The University of Hawaiʻi invites the public to provide input on the proposed draft of the administrative rules that will govern public and commercial activities on UH-managed lands on Maunakea—Chapter 20–26, Hawaiʻi Administrative Rules. Testimony may be submitted in four ways up until the end of the last noticed hearing: (1) online at the UH Government Relations website; (2) via email at firstname.lastname@example.org; (3) in writing to UH Government Relations Office, 2442 Campus Road, Administrative Services Building 1-101, Honolulu, HI, 96822; and/or (4) in person at one of four public hearings:
- September 24, 5 to 7 p.m., Sullivan Conference Center, UH Cancer Center, 701 Ilalo Street, Honolulu
- September 25, 5 to 7 p.m., ʻImiloa Astronomy Center of Hawaiʻi, 600 ʻImiloa Place, Hilo
- September 26, 6:15 to 8:15 p.m., Waikoloa Elementary and Middle School, 68-1730 Hoʻoko Street, Waikoloa
- September 28, 5:30 to 7:30 p.m., ʻIke Leʻa—Room 144, UH Maui College, 310 West Kaʻahumanu Avenue, Kahului
The public is strongly encouraged to participate in the process as the testimony will be taken into consideration as the rules are finalized. The rules will then go to the UH Board of Regents for a publicly noticed decision making meeting that will also accept public testimony. If approved at that point, the rules will proceed thru the Administrative Rules process to the governor for final review and approval.
“The administrative rules provide the university with an important stewardship tool to more effectively protect the cultural, natural and scientific resources on Maunakea and provide measures to better ensure public health and safety,“ said UH Hilo Interim Chancellor Marcia Sakai.
The draft rules were developed after extensive community outreach that included several publicly noticed meetings, open houses and consultation with the Department of Land and Natural Resources (DLNR), Office of Hawaiian Affairs and the Small Business Regulatory Review Board. The draft rules as required by statute are consistent with rules currently in place for similar lands managed by DLNR, including forest and natural area reserves.
The UH Board of Regents approved the draft rules for public hearings on June 7, and Governor David Ige gave his approval to move ahead with public hearings in July 2018.
Why is the university pursuing administrative rules for Maunakea?
On April 9, 2009, the Board of Land and Natural Resources approved the Maunakea Comprehensive Management Plan (CMP). The CMP is intended to provide a guide for managing existing and future activities and uses, and to ensure ongoing protection of cultural and natural resources, on “Mauna Kea lands” (also referred to as “UH Management Areas”). The CMP states that, “statutory authority for the University to implement administrative rules will protect resources and support some of the management actions,” identified in the CMP.
On June 18, 2009, the governor signed Act 132 into law. Act 132 gave the university authority to adopt rules. Act 132 states that “administrative rules governing public and commercial activities on the Maunakea lands are necessary to provide effective protection of cultural and natural resources from certain public activities, and to help ensure public health and safety.”
With the passage of Act 132, the university, through the chancellor’s office at the University of Hawaiʻi at Hilo, the Office of Maunakea Management, the Maunakea Management Board, and Kahu Kū Mauna, has worked diligently with the community and affected agencies to present the Board of Regents with a draft for its consideration, and ultimately, its approval.
To whom do the rules apply?
The rules apply to public or commercial activities conducted on “Mauna Kea lands,” or what the proposed rules refer to as “UH management areas.” Mauna Kea lands are defined in Act 132 as, “. . . lands that the University of Hawaiʻi is leasing from the board of land and natural resources, including the Mauna Kea Science Reserve, Hale Pohaku, the connecting roadway corridor between Hale Pohaku and the Mauna Kea Science Reserve, and any other lands on Mauna Kea that the University of Hawaiʻi leases or over which the University of Hawaiʻi acquires control or jurisdiction.”
What will the rules regulate?
Act 132 authorizes the university to adopt rules to regulate “public and commercial activities” on Maunakea lands to:
- provide effective protection of cultural resources,
- provide effective protection of natural resources, and
- help ensure public health and safety.
What does Act 132 mean by “public and commercial activities?"
In Act 132, the legislature provided five examples of public and commercial activities that could be covered by administrative rules; these are:
- general access to sensitive resource areas, such as specific cultural features and identified natural resource habitat areas;
- traffic and off-road vehicle management and control;
- alcohol consumption;
- recreational activities; and
- commercial tour activities
Definitions for commercial and public activities are provided under section 20-26-2 of the proposed rules.
What special requirements apply to the development of the proposed rules?
Act 132 specifically requires the university to do three things in developing and adopting the proposed rules:
- strive for consistency with the administrative rules of the division of forestry and wildlife of the Department of Land and Natural Resources related to forest reserves and natural area reserves;
- consult with the Office of Hawaiian Affairs to ensure that these rules shall not affect any customary and traditional practices; and
- hold at least one public hearing on the island of Hawaiʻi, separate from the public hearing at which decision-making is made.
Generally, rule-making under the Hawaiʻi Administrative Procedures Act (HRS Chapter 91), does not require consultation with specific entities or more than one public hearing.
Did the public meaningfully participate in the drafting of these rules?
Yes, the university conducted many outreach and consultation sessions in various formats.
The Office of Maunakea Management (OMKM) took the lead for the university in developing the rules, which included extensive community outreach, several publicly noticed meetings and open houses and agency consultation. Outreach is summarized in the Board of Regents Action Memorandum, dated May 21, 2018. In short, consultation included:
- Meetings with island of Hawaiʻi organizations;
- Open houses in Kona, Hilo, and Waimea that were announced in island of Hawaiʻi newspapers;
- Review and recommendation by Kahu Kū Mauna, which is comprised of individuals from the native Hawaiian community and advises the university;
- Publicly noticed open meetings before OMKM;
- Publicly noticed meeting before the Board of Regents; and
- Publicly noticed meeting before the Small Business Regulatory Review Board.
The Board of Regents at its June 7, 2018 meeting approved the draft rules for public hearings. The governor then concurred, and the rules will be open for written and oral comments. At least four public hearings will be held, including two on the island of Hawaiʻi after providing a 30-day notice. The Board of Regents will have a publicly noticed decision-making meeting before the rules are sent to the governor for final approval.
How are the administrative rules related to overall management of UH Management Areas?
The university, Board of Land and Natural Resources, the State Auditor, and legislators all agree that rules are needed for the effective management of public and commercial activities conducted within UH Management Areas.
The Maunakea Management Board (MKMB) recognized the need for administrative rules when it created the Administrative Rules Committee at its October 10, 2000 meeting. The absence of rules was a recurring issue before MKMB, until the legislature finally granted the university authority to adopt rules under Act 132. At its September 11, 2007 meeting, the MKMB chair stated that, “If you are going to manage the mountain, you need rules and currently there aren’t any,” and “If the CMP is to be successful, administrative rules will have to be at the forefront too.”
Currently, there are no rules that regulate public and commercial activities within UH Management Areas. UH Management Areas were formerly within the Forest Reserve and Natural Area Reserve, and at that time, rules for those reserves applied and were implemented by Department of Land and Natural Resources. However, UH Management Areas have since been removed from the reserves; consequently, those rules no longer apply.
Why did the university not adopt rules soon after Act 132 took effect on July 1, 2009?
Adopting rules for UH Management Areas has always been a priority for the university. Even in the best of circumstances, new administrative rules take time to draft, incorporate feedback from the community, and process.
Shortly after the legislature granted the university authority to make rules, the Office of Maunakea Management began its work consulting and drafting a set of rules. The drafting process included consultation and meetings with various entities and persons including the Office of Hawaiian Affairs, Department of Land and Natural Resources (DLNR), Maunakea Management Board, Kahu Kū Mauna, the Hawaiʻi County Mayor’s Office, and various Native Hawaiian and community organizations from the island of Hawaiʻi.
In 2011, the Board of Land and Natural Resources prohibited ex parte communications among parties, i.e., DLNR and the university, in the first Thirty Meter Telescope conservation district use application contested case. Of course, after the Supreme Court’s decision requiring another contested case hearing be conducted, the same restrictions on ex parte communications were applied during that proceeding as well. And, in November 2016, the governor requested that UH defer moving forward with rule-making. This effectively halted the process, since the governor’s approval is required to conduct the necessary public hearings.
On January 11, 2018, the university received notice from the governor’s office that it could proceed with rule-making. The university proceeded diligently to bring a draft forward to the Board of Regents, which it approved for public hearings at its June 7, 2018 meeting. In due course, the Small Business Regulatory Review Board, on June 20, 2018, also approved the draft rules for public hearing. The university received the governor’s approval to hold hearings on July 10, 2018. The university will hold public hearings in late September after providing the required 30-day public notice.
How are the cultural resource management actions that MKMB recommended for implementation by OMKM, related to the proposed rules?
The Comprehensive Management Plan (CMP) includes more than 100 management actions, of which 14 are cultural resources (CRs). The CRs are management actions, not rules, some of which are the university’s responsibility to develop and implement pursuant to the CMP. According to the CMP, CMP management actions are based on a comprehensive archaeological survey and fieldwork of the UH Management Areas conducted between 2005 and 2008 and consultation with the major stakeholders, including the Native Hawaiian community, cultural practitioners, families with lineal connections to Mauna Kea, astronomers and other interested parties.
The CMP and the Sub-Plan entitled, A Cultural Resources Management Plan for the University of Hawaiʻi Management Areas on Mauna Kea, Kaʻohe Ahupuaʻa, Hamakua District, Hawaiʻi Island, State of Hawaiʻi, A Sub-Plan for the Mauna Kea Comprehensive Management Plan, dated October 2009, has specific content and consultation requirements for developing the CRs. Kahu Kū Mauna took the lead in developing the CRs, and incorporated input from their consultations, consistent with existing statutes, rules and laws.
The CRs were developed contemporaneously with the proposed rules and are intended to be consistent. While the CRs do not have the force and effect of law, the CRs will provide guidance to the university and stakeholders in implementing the CMP, its management actions and the proposed rules.
Do these rules regulate culture?
No, they do not.
Section 20-26-21 of the proposed rules entitled, Traditional and customary rights, was developed in consultation with the Office of Hawaiian Affairs (OHA). As provided in Act 132, consultation with OHA is “. . . to ensure that these rules shall not affect any right, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupuaʻa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights[.]”
Section 20-26-21 of the proposed rules, recognizes “the spiritual, cultural, and historical significance of Maunakea to Native Hawaiians and the protected customary and traditional rights,” under Hawaiʻi’s Constitution. This section provides three options for cultural practitioners:
- Based on the experience of Office of Maunakea Management (OMKM) managing UH Management Areas for almost two decades, most customary and traditional practices do not cause impacts to cultural or natural resources or cause public health and safety issues; therefore, those activities do not require coordination with OMKM.
- Some practices may result in impacts. In such cases, OMKM will consult with the practitioner, Kahu Kū Mauna, OMKM and OHA on what steps need to be taken to address those impacts.
- Practitioners are encouraged to voluntarily consult with OMKM prior to engaging in practices that may cause impacts. OMKM will work with the practitioner on a plan to mitigate or avoid impacts that will be documented in a special permit. The cultural resources, which were developed in consultation with practitioners, may provide guidance in these discussions.
Do the proposed rules apply to observatory sub-leases?
No, observatory sub-leases fall outside of the scope of rule-making authority granted to the university by the legislature.
As prescribed by Act 132, the proposed rules are limited to regulating “public and commercial activities on Mauna Kea lands.” The rules are consistent with the Forest Reserve and Natural Area Reserve rules, as required by Act 132. The reserves’ activities rules do not regulate leases. In addition, Act 132 does not reference the regulation of sub-leases by rules. Instead, Act 132 provides examples of activity based, not land use or real property disposition type uses, such as general access to sensitive resource areas, traffic and off-road vehicle management and control, alcohol consumption, recreational activities and commercial tour activities.
Although the rules do not apply to sub-lessees conducting work on their leased areas, their conduct is subject to existing lease agreements, operating and site development agreements, and conditions imposed by conservation district use permits issued by the Board of Land and Natural Resources.
Are there fines for not following the rules?
Yes, the legislature set the fines for violations of the rules under Act 132, similar to fines set for violation under rules administered by the Board of Land and Natural Resources:
- (1) For the first violation, not more than $2,500;
- (2) For the second violation within five years of a previous violation, not more than $5,000; and
- (3) For the third violation within five years of a prior violation and any subsequent violation, not more than $10,000.
Do the rules establish fees?
Act 132 grants the university authority to adopt fees. However, the proposed rules do not set fees. Instead, section 20-26-6 of the proposed rules, provide that fees may be charged “for permits, parking, entrance, and for the use of facilities and programs related to the UH management areas.” After the proposed rules pass, the university may establish fees at an open meeting, as prescribed by Act 132.
Who enforces these rules?
These are administrative rules, commonly referred to as civil rules.
Civil rules are enforced by the responsible agency, in this case, the university. Under section 20-26-8 of the proposed rules, the Board of Regents delegates its authority to the president, who may further delegate that authority to a designee. The president’s designee might be one of the university’s programs, such as the Office of Maunakea Management. The president or the president’s designee may also rely on an authorized agent to assist with enforcement, such as the police department, state sheriff, or the Department of Land and Natural Resources Division of Conservation and Resources Enforcement through a memorandum of understanding or similar agreement.
This type of delegation and use of agents is consistent with the Forest Reserve and Natural Area Reserve rules under HAR Chapters 13‐104 and 13-208.
Are there penalties for not following the administrative rules; can someone be incarcerated because that person fails to follow the administrative rules?
No, a person cannot be arrested for failure to follow the administrative rules, and the rules do not provide for criminal penalties such as incarceration.
If a person fails to follow the administrative rules, that person could be cited, asked to leave the premises, towed for improperly parking a vehicle, assessed monetary costs for repairing damage caused by unpermitted activity, refused future permits, and other civil punishment listed under sections 20-26-73 and 20-26-74 of the proposed rules.
However, other laws and rules apply in the UH Management Areas in addition to the proposed rules. For example, refusal to leave UH Management Areas after being cited may be grounds for criminal trespass under the State’s Penal Code and could lead to arrest by a law enforcement officer.
If someone builds a structure without the university’s permission, destroys an archeological site, harms someone, or threatens a protected species while on UH Management Areas; will the proposed rules apply?
The proposed rules regulate specific types of public and commercial activities as defined under Act 132, so it will depend on the specific activity being conducted.
However, it is important to note that the proposed rules do not regulate such things as land use or criminal activity. Several other rules and laws apply to UH Management Areas, separate from public and commercial activities; for example:
- HAR Chapter 5, Conservation District Rules, regulates land uses because UH Management Areas are within the state conservation land use district. HAR Chapter 5 specifically identifies land uses that require permits and the procedures that apply.
- HRS Chapter 6E, Historic Preservation, applies to all lands in the state, including UH Management Areas. This law covers historic properties and specifically, native Hawaiian burials. The Department of Land and Natural Resources also has jurisdiction over this law and its related regulations under its State Historic Preservation Division.
- Hawaiʻi’s Penal Code, HRS Title 37, applies everywhere in the state, including UH Management Areas. The Penal Code can only be enforced by entities with police powers, like the police department, state sheriff and the Division of Conservation and Resources Enforcement.
- Various federal laws apply, including regulations from the Environmental Protection Agency and U.S. Fish and Wildlife Service.
With all the applicable jurisdictions, laws, and rules within UH Management Areas, how will the proposed rules not conflict?
It is not uncommon for uses and activities anywhere in the state to be subject to various overlapping laws, jurisdictions and regulations.
In the case of UH Management Areas, the proposed rules are developed pursuant to Act 132, to be consistent with Forest Reserve and Natural Area Reserve rules that formerly applied to large portions of UH Management Areas. The proposed rules fill a regulatory space previously occupied by the reserves’ rules, so conflict with other laws is unlikely.
Furthermore, any potential conflict is ameliorated by the following sections in the proposed rules, which strive for coordination and cooperation:
- section 20-26-3(c), Applicability and implementation, generally, “[w]here overlapping jurisdictions within UH management areas are present, including but not limited to department of land and natural resources administrative rules pertaining to conservation districts, forest reserves, historic preservation, hunting, and natural area reserves, those rules shall govern.”
- section 20-26-4, Consistency with other rules, which requires that “[t]hese rules shall not be interpreted so as to be inconsistent with other rules applicable within UH management areas[.]”
Notwithstanding the above, in practice, agencies work cooperatively to address the purpose of their respective regulations to ensure consistency in managing resources. This relationship is further strengthened between the university and Department of Land and Natural Resources through the Comprehensive Management Plan, master lease, and the purpose of the proposed rules “to foster co-management with the department of land and natural resources,” as stated under section 20-26-1 of the proposed rules.
Why do the proposed rules require a permit for 10 or more persons in a group?
Groups larger than 10 are required to obtain approval prior to entering the UH Management Areas under section 20-26-22, Preservation of resources, and section 20-26-62, Group use permits, of the proposed rules.
Act 132 directs that the proposed rules strive for consistency with Forest Reserve and Natural Area Reserve rules. The 10-person trigger comes from Natural Area Reserve rules at HAR section 13-209-3, Permitted activities. In addition, the evaluation criteria for considering such a request is content neutral and focuses on mitigating impacts to resources the university is directed by Act 132 to manage, i.e., “to provide effective protection of cultural and natural resources from certain public activities, and to help ensure public health and safety.”
What if I am cited or I do not agree with a written decision issued to me by the university regarding public or commercial activities within UH Management Areas?
Persons who disagree with actions taken by the university under the proposed rules may file an administrative appeal under section 20-26-75 of the proposed rules.
A person may choose either an informal or formal process. Under the informal process, a person may submit a written request for review. The president’s designee will review and issue a decision. That decision is not appealable. A person may also choose the formal process. Under this process, a hearing will be held and a decision and order issued by the president’s designee. A person may further appeal a decision resulting from the formal process to the judiciary.
There are currently eight permitted tour operators allowed to conduct commercial tours within UH Management Areas, will those permits terminate when the rules are passed?
No, passage of the rules will not per se terminate existing tour operator permits.
In 2000 the Board of Land and Natural Resources (BLNR) transferred the authority to administer commercial tours to the university. The university currently allows a maximum of eight commercial tour permits, one less than the number transferred by BLNR. Managed tour operations are an important part of the university’s management, including management of vehicular traffic, since they ensure that visitors respect sensitive culture and natural resources and are safe.
Each tour operator is subject to the same agreement with the university. Those agreements provide: that the term of the permit ends on June 30, 2009, that the permittee understands a new commercial permit issuance structure will be developed; that when the new structure is in place the permit may be terminated on 30-days’ written notice; the permittee’s eligibility for a new commercial permit shall be determined pursuant to the new commercial permit issuance structure; that in determining the permittee’s eligibility for a new commercial permit, the Office of Maunakea Management (OMKM) need not consider that the permittee may have been granted or possessed a commercial permit in the past; that the permittee does not have any right, preference or entitlement to a new commercial permit by virtue of having a commercial permit in the past; and that OMKM may extend the permit at its sole option.
Because the rules were not adopted shortly after Act 132 passed in 2009, OMKM extended the permits to an indeterminate date. The university has the right under the existing agreements to terminate the permits with 30-days’ notice. However, practically, existing permits will continue in force until the rules are implemented, which could include a permitting framework that continues existing practice and/or entering into concession agreements with one or more tour operators. In any case, the process will be open and transparent to afford all interested qualifying parties an opportunity to be considered. The university will be working with interested existing and potential tour operators on the implementation process so that existing operators can plan accordingly and to ensure a level playing field, and the university will have enhanced ability to manage the number of vehicles to avoid overcrowding and safety concerns.