SB2231

Report Title:

State Tort Liability; Kaho'olawe

Description:

Requires the State to warn persons entering Kaho'olawe of the dangers of unexploded ordnance, and to warn of the dangerous natural conditions of the adjacent ocean; establishes a task force on warning signs and devices for Kaho'olawe.

THE SENATE	S.B. NO.	2231
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII

A BILL FOR AN ACT

relating to kaho'olawe island reserve.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. In 1994, the United States enacted a law requiring the conveyance of the island of Kaho'olawe to the State and for the removal of unexploded ordnance and environmental restoration. As a consequence of the Island being under federal receivership to clear the ordnance, the legislature formed the Kaho'olawe island reserve commission to manage the island and its surrounding waters on behalf of the State. The Kaho'olawe island reserve commission entered into an agreement with the United States Navy regarding the terms and scope of the unexploded ordnance removal and environmental restoration project. Since implementation, the United States Navy has informed the State that the unexploded ordnance removal and environmental restoration project will not be completed to the previously agreed upon standards before the congressionally-mandated project sunsets in November 2003. At that time, control of access to the island is transferred to the State.

Kaho'olawe and its surrounding waters continue to contain hazards from residual unexploded ordnance, and natural conditions similar to the other Hawaiian islands. Persons accessing Kaho'olawe and its surrounding waters are exposed to these hazardous conditions. The legislature finds that in advance of the 2003 transfer, it is necessary to put measures in place that establish a balance between the public’s access and use of Kaho'olawe and the government’s duty to provide adequate warning.

The purpose of this Act is to establish a process in which the State can provide both meaningful and legally adequate warnings to the public regarding the access and use of Kaho'olawe and its surrounding waters. Specifically, this Act establishes a process by which the State is provided protection from liability when it has provided adequate warning to the public through the design and placement of warning signs on Kaho'olawe. The legislature believes this Act will provide a process by which a legally adequate warning system can be developed for Kaho'olawe and its surrounding waters which will increase public safety and reduce the potential for unexploded ordnance related accidents.

SECTION 2. Chapter 6K, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§6K- Task force on warning signs and devices. There is established a task force on warning signs and devices for the Kaho'olawe island reserve, to be administratively attached to the department of land and natural resources. The task force shall provide consultation to the Kaho'olawe island reserve commission regarding the design and placement of warning signs and devices on the island and in the adjacent ocean. The task force shall consist of the following members, who shall serve without compensation:

(1) The chairperson of the Kaho'olawe island reserve commission, or designated representative;

(2) The chairperson of the board of land and natural resources, or a designated representative;

(3) Four persons appointed by the chairperson of the board of land and natural resources knowledgeable in public safety issues pertaining to the island of Kaho'olawe.

The task force shall be chaired by the chairperson of the Kaho'olawe island reserve commission. The Kaho'olawe island reserve commission may also seek the advice of the United States Navy or other agency of the United States of America, with respect to the appropriate design of warning signs or devices and their placement."

SECTION 3. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§662- Conclusive presumptions relating to duty of State to warn of dangers arising from unexploded ordnance on the island of Kaho'olawe and in the ocean adjacent to the island of Kaho‘olawe. (a) The State shall warn persons who enter upon the Kaho'olawe island reserve of the dangers posed by any unexploded ordnance on the island and in the adjacent ocean. The State shall not have a duty to warn of dangerous natural conditions in the ocean adjacent to the island of Kaho'olawe.

(b) A sign, signs, or other warning device shall be conclusively presumed to be legally adequate to warn of the dangers posed by unexploded ordnance on the island or in its adjacent ocean, if:

(1) The State posts on the island a sign, signs, or other device warning of the dangers posed to persons by any unexploded ordnance; and

(2) The design and placement of a sign or device is approved by the Kaho'olawe island reserve commission. The Kaho'olawe island reserve commission shall consult the task force established under section 6K- , on warning signs and devices for the Kaho'olawe island reserve prior to approving the design and placement of the warning sign, signs, or device.

(c) A sign, signs, or other device warning of other dangerous conditions on the island of Kaho'olawe or in its adjacent ocean shall be conclusively presumed to be legally adequate to warn of the dangerous conditions if the State posts on the island the sign, signs, or device, and the design and placement of the sign, signs, or device is approved by the Kaho‘olawe island reserve commission. The Kaho'olawe island reserve commission shall consult the task force on warning signs and devices for the Kaho'olawe island reserve prior to approving the design and placement of the warning sign, signs, or device.

(d) If a warning sign or device posted or established in accordance with this section is vandalized, otherwise removed, or made illegible, the conclusive presumption provided by this section shall continue for a period of ten days from the date that the vandalism, removal, or illegibility is discovered by the State. The Kaho'olawe island reserve commission shall maintain a record regarding each report of vandalism, removal, or illegibility that results in the replacement of a warning sign or device on the island of Kaho‘olawe. The record shall include the date and time of the reporting and the replacement of the warning sign or device.

(e) The Kaho'olawe island reserve commission shall consider the needs of the public to be warned of potentially dangerous conditions on the island and in its adjacent ocean prior to approval of the design and placement of any warning sign, signs, or device. The Kaho'olawe island reserve commission may require additional warning signs or devices before approving the design and placement of a warning sign or device. The approval of the design and placement of a warning sign or device shall be a discretionary function under section 662-15(1).

(f) Chapter 91 shall not apply to any process, including any action taken by the Kaho'olawe island reserve commission, established or made pursuant to this section."

SECTION 4. This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________