The Department of Land and Natural Resources has rules, administered under its Division of Forestry and Wildlife, governing the collection, propagation, replanting, and sale of endangered and threatened plants. The rules are based, for the most part, on Chapter 195D, Hawai`i Revised Statutes.<\/p>\n
Rules should follow closely the authorizing statute. When they do not, they are subject to court challenge, as occurred most recently in the case of the DLNR\u2019s rules governing shoreline certification. (In that case, the rules went beyond language in the law. In an out-of-court settlement, the DLNR agreed to redraft the rules. The draft rules that resulted are now the subject of ongoing public hearings.)<\/p>\n
How closely do the rules governing collection and sale of endangered and threatened plants follow the governing law?<\/p>\n
A review by Environment Hawai`i disclosed several disconnects:<\/p>\n
Temporary licenses<\/b><\/i>
\nThe law gives the DLNR authority to \u201cissue temporary licenses\u201d for research, collection, sale, transport, or export of endangered and threatened plants (Section 195D-4(f)). Temporary licenses may also be issued by the Board of Land and Natural Resources in connection with approved habitat conservation plans, but this may only be done after consultation with the Endangered Species Recovery Committee and a hearing on the island affected. Apart from a license, in connection with conservation programs, the department \u201cmay permit, under terms and conditions adopted by rule, the taking, possession transportation, or exportation of any indigenous \u2026 land plant on the endangered species list for scientific purposes and for propagation of such species in captivity for preservation purposes\u201d (Section 195D-5(f)).<\/p>\n
The rules governing licenses do not describe such licenses at any point as being \u201ctemporary,\u201d although applicants for licenses are supposed to indicate the \u201clength of duration\u201d of the project for which they are seeking a license. Licensees are also required to provide to the department by July 1 of each year \u201can annual summary of project activities\u201d and a list of any endangered plants that were given away, donated, or sold in that period.<\/p>\n
Commercial Sales<\/b><\/i>
\nThe law gives the DLNR authority to adopt rules \u201cauthorizing 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\u201d (Section 195D-4(j)).<\/p>\n
In the definition of \u201ccultivated plants,\u201d however, the rules go further than the law. Such plants are defined as \u201cpropagules or plants germinated from garden-grown stock as well as from wild populations and grown or cared for in a controlled environment.\u201d The term \u201cgarden-grown stock\u201d \u2013 defined as \u201cplants and propagules from cultivated plants\u201d \u2013 would seem to be more what the Legislature had in mind when it referred to \u201ccultivated plants.\u201d<\/p>\n
The rules contain internal inconsistencies as well. The rules prohibit anyone from selling threatened and endangered plants \u201cunless that plant species has been approved by the department for commercial use\u201d (Section 13-107-3(d)). Yet at the same time, the rules say that \u201call threatened and endangered plant species from garden-grown stock can be used commercially.\u201d<\/p>\n
Vickie Caraway, the DLNR\u2019s chief botanist, was asked if the department had a list of plant species approved for sale. \u201cThis was a program set up before I came on,\u201d she said. \u201cAs I understand it, though, the entire list of threatened and endangered plant species was approved for sale.\u201d<\/p>\n
Under the rules, if someone believes a given species of plant should not be sold, he or she must petition the department, which then is supposed to refer the petition to \u201ca committee composed of a minimum of five members who are knowledgeable of the biological conditions required to grow threatened and endangered plants.\u201d That committee will make recommendations to the department, which will ultimately approve or deny the petition. Caraway has only a vague recollection of the committee, which has not convened for years. \u201cI did have a list of who was on the committee,\u201d she said, \u201cbut many of the members have passed on or left the islands \u2013 such as Charlie Lamoreaux.\u201d<\/p>\n
Enforcement<\/b><\/i>
\nSuppose someone collects plants in the wild, propagates them in a nursery, and sells them \u2013 all without the tags that the DLNR\u2019s rules require. On the subject of penalties, the state law and DLNR rules are on the same page \u2013 which, as it happens, is pretty well blank.<\/p>\n
Neither Chapter 195D nor the implementing rules contain any penalty provision. Instead, the law contains a section (195D-27) allowing for \u201cadministrative enforcement.\u201d Under this scheme, anyone who believes the rules are being violated can petition the Land Board chairperson, seeking an injunction against the suspected violator or an order requiring the state to take action to enforce the law. The chairperson shall then \u201cmake a diligent effort to resolve the subject matter of the petition.\u201d If unsuccessful, the chairperson shall appoint a hearings officer to undertake a contested case hearing.<\/p>\n
The remedies provided by statute are thin: \u201cNothing in this section shall grant any authority whatsoever upon a hearings officer to assess monetary damages or criminal penalties against any party found to be in violation of this chapter,\u201d according to Section 195D-27(c).<\/p>\n
Caraway said that, to her knowledge, no one has ever been penalized for failure to comply with laws governing the sale or collection of endangered or threatened plants.
\nThe rules, Chapter 13-107, are available from the DLNR website: [url=http:\/\/www.state.hi.us\/dlnr\/dofaw\/rulesindex.html;]http:\/\/www.state.hi.us\/dlnr\/dofaw\/rulesindex.html;[\/url] follow the link to chapter 107. The controlling law, Chapter 195D of Hawai`i Revised Statutes, can be read online by going to: [url=http:\/\/www.capitol.hawaii.gov]http:\/\/www.capitol.hawaii.gov[\/url] and following the \u201cBill Status & Documents\u201d link.<\/p>\n
— Patricia Tummons<\/p>\n
Volume 16, Number April 2006<\/p>\n","protected":false},"excerpt":{"rendered":"
The Department of Land and Natural Resources has rules, administered under its Division of Forestry and Wildlife, governing the collection, propagation, replanting, and sale of endangered and threatened plants. The rules are based, for the most part, on Chapter 195D, … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[144],"tags":[],"class_list":["post-1399","post","type-post","status-publish","format-standard","hentry","category-april-2006"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1399","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1399"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1399\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1399"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1399"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1399"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}