be in accordance with sections    ‑12,    -13, and    -17.

     §   -21  Reservation of rights to prehistoric and historic remains on leased public lands.  The authority shall, in leases of lands to which it holds title, retain the rights to all prehistoric and historic remains found on such lands.

     §   -22  Rules.  (a)  The authority shall, to the extent possible, expedite the adoption of rules pursuant to chapter 91 on the management, stewardship, and protection of lands and cultural resources.  The rules adopted under this section shall following existing laws, rules, ordinances, and regulations as closely as is consistent with standards to meet minimum requirements of good design, health, safety, and coordinated development.

     (b)  On the effective date of the initial rules adopted pursuant to this section, all rules pertaining to Mauna a Wākea lands established by the University of Hawaii, including but not limited to the office of Mauna Kea management, Mauna Kea management board, and Kahu Kū Mauna, shall be void.

     §   -23  Mauna a Wākea management special fund.  (a)  There is established the Mauna a Wākea management special fund into which shall be deposited:

     (1)  Appropriations from the legislature;

     (2)  Moneys from supplemental sources as considered by the authority pursuant to section    -4(b)(10);

     (3)  Any grant or donation made to the special fund; and

     (4)  Any interest earned on the balance of the special fund.

     (b)  Proceeds from the special fund shall be used for administration, capital improvement projects, and other purposes pursuant to this chapter.

     §   -24  Issuance of bonds.  The director of finance may, from time to time, issue general obligation bonds pursuant to chapter 39 in amounts authorized by the legislature for the purposes of this chapter."

     SECTION 3.  Section 171-2, Hawaii Revised Statutes, is amended to read as follows:

     "§171-2  Definition of public lands.  "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including lands accreted after May 20, 2003, and not otherwise awarded, submerged lands, and lands beneath tidal waters that are suitable for reclamation, together with reclaimed lands that have been given the status of public lands under this chapter, except:

     (1)  Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

     (2)  Lands set aside pursuant to law for the use of the United States;

     (3)  Lands being used for roads and streets;

     (4)  Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the state constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

     (5)  Lands to which the University of Hawaii holds title;

     (6)  Lands to which the Hawaii housing finance and development corporation in its corporate capacity holds title;

     (7)  Lands to which the Hawaii community development authority in its corporate capacity holds title;

     (8)  Lands set aside by the governor to the Hawaii public housing authority or lands to which the Hawaii public housing authority in its corporate capacity holds title;

     (9)  Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

    (10)  Lands that are set aside by the governor to the Aloha Tower development corporation, lands leased to the Aloha Tower development corporation by any department or agency of the State, or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

    (11)  Lands that are set aside by the governor to the agribusiness development corporation, lands leased to the agribusiness development corporation by any department or agency of the State, or lands to which the agribusiness development corporation in its corporate capacity holds title;

    (12)  Lands to which the Hawaii technology development corporation in its corporate capacity holds title;

    (13)  Lands to which the department of education holds title;

    (14)  Lands to which the stadium authority holds title; [and]

[[](15)[]]    Lands to which the school facilities authority holds title; and

    (16)  Lands under the jurisdiction of the Mauna a Wākea stewardship authority pursuant to section    -7 to which the authority holds title pursuant to section    -8;

provided that, except as otherwise limited under federal law and except for state land used as an airport as defined in section 262-1, public lands shall include the air rights over any portion of state land upon which a county mass transit project is developed after July 11, 2005; provided further that if the lands pursuant to paragraph (14) are no longer needed for the stadium development district or related purposes, the lands shall be returned to the public land trust administered by the department."

     SECTION 4.  Chapter 304A, part IV, subpart O, Hawaii Revised Statutes, is repealed.

     SECTION 5.  Section 304A-2170, Hawaii Revised Statutes, is repealed.

     ["[§304A-2170]  Mauna Kea lands management special fund.  (a)  There is established the Mauna Kea lands management special fund, into which shall be deposited:

     (1)  Appropriations by the legislature;

     (2)  All net rents from leases, licenses, and permits, including fees and charges for the use of land and facilities within the Mauna Kea lands;

     (3)  All moneys collected for violations of subpart O of part IV; and

     (4)  Interest earned or accrued on moneys in the special fund.

     (b)  The proceeds of the special fund shall be used for:

     (1)  Managing the Mauna Kea lands, including maintenance, administrative expenses, salaries and benefits of employees, contractor services, supplies, security, equipment, janitorial services, insurance, utilities, and other operational expenses; and

     (2)  Enforcing administrative rules adopted relating to the Mauna Kea lands.

     (c)  No moneys deposited into the Mauna Kea lands management special fund may be used by the governor or the director of finance as a justification for reducing any budget request or allotment to the University of Hawaii unless the University of Hawaii requests the reduction.

     (d)  The University of Hawaii may establish separate accounts within the special fund for major program activities.

     (e)  All expenditures from the special fund shall be subject to legislative appropriation.

     (f)  For the purposes of this section, "Mauna Kea lands" shall mean the same as defined in section 304A-1901."]

     SECTION 6.  All moneys in the Mauna Kea lands management special fund established pursuant to section 304A-2170, Hawaii Revised Statutes, shall be deposited in the Mauna a Wākea management special fund established pursuant to section    -23, Hawaii Revised Statutes, in section 2 of this Act.

PART II

     SECTION 7.  There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2022-2023 for startup costs for the Mauna a Wākea stewardship authority.

     The sum appropriated shall be expended by the Mauna a Wākea stewardship authority for the purposes of this Act.

PART III

     SECTION 8.  The revisor of statutes shall insert the effective date of this Act in the appropriate location in section 2 of this Act.

     SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 10.  This Act shall take effect on July 1, 3000.

 


 


 

Report Title:

Mauna a Wākea Stewardship Authority; Established; Appropriation

 

Description:

Establishes the Mauna a Wākea stewardship authority as the sole authority for management of state-managed lands on Mauna a Wākea.  Requires the authority to develop a single plan that dictates the management of land uses; human activities, uses, and access; stewardship; education; research; disposition; and overall operations.  Requires the authority to develop a framework to limit astronomy development on Mauna a Wākea.  Allows the authority to prohibit certain commercial use and activities on Mauna a Wākea.  Requires an application and fee for all recreational users of Mauna a Wākea.  Establishes the Mauna a Wākea management special fund.  Repeals the Mauna Kea lands management special fund.  Appropriates funds.  Effective 7/1/3000.  (HD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.