(2002)
RELATING TO CAVE PROTECTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
SECTION 1. The legislature finds that caves are unique landforms
that often contain irreplaceable resources of immense cultural, spiritual,
aesthetic, and scientific value. These cultural and spiritual resources,
including human burials and other evidence of native Hawaiian use and their
associated traditions, are in need of greater protection. The preservation of
these cultural resources is paramount for their survival for future
generations, and they are also a valuable part of
The purpose of this Act is to protect unique cultural
and natural resources found in caves. This Act is not intended to limit other
laws, such as chapters 6E, 340E, and 342D of the Hawaii Revised Statutes, which
address historic preservation and water quality.
SECTION 2. The Hawaii Revised Statutes is amended by adding a
new chapter to be appropriately designated and to read as follows:
"Chapter
Protection of Caves
§ -1 Definitions. As used in this chapter:
"Board" means the board of land and natural
resources.
"Cave" means any naturally occurring void,
cavity, recess, or system of interconnected passages large enough for human
entry, occurring beneath the surface of the earth or within a cliff or ledge,
including the cave resources therein, whether or not an entrance exists or is
natural or artificial, and that is of archeological, geological, biological, or
cultural significance. The term includes such forms as a lava tube, natural
pit, sinkhole, underwater cave, or other feature that is an extension of the
entrance.
"Cave life" means any living native plant,
animal, fungus, or microorganism occurring naturally in caves or in cave
entrances or entrance pits.
"Cave resource" means any material or
substance occurring in caves, such as native animal life, native plant life,
evidence of past human use over fifty years old, and tangible and intangible
attributes associated with cultural traditions over fifty years old, paleontological deposits, sediments, minerals, speleogens, and speleothems. This
includes historic properties as defined in chapter 6E.
"Commercial entry" means an activity
undertaken to exhibit a cave for which compensation is received by any person
for goods, services, or both, rendered to customers or participants in that use
or activity. Commercial entry includes activities whose base of operations are
outside the boundaries of the premises, or provide transportation to or from
the premises. Any person receiving compensation in conjunction with a use or
activity who seeks to qualify as non-commercial shall have the burden of
establishing to the satisfaction of the department that the fee or charge is
strictly a sharing of actual expenses of the use or activity. A not-for-profit
organization that charges only a nominal fee to cover administrative costs and
conducts a use or activity at a frequency or magnitude that does not
significantly contribute to the degradation of the cave and its resources is
not conducting a commercial entry.
"Construction context" means all permitted
land-altering activities necessary to construct any and all manner of
improvements on the surface of a property including but not limited to
foundations, basements, roads, and buildings. The term also means all permitted
land-altering activities necessary to construct subsurface tunnels for highways
and utilities.
"Department" means the department of land
and natural resources.
"Educational purposes" means entrance into a
cave by faculty or staff and students of recognized educational institutions
for the purpose of education relating to some aspect of the cave, including but
not restricted to cave geology, mineralogy, hydrology, biology, archaeology,
paleontology, management, and hazards.
"Gate" means any structure or device located
to limit, control, or prohibit access to, or entry to, any portion of a cave.
"Owner" means the persons who hold title to
or are in possession of the land on or under which a cave is located, or the
persons' lessee or agent. The term also includes an agency that holds title to,
manages, or controls public land on or under which a cave is located.
"Paleontological
deposit" means any remains or fossils of life forms or surface debris that
are over fifty years of age and provide a record of past climates and biota.
"Person" shall be as defined in section
1-19.
"Scientific purposes" means research, or
exploration, or both, conducted by persons affiliated with recognized
scientific organizations with the intent to advance knowledge and to publish
the results of exploration or research in an appropriate medium.
"Speleogen" means
relief features on the walls, ceiling, or floor of any cave.
"Speleothem" means
any secondary natural mineral formation or deposit occurring in a cave,
including any stalactite, stalagmite, helictite, cave
flower, flowstone, concretion, drapery, rimstone, or
formation of clay or other sediment.
§ -2 Prohibitions. (a) It shall be unlawful for any
person to intentionally, knowingly, or recklessly break, break off, crack,
carve upon, write, burn, or otherwise mark upon, remove, or in any manner
destroy, disturb, deface, mar, or harm the surfaces of any cave, or the cave
resources within the cave, whether attached or broken, including speleothems, speleogens, and
sedimentary deposits, without the owner's written permission being first
obtained.
(b) It shall be unlawful for any person to break,
force, tamper with, or otherwise disturb a gate to any cave, even though
entrance thereto may not be gained, without the owner's permission being first
obtained.
(c) It shall be unlawful for any person to remove,
deface, or tamper with a sign stating that a cave is posted or citing
provisions of this chapter.
(d) It shall be unlawful for any person to take,
appropriate, excavate, injure, destroy, or alter any paleontological
deposit, which may be found in a cave without the owner's written permission
being first obtained.
(e) This section shall not apply to caves
inadvertently encountered within the normal course of a construction context;
provided that any cave protection measures imposed through the environmental
review process under chapter 343, Hawaii Revised Statutes, or any land use
permit conditions shall be followed.
§ -3 Pollution. (a) It shall be unlawful for any
person to store, dump, dispose of, or otherwise place any refuse, garbage, dead
animals, sewage, litter, or toxic substances in any cave or cave entrance;
provided that:
(1) Any cesspool or leach field that is otherwise
legal and existing on the effective date of this section shall continue to be
lawful as a nonconforming use or facility;
(2) The nonconforming use or facility shall not be
expanded or reconstructed; and
(3) New septic systems may be installed in proximity
to caves; provided they use solid tanks and surface leach fields so as not to
permit sewage to flow into the cave and otherwise conform to existing laws and
regulations.
(b) It shall be unlawful to intentionally, knowingly,
or recklessly burn within a cave or cave entrance any material that produces
any smoke, engine exhaust, or gas substantially harmful to any naturally
occurring organisms in any cave; provided that this shall not apply to caves
encountered within the normal course of a construction context.
§ -4 Disturbance of native organisms. (a) It shall be
unlawful for any person to intentionally, knowingly, or recklessly
remove, kill, or substantially harm any native or endemic organisms within any
cave except as provided by a scientific permit obtained from the appropriate
agency. This is not intended to restrict normal fishing and gathering in
accordance with existing laws.
(b) This section shall not apply to caves encountered
within the normal course of a construction context; provided that any cave
protection mitigative measures disclosed through
environmental review under chapter 343 and land use permitting processes shall
be adhered to.
(c) This section shall not in any way prohibit or
constrain surface activities on the land above a cave.
§ -5
§ -6 Commercial entry. (a) Any person allowing or
establishing commercial entry to a cave shall obtain from the board a permit to
open the cave for public entry. The department shall charge a reasonable permit
processing fee and adopt rules pursuant to chapter 91 necessary to carry out
the purposes of this section.
(b) Any person that receives compensation in
conjunction with a use or activity and seeks to be excluded from the permit
requirement under subsection (a) shall have the burden of establishing to the
satisfaction of the department that its use or activity does not constitute a
commercial entry under this chapter.
(c) Commercial entry to caves shall be limited to
operations in place at the time of the passage of this Act; provided the
operations are in compliance with all applicable state and county statutes,
ordinances, and rules. No new operations may be established until the adoption
of rules by the department to implement this section.
(d) Any person allowing commercial entry at the time
of the passage of this Act shall file a declaration of the person's use with
the department within sixty days of the enactment of this Act. Existing
operations, as recognized by the department through the declaration, within one
year of the adoption of rules by the department, shall conform to the rules and
all applicable state and county statutes, ordinances, and rules.
§ -7 Access. No person may enter or traverse a cave,
or any segment thereof, without the property owner's prior written consent.
§ -8 Burial discovery. Anyone traversing a cave who discovers a burial site shall immediately cease their
activity and leave the cave. The discovery shall be reported as soon as
possible to the department. The department shall follow the procedures
described in section 6E-43.6.
§ -9 Liability. (a) An owner of a cave who either
directly or indirectly invites or permits without charge any person to use the
cave for educational, native Hawaiian cultural, or
scientific purposes does not:
(1) Extend any assurance that the premises are safe
for any purpose;
(2) Confer upon the person the legal status of an
invitee or licensee to whom a duty of care is owed;
(3) Assume responsibility for, or incur liability for,
any injury to person or property caused by an act of omission or commission of
those persons; or
(4) Assume responsibility for, or incur liability for,
any injury to any person or persons who enter the premises in response to an
injured educational, native Hawaiian cultural, or scientific user.
(b) Nothing in this section shall be construed to:
(1) Create a duty of care or ground of liability for
injury to persons or property; or
(2) Relieve any person using the cave of another for
educational, native Hawaiian cultural, or scientific purposes from any
obligation which the person may have in the absence of this section to exercise
care in the person's use of that cave and in the person's activities therein,
or from the legal consequences of failure to employ such care; or
(3) Limit the effect of chapter 520.
(c) Nothing in this section limits in any way any
liability which otherwise exists:
(1) For wilful or malicious
failure to guard or warn against a dangerous condition, use, or structure which
the owner knowingly creates or perpetuates and for wilful
or malicious failure to guard or warn against a dangerous activity which the
owner knowingly pursues or perpetuates; and
(2) For injury suffered in any case where the owner of
a cave charges a fee to any person who enters or uses the cave for educational,
native Hawaiian cultural, or scientific purposes, except that in the case of
land leased to the State or a political subdivision thereof, any consideration
received by the owner for such lease shall not be deemed a charge within the
meaning of this section.
§ -10 Confidentiality. (a) Where the department
determines in consultation with the owner that dissemination of knowledge of
cave location or resources could be detrimental to their protection, then the
government information on the cave location and sensitive resources shall be
kept confidential.
(b) Notwithstanding subsection (a), where an owner
still believes that dissemination of knowledge or cave location or resources
could be detrimental to their protection, then the department shall keep all
government information on the cave location and sensitive cave resources
confidential.
§ -11 General administrative penalties. (a) Except as
otherwise provided by law, the board or its authorized representative by proper
delegation, with respect to a violation of this chapter or any rule adopted or
permit issued in accordance with this chapter, may:
(1) Set, pursuant to subsection (b), charge, and
collect administrative fines or bring legal action to recover administrative
fees and costs, as documented by receipts or affidavit, including attorneys'
fees and costs; or
(2) Bring legal action to recover administrative
fines, fees, and costs, including attorneys' fees and costs, payment for damages,
or for the cost to correct damages, resulting from violation of this chapter or
any rule adopted or permit issued in accordance with this chapter.
(b) Administrative fines shall be as follows:
(1) For a first violation, a fine of not more than
$10,000 for each separate offense;
(2) For a second violation within five years of a
previous violation, a fine of not more than $15,000; and
(3) For a third or subsequent violation within five
years of the last violation, a fine of not more than $30,000.
§ -12 Criminal penalties. (a) In addition to any other
penalties, any person who intentionally, knowingly, or recklessly violates this
chapter, any rule adopted pursuant to this chapter, or the terms and conditions
of any permit issued in accordance with this chapter shall be guilty of a petty
misdemeanor and shall be fined not less than:
(1) $1,000 for a first offense; and
(2) $1,500 for any subsequent
offense.
(b) Intentional, knowing, or reckless damage,
destruction, removal, taking, sale, or illegal possession of each specimen of
cave resource shall be subject to a fine of not less than:
(1) $1,000 for a first offense; and
(2) $1,500 for any subsequent
offense.
Each day of continued violation under this chapter
shall constitute a distinct and separate offense for which the violator may be
punished. Equipment used by the violator in the course or furtherance of the
violation shall be subject to seizure and disposition by the State without
compensation to its owner or owners. Penalties under this section shall not
limit the imposition of penalties pursuant to chapter 6E.
(c) The fines specified in this section shall not be
suspended or waived.
§ -13 Penalties cumulative. (a) Any criminal action
against a person for any violation of this chapter or any rule adopted pursuant
to this chapter shall not be deemed to preclude the State from pursuing civil
legal action to recover administrative fines and costs against that person. Any
civil legal action against a person to recover administrative fines and costs
for any violation of this chapter or any rule adopted pursuant to this chapter
shall not be deemed to preclude the State from pursuing any criminal action
against the person.
(b) Penalties under this section shall not limit the
imposition of penalties pursuant to chapter 6E."
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. Statutory material to be repealed is bracketed and
stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.