Hawaii-2010-HB2235-Introduced

SECTION 1. The Hawaiian monk seal is one of the rarest marine mammals in the world, and among the world's most endangered species. The monk seal population is currently declining at four per cent annually and is estimated at fewer than one thousand two hundred individuals. Food limitations, entanglements in marine debris, and human interactions including being caught as bycatch in fishing gear, mother-pup disturbance on beaches, and exposure to disease all threaten the remaining population.

In 2008, the Hawaiian monk seal was designated as the State's mammal to increase awareness of it as an endangered species with the hope that this awareness would result in increased protection and its repopulation. Although the main Hawaiian island seals are a small population, they are a much healthier population and are slightly increasing in numbers rather than declining like the larger northern Hawaiian island population.

Two recent incidents of intentionally killed monk seals on Kauai and one on Molokai have brought attention to the human threat to the seals. In September, a Kauai man plead guilty to shooting a seal in violation of the federal Endangered Species Act. The man received a ninety-day jail term, one year supervised release, and a twenty-five dollar fine. The legislature finds that this sentence is not sufficient to deter future harassment of Hawaiian monk seals. In order to protect the seals from future harassment and death, greater penalties need to be imposed.

The purpose of this Act is to:

(1) Establish the intentional or knowing taking of an Hawaiian monk seal as a class C felony; and

(2) Provide a private right of action against persons who violate the laws or rules regarding the conservation of aquatic life, wildlife, and land plants, which includes the protection of the Hawaiian monk seal.

SECTION 2. Section 195D-9, Hawaii Revised Statutes, is amended to read as follows:

"§195D-9 Penalty. (a) Any person who violates any of the provisions [or] of this chapter [of] or the provisions of any rule adopted hereunder shall be guilty of a misdemeanor and shall be punished as follows:

(1) For a first offense by a fine of not less than $250 or by imprisonment of not more than one year, or both; and

(2) For a second or subsequent offense within five years of a previous conviction by a fine of not less than $500 or by imprisonment of not more than one year, or both.

(b) In addition to the above penalties, except for violations under approved habitat conservation plans under section 195D-21 or approved safe harbor agreements under section 195D-22 as determined by the board, a fine of $5,000 for each specimen of a threatened species and $10,000 for each specimen of an endangered species intentionally, knowingly, or recklessly killed or removed from its original growing location, shall be levied against the convicted person.

(c) The disposition of fines collected for violations of the provisions concerning wildlife conservation shall be subject to section 183D-10.5.

(d) Except as otherwise provided by law, the board or its authorized representative by proper delegation is authorized to 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 or for the cost to correct damages resulting from a violation of this chapter or any rule adopted thereunder. 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.

(e) In addition, an administrative fine of up to $5,000 may be levied for each specimen of wildlife or plant taken, killed, injured, or damaged in violation of this chapter or any rule adopted thereunder.

(f) Any criminal action against a person for any violation of this chapter or any rule adopted thereunder 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 thereunder shall not be deemed to preclude the State from pursuing any criminal action against that person.

(g) Notwithstanding any law to the contrary, any person who intentionally or knowingly takes an Hawaiian monk seal (Monachus schauinslandi) in violation of this chapter shall be guilty of a class C felony; provided that the maximum fine shall be not more than $50,000."

SECTION 3. Section 195D-32, Hawaii Revised Statutes, is amended to read as follows:

"[[]§195D-32[]] Citizen suits. (a) Except as provided in subsection (b), any person, acting as a private attorney general, may commence a civil suit on the person's behalf:

(1) Against any other person, or any state or county agency or instrumentality, that is alleged to be in violation of [the terms of, or [fails] to fulfill the obligations imposed and agreed to under any habitat conservation plan or safe harbor agreement and accompanying license for public lands as authorized under sections 195D-21 and 195D-22;] this chapter or any rule adopted pursuant to this chapter; or

(2) Against the department or board, where there is alleged a failure of the department or board to perform any act or duty required under [~~a habitat conservation plan or safe harbor agreement and accompanying license issued for public lands.~~] this chapter or any rule adopted pursuant to this chapter.

(b) The circuit courts shall have jurisdiction to enforce this section or to order the department or board to perform any act or duty required under this [~~section,~~] chapter or any rule adopted pursuant to this chapter, provided that:

(1) No action may be commenced under subsection (a)(1) less than sixty days after written notice of the alleged violation has been given to the department, and to the person, or state or county agency or instrumentality, alleged to be in violation of this [~~section,~~] chapter or any rule adopted pursuant to this chapter, except that the action may be brought immediately after the notification in the case of an emergency posing a significant risk to the well-being of any species of fish, wildlife, or plant; and

(2) No action may be commenced under subsection (a)(2) less than sixty days after written notice of the alleged violation has been given to the department, except that the action may be brought immediately after the notification in the case of an emergency posing a significant risk to the well-being of any species of fish or wildlife, or plant.

(c) Any suit brought pursuant to this section may be brought in the judicial circuit where the alleged violation occurred or is occurring. In any suit brought pursuant to this section, where the State is not a party, the attorney general, at the request of the department, may intervene on behalf of the State as a matter of right.

(d) The court, in issuing any final order in any suit brought pursuant to this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any party, when deemed appropriate.

[~~(d)~~] (e) The injunctive relief provided by this section shall not restrict any right that any person or class of persons may have under any other law, including common law, to seek enforcement of any standard or limitation or to seek any other relief, including relief against any instrumentality or agency of the State."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2235
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII