HOUSE OF REPRESENTATIVES
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO MAUNA KEA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Mauna Kea serves as an important cultural and genealogical site to the people of Hawaii, particularly to Native Hawaiians. The summit region of Mauna Kea 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 Kea is also a highly valued site for astronomical study, which produces many significant discoveries that contribute to humanity's study and understanding of the universe. However, in recent years, Mauna Kea has come to symbolize a rigid dichotomy between culture and science, often leading to polarization between stakeholders on Mauna Kea and local communities. Therefore, resolving the management issues of Mauna Kea 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 Kea that collaboratively engages with all stakeholders, particularly the Native Hawaiian community.
The purpose of this Act is to establish the Mauna Kea stewardship and oversight authority to manage.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
MAUNA KEA STEWARDSHIP and oversight AUTHORITY
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"Authority" means the Mauna Kea stewardship and oversight authority.
"Chairperson" means the chairperson of the Mauna Kea stewardship and oversight 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 contractual right to possess and use a specified portion of land for a term of years.
"Mauna Kea lands" means all lands under the aegis of the Mauna Kea stewardship and oversight authority above the elevation of nine thousand two hundred feet.
"Person" includes an individual, a partnership, a corporation, or an association, except as otherwise defined in this chapter.
§ -2 Mauna Kea stewardship and oversight authority; established. (a) There is established the Mauna Kea stewardship and oversight authority, which shall be a body corporate and a public instrumentality of the State for the purpose of implementing this chapter. The authority shall serve in the role previously held by the University of Hawaii board of regents and the president. The authority shall be placed within the University of Hawaii, Hilo, for administrative purposes.
(b) The authority shall consist of eleven voting members; provided that all members shall be appointed by the governor, subject to section 26-34. The chancellor of the University of Hawaii, Hilo shall serve as an ex officio nonvoting member. The voting 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 chairperson of the Board of Regents of the University of Hawaii, or a member of the board of regents to serve as the designee;
(4) An individual with ‘āina resource management expertise and a track record of Hawaii island-based management;
(5) An individual who is recognized in the fields of educational in p-12 public education or post-secondary education;
(6) A representative selected by the Mauna Kea Observatories;
(7) An individual with business and finance experience who has previous administrative experience in managing a large private-sector business;
(8) An individual who is a lineal descendent of a practitioner of native Hawaiian traditional and customary practices associated with Mauna Kea;
(9) An individual who is a recognized practitioner of native Hawaiian traditional and customary practices associated with Mauna Kea; and
(10) Two members shall be appointed by the governor from a list of three names submitted for each appointment by the president of the senate and speaker of the house of representatives; provided that if fewer than three names are submitted for either appointment, the governor may disregard the list;
provided further that three of the eleven members of the authority shall be residents of the county of Hawaii.
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 by the senate; provided that a member shall not holdover beyond the first legislative session following the expiration of the member's term of service.
(c) The authority shall elect the chairperson from among its voting members.
(d) Notwithstanding section 26-34(a), with respect to length and amount of terms, the members of the authority shall serve for a term of three years and shall not serve more than four partial or full terms; provided that the initial terms shall be staggered, as determined by the governor.
(e) The authority shall be financially self-sustaining after the first year following the transitional period pursuant to section -4. The authority's day-to-day operations shall be led by the existing executive director of the center of Mauna Kea for the transition period established in section ‑4.
(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; provided that the authority shall appoint a board secretary, who shall also serve as executive assistant, without regard to chapter 76; provided further that not more than five per cent of the authority's budget shall be expended on administrative expenses.
(g) The authority shall establish its offices in the county of Hawaii at the University of Hawaii, Hilo.
§ -3 Powers and responsibilities; generally. (a) Except as otherwise limited by this chapter, the authority may:
(1) Make and execute contracts, leases, and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter;
(2) Make and alter bylaws for its organization and internal management;
(3) Adopt rules pursuant to chapter 91 for the purposes of this chapter;
(4) Adopt rules pursuant to chapter 92 for the purposes of this chapter;
(5) Appoint officers, agents, and employees, prescribe their duties and qualifications, and fix their salaries, subject to chapters 76 and 89;
(6) 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;
(7) Procure insurance against any loss in connection with its property and other assets and operations in amounts and from insurers as it deems desirable;
(8) Contract for and accept gifts or grants in any form from any public agency or from any other source;
(9) Adopt rules governing the procurement and purchase of goods, services, and construction, subject to the requirements of chapter 103D; and
(10) 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 principal authority in conjunction with the department of land and natural resources for the management of state-managed lands on Mauna Kea under its jurisdiction, as identified pursuant to section -6;
(2) Provide oversight and protect traditional and customary native Hawaiian rights, as set forth in the Hawaii State Constitution, and not unduly burden individuals exercising these rights;
(3) Establish a process that establishes 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) Consider various supplemental revenue sources to be deposited into the Mauna Kea management special fund, to the extent permitted by law; and
(7) Timely decommission the California Institute of Technology (Caltech) Submillimeter Telescope and the University of Hawaii, Hilo Hōkūke‘a Teaching Telescope.
§ -4 Transition; management plan. (a) The authority shall have a transition period of three years beginning July 1, 2023; provided that all of the initial members have been confirmed by the senate; provided further that the initial authority members elect a chairperson pursuant to ‑2(c) to assume management and oversight of Mauna Kea lands.
(b) The authority shall assume management of Mauna Kea lands and develop a management plan to govern land uses; human activities, uses, and access, including permitted uses for frequent and seasonal users; stewardship; education; research; disposition; and overall operations. The management plan may:
(1) Be developed during the transition period;
(2) Be finalized, approved, and operational by the end of the transition period;
(3) Be updated at least every ten years with a focus on long-term, comprehensive, coordinated planning for all of the Mauna Kea 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 Kea.
(c) The authority shall complete the Mauna Kea master lease negotiations and continue to work toward resolving subleases.
§ -5 Astronomy development; framework. The authority shall develop a framework for astronomy development on Mauna Kea that may include limitations on the number of astronomy facilities or an astronomy facility footprint limitation; provided that in establishing a framework for astronomy development on Mauna Kea, the authority may establish a plan to return the Mauna Kea lands above the nine thousand two hundred feet elevation line to their natural state at such time that ground-based observatories lose their academic or research value.
§ -6 Oversight jurisdiction. (a) The authority shall have oversight jurisdiction of lands that are state-managed lands above the nine thousand two hundred foot elevation line on Mauna Kea, inclusive of Pu‘u Huluhulu to the summit of Mauna Kea. The authority shall have jurisdiction over the science reserve on Mauna Kea.
(b) For lands not within the authority's oversight jurisdiction on Mauna Kea lands above the nine thousand two 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.
§ -7 Advisory groups; Native Hawaiian culture. (a) The authority may establish advisory groups to advise the authority in its management of Mauna Kea lands; 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; provided further, for the transitional period pursuant to section -4, the authority shall maintain the Mauna Kea Management Board and Kahu Kū Mauna to serve this purpose.
(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.
(c) The authority may adopt and shall be guided by the following operational values and principles:
(1) Mauna Aloha – Understanding the reciprocal value of the mauna and a long-term commitment to maintaining the integrity of Mauna Kea;
(2) ‘Ōpū Kupuna – Understanding and embracing a duty and accountability to Mauna Kea, the natural environment, and to perpetuate the Hawaiian cultural values embedded in the sacred landscape of the mauna; and
(3) Holomua ‘Oi Kelakela – Driven by creativity and innovation, constantly challenging the status quo, with a stewardship of Mauna Kea that is informed based on existing knowledge and traditions, as well as on new and expanding knowledge. The authority is 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.
§ -8 Annual report. The authority shall submit an annual report to the legislature at least twenty days prior to the convening of each regular session, beginning with the regular session of 2024. 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 Kea;
(4) An assessment of cumulative impacts to Mauna Kea; and
(5) A review of all community dialogue, outreach, engagement, and consultation.
§ -9 Access and use; restrictions; orientation; entryway. (a) The authority may limit commercial use and activities of Mauna Kea lands to astronomy use and activities and adopt rules pursuant to chapter 91 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, and create guidelines on potential limits by monitoring the impacts of recreational use over time.
(c) The authority may require all individuals accessing Mauna Kea lands 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 Kea shall have more extensive training on the authority's guiding operational values and principles pursuant to section -7(c).
(d) The authority may determine an appropriate site for an entryway to Mauna Kea as a way to capture information about users, establish an education outreach post, collect fees, and close access to Mauna Kea lands in case of an emergency.
(e) Notwithstanding subsection (a), the authority shall authorize the University of Hawaii not less than seven per cent, but up to fifteen per cent, of viewing time at the telescopes.
§ -10 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 -11;
(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) Other terms and conditions as the authority deems advisable to more nearly effectuate the purposes of the Hawaii State Constitution and of this chapter.
§ -11 Lease restrictions; generally. (a) Except as otherwise provided, the following restrictions shall apply to all leases:
(1) Options for renewal of terms shall be subject to approval by a supermajority vote;
(2) Leases that are for a term longer than sixty-five years or renewal of terms that result in a total term of more than sixty-five years shall be subject to approval by a supermajority vote;
(3) 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;
(4) 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 before 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; and
(5) 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) Provide input on the modification or elimination on 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, except as provided in section -11(a)(2); 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 shall 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, except as provided by section -11(a)(2);
(3) Any federal or private lending institution shall be qualified to do business in the State;
(4) Proceeds of any mortgage or loan shall be used solely for the operations or improvements on the demised premises;
(5) 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
(6) 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 further 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, except as provided by section -11(a)(2);
(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, except as provided by section -11(a)(2).
§ -12 Planning; generally. Before 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 that 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.
§ -13 Rules. The authority may, after the transitional three-year period established in section -4, adopt rules pursuant to chapter 91 on the management, stewardship, oversight, 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.
§ -14 Mauna Kea management special fund. (a) There is established the Mauna Kea management special fund into which shall be deposited:
(1) Appropriations from the legislature;
(2) Moneys from supplemental sources as authorized by the authority pursuant to the powers granted by this chapter;
(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.
§ -15 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.
§ -16 Audit. The auditor shall conduct a performance and financial audit of the Mauna Kea stewardship and oversight authority and shall submit a report on findings and recommendations to the legislature on or before the convening of the regular session of 2029."
SECTION 3. 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 Kea management special fund established pursuant to section -14, in section 2 of this Act.
SECTION 4. The University of Hawaii board of regents and president shall exercise the authority granted to them by part IV, subpart O, of chapter 304A, Hawaii Revised Statutes, only to the extent as necessary to allow the Mauna Kea stewardship and oversight authority, established pursuant to part I of this Act, to assume authority of Mauna Kea lands; provided that the University of Hawaii board of regents and the president shall cooperate and work collaboratively with the authority to support and ensure the successful transition of stewardship and oversight of the Mauna Kea lands; provided further that the University of Hawaii, Hilo shall provide all necessary support to the Mauna Kea stewardship and oversight authority consistent with the purposes of this Act, including equitably funding the Authority.
SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $12,000,000 or so much thereof as may be necessary for fiscal year 2022-2023 for startup costs for the Mauna Kea stewardship and oversight authority.
The sum appropriated shall be expended by the University of Hawaii, Hilo for the purposes of this Act.
SECTION 6. 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 one full-time equivalent (1.0 FTE) executive assistant position, who shall also serve as secretary to the authority, and who shall be exempt from chapter 76, Hawaii Revised Statutes, to support the Mauna Kea stewardship and oversight authority.
The sum appropriated shall be expended by the University of Hawaii, Hilo for the purposes of this Act.
SECTION 7. The revisor of statutes shall insert the effective date of this Act in the appropriate locations in section 2 of this Act.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on January 1, 2055; provided that if the auditor finds, in the report required under section -16 in section 2 of this Act, that the Mauna Kea stewardship and oversight authority is unfit to continue to serve in its stewardship and oversight role, then on December 31, 2029:
(1) Parts I and II of this Act shall be repealed; and
(2) The management authority over Mauna Kea lands, as defined in section 304A-1901, Hawaii Revised Statutes, shall revert back to the University of Hawaii board of regents and president.
Mauna Kea Stewardship and Oversight Authority; Established; Appropriation
Establishes the Mauna Kea Stewardship and Oversight Authority as the principal authority for management of state-managed lands above the 9,200 feet elevation line on Mauna Kea, in conjunction with the Department of Land and Natural Resources. Requires the authority to manage land uses; human activities, uses, and access; stewardship; education; research; disposition; and overall operations. Authorizes the Authority to develop a framework to allow astronomy development on Mauna Kea. Authorizes the Authority to establish advisory groups. Allows the Authority to limit certain commercial use and activities on Mauna Kea. Requires the Authority to allow the University of Hawaii a certain amount of viewing time at the telescopes. Provides certain restrictions on leases. Requires the timely decommissioning of certain telescopes. Requires an application and fee for all recreational users of Mauna Kea. Establishes the Mauna Kea Management Special Fund. Requires an audit of the Mauna Kea Stewardship and Oversight Authority. Reverts management to the University of Hawaii Board of Regents and President if the audit finds the Authority unfit to continue. Appropriates funds. Effective 1/1/2055. (SD1)
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