Haw. Code R. § 13-261-13 - Activities within the reserve

(a) No person shall conduct any activity within the reserve unless such person is authorized to be within the reserve in accordance with section 13-261-10;

(b) No person shall conduct any activity within the reserve, unless:

(1) The commission first finds, consistent with chapter 6K, that such activity is:

(A) An activity which is for the preservation and practice of all rights customarily and traditionally exercised by native Hawaiians for cultural, spiritual, and subsistence purposes; or

(B) An activity which is for the protection, preservation or restoration of the natural of cultural resources of the reserve; or

(C) An activity which is for rehabilitation, revegetation and habitat restoration and preservation; or

(D) An activity which is educational and which relates to native Hawaiian cultural practices or to the natural or cultural resources of the reserve; or

(E) A fishing activity which is consistent with this section; or

(F) An activity which is for the clearance or removal of unexploded ordnance and environmental restoration; or,

(2) Such activity is conducted through the provisions of the Consent Decree set forth in Aluli vs. Brown (1980), so long as said Consent Decree remains in effect, and is consistent with subsection (1) above; or

(3) Such activity consists of trolling in Zone B of the reserve on two weekends per month as scheduled by the executive director and noticed by publication in the Local Notice to Mariners issued by the Commander Fourteenth Coast Guard District (OAN), provided that any vessels trolling shall first register with the commission and shall submit catch reports to the commission. The frequency, time, manner, and place of such trolling may be further regulated by the commission pursuant to section 13-261-13(c); or

(4) Such activity is a traditional and customary right or practice as approved under section 13-261-11(b); and

(5) Based upon the information provided by the applicant, such activity is deemed to be reasonably safe for the purpose proposed.

(c) The time, manner, and place of all activities within the reserve as described in this section shall be subject to the establishment of intermittent kapu in order to protect and restore the natural and cultural resources of the reserve, and to protect public safety. Violation of a kapu established under this section shall be deemed a violation of this chapter. Any such kapu shall be established by formal action of the commission at a noticed public meeting after completion of the following process:

(1) Determination of Need. In determining that a kapu is needed, the commission shall first find that restrictions are necessary as indicated by an assessment of the population status and biological health of culturally or ecologically significant species or ecosystems or by the observed or anticipated presence of a public safety hazard. Any such determination by the commission shall also include the location, activities, and species to be addressed by the kapu, and the anticipated beginning and ending dates of the kapu. A report including the findings of the determination shall be kept on file at the office of the commission and shall be available for inspection and copying by the public.

(2) Public Comment Period. After making a determination of need, by formal action at a noticed public meeting, the commission shall publish a notice of said determination in a newspaper of statewide circulation. The notice shall include the date of the next public meeting of the commission when the commission intends to establish the kapu. The commission shall consider any public comments, received within twenty days following the published notice, before taking action to establish the kapu.

(3) Establishment of a Kapu. After twenty days following the published notice of the determination of need, and after considering comments by the public, the commission may establish a kapu by formal action at a noticed public meeting. Any such kapu shall be only for the safeguard of natural or cultural resources, or public safety. The kapu shall take effect twenty-four hours after the action of the commission and shall be available for inspection and copying by the public.

(4) Any kapu established by the commission shall be limited to the following:

(A) Equipment restrictions or regulations when such equipment is deemed by the commission to negatively or excessively impact present or future subsistence fishing or harvesting of aquatic life and populations, or culturally or ecologically significant species or ecosystems;

(B) Area closures when public access or activities within a specific portion of the reserve is deemed by the commission to create a public safety hazard, or to negatively or excessively impact present or future subsistence fishing or harvesting of aquatic life and populations, or culturally or ecologically significant species or ecosystems;

(C) Species-take restrictions when the taking of such species is deemed by the commission to negatively or excessively impact present or future subsistence fishing or harvesting of aquatic life and populations, or culturally or ecologically significant species or ecosystems;

(D) Seasonal restrictions or regulations when seasonal reproductive, migration, or overall life cycles of culturally or ecologically significant species are deemed by the commission to be negatively or excessively impacted by over fishing, collecting, or harvesting during a specific biological season.

(5) Temporary Emergency Kapu. In the event of an immediate and urgent threat to the natural or cultural resources of the reserve, or of immediate threat of danger to human life, the commission may enact a temporary emergency kapu not to exceed sixty days. An emergency kapu shall be effected by action of the commission or its executive director. A notice of the emergency kapu shall be published in a newspaper of statewide circulation and shall include the locations, activities, and species addressed by the emergency kapu and the termination date of the kapu. Findings to support the need for the emergency kapu shall be available for inspection and copying by the public.

(d) Except for commission management operations, traditional and customary rights and practices authorized by the commission, and trolling as allowed in this chapter, any aquatic or other life, or natural or cultural object taken within the reserve, shall not be removed from the reserve.

Notes

Haw. Code R. § 13-261-13

[Eff: July 6, 2002] (Auth: HRS § 6K-1, 6K-3, 6K-4, 6K-6, 6K-7, 199-1, 1993, 199-7)