Bill Text: HI SB3090 | 2018 | Regular Session | Amended

Hawaii Senate Bill 3090 (Prior Session Legislation)

Bill Title: Relating To Government.

Spectrum: Partisan Bill (Democrat 17-0)

Status: (Engrossed - Dead) 2018-03-08 - Referred to FIN, referral sheet 35 [SB3090 Detail]

Download: Hawaii-2018-SB3090-Amended.html

THE SENATE	S.B. NO.	3090
TWENTY-NINTH LEGISLATURE, 2018		S.D. 2
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO GOVERNMENT.

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

PART I

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

MAUNA KEA MANAGEMENT AUTHORITY

§ -1 Findings and purpose. The legislature finds that Mauna Kea is of profound cultural and genealogical importance to Native Hawaiians. Mauna Kea is also valued as an exceptional site for astronomical advancements. The summit region of Mauna Kea is a spiritual site that is home to cultural landscapes, fragile alpine habitats, and historical and archaeological treasures, as well as endemic species found nowhere else on the planet. Mauna Kea's exceptional atmospheric conditions make it the world's premier site for astronomical observations. In addition, the legislature recognizes the critical need to manage these sensitive cultural and natural resources in a way that supports both the continuance of traditional and customary practices and science and technology.

The legislature further finds that the protection and preservation of Mauna Kea through proper management and stewardship is of statewide concern. Since 1998, four audits by the state auditor have been critical of the management, stewardship, and protection of Mauna Kea. Although significant changes have occurred on Mauna Kea since the 1998 audit, negative experiences over the past fifty years have eroded public confidence and demonstrated the critical need for fresh leadership centered on a new organizational structure, management system, and procedures.

Accordingly, the legislature finds that there is a clear need for one entity to serve as a single focal point of management, responsibility, communication, and enforcement regarding Mauna Kea. This new entity will increase the accountability of all tenants on Mauna Kea and will ensure that each tenant is aware of its obligations and responsibilities. This entity will also provide the necessary stewardship for the sustainable use of Mauna Kea and the proper generation of revenue from that use. This entity will be headquartered on the island of Hawaii and will be recognized by the general public and the State as the single point of contact for Mauna Kea's summit region and midlevel facilities. The legislature intends that this new entity will be led by a board whose members have no inherent conflicts of interest regarding Mauna Kea, and who will provide the requisite level of independence, objectivity, competence, relevant expertise, commitment, and willingness to be engaged in order for the new entity to achieve its goals. Revenues generated by the authority will primarily be used for the management and proper stewardship of the approximately eleven thousand four hundred acres of lands on Mauna Kea under the authority's jurisdiction. The legislature further intends for the new entity to supersede all existing entities that are responsible for the management and stewardship of Mauna Kea.

The purpose of this Act is to establish a Mauna Kea management authority.

§ -2 Definitions. As used in this chapter, unless the context otherwise requires:

"Authority" means the Mauna Kea management authority.

"Chairperson" means the chairperson of the Mauna Kea management authority.

"Holder of record having a security interest" means a person who is the owner or possessor of a security interest in Mauna Kea lands.

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

"Land license" means a privilege granted to enter land for a certain special purpose such as the removal of timber, soil, sand, gravel, stone, hapuu, and plants, but not including water rights, ground or surface, nor removal of minerals.

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

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

"Mauna Kea lands" means all lands held in trust or otherwise controlled by the Mauna Kea management authority.

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

"Vice chairperson" means the vice chairperson of the Mauna Kea management authority.

§ -3 Mauna Kea management authority; established. (a) There is established the Mauna Kea management 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 attached to the department of accounting and general services for administrative purposes.

(b) The authority shall consist of seven voting members who shall be subject to section 26-34. The members shall include:

(1) An expert in astronomy who is not currently employed at an astronomy facility or the University of Hawaii's institute for astronomy;

(2) A land management expert;

(3) Two business experts with expertise in real estate, property appraisal, accounting, finance, economics, or innovation;

(4) An environmental expert with expertise in environmental sciences of relevance to the natural resources and ecological attributes of Mauna Kea, as evidenced by a college or post-graduate degree in biology, ecology, or other relevant field, or work history that demonstrates an appropriate level of knowledge of Mauna Kea's natural resources and ecological attributes;

(5) A practitioner or lineal descendant of practitioners of Native Hawaiian traditional and customary practices associated with Mauna Kea who shall be appointed from a list of nominees submitted to the governor by the office of Hawaiian affairs; and

(6) An individual with demonstrated expertise in Native Hawaiian traditional and customary practices or Hawaiian history, as evidenced by:

(A) A college or post-graduate degree in a relevant field, such as Hawaiian studies, native Hawaiian law, native Hawaiian traditional and customary practices, or related subject area;

(B) Work history that demonstrates an appropriate level of knowledge in native Hawaiian traditional and customary practices or native Hawaiian history; or

(C) Substantial experience as a practitioner of native Hawaiian traditions and customs who shall be appointed from a list of nominees submitted to the governor by the office of Hawaiian affairs;

provided that four 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.

(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 members of the authority appointed under subsection (b) shall be compensated commensurately with trustees of the office of Hawaiian affairs pursuant to section 10-9; provided that salary and all expenses under this subsection shall be paid exclusively from the Mauna Kea management revolving fund under section -35.

(f) The authority's day-to-day operations shall be led by the chairperson. The authority's organizational structure shall include but not be limited to six divisions as follows:

(1) Enforcement, which shall be led by a chief enforcement officer and include communication center operators, rangers and other law enforcement officers pursuant to section -40, and other staff. This division shall be responsible for the health, safety, and welfare of visitors to Mauna Kea, including responding to emergencies of a medical or law enforcement nature, and for the protection of natural resources, on Mauna Kea lands;

(2) Culture and the environment, which shall be led by a chief culture and environment officer and be responsible for the protection, preservation, and appreciation of cultural and natural resources within the authority's managed areas. This division shall work with lineal descendants, community members, environmentalists, and individuals traditionally associated with cultural resources on Mauna Kea through appropriate programs of research, planning, and stewardship. This division shall also work with the state historic preservation division and the Hawaii island burial council, as necessary;

(3) Revenue management, which shall be led by a chief financial officer and be responsible for the fiscal management of all financial resources associated with the Mauna Kea summit, observatories, Hale Pohaku, visitor center, and all commercial activities, including budget and accounting functions. A certified public accountant shall be a member of the division staff;

(4) Operations, which shall be led by a chief operations officer and be responsible for planning and organizing operations to achieve maximum efficiency and for the daily management and oversight of Mauna Kea's facilities, parks, trails, and natural and cultural resources. This division shall also manage the entry and access center, cultural and visitor center, all infrastructure within the authority's jurisdiction, the Mauna Kea access road, and all water, wastewater, and power functions associated with summit and Hale Pohaku operations;

(5) Legal, which shall be led by a chief legal officer and general counsel and shall be responsible for overseeing all applications of all laws, court decisions, and rules pertaining to the authority, and shall include attorneys who shall be responsible for the management of contracts, subleases, memoranda of understanding, and memoranda of agreement entered into by the authority; and

(6) Community relations, which shall be led by a chief community relations officer and be responsible for strengthening community engagement and education through grants, scholarships, and community benefits programs. Community relations staff shall work in coordination with community and business groups, the department of education, and the University of Hawaii to prepare local residents for careers in the science, technology, engineering, and mathematics fields. This division shall also coordinate interactive educational opportunities for Mauna Kea visitors and develop a summit access program and a peace park concept at Hale Pohaku.

§ -4 Powers and responsibilities; generally. (a) The authority shall hold title to the lands situated on Mauna Kea as identified in section -2 and shall establish access, stewardship, and management policies for Mauna Kea 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 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) Prepare or cause to be prepared a current and comprehensive management plan for all aspects of public and private access and use of Mauna Kea lands, which shall include benchmarks;

(8) 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;

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

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

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

(12) Prevent trespassing and other illegal activities on Mauna Kea lands;

(13) Cause all persons trespassing on or unlawfully occupying Mauna Kea lands, and their effects, and all unauthorized animals to be removed therefrom and to impound the animals according to law;

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

(15) Enforce contracts respecting sales, leases, licenses, permits, or other disposition of Mauna Kea lands;

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

(17) 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;

(18) Enforce laws and rules within all Mauna Kea lands, pursuant to sections -3(f)(1), -39, and -40;

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

(20) Review, revise, and update as necessary all management plans for Mauna Kea, including but not limited to the 2000 Mauna Kea science reserve master plan, the 2009 Mauna Kea comprehensive management plan, the cultural resources management plan, the natural resources management plan, the public access plan, and the decommissioning plan; and

(21) Establish advisory committees to advise the authority on culture, science, environment, education, astronomy, and business.

(b) Notwithstanding any other law to the contrary:

(1) The authority may grant easement, by direct negotiation or otherwise, for particular purposes in perpetuity on terms as may be set by the board, subject to reverter to the authority upon termination or abandonment of the specific purpose for which it was granted; provided the sale price of the easement shall be determined pursuant to section -8; and

(2) No person who has had a previous lease, license, permit, or easement covering Mauna Kea lands canceled, during the five years preceding the date of disposition, for failure to satisfy the terms and conditions thereof shall be eligible to lease Mauna Kea lands or to be granted a license, permit, or easement covering Mauna Kea lands.

(d) The authority shall be prohibited from selling any Mauna Kea lands.

§ -5 Auction. Except as otherwise specifically provided, all disposition of lands by the authority shall be made at public auction after public notice as provided in section -7. All applicable auctions shall be held at the door of the office of the land agent or at a place that is convenient in the district in which the land is located, and shall be conducted by the land agent or by any authorized employee of the authority under the direction of the authority, all of whom shall perform this service without extra compensation.

§ -6 Drawing. Whenever Mauna Kea lands are to be leased by drawing, the authority shall notify by publication of applications for the drawing as provided in section -7 with all details concerning the drawing as it shall deem necessary and desirable. Applications to participate in the drawing shall be filed with the authority within two weeks after the last publication date. Within forty-five days after the closing date for applications, the authority shall screen the qualifications of the applicants, select those qualified to participate, notify all applicants of the selection, and conduct a drawing. The date of the drawing shall be published as set forth in section -7. The award shall be made within one week and all applicants shall be notified of the result of the drawing. The lease shall be issued within ninety days after the drawing or when conditions of sale are fulfilled.

§ -7 Notices. (a) Public notice of any proposed disposition by auction shall be given at least once statewide and once in the county where the land being disposed of is located. Notice of the auction shall contain the following:

(1) Time and place of the auction;

(2) General description of the land, including the address and tax map key;

(3) Specific use for which the disposition is intended; and

(4) Rental price to be charged.

The maps showing the metes and bounds description and the classification of the land shall be kept in the office of the authority and of its land agent in the county in which the land is situated, and shall be open for inspection at all reasonable hours.

(b) Whenever a disposition by drawing by lots is proposed, public notice inviting applications to participate in the drawing shall be given once statewide and once in the county where the land being disposed of is located. The notice shall contain:

(1) The qualifications required of applicants;

(2) A general description of the land, including the address and tax map key;

(3) The specific use for which the disposition is intended; and

(4) The date by which all applications must be filed, which shall be not less than fourteen days after the last notice.

Within forty-five days after the closing date for applications, the authority shall select those qualified to participate in the drawing, notify all applicants as to whether or not they qualified, and conduct the drawing.

The notice of selection of applicants qualified to participate in the drawing, together with the notice of drawing, shall be mailed to each applicant, whether or not the applicant, in fact, qualified. The notice of the drawing shall state the time and place of the drawing. Upon completion of the drawing, the award shall be announced within one week, and the lease issued within ninety days after the drawing or when the conditions of the sale are fulfilled.

(c) Public notice of a proposed disposition by negotiation shall be given at least once statewide and once in the county where the land being disposed of is located; provided that the notices are not required for permits. The notice shall invite proposals and state in general terms the size, location, and prices or rental of lots to be leased, the terms of lease, and the last date upon which application will be received by the authority, which shall not be less than thirty days after the last date of the notice. The notice shall also state the times and places at which more detailed information with respect to the lease may be secured by interested persons.

(d) In addition to giving public notice, any public notice required under this section shall also be posted on the Internet in an easily-located manner.

§ -8 Appraisals. (a) The appraisal of Mauna Kea lands 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 at least one but not more than three disinterested appraisers whose services shall be contracted by the authority; provided that the upset rental shall be determined by disinterested appraisal whenever prudent management so dictates. No lands shall be leased for a sum less than the value fixed by appraisal; provided that for any lease at public auction, the authority board may establish the rental price at less than the appraisal value set by an employee of the authority and the lands 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 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 by the authority; provided that 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, 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, 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 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 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 review 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.

§ -9 Notice of breach or default. Except as otherwise specifically provided in this chapter, if a breach or default of any term, covenant, restriction, or condition of any lease heretofore or hereafter issued under this chapter occurs, the authority shall deliver a written notice of the breach or default by personal service or by registered or certified mail to the party in default and to each holder of record having any security interest in the land covered by or subject to the lease making demand upon the party to cure or remedy the breach or default within sixty days from the date of receipt of the notice; provided that if the breach involves a failure to make timely rental payments pursuant to the lease heretofore or hereafter issued under this chapter, the written notice shall include a demand upon the party to cure the breach within less than sixty days, but not less than five business days, after receipt of the notice. Upon failure of the party to cure or remedy the breach or default within the time period provided herein or within an additional period as the authority may allow for good cause, the authority may exercise rights that it may have at law or as set forth in the lease, subject to

section -10.

§ -10 Rights of holder of security interest. Whenever any notice of breach or default is given to any party under section -9, or under the terms of any lease, license, agreement, or other instrument issued or to be issued under this chapter, a copy of the notice shall be delivered by the authority to all holders of record of any security interest in the land or interest covered by the lease, license, agreement, or other instrument whose security interest has been recorded with the authority. If the authority seeks to forfeit the privilege, interest, or estate created by the lease, license, agreement, or other instrument, each holder, at the holder's option, may cure or remedy the breach or default, if it can be cured or remedied, by the payment of money or by performing or undertake in writing to perform all the terms, covenants, restrictions, or conditions of any lease, patent, license, agreement, or other instrument capable of performance by the holder, as determined by the board, within the time period provided in section -9 or within an additional period as the authority may allow for good cause and add the cost thereof to the mortgage debt and the lien of the mortgage. Any lease, license, agreement, or other instrument transferred pursuant to this section shall not be subject to the requirements in section -5. Upon failure of the holder to exercise the holder's option, the authority may:

(1) Pay to the holder from any moneys at its disposal, including the Mauna Kea management revolving fund, which is made available for that purpose, the amount of the mortgage debt, together with interest and penalties, and secure an assignment of the debt and mortgage from the holder, or if ownership of the interest or estate has vested in the holder by way of foreclosure or action in lieu thereof, the authority shall be entitled to a conveyance of the interest or estate upon payment to the holder of the amount of the mortgage debt, including interest and penalties, and all reasonable expenses incurred by the holder in connection with the foreclosure and preservation of its security interest, less appropriate credits, including income received from the privilege, interest, or estate subsequent to the foreclosure; or

(2) If the property cannot be reasonably reassigned without loss to the State, then terminate the outstanding privilege, interest, or estate without prejudice to any other right or remedy for arrears of rent or for any preceding or other breach or default, and use its best efforts to redispose of the affected land to a qualified and responsible person free and clear of the mortgage and the debt thereby secured; provided that a reasonable delay by the authority in instituting or prosecuting any right or remedy it may have under this section shall not operate as a waiver of the right or deprive it of the remedy when it may still attempt otherwise to resolve the problems created by the breach or default involved.

The proceeds of any redisposition under paragraph (2) shall be applied: first, to reimburse the authority for costs and expenses in connection with the redisposition; second, to discharge in full any unpaid purchase price or other indebtedness owing the State in connection with the privilege, interest, or estate terminated; third, to the mortgagee to the extent of the value received by the State upon redisposition that exceeds the fair market lease value of the land as previously determined by the State's appraiser; and fourth, to the owner of the privilege, interest, or estate. Nothing contained in this section shall be construed in a manner as to infringe upon or prejudice in any way the rights of a holder of record having a security interest that has vested prior to the effective date of this chapter.

§ -11 Report to legislature. (a) The authority shall submit a written report annually to the legislature, no later than ten days prior to the convening of each regular session. The report shall include an update on the status of all administrative rules, including rules on the management, stewardship, and protection of Mauna Kea lands and cultural resources; an update on the preparation, update, amendment, and implementation of a comprehensive management plan; and a description of all land dispositions made in the preceding year, including leases, licenses, concessions, and permits, the persons to whom made, the size of each disposition, the purpose for which made, the land classification of each, the tax map key number, the per unit price paid or set, and whether the disposition was by auction, drawing, or negotiation. When land originally leased by the authority is, in turn, subleased by the authority's lessee or sublessee, the report shall include, in addition to the foregoing information, the reason for the approval of the sublease by the authority and the estimated net economic result accruing to the State, lessee, and sublessee.

(b) Whenever in this chapter any lease, easement, license, executive order, quitclaim, or other disposition is made subject to disapproval of the legislature, a written report thereof containing the information required in subsection (a) shall be submitted to the legislature in the session next following the date of the disposition, provided the report shall be submitted no later than ten days prior to the convening of the session.

§ -12 Policy. Unless otherwise specifically authorized in this chapter or by subsequent legislative acts, all dispositions shall be by lease only, disposed of by public auction in accordance with the procedure set forth in sections -5 and -7.

§ -13 Planning; generally. Prior to any notice of intended disposition, the authority shall:

(1) Classify the land according to its use or uses as provided in this chapter;

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

(3) 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";

(4) Determine the requirements for the construction of any building or other improvements, which are necessary or desirable to encourage the highest use of the land;

(5) Determine the 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;

(6) Determine the necessary conditions of disposition that will discourage speculation;

(7) 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;

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

(9) 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.

§ -14 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 -15;

(4) The rent, as established by the authority or at public auction, which shall be payable not 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 Mauna Kea lands, public hunting areas, game management areas, or public beaches, and prevention of nuisance and waste; and

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

§ -15 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 owing 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 or sale, 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, 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, the extension being 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) If a reopening occurs, 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, otherwise 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.

(c) The authority, from time to time, during the term of any 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; and provided further that the authority determines that the lessee will not be adequately compensated pursuant to the lease provisions.

(d) The approval of any extension granted pursuant to subsection (c) 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 that 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.

§ -16 Reservation of rights to prehistoric and historic remains on leased lands. The authority, in leases of lands, shall retain the rights to all prehistoric and historic remains found on those lands.

§ -17 Lands for historic preservation and restoration. (a) Any law to the contrary notwithstanding, the authority may lease lands for use in historic preservation and restoration projects:

(1) Through negotiations; and

(2) For a price that shall be determined by the authority.

(b) The authority shall adopt rules pursuant to chapter 91 to determine what constitutes historic preservation and restoration projects for the purposes of this section; provided that no definition or criteria established shall conflict with any federal, state, or county law.

§ -18 Condemnation of leases. Every lease issued by the authority shall provide that whenever a portion of the public land under lease is condemned for public purposes by the State, any county or city and county, or any other governmental agency or subdivision, the rental shall be reduced in proportion to the value of the portion of the premises condemned and the lessee shall be entitled to receive from the condemning authority the proportionate value of the lessee's permanent improvements taken in the proportion that it bears to the unexpired term of the lease. The lessee, in the alternative, may remove and relocate the lessee's improvements to the remainder of the lands occupied by the lessee. The foregoing rights of the lessee shall not be exclusive of any other to which the lessee may be entitled by law. Where the portion taken renders the remainder unsuitable for the uses for which the land was leased, the lessee shall have the option to surrender the lessee's lease and be discharged for any further liability therefor; provided that the lessee may remove the lessee's permanent improvements within a reasonable period allowed by the authority.

§ -19 Leases; forfeiture. Upon the violation of any condition or term of any lease to be observed or performed by the lessee or tenant, the authority, after the notice of default as provided in section -9, and subject to the rights of each holder of record having a security interest as provided in section -10, shall terminate the lease or tenancy and take possession of the leased land, without demand or previous entry and without legal process, together with all improvements placed thereon and shall retain all rent paid in advance as damages for the violations.

§ -20 Expired leases; holdover. Upon expiration of the lease term, if the leased land is not otherwise disposed of, the authority may allow the lessee to continue to hold the land for a period not exceeding one year upon the rent, terms, and conditions as the authority may prescribe.

Upon expiration of the one-year extension, if the authority has not yet decided upon the re-lease of the land or reservation for other purposes, the authority may issue a temporary permit to the lessee, subject to the rent and other terms and conditions as the authority may prescribe.

§ -21 Lessees within the last ten years of their lease terms; requests for interest. (a) Notwithstanding any other law to the contrary, and except as otherwise provided in section -15(b) and (c), a lessee of public land that is classified as conservation lands pursuant to section 205-2, and that is subject to the management, administration, or control of the authority, during the last ten years of the term of the original lease, may submit a written request to the authority to initiate a request for interest process as provided in this section.

(b) Within one hundred eighty days of a lessee's written request to initiate a request for interest, the authority shall:

(1) Appraise the value of the land and any improvements to the land that existed as of the date of the written request pursuant to section -8(a) and require the awardee of a new lease executed pursuant to this section to reimburse the authority for the appraisal; and

(2) Publish a request for interest and request for qualifications notice inviting persons to express their interest in leasing the land and their qualifications as potential lessees and describing any improvements to the land that exist as of the date of the written request. The notice shall be given at least once statewide and at least once in the county where the land is located and shall contain:

(A) The qualifications required of eligible lessees;

(B) A general description of the land, including the address and tax map key, and of any improvements to the land that existed as of the date of the written request;

(D) The appraised value of the land and of any improvements to the land that existed as of the date of the written request;

(E) The closing date and manner by which a person shall indicate interest and submit a statement of qualifications; and

(F) Notice that a business plan is a prerequisite to participate at time of auction or direct negotiation, if applicable, and shall be made a term of the lease.

(c) Within ninety days after the closing date specified in the notice, the authority shall determine if any persons have qualified under the terms of the request for qualifications and shall notify all persons who expressed interest as to whether they qualified. The authority shall also notify the current lessee as to whether any other persons qualified.

(d) The authority shall enter into direct negotiation with the current lessee immediately upon notification if no other qualified persons have expressed interest in the property.

(e) If the land is not leased pursuant to subsection (d) within three years before the termination date of the lease, the authority shall dispose of the land by public auction as provided in this chapter; provided that the authority has determined that at least one person, who:

(1) Is not the current lessee;

(2) Has been determined by the authority to be qualified; and

(3) Has submitted a business plan prior to the date of the auction,

has expressed interest in leasing the land and any improvements to the land that existed as of the date of the written request in subsection (a). The auction upset price shall be the greater of the current rent or the fair market rent pursuant to

section -8(d) based upon the appraised value of the land and any improvements to the land that existed as of the date of the written request.

The current lessee may bid on a new lease at the public auction. The current lessee's business plan shall be deemed acceptable to the authority and the current lessee shall not be required to submit a new business plan; provided that the current lessee is in compliance with the terms of the existing lease and has submitted a business plan prior to the date of the auction.

(f) Lease terms for any new lease executed pursuant to this section shall be determined by the authority and shall:

(1) Not commence prior to the termination of the current lease;

(2) Establish the rent at no less than the greater of the current rent or the fair market rent pursuant to section -8(d) based upon the appraised value of the land and any improvements to the land that existed as of the date of the written request;

(3) If the lease is awarded after public auction to any person other than the current lessee, include a premium equal to the value of any improvements to the land made after the date of the written request in subsection (a), which shall be paid to the current lessee prior to transfer of the land and improvements to the new lessee; and

(4) Include the previously submitted business plan.

(g) Unless specifically required to do so by the authority, the current lessee shall not be required to remove improvements or restore the land to a vacant condition at the expiration of the lease; provided that, without prejudice to any other rights or remedies that the current lessee or State may have, this subsection shall not alter any obligation of a current lessee to indemnify, defend, and hold the State harmless from any claims regarding pollution or contamination of the land with potentially hazardous substances.

(h) This section shall not apply to:

(1) Any lessee who is in arrears in the payment of taxes, rents, or other obligations owing to the State or any county or who has had, during the five years preceding the anticipated disposition of the applicable land at a public auction or direct negotiation, a sale, lease, license, permit, or easement covering other Mauna Kea lands canceled for failure to satisfy the terms and conditions thereof; or

(2) Any lease that is subject to cancellation for failure to satisfy the terms or conditions of a lease, license, permit, or easement covering Mauna Kea lands.

(i) As used in this section, "improvements" means all physical improvements constructed, owned, or constructed and owned by the lessee during the lease term and shall exclude all infrastructure constructed, owned, or constructed and owned by third parties, such as water and sewer pipes, electricity and telephone lines and cables, or other infrastructure.

§ -22 Lease to eleemosynary organizations. The authority may lease, at a nominal consideration, by direct negotiation and without recourse to public auction, public lands 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 the eleemosynary organizations for the purposes for which their charter was issued and for which they were certified by the Internal Revenue Service as tax exempt.

§ -23 Land license. The authority may issue land licenses affecting Mauna Kea lands for a period not exceeding twenty years. No land license shall be disposed of except at public auction as provided in this chapter; provided that the authority, after publication of notice in accordance with section -7, may dispose of a land license by negotiation, without recourse to public auction, if it determines that the public interest will best be served thereby. The disposition of a land license by negotiation shall be upon terms and conditions that the authority determines shall best serve the public interest.

§ -24 Permits. Notwithstanding any other law to the contrary, the authority may issue permits for the temporary occupancy of state lands or an interest therein on a month-to-month basis by direct negotiation without public auction, under conditions and rent that serve the best interests of the State, subject to restrictions expressly imposed by the authority. A permit on a month-to-month basis may continue for a period not to exceed one year from the date of its issuance; provided that the authority may allow the permit to continue on a month-to-month basis for additional one-year periods.

§ -25 Contract or license for concessions or concession space. The authority, subject to chapter 102, may dispose of concessions, as defined in chapter 102, and shall enter into contracts or issue licenses for those concessions; provided that the duration of the contract or license shall be related to the investment required, but in no event to exceed fifteen years.

§ -26 Minerals and water rights. Except as provided in this section, the right to any mineral or surface or ground water shall not be included in any lease, agreement, or sale, this right being reserved to the State; provided that the authority may make provisions in the lease, agreement, or sale, for the payment of just compensation to the surface owner for improvements taken as a condition precedent to the exercise by the State of any reserved rights to enter, sever, and remove minerals or to capture, divert, or impound water.

§ -27 Disposition by negotiation. A lease of Mauna Kea lands may be disposed of through negotiation upon a finding by the authority that the public interest demands it.

After a determination is made to negotiate the disposition of a lease, the authority shall:

(1) Give public notice as in public auction, in accordance with the procedure set forth in section -7(a), of its intention to lease Mauna Kea lands through negotiation setting forth the minimum conditions thereunder, the use for which the land will be leased. Any person interested in securing the lease shall file an application with the authority not later than forty-five days after the first publication of the notice;

(2) Establish reasonable criteria for the selection of the lessee; provided that where the intended use of the land is agriculture, the department of agriculture shall establish the criteria; and

(3) Determine the applicants who meet the criteria for selection set by the authority or the department of agriculture, as the case may be, and notify all applicants of its determination. Any applicant may examine the basis of the determination, which shall be in writing, to ascertain whether or not the conditions and criteria established by the authority or the department of agriculture were followed; provided that if any applicant does not notify the authority of the applicant's objections, and the grounds therefor, in writing, within twenty days of the receipt of the notice, the applicant shall be barred from proceeding to seek legal remedy for any alleged failure of the authority to follow the conditions and criteria.

If only one applicant meets the criteria for selection of the lessee, the authority, after notice as provided in paragraph (3) may dispose of the lease by negotiation.

If two or more applicants meet the criteria for the selection of the lessee, the authority shall select the lessee who submits the highest offer contained in a sealed bid deposited with the authority.

§ -28 Covenants against discrimination. The authority shall provide in every deed, lease, agreement, license, or permit that the use and enjoyment of the premises being granted shall not be in support of any policy that discriminates against anyone based upon race, creed, color, national origin, sex, or a physical disability. The authority shall not dispose of any Mauna Kea lands to any person who practices discrimination based upon race, creed, color, national origin, sex, or a physical disability. As used in this section, "physical disability" means a physical impairment that substantially limits one or more of a person's major life activities.

§ -29 Disposition to governments, governmental agencies, and public utilities. (a) Notwithstanding any limitations to the contrary, the authority, without public auction, may:

(1) Lease Mauna Kea lands to governments, agencies, and public utilities for terms up to, but not in excess of, sixty-five years at rental and other terms and conditions as the authority may determine;

(2) Grant licenses and easements to governments, agencies, and public utilities on terms and conditions as the authority may determine for road, pipeline, utility, communication cable, and other rights-of-way;

(3) Execute quitclaim deeds to governments and agencies, with or without consideration, releasing any claim to the property involved made upon disputed legal or equitable grounds, whenever the authority in its discretion deems it beneficial to the State; and

(4) Waive or modify building and other requirements and conditions contained in deeds, sales agreements, or leases held by governments and agencies whenever the waiver or modification is beneficial to the State.

(b) In any disposition to public utilities under this section:

(1) The lease rental shall be no less than the value determined in accordance with section ‑8(b); provided that the lease rental may be on a nominal basis if the authority finds that an easement is required in connection with a government project;

(2) Disposition shall not be made to any public utility if the utility has suitable lands of its own; and

(3) The disposition to public utilities shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both, in any regular or special session next following the date of the disposition.

§ -30 Telescopes; leases; impacts. In addition to any other requirements under this chapter and other applicable law, and notwithstanding the eleemosynary, governmental, or public utility natures of any lessee, the authority shall take into account, in issuing any lease pertaining to telescopes on Mauna Kea lands, the value of land use, telescope viewing time, and impacts to natural and cultural resources and traditional and customary cultural practices, including the costs of preventing and remediating any anticipated and potential unanticipated impacts to land, natural and cultural resources, and cultural sites that may result both directly and indirectly from those land uses as a result of telescope-related activities.

§ -31 Telescopes; limitations. No more than thirteen telescopes shall be present on Mauna Kea lands at any time; provided that no more than nine telescopes shall be present on Mauna Kea lands by January 1, 2028.

§ -32 Footprint; limitations. At no time after December 31, 2031, shall the total combined footprint of all improvements, including buildings, roads, telescopes, decommissioned telescope structures, and all infrastructure, on Mauna Kea lands exceed the total developed footprint of improvements, including buildings, roads, telescopes, and all infrastructure present on Mauna Kea as of December 31, 2031.

§ -33 Rules; management, stewardship, and protection of cultural resources. The authority shall expedite the establishment of rules pursuant to chapter 91 on the management, stewardship, and protection of lands and cultural resources, and any fees and fee waivers under its jurisdiction; provided that the authority shall consult with the office of Hawaiian affairs to ensure that any proposed rules shall not affect any right, customarily and traditionally exercised for subsistence, cultural, and religious purposes, by descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. Rules adopted under this section shall follow existing law, rules, ordinances, and regulations as closely as is consistent with standards to meet minimum requirements of good design, health, safety, and coordinated development; provided that the rules, at a minimum, shall require that:

(1) A nominal fee shall be charged for all passenger and commercial vehicles traveling to the Hale Pohaku Visitor Center; and

(2) No privately owned vehicles shall travel to the Mauna Kea summit unless they are:

(A) Four-wheel-drive vehicles; and

(B) Used to provide access for customarily and traditionally exercised practices protected under article XII, section 7, of the Hawaii State Constitution or as otherwise provided by permit or rule;

provided that no fee shall be charged for a private vehicle to travel to the Mauna Kea summit for purposes of providing access for customarily and traditionally exercised practices protected under article XII, section 7, of the Hawaii State Constitution.

On the effective date of the initial rules adopted pursuant to this section, all rules pertaining to Mauna Kea lands, established by the University of Hawaii, including but not limited to the office of Mauna Kea management, Mauna Kea management authority board, and Kahu Ku Mauna, shall be void. The authority shall coordinate and enter into memoranda of agreement as necessary with other government entities, including the office of Hawaiian affairs, department of Hawaiian home lands, department of land and natural resources, department of transportation, and county of Hawaii with regard to the use and maintenance of the portions of the Mauna Kea summit access road that traverse lands controlled by those entities.

§ -34 Project approval authorization. The authority is authorized to approve or disapprove all projects, including but not limited to design review, on all Mauna Kea lands; provided that all land use complies with relevant conservation district rules.

§ -35 Mauna Kea management revolving fund. There is established the Mauna Kea management revolving fund into which all receipts and revenues of the authority shall be deposited. Proceeds from the fund shall be used for administration, capital improvement projects, and other purposes pursuant to this chapter.

§ -36 Expenditures of revolving funds under the authority exempt from appropriation and allotment. Except as to administrative expenditures, and except as otherwise provided by law, expenditures from any revolving fund administered by the authority may be made by the authority, subject to appropriation or allotment of the legislature; provided that no expenditure shall be made from and no obligation shall be incurred against any revolving fund in excess of the amount standing to the credit of the fund or for any purpose for which the fund may not lawfully be expended. Nothing in sections 37-31 to 37-41 shall require the proceeds of any revolving fund administered by the authority to be reappropriated annually.

§ -37 Transfer and renegotiation of leases, subleases, easements, permits, and licenses. All leases, subleases, easements, permits, and licenses executed by the University of Hawaii or department of land and natural resources, and pertaining to Mauna Kea, shall be transferred to the authority and shall be subject to renegotiation upon mutual agreement of the parties. The authority shall renegotiate subleases pertaining to telescopes on Mauna Kea in accordance with

section -8 and take into account the value of land use and telescope viewing time. In addition, any future leases shall include, at a minimum, a stewardship component, community benefits package, and conversion of the applicable facility to a self-contained, zero-discharge waste system.

§ -38 Managed access. The authority shall develop a visitor center along the Mauna Kea summit access road that shall include, at a minimum, a kiosk entrance to manage access to Mauna Kea. All visitors who travel beyond the visitor center shall be required to register at the visitor center, pay applicable fees there, and receive orientation regarding safety, environmental protection, and cultural traditions and sensitivities. Except as provided under section -33 or this section, all visitors who travel to the summit shall be required to use a shuttle service established by the authority. The authority shall establish a policy that allows reasonable access without an entrance fee to visitors seeking to exercise Native Hawaiian traditional and customary practices protected under article XII, section 7, of the Hawaii State Constitution.

§ -39 Mauna Kea management authority; police powers. (a) The authority shall have police powers with respect to Mauna Kea lands and may appoint and commission enforcement officers, who shall be known as rangers. Persons appointed and commissioned under this section shall have and may exercise all of the powers and authority of a police officer, including the power of arrest, and may enforce all state laws and rules and county ordinances and rules within all Mauna Kea lands; provided that those powers shall remain in force and effect only while in actual performance of their duties, which shall include off-duty employment when that employment is for other state departments or agencies.

(b) An enforcement officer, upon arresting any person, may immediately take the person arrested to a police station, pursuant to an agreement between the authority and the applicable police department, or before a district judge, or take the name, address, and the number of the licenses or permits, if any, of the person, and note the violation of the law or rule by the person, and issue the person a summons or citation, printed in the form described in section -41, directing the person to appear and to answer to the charge against the person at a certain place and time within seven days after the arrest. Any person failing to obey a summons issued pursuant to this section shall be subject to section -42.

§ -40 Enforcement; rangers; powers; duties. (a) Pursuant to sections -3(f)(1) and -39, the authority shall establish a unit of rangers who shall enforce laws and rules within Mauna Kea lands.

(b) Rangers employed pursuant to this section shall be law enforcement officers who shall:

(1) Be responsible for the health, safety, and welfare of visitors to Mauna Kea, including responding to emergencies of a medical or law enforcement nature, enforcement of laws related to crimes against property rights under parts II and III of chapter 708, the protection of natural resources, and the enforcement of other laws and rules as necessary, on Mauna Kea lands;

(2) Investigate complaints, gather evidence, conduct investigations, and conduct field observations and inspections as required or assigned, on Mauna Kea lands;

(3) Cooperate with enforcement authorities of the State, counties, and the federal government in the development of programs and mutual aid agreements for the protection of Mauna Kea lands and the enforcement of applicable laws;

(4) Cooperate with established search and rescue agencies of the State, counties, and the federal government in developing plans and programs and mutual aid agreements for search and rescue activities within the State;

(5) Check and verify all leases, permits, and licenses issued by the authority;

(6) Enforce the laws relating to firearms, ammunition, and dangerous weapons contained in chapter 134, on Mauna Kea lands; and

(7) Carry out other duties and responsibilities as the authority shall direct.

(1) The department of land and natural resources to provide assistance from the division of conservation and resources enforcement with law enforcement, applicable training and certification of rangers; and

(2) The county of Hawaii police department to provide assistance with law enforcement and related matters such as access to holding cells and fingerprinting and other processing of persons detained by rangers;

provided that the memoranda may provide for reimbursement by the authority for applicable expenses.

(d) Rangers may also serve as interpretive officers who provide information to Mauna Kea visitors.

§ -41 Summons or citation. There shall be a form of summons or citation for use in citing violators for violations that do not mandate the physical arrest of the violators. The summons or citation shall be printed in a form commensurate with the form of other summons or citation used in modern methods of arrest and shall be so designed to include all necessary information to make it valid and legal within the laws and rules of the State. The form and content of the summons or citation shall be adopted or prescribed by the district courts.

In every case where a summons or citation is issued, the original of the same shall be given to the violator; provided that the district courts may prescribe the issuance to the violator of a carbon copy of the summons or citation and provide for the disposition of the original and any other copies. Every summons or citation shall be consecutively numbered and each carbon copy shall bear the number of its respective original.

§ -42 Failure to obey a summons. (a) Any person who fails to appear at the place and within the time specified in the summons or citation issued by the officers or their agents or subordinates, upon that person's arrest, shall be guilty of a petty misdemeanor and, upon conviction, shall be fined not more than $500 or be imprisoned not more than thirty days, or both.

(b) If any person fails to comply with a summons or citation issued, or if any person fails or refuses to deposit bail as required and within the time permitted, the officers shall cause a complaint to be entered against the person and secure the issuance of a warrant for the person's arrest.

(c) When a complaint of the violation is made to any prosecuting officer, the officer who issued the summons or citation shall subscribe to it under oath administered by another official or officials of the authority whose names have been submitted to the prosecuting officer and who have been designated by the executive director of the authority to administer the same.

§ -43 Search and seizure; forfeiture of property. (a) Any law enforcement officer or agent of the authority upon whom the authority has conferred powers of law enforcement officers, shall have the authority to conduct searches on probable cause as provided by law and to seize any equipment, article, instrument, aircraft, vehicle, vessel, business records, or natural resource used or taken in violation of the laws of the State, or any rules adopted thereunder. For purposes of this section, "natural resource" includes any archaeological artifacts, minerals, any aquatic life or wildlife or parts thereof, including their eggs, and any land plants or parts thereof, including seeds.

(b) Any equipment, article, instrument, aircraft, vehicle, vessel, business records, or natural resource seized is subject to forfeiture pursuant to chapter 712A. Unless otherwise directed by the environmental court pursuant to chapter 712A, any item, other than a natural resource, seized shall be ordered forfeited to the State for disposition as determined by the authority, or may be destroyed, or may be kept and retained and utilized by the authority or any other state agency. If not needed or required by the authority or other state agency, the forfeited items shall be disposed of as provided by chapter 712A. Notwithstanding any other law to the contrary, any live natural resource seized may be immediately returned to its natural environment or suitable habitat or may be disposed of as determined by the authority; provided that if the natural resource disposed of was unlawfully seized, the authority shall be liable to the owner for the fair market value of the items disposed of.

(c) The authority shall compile a list of all equipment, articles, instruments, aircraft, vehicles, vessels, or any natural resource forfeited as provided in this section and shall publish the list in its annual report.

(d) Notwithstanding any other law to the contrary, the authority may sell or take actions to cause the sale of any perishable natural resource that is seized to prevent the waste of the natural resource and to ensure the economic value of the natural resource; provided that the authority may not sell or cause the sale of any threatened or endangered species or any other species whose sale is prohibited by law. The authority may require the person or persons who took the natural resources to sell the seized natural resources at fair market value. The authority may require any person purchasing any seized natural resource to deliver the proceeds of the sale to the authority or its authorized representative. Any person who refuses to sell the seized natural resources at fair market value or any person who fails to deliver the proceeds of the sale, as directed by the authority, shall be in violation of this subsection and punishable as provided by law. The authority shall deposit and keep the proceeds of the sale in an interest-bearing account until the suspected violation is settled between the person or persons who took the natural resource, consignee or consignees, if any, and the authority. Should a settlement not be reached, the authority shall submit the proceeds of the sale to the environmental court. The proceeds of the sale, after deducting any reasonable costs of the sale incurred by the authority, shall be subject to any administrative or judicial proceedings in the same manner as the seized natural resource would have been, including an action in rem for the forfeiture of the proceeds. Seizure and sale of a natural resource is without prejudice to any other remedy or sanction authorized by law.

§ -44 Fees and surcharges. (a) The authority shall establish an annual fee for each visitor to Mauna Kea; provided that the fee shall be waived for visitors who access Mauna Kea to exercise their customary and traditional practice rights under article XII, section 7, of the Hawaii State Constitution; provided further that the authority shall establish rules for fee waivers, pursuant to section -33.

(b) The authority shall establish an annual fee for commercial tour operators to access Mauna Kea, the total annual net revenues of which shall be calculated to approximately equal the authority's annual operations and maintenance costs.

(c) The authority may establish a commercial tour fee surcharge, the net revenues of which shall be used for cultural and educational programs related to activities on Mauna Kea.

(d) The University of Hawaii shall not be exempt from any fee that is associated with access to Mauna Kea and established pursuant to this chapter.

(e) For the purposes of this section, "net revenues" means the revenues realized by the authority after the amount collected and owed to the office of Hawaiian affairs pursuant to section -45 has been deducted.

§ -45 Revenue to be shared with the office of Hawaiian affairs. The authority and the University of Hawaii shall transfer to the office of Hawaiian affairs twenty per cent of all receipts collected by the authority or university as a result of lease rent, fees, penalties, commercial activities, technology transfers, monetization of intellectual properties or discoveries, and other revenue sources, pertaining to the use of Mauna Kea lands; provided that any funds transferred to the office of Hawaiian affairs pursuant to this section shall be deemed income and proceeds from the use of public land trust lands by the authority and university to be expended by the office of Hawaiian affairs under section 10‑3.

§ -46 Exemption from taxation. The authority shall not be required to pay assessments levied by any county, nor shall the authority be required to pay state taxes of any kind.

§ -47 Assistance by state and county agencies. Any state or county agency may render services upon request of the authority.

§ -48 Annual report. No later than twenty days prior to the convening of each regular session, the authority shall submit to the governor and the legislature, a complete and detailed report of its activities, including but not limited to:

(1) The status of transfers of title to lands from the department of land and natural resources to the authority pursuant to part II of this Act;

(2) The status of all leases and subleases of Mauna Kea lands; and

(3) An accounting of all revenue collected and expended by the authority.

The report submitted prior to the 2019 session shall include the status of rulemaking pursuant to section -33.

§ -49 Court proceedings; preferences; venue. (a) Any action or proceeding to which the authority, the State, or a county may be a party, in which any question arises as to the validity of this chapter or any portion of this chapter, shall be brought in the circuit court of the circuit where the case or controversy arises, which court is hereby vested with original jurisdiction over the action or proceeding. The action or proceeding shall be heard and determined in preference to all other civil cases pending therein except election cases, irrespective of position on the calendar. Upon application of counsel to the authority, the same preference shall be granted in any action or proceeding questioning the validity of this chapter in which the authority may be allowed to intervene.

(b) Notwithstanding any provision of law to the contrary, declaratory relief may be obtained for an action or proceeding under this section.

(c) Any party aggrieved by the decision of the circuit court may appeal in accordance with part I of chapter 641 and the appeal shall be given priority.

§ -50 Contested cases; conservation district use. (a) Notwithstanding any law to the contrary, conservation district rules applicability shall maintain contested case opportunities in the conversation district use application process.

(b) Notwithstanding any law to the contrary, any decisions by the authority, insofar as they impact constitutional rights, including but not limited to Native Hawaiian traditional and customary rights and right to a healthful environment, shall require the granting of contested case hearings.

§ -51 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.

§ -52 General administrative penalties. (a) Except as otherwise provided by law, the authority or its authorized representative by proper delegation may set, 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 bring legal action to recover administrative fines, fees, and costs, including attorneys' fees and costs, or payment for damages resulting from a violation of this chapter or any rule adopted pursuant to this chapter. The administrative fines shall be as follows:

(1) For a first violation, a fine of not more than $2,500;

(2) For a second violation within five years of a previous violation, a fine of not more than $5,000; and

(3) For a third or subsequent violation within five years of the last violation, a fine of not more than $10,000.

(b) Any criminal action against a person for any violation of this chapter or any rule adopted pursuant to this chapter shall not preclude the State from pursuing civil legal action 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 preclude the State from pursuing any criminal action against that person. Each day of each violation shall constitute a separate offense.

§ -53 Violations and penalties. (a) The authority may set, charge, and collect reasonable fines for a violation of this chapter or any rule adopted pursuant to chapter 91.

(b) Any person found guilty of a violation of this chapter or any rules adopted thereunder shall be guilty of a petty misdemeanor and shall be punished as follows:

(1) For a first offense, by a mandatory fine of not less than $500 or imprisonment of not more than thirty days or both;

(2) For a second offense within five years of a previous conviction under this section, by a mandatory fine of not less than $1,000 or imprisonment of not more than thirty days or both; and

(3) For a third or subsequent offense within five years of two prior convictions under this section, by a mandatory fine of not less than $2,000 or imprisonment of not more than thirty days or both.

(c) Any criminal action against a person for any violation under this section shall not preclude the State from pursuing civil legal action to recover administrative fines and costs against the person. Any civil legal action against a person to recover administrative fines and costs for any violation of this chapter or any rules adopted thereunder shall not preclude the State from pursuing any criminal action against that person pursuant to this section.

(d) The authority may maintain an action for an injunction to restrain any violation of this chapter and may take any other lawful action to prevent or remedy any violation.

(e) The continuance of a violation after conviction shall be deemed a new offense for each day of a violation's continuance."

SECTION 2. 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 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;

(9) 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;

(10) 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; [~~and~~]

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

(12) Lands to which the Mauna Kea management authority holds title, that the authority controls by lease from any state department or agency, or that are designated by the governor under section 171-11 for management by the authority;

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."

SECTION 3. Section 199-3, Hawaii Revised Statutes, is amended to read as follows:

"§199-3 Conservation and resources enforcement officers, duties; other law enforcement officers. (a) The conservation and resources enforcement officers, with respect to all state lands, including public lands, state parks, forest reserves, forests, aquatic life and wildlife areas, Kaho�olawe island reserve, Mauna Kea lands as defined in section -2, and any other lands and waters within the State, shall:

(1) Enforce title 12, chapters 6D, 6E, and 6K, and rules adopted thereunder;

(2) Investigate complaints, gather evidence, conduct investigations, and conduct field observations and inspections as required or assigned;

(3) Cooperate with enforcement authorities of the State, counties, and federal government in development of programs and mutual aid agreements for conservation and resources enforcement activities within the State;

(4) Cooperate with established search and rescue agencies of the counties and the federal government in developing plans and programs and mutual aid agreements for search and rescue activities within the State;

(5) Check and verify all leases, permits, and licenses issued by the department of land and natural resources;

(6) Enforce the laws relating to firearms, ammunition, and dangerous weapons contained in chapter 134;

(7) Enforce the laws in chapter 291E relating to operating a vessel on or in the waters of the State while using intoxicants;

(8) Whether through a specifically designated marine patrol or otherwise, enforce the rules in the areas of boating safety, conservation, and search and rescue relative to the control and management of boating facilities owned or controlled by the State, ocean waters, and navigable streams and any activities thereon or therein, and beaches encumbered with easements in favor of the public, and the rules regulating vessels and their use in the waters of the State; [~~and~~]

(9) Enforce laws and rules under chapter relating to Mauna Kea lands, in cooperation with the Mauna Kea management authority; and

[~~(9)~~] (10) Carry out other duties and responsibilities as the board of land and natural resources from time to time may direct.

(b) Every state and county officer charged with the enforcement of laws and ordinances shall enforce and assist in the enforcement of title 12, chapters 6E and 6K, and rules adopted thereunder and in the enforcement of chapters 266, [~~and~~] 267, and , and of all rules adopted thereunder."

SECTION 4. Section 199-4, Hawaii Revised Statutes, is amended to read as follows:

"§199-4 Board of land and natural resources, police powers. (a) The board of land and natural resources shall have police powers and may appoint and commission enforcement officers within the conservation and resources enforcement program. Persons appointed and commissioned under this section shall have and may exercise all of the powers and authority of a police officer, including the power of arrest, and in addition to enforcing title 12, chapters 6D, 6E, and 6K, and rules adopted thereunder, may enforce all other state laws and rules, and county ordinances within all lands and waters of the State[;], including Mauna Kea lands as defined in section -2; provided that [~~such~~] those powers shall remain in force and effect only while in actual performance of their duties, which shall include off-duty employment when such employment is for other state departments or agencies. These enforcement officers shall consist of personnel whose primary duty will be the enforcement of title 12, chapters 6D, 6E, and 6K, and the rules adopted thereunder within the areas under the jurisdiction of the department of land and natural resources.

(b) An enforcement officer, upon arresting any person for violation of title 12, chapter 6D, 6E, or 6K, or any other state law or county ordinance or rule adopted thereunder, may immediately take the person arrested to a police station or before a district judge, or take the name, address, and the number of the fishing, hunting, or other licenses or permits, if any, of the person, and note the violation of the law or rule by the person, and issue the person a summons or citation, printed in the form described in section 199-5, warning the person to appear and to answer to the charge against the person at a certain place and time within seven days after the arrest. Any person failing to obey a summons issued pursuant to this section shall be subject to section 199-6."

SECTION 5. Chapter 304A, part IV, subpart O, is repealed.

SECTION 6. 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 7. 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 revolving fund established pursuant to section -35, Hawaii Revised Statutes, in section 1 of this Act.

PART II

SECTION 8. Title to all lands held in trust by the State and identified as government lands of Kaohe, Hamakua District, Hawaii, tax map keys:

(1) (3) 4-4-015:09;

(2) (3) 4-4-015:12; and

(3) That portion of (3) 4-4-015:01 serving as a road easement comprising 70.798 acres,

are transferred by the department of land and natural resources to the Mauna Kea management authority established pursuant to section 1 of this Act.

PART III

SECTION 9. 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 2018-2019 for start up costs for the Mauna Kea management authority.

The sum appropriated shall be expended by the Mauna Kea management authority for the purposes of this Act.

SECTION 10. There is appropriated out of the Mauna Kea management revolving fund the sum of $ or so much thereof as may be necessary for fiscal year 2018-2019 for the purpose of administration, capital improvement projects, and other purposes pursuant to this Act.

The sum appropriated shall be expended by the Mauna Kea management authority for the purposes of this Act.

PART IV

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect on December 31, 2033.

Report Title:

Mauna Kea Management Authority; Established; Appropriation

Description:

Establishes the Mauna Kea Management Authority. Limits the number of telescopes that may be authorized on Mauna Kea. Authorizes the renegotiation of leases, subleases, easements, permits, and licenses pertaining to Mauna Kea. Requires that revenue derived from activities on Mauna Kea be shared with the Office of Hawaiian Affairs. Excludes Mauna Kea lands from the definition of "public lands". Provides for free access to Mauna Kea for traditional cultural purposes. Establishes police powers and provides for enforcement of laws on land under the jurisdiction of the Mauna Kea Management Authority. Appropriates funds. Effective 12/31/2033. (SD2)

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

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Bill Text: HI SB3090 | 2018 | Regular Session | Amended

Hawaii Senate Bill 3090 (Prior Session Legislation)

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