Rare Plant Rules At Odds with Law, And Neither Provide for Penalties

posted in: April 2006 | 0

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.

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’s 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.)

How closely do the rules governing collection and sale of endangered and threatened plants follow the governing law?

A review by Environment Hawai`i disclosed several disconnects:

Temporary licenses
The law gives the DLNR authority to “issue temporary licenses” 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 “may permit, under terms and conditions adopted by rule, the taking, possession transportation, or exportation of any indigenous … land plant on the endangered species list for scientific purposes and for propagation of such species in captivity for preservation purposes” (Section 195D-5(f)).

The rules governing licenses do not describe such licenses at any point as being “temporary,” although applicants for licenses are supposed to indicate the “length of duration” 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 “an annual summary of project activities” and a list of any endangered plants that were given away, donated, or sold in that period.

Commercial Sales
The law gives the DLNR authority to adopt rules “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” (Section 195D-4(j)).

In the definition of “cultivated plants,” however, the rules go further than the law. Such plants are defined as “propagules or plants germinated from garden-grown stock as well as from wild populations and grown or cared for in a controlled environment.” The term “garden-grown stock” – defined as “plants and propagules from cultivated plants” – would seem to be more what the Legislature had in mind when it referred to “cultivated plants.”

The rules contain internal inconsistencies as well. The rules prohibit anyone from selling threatened and endangered plants “unless that plant species has been approved by the department for commercial use” (Section 13-107-3(d)). Yet at the same time, the rules say that “all threatened and endangered plant species from garden-grown stock can be used commercially.”

Vickie Caraway, the DLNR’s chief botanist, was asked if the department had a list of plant species approved for sale. “This was a program set up before I came on,” she said. “As I understand it, though, the entire list of threatened and endangered plant species was approved for sale.”

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 “a committee composed of a minimum of five members who are knowledgeable of the biological conditions required to grow threatened and endangered plants.” 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. “I did have a list of who was on the committee,” she said, “but many of the members have passed on or left the islands – such as Charlie Lamoreaux.”

Suppose someone collects plants in the wild, propagates them in a nursery, and sells them – all without the tags that the DLNR’s rules require. On the subject of penalties, the state law and DLNR rules are on the same page – which, as it happens, is pretty well blank.

Neither Chapter 195D nor the implementing rules contain any penalty provision. Instead, the law contains a section (195D-27) allowing for “administrative enforcement.” 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 “make a diligent effort to resolve the subject matter of the petition.” If unsuccessful, the chairperson shall appoint a hearings officer to undertake a contested case hearing.

The remedies provided by statute are thin: “Nothing 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,” according to Section 195D-27(c).

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.
The 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 “Bill Status & Documents” link.

— Patricia Tummons

Volume 16, Number April 2006