LaFrance Kapaka-Arboleda
Kauai Island Burial Council

Dan Davidson and/or Paul Schwind
Land Use Research Foundation

Ric Elhard
Kula Kai Caverns

Betsy Gagne
Department of Land and Natural Resources, Division of Forestry and Wildlife

Ulu Garmon
Hawai`i Island Burial Council

Don Hibbard and/or Holly McEldowney
Department of Land and Natural Resources, State Historic Preservation Division

Frank Howarth
Hawai`i Biological Survey, Bishop Museum

Yvonne Izu
Department of Attorney General

Colin Kippen and/or Wayne Kawamura
Office of Hawaiian Affairs

Charles Maxwell
Maui Island Burial Council

Karen Piltz
Department of Business, Economic Development and Tourism, Housing Community Development Corporation of Hawai`i

John Ray
Hawai`i Leeward Planning Conference

Fred Stone
Hawai`i Community College, Coordinator of the Hawai`i Cave Conservation Task Force

Chuck Thorne
Kaeleku Caverns

The Task Force and Its Operation

The Department of Land and Natural Resources convened the Hawai`i Caves Task Force in response to Senate Concurrent Resolution Number 85, House Draft 1, entitled, "Senate Concurrent Resolution Requesting the Department of Land and Natural Resources to Establish a Task Force to Gather Public Input and Recommend Statutory Cave Law" (See Appendix A). The Task Force met as a whole on five occasions, and in addition, subcommittees met to discuss specific issues relating to caves. Also two series of public meetings were held throughout the state to provide the public with information relating to the activities of the Task Force and to gather public information on caves.

The initial meeting of the Hawai`i Caves Task Force was held on July 9, 2001 in Honolulu at the Kalanimoku Building. At this meeting the purpose of the Task Force was discussed and a strategy for approaching the topic was developed. A packet of information was distributed to the Task Force which included an Attorney General's opinion on Caves in Hawai`i (See Appendix B) and a copy of all known existing state cave laws within the union, as well as the federal caves protection law (See Appendix C).

Subsequent to the initial meeting, a round of public meetings was held on the four major islands. Because of fiscal constraints the Task Force as a whole did not attend these meetings. Rather, Don Hibbard hosted these meetings, and Task Force members attended those meetings in their geographic area. The meetings were held as follows:

• July 24, 2001: Wailuku. Maui
• July 30, 2001: Lihue, Kauai
• August 2, 2001: Honolulu, Oahu
• August 6, 2001: Captain Cook, Hawai`i
• August 7, 2001: Hilo, Hawai`i

Information gathered at these meetings was synthesized and distributed to the Task Force (See Appendix D), as was any other information provided by the public (See Appendix D). In response to a request made at the Kona and Hilo meetings, a member of the Hawaiian community residing on the Island of Hawai`i, Ulu Garmon, was appointed to the Task Force.

The Task Force met on September 10, 2001, October 1, 2001, and October 15, 2001, to discuss caves and consider various mechanisms to better protect caves and their resources. As a result of those meetings proposed draft language for possible legislation was produced. This draft was posted on the Historic Preservation Division's website and also mailed to the people who attended the initial round of public meetings. A second round of public meetings was held to gather public comments on the draft language. The meetings were held as follows:

• October 24, 2001: Honolulu, Oahu
• October 25, 2001: Waiehu, Maui
• October 29, 2001: Captain Cook, Hawai`i
• October 30, 2001: Hilo, Hawai`i
• November 2, 2001: Lihue, Kauai

The comments made at these public meetings were synthesized (See Appendix E) and distributed to the Task Force when it met on November 5, 2001. The Task Force further discussed the draft language and considered the public comments, making amendments to the language where appropriate. Through the use of e-mail and fax a copy of the Caves Task Force Report to the Legislature was distributed to and reviewed by the Task Force membership. It was amended as necessary.

Approaches to Cave Concerns

Through the activities of the Task Force a number of concerns emerged relating to caves. These included:

1. Native Hawaiian concerns relating to the sanctity of caves which contain ancestral burials and evidence of past use, and which have significant historical and legendary associations.

2. Private property owner concerns relating to trespass, liability and owner use of their lands.

3. Use concerns relating to educational, cultural, recreational, commercial and scientific activities in caves.

4. Cave environmental deterioration concerns including the need to protect cave life and deter pollution and vandalism.

5. The Department of Land and Natural Resources (DLNR) capability to protect caves and their resources, considering fiscal and staffing constraints.

The Task Force contemplated and discussed these concerns at great length. It recognized that the passage of any bill to better protect caves would require an augmentation to DLNR resources. However, the members also realized that an increase in DLNR resources at this point in time would be difficult, considering the present state of Hawai`i's economy. However, it was felt that a law to protect caves, no matter how negligible its current enforcement, was better than no law at all.

No opposition was expressed with regards to the concept of protecting caves and cave life from human degradation through pollution and vandalism. The Task Force has drafted language, modeled after existing laws in other states, to address these concerns. This language could be incorporated into a new chapter of the Hawai`i Revised Statutes. This language was crafted in an effort to protect cave resources against malicious and negligent degradation. The caveat, "without the owner's permission" was included in the sections addressing the various prohibitions so that the provisions of these sections would not apply to the normal encountering of lava tubes in the course of construction projects, where the presence of such caves is usually not known to the owner, developer or contractor. Furthermore, although it is recognized that certain above ground environments are a part of cave eco-systems, the proposed language restricts itself solely to the protection of subterranean cave resources, and is not intended to prohibit or constrain the full and free development of the surface of the land above a cave or lava tube. 

The Task Force also considered the possibility to better protect caves and their resources through the Environmental Impact Statement (EIS) process. After discussions with the Office of Environmental Quality Control (OEQC) , it was determined such protection could be achieved administratively, without the need to amend Chapter 343, Hawai`i Revised Statutes (HRS). If standards of criteria are drafted for OEQC's consideration, caves and their resources would be addressed in the preparation of an Environmental Assessment (EA) or an EIS. A citizen's group on the island of Hawai`i has expressed an intent to develop the necessary criteria.

With regards to landowner liability issues, the Task Force has drafted language which is comparable to Chapter 520, HRS. It would extend landowner protection from liability for people who enter caves for other than recreational purposes. The other purposes include: educational, scientific and native Hawaiian cultural. This language would be included within the framework of the proposed new chapter to the HRS.

The Task Force felt that existing state laws with regards to water quality were sufficient to protect the clean waters found in caves, and thus the proposed language does not address this area, although Chapters 340 and 342D of the HRS are referenced.

With regards to the protection of native Hawaiian burial sites and historic properties situated within caves, the Task Force felt the existing processes and protections enumerated in Chapter 6E, HRS were sufficient, and as such these are referenced in the proposed language of the possible bill relating to cave protection. The protection of the sanctity of burial caves can be addressed on a case by case basis through the recommendations of the various Island Burial Councils, especially through the enumeration of appropriate buffer zones. Also anyone entering a cave who encounters burials is required under Chapter 6E, HRS to cease any activity in the immediate area that could damage the remains, and report their discovery to the police and DLNR.

To address some public concerns with regards to commercial activities in caves, the Task Force has proposed language to regulate commercial use of caves. The language would require anyone collecting a fee or donation in return for cave access to obtain a permit from DLNR. Such a permit would trigger historic preservation reviews under Chapter 6E, HRS. Currently several private property owners are offering tours of caves on their lands for a fee. Other commercial eco-tour companies are utilizing caves as tour destinations, perhaps without the landowners' cognizance or consent. Na Pali Coast boat operators also access underwater caves on public lands at the present time. Some people are concerned such a provision would give legal sanction for people to enter certain caves, while others view it as an infringement on their private property rights. The Task Force found cave access to be a complex issue in need of much more careful scrutiny, as it brought forth diverse public opinions. These opinions ranged from a complete kapu on entering any cave, to making it kapu to enter burial caves, to a private property owner is free to do as he/she desires on his/her lands. To some extent, trespass laws provide some protection and recourse for undesired access, but require landowner cooperation for successful prosecution.

Proposed Language for a Possible Bill

Relating to Cave Protection

Declaration of intent. Caves are unique land forms that often contain irreplaceable resources of immense cultural, spiritual, aesthetic and scientific value. The cultural and spiritual resources, including but not limited to, human burials and other evidence of native Hawaiian use and their associated traditions, are in need of greater protection. The preservation of these cultural resources is paramount for their survival for future generations, and they are also to be considered a valuable part of Hawai`i's heritage. The biologic and geologic resources include, but are not limited to, unique subterranean ecosystems inhabited by specialized organisms, the associated native flora and fauna living within entrances, mineral and bedrock formations and paleontological, or fossil, deposits. Such fossil deposits, which include remains of plants, animals, and surface debris preserved in caves, provide a unique record of the past climate and biota of the islands. All of these resources are vulnerable to destruction and protection is warranted. It is therefore the policy of the State of Hawai`i to protect these unique cultural and natural resources. This chapter is not intended to limit other laws, such as chapters 6E, 340E, and 342D, which address historic preservation and water quality.

Definitions. As used in this chapter:

"Board" means the board of land and natural resources.

"Cave" means any naturally occurring void, cavity, recess, or system of interconnected passages large enough for human entry occurring beneath the surface of the earth or within a cliff or ledge, including the cave resources therein, whether or not an entrance exists or is natural or man made. Such term shall include, but not be limited to, such forms as a lava tube, natural pit, sinkhole, underwater cave, or other feature that is an extension of the entrance.

"Cave life" means any living native plant, animal, fungus, or microorganism occurring naturally in caves or in cave entrances or entrance pits.

"Cave resource" means any material or substance occurring in caves, such as native animal life, native plant life, evidence of past human use over fifty years old, and tangible and intangible attributes associated with cultural traditions over fifty years old, paleontological deposits, sediments, minerals, speleogens, and speleothems. This includes historic properties as defined in chapter 6E.

"Commercial entry" means an activity undertaken to exhibit a cave for which compensation is received by any person for goods or services or both rendered to customers or participants in that use or activity. Commercial entry includes activities whose base of operations are outside the boundaries of the premises, or provide transportation to or from the premises. Any person receiving compensation in conjunction with a use or activity who seeks to qualify as non-commercial shall have the burden of establishing to the satisfaction of the department that the fee or charge is strictly a sharing of actual expenses of the use or activity. A not-for-profit organization that charges only a nominal fee to cover administrative cost and conducts a use or activity at a frequency or magnitude that does not significantly contribute to the degradation of the cave and its resources is not conducting a commercial entry.

"Department" means the department of land and natural resources.

"Educational purposes" means entrance into a cave by faculty or staff and students of recognized educational institutions for the purpose of teaching about some aspect of the cave, including but not restricted to cave geology, mineralogy, hydrology, biology, archaeology, paleontology, management, and hazards.

"Gate" means any structure or device located to limit, control, or prohibit access to or entry to any portion of a cave.

"Owner" means the person(s) who holds title to or is in possession of the land on or under which a cave is located, or his lessee, or agent.

"Paleontological deposit" means any remains or fossils of life forms or surface debris that are over fifty years of age and provide a record of past climates and biota.

"Scientific purposes" means research and/or exploration conducted by persons affiliated with recognized scientific organizations with the intent to advance knowledge and with the intent to publish the results of exploration or research in an appropriate medium.

"Speleogen" means relief features on the walls, ceiling, or floor of any cave.

"Speleothem" means any secondary natural mineral formation or deposit occurring in a cave, including but not limited to any stalactite, stalagmite, helictite, cave flower, flowstone, concretion, drapery, rimstone, or formation of clay or other sediment.

Prohibitions.

(a) It shall be unlawful for any person, natural or corporate to intentionally or negligently break, break off, crack, carve upon, write, burn or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or the cave resources, as defined in this chapter, within, whether attached or broken, including speleothems, speleogens, and sedimentary deposits without the owner's written permission being first obtained.

(b) It shall be unlawful for any person, natural or corporate, to break, force, tamper with or otherwise disturb a gate to any cave, even though entrance thereto may not be gained, without the owner's permission being first obtained.

(c) It shall be unlawful for any person, natural or corporate, to remove, deface, or tamper with a sign stating that a cave is posted or citing provisions of this chapter.

(d) It shall be unlawful for any person, natural or corporate to take, appropriate, excavate, injure, destroy, or alter any paleontological deposit which may be found in a cave without the owner's written permission being first obtained.

Pollution.

(a) It shall be unlawful for any person, natural or corporate, to store, dump, dispose of or otherwise place any refuse, garbage, dead animals, sewage, litter or toxic substances in any cave or cave entrance; provided, however, that any cesspool or leach field that is otherwise legal and existing on the effective date of this section shall continue to be lawful as a nonconforming use or facility; provided further that such nonconforming use or facility shall not be expanded or reconstructed.

(b) It shall be unlawful to burn within a cave or cave entrance any material that produces any smoke, engine exhaust, or gasses harmful to any naturally occurring organisms in any cave.

Disturbance of native organisms. It shall be unlawful for any person, natural or corporate, to intentionally or negligently remove, kill, or harm any native organisms within any cave except as provided by a scientific permit obtained from the appropriate agency. This is not intended to restrict normal fishing and gathering in accordance with existing laws.

Sale. It shall be unlawful for any person, natural or corporate to sell or offer for sale speleothems and speleogens removed from caves.

Commercial entry. Any person, natural or corporate, allowing or establishing commercial entry to a cave shall obtain from the board a permit to open the cave for public entry. The department shall charge a reasonable permit processing fee and adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section.

Liability.

(a) An owner of a cave who either directly or indirectly invites or permits without charge any person to use the cave for educational, native Hawaiian cultural, or scientific purposes does not:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;

(3) Assume responsibility for, or incur liability for, any injury to person or property caused by an act of omission or commission of such persons; and

(4) Assume responsibility for, or incur liability for, any injury to person or persons who enter the premises in response to an injured educational or scientific user.

(b) Nothing in this section shall be construed to:

(1) Create a duty of care or ground of liability for injury to persons or property; or

(2) Relieve any person using the cave of another for educational or scientific purposes from any obligation which the person may have in the absence of this section to exercise care in the person's use of such cave and in the person's activities therein, or from the legal consequences of failure to employ such care; or

(3) Limit the effect of the provisions of chapter 520.

Confidentiality.

(a) Where the department determines in consultation with the owner that dissemination of knowledge of cave location or resources could be detrimental to their protection, then the government information on the cave location and sensitive resources shall be kept confidential.

(b) Where an owner believes that dissemination of knowledge or cave location or resources could be detrimental to their protection, then the department shall determine the government information on the cave location and sensitive resources shall be kept confidential.

General administrative penalties.

(a) 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 violation of this chapter or any rule adopted pursuant to this chapter. The administrative fines shall be as follows:

(1) For a first violation, a fine of not more than $10,000 for each separate offense;

(2) For a second violation within five years of a previous violation, a fine of not more than $15,000; and

(3) For a third or subsequent violation within five years of the last violation, a fine of not more than $30,000.

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

(c) Penalties under this section shall not limit the imposition of penalties pursuant to chapter 6E.

Criminal penalties.

(a) In addition to any other penalties, any person violating this chapter, any rule adopted pursuant to this chapter, or the terms and conditions of any permit issued in accordance with this chapter shall be guilty of a misdemeanor and shall be punished as follows:

(1) For a first conviction by a fine of not less than $250 nor more than $1,000 or by imprisonment of not more than one year, or both;

(2) For a second or subsequent conviction within five years of a previous conviction by a fine of not less than $500 nor more than $1,000 or by imprisonment of not more than one year, or both.

In addition, a fine of up to $1,000 may be levied for each specimen of cave resource that is intentionally or recklessly damaged, destroyed, removed, taken, sold, or possessed illegally under this chapter. Each day of continued violation under this chapter shall constitute a distinct and separate offense for which the violator may be punished. Equipment used by the violator in the course or furtherance of the violation shall be subject to seizure and disposition by the State without compensation to its owner or owners. Penalties under this section shall not limit the imposition of penalties pursuant to chapter 6E.

TITLE	DESCRIPTION
APPENDIX A	Senate Concurrent Resolution No. 85 H.D. 1
APPENDIX B	Opinion of the Office of the Attorney General
APPENDIX C	Cave Protection Laws of Various States
APPENDIX D	Synopses of Public Meeting Comments held from July 24th through August 7th, 2001
APPENDIX E	Synopses of Public Meeting Comments held from October 24th through November 2nd, 2001

The complete Caves Task Force Report to the Legislature is approximately 110 pages long. Copies of the report and/or appendices are available through SHPD at 50 cents per page. Please contact SHPD at (808) 692-8015 for additional information and to order copies.

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