General Provisions

HRS div. 1, tit. 12, ch. 195D, pt. I

in effect

HRS §195D-1 Findings and declaration of necessity

195D-1. Findings and declaration of necessity Since the discovery and settlement of the Hawaiian Islands by humans, many species of aquatic life, wildlife, and land plants that occurred naturally only in Hawaii have become extinct and many are threatened with extinction, primarily because of increased human use of the land and disturbance to native ecosystems. All indigenous species of aquatic life, wildlife, and land plants are integral parts of Hawaii's native ecosystems and comprise the living heritage of Hawaii, for they represent a natural resource of scientific, cultural, educational, environmental, and economic value to future generations of Hawaii's people. To insure the continued perpetuation of indigenous aquatic life, wildlife, and land plants, and their habitats for human enjoyment, for scientific purposes, and as members of ecosystems, it is necessary that the State take positive actions to enhance their prospects for survival. [L 1975, c 65, pt of §1; am L 1983, c 111, §2; gen ch 1993]

HRS §195D-2 Definitions

195D-2. Definitions As used in this chapter: "Aquatic life" means any type of species of mammal, fish, amphibian, reptile, mollusk, crustacean, arthropod, invertebrate, coral, or other animals that inhabit the freshwater or marine environment, and includes any part, product, egg, or offspring thereof, or freshwater or marine plants, including seeds, roots, and other parts thereof. "Board" means the board of land and natural resources. "Candidate species" means any species being considered by the United States Secretary of the Interior for listing as an endangered or threatened species, but not yet the subject of a proposed rule. "Conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter and the Endangered Species Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, habitat acquisition and maintenance, propagation, live capture, law enforcement, and transplantation. "Department" means department of land and natural resources. "Direct payments" means governmental compensation of landowners for their discovery, care, maintenance, and recovery of endangered, threatened, proposed, or candidate species or their essential habitat. "Ecosystem" means all natural elements, physical and biological, of the habitat or site in which any aquatic life, wildlife, or land plant species is found, and upon which it is dependent. "Endangered species" means any species whose continued existence as a viable component of Hawaii's indigenous fauna or flora is determined to be in jeopardy and has been so designated pursuant to section 195D-4. "Endangered Species Act" means the Endangered Species Act of 1973, 87 Stat. 884, or as such Act may be subsequently amended. "Habitat banking" means a program that would allow a landowner, on whose property are found endangered, threatened, proposed, or candidate species or their essential habitat that would be impacted by a project being conducted on the property to purchase another property on which those affected species are found for the purposes of preserving those species as part of an approved habitat conservation plan. "Indigenous species" means any aquatic life, wildlife, or land plant species growing or living naturally in Hawaii without having been brought to Hawaii by humans. "Jeopardize the continued existence of an endangered or threatened, proposed, or candidate species" means any action that would be expected, directly or indirectly, to reduce the likelihood of the survival or recovery of the species in the wild, including the loss of genetic diversity of its populations where the species is a plant species. "Landowner" means an owner of land or any estate or interest in that land when acting with the consent of the fee owner. In the case of government-owned lands, the consent shall be required of any government department or agency to which management or control of that land has been assigned. "Land plant" means any member of the plant kingdom, including seeds, roots and other parts thereof, except freshwater or marine plants. "License" means written permission by the department of land and natural resources to do a particular act or series of acts which without such permission would be unauthorized or prohibited. "Natural communities" means a natural assemblage of plants or animals that occurs within certain elevation, moisture, and habitat conditions. "Person" means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the federal government, of any state or political subdivision thereof, or of any foreign government. "Private lands" mean lands that are not "public lands", as defined in this section. "Proposed species" means any species that is the subject of a proposed rule for listing as an endangered or threatened species pursuant to the Endangered Species Act. "Public lands" means lands owned by the federal government, the State, or a county, or lands owned by any political subdivision of the federal government, the State, or a county. "Recovery" or "recover" means that the number of individuals of the protected species has increased to the point that the measures provided under this chapter or the federal Endangered Species Act are no longer needed. "Species" means and shall include any subspecies or lower taxa of aquatic life, wildlife, or land plants. "State marine waters" means all waters of the State extending from the upper reaches of the wash of the waves on shore seaward to the limit of the State's police power and management authority, including the United States territorial sea, notwithstanding any law to the contrary. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered or threatened species of aquatic life or wildlife, or to cut, collect, uproot, destroy, injure, or possess endangered or threatened species of aquatic life or land plants, or to attempt to engage in any such conduct. "Technical assistance program" means a program that includes department staff designated to assist landowners in developing, reviewing, or monitoring habitat conservation plans by providing technical assistance. "Threatened species" means any species of aquatic life, wildlife, or land plant which appears likely, within the foreseeable future, to become endangered and has been so designated pursuant to section 195D-4. "Wildlife" means any nondomesticated member of the animal kingdom, whether reared in captivity or not, including any part, product, egg, or offspring thereof, except aquatic life as defined in this section. [L 1975, c 65, pt of §1; am L 1983, c 111, §3; am L 1990, c 126, §6; gen ch 1993; am L 1997, c 380, §3; am L 2002, c 152, §1; am L 2003, c 35, §3; am L 2011, c 147, §2]

HRS §195D-4 Endangered species and threatened species

195D-4. Endangered species and threatened species (a) Any species of aquatic life, wildlife, or land plant that has been determined to be an endangered species pursuant to the Endangered Species Act shall be deemed to be an endangered species under this chapter and any indigenous species of aquatic life, wildlife, or land plant that has been determined to be a threatened species pursuant to the Endangered Species Act shall be deemed to be a threatened species under this chapter. The department may determine, in accordance with this section, however, that any such threatened species is an endangered species throughout all or any portion of the range of such species within this State. (b) In addition to the species that have been determined to be endangered or threatened pursuant to the Endangered Species Act, the department, by rules adopted pursuant to chapter 91, may determine any indigenous species of aquatic life, wildlife, or land plant to be an endangered species or a threatened species because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) Overutilization for commercial, sporting, scientific, educational, or other purposes; (3) Disease or predation; (4) The inadequacy of existing regulatory mechanisms; or (5) Other natural or artificial factors affecting its continued existence within Hawaii. (c) The department shall make determinations required by subsection (b) on the basis of all available scientific, commercial, and other data after consultation, as appropriate, with federal agencies, other interested state and county agencies, and interested persons and organizations. (d) The department shall issue rules containing a list of all species of aquatic life, wildlife, and land plants that have been determined, in accordance with subsections (a) to (c), as endangered species and a list of all such species so designated as threatened species. Each list shall include the scientific, common, and Hawaiian names, if any, and shall specify with respect to each such species over what portion of its range it is endangered or threatened. Except with respect to species of aquatic life, wildlife, or land plants determined to be endangered or threatened pursuant to the Endangered Species Act, the department, upon its own recommendation or upon the petition of three interested persons who have presented to the department substantial evidence that warrants review, shall conduct a review of any listed or unlisted indigenous species proposed to be removed from or added to the lists published pursuant to this subsection. (e) With respect to any threatened or endangered species of aquatic life, wildlife, or land plant, it is unlawful, except as provided in subsections (f), (g), and (j) for any person to: (1) Export any such species from this State; (2) Take any such species within this State; (3) Possess, process, sell, offer for sale, deliver, carry, transport, or ship, by any means whatsoever, any such species; (4) Violate any rule pertaining to the conservation of the species listed pursuant to this section and adopted by the department pursuant to this chapter; or (5) Violate the terms of, or fail to fulfill the obligations imposed and agreed to under, any license issued under subsection (f), (g), or (j) any habitat conservation plan authorized under section 195D-21, or any safe harbor agreement authorized under section 195D-22. (f) The department may issue temporary licenses, under such terms and conditions as it may prescribe, to allow any act otherwise prohibited by subsection (e), for scientific purposes or to enhance the propagation or survival of the affected species. (g) After consultation with the endangered species recovery committee, the board may issue a temporary license as a part of a habitat conservation plan to allow a take otherwise prohibited by subsection (e) if the take is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity; provided that: (1) The applicant, to the maximum extent practicable, shall minimize and mitigate the impacts of the take; (2) The applicant shall guarantee that adequate funding for the plan will be provided; (3) The applicant shall post a bond, provide an irrevocable letter of credit, insurance, or surety bond, or provide other similar financial tools, including depositing a sum of money in the endangered species trust fund created by section 195D-31, or provide other means approved by the board, adequate to ensure monitoring of the species by the State and to ensure that the applicant takes all actions necessary to minimize and mitigate the impacts of the take; (4) The plan shall increase the likelihood that the species will survive and recover; (5) The plan takes into consideration the full range of the species on the island so that cumulative impacts associated with the take can be adequately assessed; (6) The measures, if any, required under section 195D-21(b) shall be met, and the department has received any other assurances that may be required so that the plan may be implemented; (7) The activity, which is permitted and facilitated by issuing the license to take a species, does not involve the use of submerged lands, mining, or blasting; (8) The cumulative impact of the activity, which is permitted and facilitated by the license, provides net environmental benefits; and (9) The take is not likely to cause the loss of genetic representation of an affected population of any endangered, threatened, proposed, or candidate plant species. Board approval shall require an affirmative vote of not less than two-thirds of the authorized membership of the board after holding a public hearing on the matter on the affected island. The department shall notify the public of a proposed license under this section through publication in the periodic bulletin of the office of planning and sustainable development and make the application and proposed license available for public review and comment for not less than sixty days prior to approval. (h) Licenses issued pursuant to this section may be suspended or revoked for due cause, and if issued pursuant to a habitat conservation plan or safe harbor agreement, shall run with the land for the term agreed to in the plan or agreement and shall not be assignable or transferable separate from the land. Any person whose license has been revoked shall not be eligible to apply for another license until the expiration of two years from the date of revocation. (i) The department shall work cooperatively with federal agencies in concurrently processing habitat conservation plans, safe harbor agreements, and incidental take licenses pursuant to the Endangered Species Act. After notice in the periodic bulletin of the office of planning and sustainable development and a public hearing on the islands affected, which shall be held jointly with the federal agency, if feasible, whenever a landowner seeks both a federal and a state safe harbor agreement, habitat conservation plan, or incidental take license, the board, by a two-thirds majority vote, may approve the federal agreement, plan, or license without requiring a separate state agreement, plan, or license if the federal agreement, plan, or license satisfies, or is amended to satisfy, all the criteria of this chapter. All state agencies, to the extent feasible, shall work cooperatively to process applications for habitat conservation plans and safe harbor agreements on a consolidated basis including concurrent processing of any state land use permit application that may be required pursuant to chapter 183C or 205, so as to minimize procedural burdens upon the applicant. (j) Subsection (e) and any other provision of law to the contrary notwithstanding, the department shall adopt rules in accordance with chapter 91 authorizing the propagation, possession, ownership, and sale of selected endangered and threatened land plant species grown from cultivated nursery stock and not collected or removed from the wild. [L 1975, c 65, pt of §1; am L 1983, c 111, §5; am L 1997, c 380, §4 and c 381, §2; am L 1998, c 237, §1; am L 2004, c 144, §2; am L 2021, c 152, §16 and c 153, §9]

HRS §195D-4.5 Taking a monk seal prohibited

195D-4.5. Taking a monk seal prohibited (a) A person commits the offense of taking a monk seal if the person intentionally or knowingly takes a Hawaiian monk seal (Monachus schauinslandi). (b) Any person convicted of taking a monk seal shall be guilty of a class C felony; provided that in addition to any other sentence, the environmental court may impose a fine up to $50,000. [L 2010, c 165, §2; am L 2014, c 218, §8]

HRS §195D-5 Conservation programs

195D-5. Conservation programs (a) The department shall conduct research on indigenous aquatic life, wildlife, and land plants, and on endangered species and their associated ecosystems, and shall utilize the land acquisition and other authority vested in the department to carry out programs for the conservation, management, and protection of such species and their associated ecosystems. In addition, the department is hereby authorized to acquire by purchase, donation or otherwise, lands or interests therein needed to carry out the programs relating to the intent and purpose of this chapter. (b) The office of the governor shall review other programs administered by the department and, to the extent practicable, utilize such programs in furtherance of the purposes of this chapter. The governor or the governor's authorized representative shall also encourage all federal agencies to utilize their authority in furtherance of the purposes of this chapter. All other state agencies shall use their authority in furtherance of the purposes of this chapter by: (1) Carrying out programs for the protection of threatened and endangered species; and (2) Taking such action as may be necessary to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of threatened or endangered species. In carrying out programs authorized by this chapter, the department may enter into agreements with federal agencies, counties, private landowners, and organizations for the administration and management of any area or facility established under section 195D-21 or 195D-22, or public lands utilized for conserving, managing, enhancing, or protecting indigenous aquatic life, wildlife, land plants, threatened and endangered species, and their habitat. (c) In carrying out programs authorized by this section, the department may enter into agreements with federal agencies and with the counties for administration and management of any area established under this section, or utilized for conserving, managing, enhancing, or protecting indigenous aquatic life, wildlife, land plants, and endangered species. (d) In carrying out programs authorized by this section, priority shall be given to the conservation and protection of those endangered aquatic life, wildlife, and land plant species and their associated ecosystems, whose extinction within the State would imperil or terminate, respectively, their existence in the world. (e) The department shall coordinate with the natural area reserves commission and the animal species advisory commission all research, investigations, lists of indigenous and endangered aquatic life, wildlife, and land plants, and programs for the conservation, management, enhancement, and protection of species that are authorized by this chapter. (f) The department may permit, under terms and conditions adopted by rule, the taking, possession, transportation, or exportation of any indigenous aquatic life, wildlife, or land plant on the endangered species list for scientific purposes and for propagation of such species in captivity for preservation purposes. [L 1975, c 65, pt of §1; am L 1981, c 17, §1; am L 1983, c 111, §6; gen ch 1985; am L 1997, c 380, §5]

HRS §195D-5.1 Protection of Hawaii's unique flora and fauna

195D-5.1. Protection of Hawaii's unique flora and fauna The department of land and natural resources shall initiate amendments to the conservation district boundaries consistent with section 205-4 in order to include high quality native forests and the habitat of rare native species of flora and fauna within the conservation district. The department may seek assistance from appropriate public, private, and nonprofit agencies and may employ consultants as necessary to implement this section. [L 1987, c 82, §2]

HRS §195D-5.5 Products to support the environment

195D-5.5. Products to support the environment (a) There is established within the department a program to financially benefit the environment by the development of environmentally-themed products such as collectible stamps, credit cards, and coins to be commercially sold to the public. The department may enter into contracts with private entities for the production of existing and new environmentally-themed products as the department deems appropriate. (b) Each product developed under this program shall require the approval of the chairperson of the board of land and natural resources and the governor, after consultation with appropriate environmental organizations. (c) Except for direct costs to administer, produce, and market the products, all revenues from the sale of products under this section shall be paid into the endangered species trust fund established pursuant to section 195D-31 to support programs of the department that: (1) Benefit the environment; and (2) Are related to the environmental theme of the product sold. (d) The department shall submit an annual report of the program's products, costs, and revenues to the legislature no later than twenty days before the convening of each regular session. [L 2002, c 186, §2]

HRS §195D-6 Rules

195D-6. Rules The department may adopt rules pursuant to chapter 91 necessary to carry out the purposes of this chapter. L 1975, c 65, pt of §1; am L 1983, c 111, §7; am L 1997, c 380, §6

HRS §195D-6.5 Interim rulemaking

195D-6.5. Interim rulemaking (a) The department, subject to the provisions of this section, may declare any indigenous species as endangered and establish, implement, and enforce interim rules governing the exportation from the State or the taking, possession, sale, offer for sale, delivery, or transport within the State, by any means whatsoever, of any such endangered species. These rules shall not be subject to chapter 91. (b) An interim rule may be adopted in the event that the exportation, taking, possession, sale, offer for sale, delivery, or transport of any indigenous species, in the absence of effective rules, creates a significant risk of a local extirpation or species extinction, which is so imminent in nature as to constitute an emergency. No interim rule may be adopted without such finding by the department. (c) Interim rules adopted pursuant to this section shall be effective as stated by the rules; provided that: (1) Any interim rule shall be published statewide at least once as provided in section 1-28.5(a)(1) within five days after issuance; and (2) No interim rule shall be effective for more than one hundred eighty days. [L 2004, c 32, §2]

HRS §195D-7 Enforcement

195D-7. Enforcement (a) Any employee or agent of the department upon whom the board has conferred powers of police officers, including the power to serve and execute warrants and arrest offenders, or issue citations throughout the State, and any police officer of the counties of this State shall have the authority to enforce any of the provisions of this chapter or any rule adopted under this chapter. (b) Any employee or agent of the department, for the purpose of enforcing the terms and conditions of any license issued under this chapter and upon written notification to the affected landowner, may enter upon, cross over, be upon, or remain upon privately owned lands for such purposes and shall not be subject to arrest for trespass while so engaged or for such cause thereafter. (c) A landowner of property on which an endangered species exists shall not be liable for civil damages for injuries to employees of, or persons under contract with the department if injury to those employees or persons caused by their own negligence occurs while those employees or persons are enforcing the terms and conditions of any license issued under this chapter. [L 1975, c 65, pt of §1; am L 1983, c 111, §8; am L 1997, c 380, §7]

HRS §195D-8 Search and seizure

195D-8. Search and seizure Any officer or agent authorized pursuant to section 195D-7 shall have the authority to conduct searches as provided by law and to seize any equipment, business records, merchandise, aquatic life, wildlife, or land plant taken, possessed, transported, sold, offered for sale, or used in violation of any section of this chapter or any rule adopted hereunder, and any of the foregoing so seized shall be held by the department pending disposition of environmental court proceedings, or the department prior to forfeiture, may direct the transfer of aquatic life, wildlife, or land plants so seized to a qualified ichthyological, zoological, botanical, educational, or scientific institution for safekeeping, costs thereof to be paid by the defendant. Upon conviction of the person or persons from whom the seizure was made, the environmental court shall declare the items seized forfeited to the State. Such items shall be destroyed or disposed of in any manner as the department may deem appropriate. [L 1975, c 65, pt of §1; am L 1983, c 111, §9; am L 2014, c 218, §8]

HRS §195D-9 Penalty

195D-9. Penalty (a) Any person who violates any of the provisions of this chapter or the provisions of any rule adopted pursuant to this chapter shall be guilty of: (1) A misdemeanor for a first offense, punishable by a fine of no less than $250 or by imprisonment of no more than one year, or both; and (2) A class C felony for a second or subsequent offense and upon conviction shall be subject to one or any combination of the following: (A) A fine of no less than $1,000; (B) Imprisonment of no more than two years; or (C) Rehabilitative community service. (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 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 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 no less than $2,500 and no more than $5,000 or rehabilitative community service, or both; (2) For a second violation, a fine of no less than $5,000 and no more than $10,000 or rehabilitative community service, or both; and (3) For a third or subsequent violation, a fine of no less than $10,000 and no more than $20,000 or rehabilitative community service, or both. (e) In addition, an administrative fine of up to $10,000 or rehabilitative community service, or both, 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. [L 1975, c 65, pt of §1; am L 1983, c 111, §10; am L 1988, c 67, §3; am L 2001, c 93, §2; am L 2025, c 98, §3]

HRS §195D-10 Severability

195D-10. Severability Should any section, subsection, sentence, clause, or phrase of this chapter, or any rule adopted pursuant thereto be for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this chapter or rule adopted pursuant thereto. Note The amendment made by L 2014, c 218, §8 is not included in this section. [L 1975, c 65, pt of §1; am L 1983, c 111, §11]

Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol03_Ch0121-0200D/HRS0195D/HRS_0195D-.htmFetched: 11/10/2026