Chapter 1, Administration; Rules of Practice and Procedure

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HAWAII ADMINISTRATIVE RULES
TITLE 13
DEPARTMENT OF LAND AND NATURAL RESOURCES
SUB-TITLE 1 ADMINISTRATION
CHAPTER 1
RULES OF PRACTICE AND PROCEDURE
Subchapter 1
General Provisions
§13-1-1 	Purpose
§13-1-2 	Definitions
§13-1-2.1 	Definitions applied
§13-1-3 	Office
§13-1-4 	Hours
§13-1-5 	Meetings
§13-1-5.1 	Adjudicatory functions
§13-1-6 	Quorum
§13-1-7 	Authentication
§13-1-8 	Chairperson
§13-1-8.1 	Vice-chairperson
§13-1-9 	Government records
Subchapter 2
Proceedings Before the Board
§13-1-10 	Appearance and practice before the
board
§13-1-11 	Proceedings before the board
§13-1-11.1 	Limiting testimony at public hearings
and meetings
§13-1-11.2 	Removal of persons from proceedings
§13-1-12 	Filing of documents

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§13-1-13 	Computation of time
§13-1-13.1 	Service
§13-1-13.2 	Additional time after service by mail
§13-1-14 	Continuances or extensions of time
§13-1-15 	Amendment required or refusal of
documents
§13-1-16 	Retention of documents by the board
§13-1-17 	Board decision
§13-1-18 	Counsel for the board in contested
cases
§13-1-19 	Substitution of parties
§13-1-20 	Consolidations
Subchapter 3
Rulemaking Proceedings
§13-1-21 	Initiating proceedings
§13-1-22 	Notice
§13-1-23 	Time and place
§13-1-24 	Conduct of rulemaking hearing
§13-1-25 	Emergency rulemaking
§13-1-26 	Petitions for adoption, amendment, or
repeal of rules
Subchapter 4
Declaratory Rulings
§13-1-27 	Petition for declaratory ruling
Subchapter 5
Contested Case Proceedings
§13-1-28 	Contested case hearings
§13-1-29 	Request for hearing
§13-1-29.1 	Determination of entitlement to a
contested case hearing
§13-1-30 	Filing Fee
§13-1-31 	Parties
§13-1-31.1 	Hearings of violations

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§13-1-31.2 	Notice of hearing
§13-1-32 	Conduct of hearing
§13-1-32.1 	Conduct of hearing with only one party
§13-1-32.2 	Enforcement by department
§13-1-32.3 	Discovery
§13-1-32.4 	Records on file with board
§13-1-33 	Procedure for witnesses
§13-1-34 	Motions
§13-1-35 	Evidence
§13-1-36 	Prehearing conference; exchange of
exhibits; briefs
§13-1-37 	Ex parte (single party) communications
§13-1-38 	Decisions and orders
§13-1-39 	Reconsideration
§13-1-40 	(Reserved)
Subchapter 6
Post Hearing Procedures for Hearing
Conducted by Hearing Officer
§13-1-41 	Recommendation of hearing officer
§13-1-42 	Exception to the hearing officer’s
report and recommendations
§13-1-43 	Support of hearing officer’s report and
recommendations
§13-1-44 	Oral argument before the board
§13-1-45 	Board action; exceptions
§§13-1-46 to 13-1-50 	(Reserved)
Subchapter 7
Civil Resource Violations System
§13-1-51 	Purpose of subchapter; statement
of policy
§13-1-52 	Definitions
§13-1-53 	Applicability
§13-1-54 	Jurisdiction
§13-1-55 	Deputy director
§13-1-56 	The administrator
§13-1-57 	Appointment and removal of

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administrative hearing officers
§13-1-58 	Delegation of final decision
making power
§13-1-59 	Representation
§13-1-60 	Filing and service
§13-1-61 	Notice of civil resource violation;
issuance, service and amendment
§13-1-62 	Notice of civil resource
violation; contents
§13-1-63 	Answer required; noncompliance
subject to higher fine
§13-1-64 	Respondent’s options when
answering
§13-1-65 	Counter claim disallowed
§13-1-66 	Default
§13-1-67 	Proceedings after answer
§13-1-68 	Record of contested case hearing
§13-1-69 	Final decision making procedure
when power delegated
§13-1-70 	Administrative sanctions schedule;
factors to be considered
§13-1-71 	Determination of a repeat violator
§13-1-72 	Enforcement and stay of a final
decision
Historical Note: 	Chapter 1 of Title 13,
Administrative Rules, is based substantially upon the
Rules of Practice and Procedure before the Board of
Land and Natural Resources. 	[Eff 7/26/62; R 6/22/81]
SUBCHAPTER 1
GENERAL PROVISIONS
§13-1-1 	Purpose. 	This chapter governs practice
and procedure before the board of land and natural
resources of the State of Hawaii under chapter 91,
Hawaii Revised Statutes (HRS), the public land laws of
the State and such other related acts as may now or

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hereafter be administered by the board. 	These rules
shall be construed to secure the just, speedy, and
cost-effective determination of every proceeding.
[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §91-2)
§13-1-2 	Definitions. 	(a) 	As used in this
chapter, unless the context requires otherwise:
“Applicant” means the applicant or petitioner who
initiates a request to the board for a permit or other
authorization, or for relief.
“Application” means the application or petition
made to the board for a permit or other authorization,
or for other relief.
“Board” means the board of land and natural
resources.
“Chairperson” means the chairperson of the board
of land and natural resources.
“Contested case” means a proceeding in which the
legal rights, duties, or privileges of specific
parties are required by law to be determined after an
opportunity for an agency hearing.
“Department” means that department of land and
natural resources.
“Government records” is defined in section 92F-3,
HRS. 	The term shall include all rules, written
statements of policy or interpretation formulated,
adopted, or used by the board, all final opinions and
orders, the minutes of meetings of the board and any
other material required by law to be kept on file in
the office of the board unless accorded confidential
treatment pursuant to law.
“Party” means each person or agency named or
admitted as a party.
“Person” means as appropriate individuals,
partnerships, corporations, associations, or public or
private organizations of any character other than
agencies.
“Petitioner” means the person or agency on whose
behalf a petition or application is made.
“Presiding officer” means the person conducting

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the hearing which shall be the chairperson or the
chairperson’s designated representative.
“Proceeding” means the board’s consideration of
the relevant facts and applicable law and action
thereon with respect to a particular subject within
the board’s jurisdiction, initiated by a filing or
submittal or request or a board’s notice or order, and
shall include but not be limited to:
(1) 	Proceedings involving the adoption of forest
reserve or watershed boundaries;
(2) 	Petitions for the creation of land use
subzones in conservation districts;
(3) 	Petitions or applications for the granting
or declaring of any right, privilege,
authority, or relief under or from any
provision of law or any rule or requirement
made pursuant to authority granted by law;
(4) 	An investigation or review instituted or
requested to be instituted by the board; or
(5) 	Proceedings involving the adoption,
amendment, or repeal of any rule of the
board whether initiated by board order or
notice or by petition of an interested
person.
“Proposed rulemaking” includes a proposal to
adopt, amend, or repeal a rule, as the case may be.
“Public hearing” means a hearing required by law
in which members of the public generally may comment
upon the subject matter of the hearing. 	[Eff 6/22/81;
am 9/7/82; am and comp 2/27/09] (Auth: 	HRS §§91-2,
171-6) (Imp: 	HRS §§91-2, 91-8, 92F-3, 92F-13, 171-6)
§13-1-2.1 	Definitions applied. 	(a) 	Unless
otherwise specifically stated, the terms used in the
rules adopted by the board pursuant to powers granted
by statute shall have the meanings given them by such
statutes.
(b) 	A rule which defines a term without express
reference defines the terms for all purposes as used
both in the statute and in these rules, unless the
context otherwise specifically requires. 	[Eff and

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comp 2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS
§§91-2, 91-8, 171-6)
§13-1-3 	Office. 	The principal offices of the
board and the chairperson are at the Kalanimoku
building, 1151 Punchbowl Street, Honolulu. 	All
communications to the board shall be addressed to the
board of land and natural resources, 1151 Punchbowl
Street, Honolulu, Hawaii 96813, unless otherwise
specifically directed. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §91-2) (Imp: 	HRS §91-2)
§13-1-4 	Hours. 	The offices of the board and the
chairperson shall be open from 7:45 a.m. to 4:30 p.m.
of each day of the week except Saturday and Sundays
and holidays unless otherwise provided by statute or
executive order. 	[Eff 6/22/81; am and comp 2/27/09]
(Auth: 	HRS §91-2) (Imp: 	HRS §§80-1, 91-2)
§13-1-5 	Meetings. 	(a) 	The board may meet and
exercise its powers in any part of the State of
Hawaii.
(b) 	Regular meetings of the board shall be held
in Honolulu, on the second and fourth Fridays of each
and every month; provided, however, that the board may
establish another place or date for any regular
meeting but shall give prior notice of the proposed
changes in a newspaper of general circulation at least
one week prior to the affected regular meeting.
(c) 	Special meetings may be convened by the
chairperson of the board at any time by giving notice
to each member present in the State at least five days
prior to the date of the meeting; provided however
that the notice shall not be required if all members
present in the State agree and sign a written waiver
of the notice. 	No final action involving disposition
of public lands may be done at the special meeting.
(d) 	All meetings of the board shall be open to
the public; provided, that the board may meet,

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pursuant to sections 92-4 and 92-5, HRS, in executive
session, from which the public may be excluded, by a
recorded vote of two-thirds of the members present.
No order, ruling, contract, appointment, or decision
shall be finally acted upon in the executive session.
[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§171-5, 92-3, 92-4, 92-5)
§13-1-5.1 	Adjudicatory functions. 	Pursuant to
section 92-6, HRS, the exercise by the board of its
adjudicatory functions is not a meeting within the
meaning of section 92-2, HRS, and these rules. 	[Eff
and comp 2/27/09] (Auth: 	HRS §92-6) (Imp: 	HRS §§92-
2, 92-6)
§13-1-6 	Quorum. 	Unless provided otherwise by
statute, four members of the board shall constitute a
quorum to transact business and the concurrence of a
simple majority of the members of the board shall be
necessary to make any action of the board valid. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §171-5)
§13-1-7 	Authentication. 	All orders and other
actions of the board shall be authenticated or signed
by the chairperson or other persons authorized by the
board. 	[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS
§171-6) (Imp: 	HRS §171-7)
§13-1-8 	Chairperson. 	(a) 	The chairperson
shall, in addition to any other duties, have charge of
the board’s official records and shall be responsible
for the maintenance and custody of the files and
records of the board, including transcripts of

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testimony and exhibits, with all papers and requests
filed in proceedings, the minutes of all action taken
by the board and all of its findings, determinations,
reports, opinions, orders, rules, and approved forms.
(b) 	The chairperson shall also prepare for
submission by the board an annual report of the
department’s activities, accomplishments, and
recommendations to the governor and to the legislature
through the governor. 	[Eff 6/22/81; comp 2/27/09]
(Auth: 	HRS §171-6) (Imp: 	HRS §§171-6, 171-7)
§13-1-8.1 	Vice-chairperson. 	The board shall
annually elect a vice-chairperson or vice-chairpersons
from its members. 	In the absence of the chairperson,
a vice-chairperson shall have the responsibilities
prescribed in this chapter. 	[Eff and comp 2/27/09]
(Auth: 	HRS §171-6) (Imp: 	HRS §§171-6, 171-7)
§13-1-9 	Government records. 	(a) 	All government
records of the board shall be available for inspection
in the office of the board, Honolulu, Hawaii, during
established office hours unless public inspection of
these records is prohibited by law; provided that
except where the records are open under any rule of
court, the attorney general may determine which
records may be withheld from public inspection when
the records pertain to the preparation of the
prosecution or defense of any action or proceeding to
which the State is or may be a party or to maintain
the attorney-client and attorney work product
privileges.
(b) 	Government records printed or reproduced by
the board in quantity shall be given to any person
requesting the same by paying the fees established by
law. 	Photocopies of government records shall be made
and given by the chairperson to any person upon
request and upon payment of the fees established by
law. 	Certified copies of extracts from government
records shall also be given by the chairperson upon
payment of the fees established by law.

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(c) 	Requests for public information, for
permission to inspect official records, or for copies
of government records shall be handled with due regard
for the dispatch of other public duties. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§91-2, 92-21, 92-51)
SUBCHAPTER 2
PROCEEDINGS BEFORE THE BOARD
§13-1-10 	Appearance and practice before the
board. 	(a) 	A person may appear in the person’s own
behalf, a partner may represent the partnership, an
officer, trustee, or authorized employee of a
corporation or trust or association may represent the
corporation, trust or association, and an officer or
employee of an agency may represent the agency in any
proceeding before the board.
(b) 	A person may be represented by counsel in
any proceeding under these rules.
(c) 	A person shall not be represented in any
proceeding before the board or a hearing officer
except as stated in subsections (a) or (b).
(d) 	When a person acting in a representative
capacity appears in person or signs any document or
other papers in practice before the board, the person
shall show the person’s authority to act in that
capacity.
(e) 	No person who has been associated with the
board as a member, officer, employee, or counsel shall
be permitted at any time to appear before the board in
behalf of or to represent, in any manner, any party in
connection with any proceeding or matter which the
person has handled or passed upon while associated in
any capacity with the board.
(f) 	No person who has been associated with the
board as a member, officer, employee, or counsel,
shall be permitted to appear before the board in
behalf of, or to represent in any manner, any person

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in connection with any proceeding or matter which was
pending before the board at the time of the person’s
association with the board unless the person shall
first have obtained the written consent of the board
upon a verified showing that the person did not give
personal consideration to the matter or proceeding
which the consent is sought or gain particular
knowledge of the facts thereof during the person’s
association with the board. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §91-2)
§13-1-11 	Proceedings before the board. 	(a) 	The
board may on its own motion or on petition or
application of any interested person or persons or any
agency of the state or county government conduct
proceedings as necessary for the purpose of obtaining
information necessary or helpful in carrying out its
duties, including the formulation of its rules.
(b) 	For the purposes permitted by law, the board
may subpoena witnesses and require the production of
evidence.
(c) 	The board shall follow procedures that, in
its opinion, best serve the purposes of the
proceedings, unless specifically prescribed in these
rules or chapter 91, HRS.
(d) 	Unless it would be contrary to statutory
requirements to do so, any rule in this chapter may be
suspended or waived by the board or the presiding
officer to prevent undue hardship in any particular
instance.
(e) 	Proceedings shall be commenced by order of
the board upon its own motion, or by the filing of a
petition or application the processing of which
necessitates a statutory hearing. 	[Eff 6/22/81; am
and comp 2/27/09] (Auth: 	HRS §§92-16, 171-6) (Imp:
HRS §§91-2, 92-16)
§13-1-11.1 	Limiting testimony at public hearings
and meetings. 	Interested persons shall have an
opportunity to submit written and oral data, views, or

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arguments on agenda items in board meetings and on the
subject matter specified in notices of public
hearings. 	The presiding officer shall confine oral
testimony to agenda items in board proceedings. 	Oral
testimony at public hearings shall be confined to the
matters for which the hearing has been called. 	In
order to allow persons to have an equal amount of time
to testify, the presiding officer may limit the amount
of time for testimony per individual or per issue.
[Eff and comp 2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS
§§91-2, 92-16)
§13-1-11.2 	Removal of persons from proceedings.
The presiding officer may remove or order the removal
of any person who willfully disrupts a proceeding.
[Eff and comp 2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS
§§91-2, 92-16)
§13-1-12 	Filing of documents. 	(a) 	All
pleadings, applications, submittals, petitions,
reports, maps, exceptions, briefs, memoranda, and
other papers required to be filed with the board in
any proceeding shall be filed with the office of the
chairperson. 	These papers may be sent by mail or
hand-carried to the chairperson’s office in Honolulu,
Hawaii, within the time limit, if any, for filing.
The date on which the papers are actually received by
the office of the chairperson shall be deemed to be
the date of filing.
(b) 	All papers shall be written, typewritten or
printed and signed in ink by the party signing the
same or the party’s duly authorized agent or attorney.
The signature shall be legible. 	The signature of the
person signing the document constitutes a
certification that the person has read the document,
that to the best of that person’s knowledge,
information, and belief every statement contained in
the document is true and no statements are misleading;
and that the document is not interposed for delay.
(c) 	Unless otherwise specifically provided by a

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rule or order of the board, an original and one copy
of all papers shall be filed.
(d) 	The board may develop and authorize the use
of Internet-based or other electronic filing
procedures. 	Once developed, the board may authorize
the use of such Internet-based or other electronic
filing procedures for the filing of documents. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §91-2)
§13-1-13 	Computation of time. 	Computation of
time shall be as established by section 1-29, HRS.
[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§1-29, 91-2)
§13-1-13.1 	Service. 	(a) 	Service of documents
may be by mail, personal delivery, or facsimile
transmission. 	When a person is represented by an
attorney, service shall be made upon the attorney.
(b) 	Service by mail is complete upon mailing.
Service by facsimile transmission is complete upon
receipt of the entire document by the intended
receiver between the hours of 7:45 a.m. and 4:30 p.m.
on a business day. 	Service by facsimile transmission
that occurs after 4:30 p.m. or not on a business day
shall be deemed to have occurred on the next business
day.
(c) 	Service by facsimile transmission shall be
confirmed by a certificate of service which declares
that service was accomplished by facsimile
transmission to a specific phone number, on a specific
date, at a specific time. 	[Eff and comp 2/27/09]
(Auth: 	HRS §171-6) (Imp: 	HRS §91-2)
§13-1-13.2 	Additional time after service by
mail. 	Whenever a person has the right or is required
to do some act within a prescribed period after the
service of a document upon the person and the document
is served by mail, two days shall be added to the

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prescribed period. 	[Eff and comp 2/27/09] (Auth: 	HRS
§171-6) (Imp: 	HRS §91-2)
§13-1-14 	Continuances or extensions of time.
Whenever a person or agency has a right or is required
to take action within the period prescribed or allowed
by these rules, by notice given thereunder or by an
order, the board or its chairperson may, for good
cause, unless prohibited by law:
(1) 	Before the expiration of the prescribed
period, with or without notice, extend the
period; or
(2) 	Upon application, permit the act to be done
after the expiration of a specified period.
[Eff 6/22/81; am and comp 2/27/09] (Auth:
HRS §171-6) (Imp: 	HRS §91-2)
§13-1-15 	Amendment required or refusal of
documents. 	If any document filed with the board is
not in substantial conformity with rules of the board
as to its contents, or is otherwise insufficient, the
board may refuse to accept the document, or may
require its amendment. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §91-2)
§13-1-16 	Retention of documents by the board.
All documents filed with or presented to the board may
be retained in the files of the board. 	The board may
permit the withdrawal of original documents upon
submission of properly authenticated copies to replace
the documents. 	[Eff 6/22/81; am and comp 2/27/09]
(Auth: 	HRS §171-6) (Imp: 	HRS §§91-2, 171-7)
§13-1-17 	Board decision. 	All final orders,
opinions or rulings entered by the board in a
proceeding and rules and written policies promulgated
by the board shall be served upon the parties or
persons participating in the proceeding by regular

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mail or personal delivery by the board and may be
released for general publication. 	Copies of the
published materials shall be available for public
inspection in the offices of the board or may be
obtained upon request and upon payment of charges, if
any. 	[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS
§171-6) (Imp: 	HRS §91-20)
§13-1-18 	Counsel for the board in contested
cases. 	A deputy attorney general, as assigned by the
department of the attorney general, will serve as
counsel to the board during its proceedings. 	In
contested cases concerning alleged violations of law,
there will be at least two deputy attorneys general
assigned by and from different divisions of the
department of the attorney general, one to represent
the department of land and natural resources in
enforcement of the law and one to serve as counsel for
the board. 	[Eff 6/22/81; am and comp 2/27/09] (Auth:
HRS §171-6) (Imp: 	HRS §§28-4, 91-2)
§13-1-19 	Substitution of parties. 	Upon motion
and for good cause shown, the board may order
substitution of parties; provided that in case of
death of a party, substitution may be ordered without
the filing of a motion. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §91-2)
§13-1-20 	Consolidations. 	The board, upon its
own initiation or upon motion, may consolidate for
hearing or for other purposes or may contemporaneously
consider two or more proceedings which involve
substantially the same parties or issues which are the
same or closely related, if it finds that the
consolidation or contemporaneous hearing will be
conducive to the proper dispatch of its business and
to the ends of justice and will not unduly delay the
proceedings. 	[Eff 6/22/81; am and comp 2/27/09]
(Auth: 	HRS §171-6) (Imp: 	HRS §91-2)

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SUBCHAPTER 3
RULEMAKING PROCEEDINGS
§13-1-21 	Initiating proceedings. 	When the board
proposes to adopt, amend, or repeal a rule, whether
acting upon a petition or its own motion, a public
hearing shall be held as provided by law. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§91-3, 91-6)
§13-1-22 	Notice. 	(a) 	Notice of proposed rule-
making shall be published at least once in a newspaper
of general circulation in the State and in each county
affected by the proposed rule. 	All notices shall be
issued at least thirty days prior to the date set for
public hearing.
(b) 	A notice of the proposed adoption,
amendment, or repeal of a rule shall include:
(1) 	A statement of the topic of the proposed
rule adoption, amendment, or repeal or a
general description of the subjects
involved;
(2) 	A statement that a copy of the proposed rule
to be adopted, the proposed amendment, or
the rule proposed to be repealed will be
mailed to any interested person who requests
a copy, pays the required fee and postage,
if any, together with a description of where
and how the request may be made;
(3) 	A statement of when, where, and during what
times the proposed rule to be adopted, the
proposed rule amendment, or the rule
proposed to be repealed may be reviewed in
person;
(4) 	The date, time, and place where the public
hearing will be held and where interested
persons may be heard on the proposed rule

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adoption, amendment, or repeal; and
(5) 	In the case of a proposal to establish,
change or review forest reserve or watershed
boundaries, a statement of the time and
place where maps showing the proposed or
existing boundaries within the county may be
inspected prior to the public hearing.
(c) 	In any rulemaking proceeding when the board
deems it warranted, a further notice of proposed
rulemaking may be issued by publication thereof in a
newspaper of general circulation in the State. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§91-3, 91-6)
§13-1-23 	Time and place. 	Each hearing shall be
held at the time and place set in the notice of
hearing, but may at that time and place be continued
by the presiding officer from day to day or adjourn to
a later date or to a different place without notice
other than the announcement thereof at the hearing.
[Eff 6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§91-3, 92-16)
§13-1-24 	Conduct of rulemaking hearing. 	(a)
Each hearing shall be presided over by the chairperson
of the board or by its designated representative. 	The
hearing shall be conducted in such a way as to afford
to interested persons a reasonable opportunity to be
heard on the proposed rulemaking. 	The presiding
officer shall have authority to administer oaths or
affirmations, if appropriate, and to take all other
actions necessary to the orderly conduct of the
hearing.
(b) 	At the commencement of the hearing, the
presiding officer shall read the pertinent portions of
the notice of the hearing and shall then outline
briefly the procedure to be followed. 	Testimony shall
then be received with respect to the matters specified
in the notice of hearing in the order the presiding
officer shall prescribe.

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(c) 	All interested persons shall be given
reasonable opportunity to offer testimony which may
consist of data, views, or arguments with respect to
the matters specified in the notice of hearing. 	Every
person testifying may, when appropriate and at the
discretion of the presiding officer before proceeding
to testify, be sworn, and may be required thereafter
to state the witness’, name, address, and whom the
witness represents at the hearing, and give any other
information respecting the witness’ appearance as the
presiding officer may request. 	It is not necessary
that persons testifying be sworn, but the presiding
officer may, if he or she deems it to be necessary,
place persons testifying under oath. 	The presiding
officer shall confine the testimony to the proposed
rulemaking. 	Every person testifying shall be subject
to questioning by the presiding officer or by any
other representative of the board.
(d) 	All interested persons or agencies of the
State or its political subdivisions shall be afforded
an opportunity to submit data, views, or arguments
which are relevant to the issues. 	In addition, or in
lieu thereof, interested persons or agencies may also
file with the board within ten calendar days following
the close of public hearing a written protest or other
comments or recommendations in support of or in
opposition to the proposed rulemaking. 	Persons
designated by the presiding officer shall be furnished
with copies of any written protest or other comments
or recommendations, and they shall be afforded a
reasonable time within which to file their comments in
reply to the original protests, comments, or
recommendations. 	Written protests, comments or
recommendations or replies thereto shall not be
accepted unless an original and one copy are filed.
The period for filing written protests, comments, or
recommendations may be extended by the presiding
officer for good cause.
(e) 	Unless otherwise specifically ordered by the
board or the presiding officer, testimony given at the
hearing need not be reported verbatim. 	All supporting
written statements, maps, charts, tabulations, or

1-19
similar data offered at the hearing, and which are
deemed by the presiding officer to be relevant, shall
be received and made a part of the record. 	Unless the
presiding officer finds that the furnishing of the
required number of copies impracticable and reduces
the number, eleven copies of the exhibits shall be
submitted.
(f) 	At the close of the final public hearing,
the board shall announce the date when its decision
shall be announced, or the board may, if it so
desires, make the decision at the public hearing. 	The
board shall consider all relevant comments and
materials of record before taking final action in a
rulemaking proceeding. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §§91-3, 92-16)
§13-1-25 	Emergency rulemaking. 	If the board
finds that an imminent peril to public health, safety,
or morals requires adoption, amendment, or repeal of a
rule upon less than thirty days’ notice of hearing,
and states in writing its reason for the finding, it
may proceed without prior notice or hearing or upon an
abbreviated notice and hearing to adopt an emergency
rule to be effective for a period not longer than 120
days without renewal. 	[Eff 6/22/81; am and comp
2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §91-3)
§13-1-26 	Petitions for adoption, amendment, or
repeal of rules. 	(a) 	Any interested person may
petition the board for the adoption, amendment, or
repeal of any rule.
(b) 	Petitions for proposed rulemaking shall set
forth the text of any proposed rule or amendment
desired or specifying the rule the repeal of which is
desired and stating concisely the nature of the
petitioner’s interest in the subject matter and the
reasons for seeking the adoption, amendment, or repeal
of the rule and shall include any facts, views,
arguments, and data deemed relevant by petitioner.
The board may require the petitioner to notify persons

1-20
or governmental agencies known to be interested in the
proposed rulemaking of the existence of the filed
petitions. 	No request for the issuance, amendment, or
repeal of a rule which does not conform to the
requirements set forth above shall be considered by
the board.
(c) 	Petitions for proposed rulemaking shall
become matters of public record upon filing. 	The
board shall within thirty days following the filing of
the petition either deny the petition in writing or
initiate public rulemaking procedures. 	No public
hearing, oral argument, or other form of proceedings
need be held on the petition. 	If the board determines
that the petition discloses sufficient reasons in
support of the relief requested to justify the
institution of public rulemaking proceedings, the
procedures to be followed shall be as set forth in
section 91-3, HRS, §13-1-21 and §13-1-22. 	When the
board determines that the petition does not disclose
sufficient reasons to justify the institution of
public rulemaking procedures, or where the petition
for rulemaking fails in any material respect to comply
with the requirements of these rules, the petitioner
shall be notified and given the grounds for the
denial. 	The provisions of this section shall not
operate to prevent the board, on its own motion, from
acting on any matter disclosed in any petition. 	[Eff
6/22/81; am and comp 2/27/09] (Auth: 	HRS §171-6)
(Imp: 	HRS §§91-6, 92-16)
SUBCHAPTER 4
DECLARATORY RULINGS
§13-1-27 	Petition for declaratory ruling. 	(a)
On the petition of an interested person, the board may
issue a declaratory order regarding the applicability
of any statutory provision or of any rule or order of
the board.
(b) 	The petition shall contain the following:

1-21
(1) 	The name, address, and telephone number of
the petitioner;
(2) 	A statement of the nature of the
petitioner’s interest, including reasons for
submission of the petition;
(3) 	A designation of the specific provision,
rule, or order in question;
(4) 	A clear and concise statement of the
position or contention of the petitioner;
(5) 	A memorandum of authorities, containing a
full discussion of the reasons, including
legal authorities, in support of such
position or contention; and
(6) 	The signature of each petitioner.
(c) 	Any petition which does not conform to the
foregoing requirements may be rejected.
(d) 	The board may order the petitioner to give
notice of the petition to designated persons and the
public or may itself provide such notice.
(e) 	In its discretion, the board may permit
interested persons to intervene in proceedings for
declaratory orders when it finds that such
participation will assist the board in its
consideration of the matter.
(f) 	The board may, for good cause, refuse to
issue a declaratory order. 	Without limiting the
generality of the foregoing, the board may so refuse
where:
(1) 	The question is speculative or purely
hypothetical and does not involve existing
facts or facts which can reasonably be
expected to exist in the near future;
(2) 	The petitioner’s interest is not of the type
which would give the petitioner standing to
maintain an action if such petitioner were
to seek judicial relief;
(3) 	The issuance of the declaratory order may
adversely affect the interests of the board
or any of its officers or employees in
litigation which is pending or may
reasonably be expected to arise; or
(4) 	The matter is not within the jurisdiction of

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the board.
(g) 	The board shall consider each petition
submitted and, within a reasonable time after the
submission thereof, either deny the petition in
writing, stating its reason for such denial, or issue
a declaratory order on the matters contained in the
petition.
(h) 	Hearing:
(1) 	Although in the usual course of processing a
petition for a declaratory ruling no formal
hearing shall be granted to the petitioner,
the board may, in its discretion, order such
proceeding set down for hearing.
(2) 	Any petitioner or person admitted as an
intervenor who desires a hearing on a
petition for declaratory ruling shall set
forth in detail in a written request the
reasons why the matters alleged in the
petition, together with supporting
affidavits or other written evidence and
briefs or memoranda or legal authorities,
will not permit the fair and expeditious
disposition of the petition and, to the
extent that such request for hearing is
dependent upon factual assertion, shall
accompany such request by affidavit
establishing such factors.
(i) 	If the board orders a hearing it may require
the petitioner to give notice of the hearing to
designated persons or to the public or may itself
provide such notice. 	In the event a hearing is
ordered by the board, §§ 91-9 through 91-13, HRS,
shall govern the proceeding.
(j) 	An order disposing of a petition shall be
applicable only to the factual situation alleged in
the petition or set forth in the order. 	The order
shall not be applicable to different factual
situations or where additional facts not considered in
the order exist. 	Such order shall have the same force
and effect as other orders issued by the board.
(k) 	Notwithstanding the other provisions of this
section, the board may, on its own motion or upon

1-23
request but without notice or hearing, issue a
declaratory order to terminate a controversy or to
remove uncertainty. 	[Eff 6/22/81; am 9/7/82; am and
comp 2/27/09] (Auth: 	HRS §171-6) Imp: 	HRS §§91-8,
92-16)
SUBCHAPTER 5
CONTESTED CASE PROCEEDINGS
§13-1-28 	Contested case hearings. 	(a) 	When
required by law, the board shall hold a contested case
hearing upon its own motion or on a written petition
of any government agency or any interested person.
(b) 	The contested case hearing shall be held
after any public hearing which by law is required to
be held on the same subject matter.
(c) 	Any procedure in a contested case may be
modified or waived by stipulation of the parties.
[Eff 9/7/82; am and comp 2/27/09] (Auth: 	HRS §§91-2,
91-9, 171-6) (Imp: 	HRS §91-9)
§13-1-29 	Request for hearing. 	(a) 	On its own
motion, the board may hold a contested case hearing.
Others must both request a contested case and petition
the board to hold a contested case hearing. 	An oral
or written request for a contested case hearing must
be made to the board no later than the close of the
board meeting at which the subject matter of the
request is scheduled for board disposition. 	An agency
or person so requesting a contested case must also
file (or mail a postmarked) written petition with the
board for a contested case no later than ten calendar
days after the close of the board meeting at which the
matter was scheduled for disposition. 	For good cause,
the time for making the oral or written request or
submitting a written petition or both may be waived.
(b) 	Except as otherwise provided in section 13-
1-31.1, the formal written petition for a contested

1-24
case hearing shall contain concise statements of:
(1) 	The nature and extent of the requestor’s
interest that may be affected by board
action on the subject matter that entitles
the requestor to participate in a contested
case;
(2) 	The disagreement, if any, the requestor has
with an application before the board;
(3) 	The relief the requestor seeks or to which
the requestor deems itself entitled;
(4) 	How the requestor’s participation would
serve the public interest; and
(5) 	Any other information that may assist the
board in determining whether the requestor
meets the criteria to be a party pursuant to
section 13-1-31. 	[Eff 9/7/82; am and comp
2/27/09] (Auth: 	HRS §91-2) (Imp: 	HRS §91-
9)
§13-1-29.1 	Determination of entitlement to a
contested case hearing. 	The board without a hearing
may deny a request or petition or both for a contested
case when it is clear as a matter of law that the
request concerns a subject that is not within the
adjudicatory jurisdiction of the board or when it is
clear as a matter of law that the petitioner does not
have a legal right, duty, or privilege entitling one
to a contested case proceeding. 	[Eff and comp
2/27/09] (Auth: 	HRS §91-2) (Imp: 	HRS §91-9)
§13-1-30 	Filing fee. 	When an application
involves a conservation district use permit (including
a request for a permit, modification of a permit,
violation of a permit, or revocation of a permit), the
request for a contested case hearing shall be
accompanied with a $100.00 nonrefundable filing fee or
a request for waiver of this fee. 	The chairperson may
waive the filing fee for any person upon a showing of
financial hardship. 	[Eff 9/7/82; am and comp 2/27/09]
(Auth: 	HRS §§91-2, 183C-3) (Imp: 	HRS §§91-2, 183C-3)

1-25
§13-1-31 	Parties. 	(a) 	Except as otherwise
provided in section 13-1-31.1, parties to a contested
case shall be determined within a reasonable time
following the ten-day period following the board
meeting, the presiding officer shall notify all
persons and agencies, including the applicant or
alleged violator, as the case may be, who timely
petitioned for the contested case hearing of the date
and time for a hearing to determine whether any or all
of the persons and agencies seeking to participate in
the contested case hearing are entitled to be parties
in the contested case. 	Such notice shall also set the
time for filing any objections to the admission of any
requestor as a party to the contested case. 	Without a
hearing, an applicant or an alleged violator shall be
a party.
(b) 	The following persons or agencies shall be
admitted as parties:
(1) 	All government agencies whose jurisdiction
includes the land in question shall be
admitted as parties upon timely application.
(2) 	All persons who have some property interest
in the land, who lawfully reside on the
land, who are adjacent property owners, or
who otherwise can demonstrate that they will
be so directly and immediately affected by
the requested action that their interest in
the proceeding is clearly distinguishable
from that of the general public shall be
admitted as parties upon timely application.
(c) 	Other persons who can show a substantial
interest in the matter may be admitted as parties.
The board may approve such requests if it finds that
the requestor’s participation will substantially
assist the board in its decision making. 	The board
may deny any request to be a party when it appears
that:
(1) 	The position of the requestor is
substantially the same as the position of a
party already admitted to the proceedings;

1-26
and
(2) 	The admission of additional parties will not
add substantially new relevant information
or the addition will make the proceedings
inefficient and unmanageable.
(d) 	All persons with similar interests seeking
to be admitted as parties shall be considered at the
same time so far as possible.
(e) 	If any party opposes another person’s
request to be a party, the party may file objections
within the time set forth by the presiding officer.
(f) 	The hearing to determine parties to the
contested case may be conducted by the board or the
presiding officer, or by a hearing officer appointed
by the board. 	At such hearing, evidence and argument
shall be limited to matters necessary to determine
whether the requestor shall be admitted as a party.
Only a party objecting to a requestor’s admission as a
party shall have the opportunity to cross-examine a
requestor or the requestor’s witness; provided,
however, that the board or presiding officer or
hearing officer may cross-examine any witness at such
hearing. 	The hearing to determine parties may be
waived upon concurrence of the applicant and all
requestors.
(g) 	If the hearing to determine parties to the
contested case was not conducted by the board, and the
person who conducted such hearing recommends that any
agency or person requesting to be a party should not
be allowed to participate in the contested case, such
recommendation and the reasons therefor shall be
immediately submitted to the board in writing. 	The
requestor whose request is recommended for denial
shall have the opportunity to file objections to the
recommendation. 	Such recommendation shall be acted
upon by the board as soon as practicable and shall be
decided, by written order, not later than the
commencement of the contested case hearing.
(h) 	A person whose request to be admitted as a
party has been denied by the board may appeal that
denial to the circuit court pursuant to section 91-14,
HRS. 	[Eff 9/7/82; am 11/1/85; am and comp 2/27/09]

1-27
(Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS §§91-9, 91-9.5)
§13-1-31.1 	Hearings of violations.
Notwithstanding the provisions of section 13-1-29(b)
and section 13-1-31, when a violation is alleged for
which an administrative remedy is provided and with
respect to which the alleged violator is entitled to a
contested case hearing, a contested case shall be held
upon the petition of the alleged violator, provided
that the petition is made in accordance with the
provisions of section 13-1-29(a). 	No person or
government agency other than the department and
alleged violator shall be admitted as parties in such
proceedings. 	[Eff and comp 2/27/09] (Auth: 	HRS §§91-
2, 171-6) (Imp: 	HRS §§91-9)
§13-1-31.2 	Notice of hearing. 	After a
determination is made that a contested case hearing is
required and the parties have been determined, a
written notice of hearing shall be served on parties
by registered or certified mail in accordance with
section 91-9.5(a), HRS, and shall be served on all
persons or agencies admitted as a party at their last
recorded addresses at least fifteen days before the
hearing date. 	If notice by publication is permitted
under section 91-9.5(b), it shall be published at
least once in each of two successive weeks in a
newspaper of general circulation. 	The last published
notice shall appear at least fifteen calendar days
prior to the hearing date. 	[Eff and comp 2/27/09]
(Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS §§91-9, 91-9.5)
§13-1-32 	Conduct of hearing. 	(a) 	Contested
case hearings shall be conducted in accordance with
this subchapter, and chapter 91, HRS.
(b) 	The board may conduct the hearing or, the
board in its discretion may delegate the conduct of
the contested case hearing to a hearing officer, in
which case the chairperson shall select such hearing

1-28
officer. 	As used in this section and in sections 13-
1-33, 13-1-34, 13-1-35, 13-1-36, and 13-1-39, unless
the context clearly indicates otherwise, the term
“presiding officer” shall mean the presiding officer
as defined in section 13-1-2 when the hearing is
conducted by the board, but shall mean the hearing
officer when the conduct of the hearing has been
delegated to a hearing officer.
(c) 	The presiding officer shall have the power
to give notice of the hearing, administer oaths,
compel attendance of witnesses and the production of
documentary evidence, examine witnesses, certify to
official acts, issue subpoenas, rule on offers of
proof, receive relevant evidence, hold conferences
before and during hearings, rule on objections or
motions, fix times for submitting documents, briefs,
and dispose of other matters that normally and
properly arise in the course of a hearing authorized
by law that are necessary for the orderly and just
conduct of a hearing. 	If the hearing is conducted by
the board, the board members may examine and cross-
examine witnesses.
(d) 	The presiding officer shall provide that a
verbatim record of the evidence presented at any
hearing is taken unless waived by all the parties.
Any party may obtain a certified transcript of the
proceedings upon payment of the fee established by law
for a copy of the transcript.
(e) 	In hearings on applications, petitions,
complaints, and violations, the applicant, petitioner,
complainant, or in the case of violations, the
department shall make the first opening statement and
the last closing argument unless the board directs
otherwise. 	Other parties shall be heard in such order
as the presiding officer directs.
(f) 	Where a party is represented by more than
one counsel or representative, they may allocate
witnesses between them but only one of the counsel or
representative shall be permitted to cross-examine a
witness or state any objections or make closing
arguments.
(g) 	Each party shall have the right to conduct

1-29
such cross-examinations of witnesses as may be
required for a full and true disclosure of the
relevant facts and shall have the right to submit
rebuttal evidence, subject to limitations by the
presiding officer.
(h) 	To avoid unnecessary or repetitive evidence,
the presiding officer may limit the number of
witnesses, the extent of direct or cross examination
or the time for testimony upon a particular issue.
[Eff 9/7/82; am and comp 2/27/09] (Auth: 	HRS §§91-2,
171-6) (Imp: 	HRS §§91-9, 92-16)
§13-1-32.1 	Conduct of hearing with only one
party. 	Where the applicant is the sole party in the
contested case, the board or the hearing officer, as
the case may be, shall consider and give appropriate
weight to the records on file with the board directly
relating to the application, including, but not
limited to, staff submittals to the board, if any;
provided, however, that the staff shall not be made
parties to the contested case nor be compelled to give
testimony on any documents within the file unless the
board or the hearing officer deems it necessary to a
just disposition of the case. 	[Eff and comp 2/27/09]
(Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS §§91-2, 91-9,
171-6)
§13-1-32.2 	Enforcement by department. 	In
contested cases involving alleged violations of law,
to the extent necessary, the department shall be
treated as a party for the purpose of establishing the
agency’s case and staff members may be called as
witnesses. 	The department’s activities in relation to
the enforcement action shall be performed or
supervised by a first deputy to the chairperson.
[Eff and comp 2/27/09] (Auth: 	HRS §§91-2, 171-6)
(Imp: 	HRS §91-9)

1-30
§13-1-32.3 	Discovery. 	Depositions of witnesses
and interrogatories shall not be allowed except upon
agreement of the parties. 	The presiding officer may
require parties to file and serve upon all other
parties written witness statements and exhibits and to
establish a schedule for such filings. 	[Eff and comp
2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS §§91-2,
91-9, 171-6)
§13-1-32.4 	Records on file with board. 	Records
directly relating to the application that are on file
with the board, including, but not limited to, the
record of the public hearing (if held), shall be a
part of the record of the contested case; provided,
however, that any party may object, in the manner
provided in section 13-1-35, to any part of such
record. 	[Eff and comp 2/27/09] (Auth: 	HRS §§91-2,
171-6) (Imp: 	HRS §§91-2, 91-9, 171-6)
§13-1-33 	Procedure for witnesses. 	(a)
Witnesses may be subpoenaed as set forth below:
(1) 	Requests for the issuance of subpoenas,
requiring the attendance of a witness for
the purpose of taking oral testimony before
the board shall be in writing, and shall
state the reasons why the testimony of the
witness is believed to be material and
relevant to the issues involved. 	Only
parties or a board member may request the
issuance of a subpoena.
(2) 	Requests for the issuance of subpoenas for
the production of documents or records shall
be in writing, shall specify the particular
document or record, or part thereof, desired
to be produced; and shall state the reasons
why the production thereof is believed to be
material and relevant to the issues
involved. 	Only parties or a board member
may requests the issuance of a subpoena
duces tecum.

1-31
(b) 	Subpoenas may be issued by the presiding
officer. 	No subpoena shall be issued unless the party
requesting the subpoena has complied with this section
giving the name and address of the desired witness and
tendering the proper witness and mileage fees. 	Signed
and sealed blank subpoenas shall not be issued to
anyone. 	The name and address of the witness shall be
inserted in the original subpoena, a copy of which
shall be filed in the proceeding. 	Subpoenas shall
state at whose request the subpoena is issued.
Requests for subpoenas shall be filed not later than
three business days before the scheduled hearing.
(c) 	Witnesses summoned shall be paid the same
fees and mileage as are paid witnesses in circuit
courts of the State of Hawaii and such fees and
mileage shall be paid by the party at whose request
the witness appears. 	[Eff 9/7/82; am and comp
2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS §92-16)
§13-1-34 	Motions. 	(a) 	All motions other than
those made during a hearing shall be made in writing,
shall state the relief sought, and shall be
accompanied by an affidavit, or declaration, or
memorandum setting forth the grounds upon which they
are based. 	The presiding officer shall set the time
for filing all motions and opposing memoranda, if any.
(b) 	Copies of all motions, affidavits,
declarations, and memoranda shall be served on all
other parties to the hearing within the time set by
the presiding officer. 	The original shall be filed
with the board with certificate of service.
(c) 	Failure to serve or file an affidavit,
declaration, or memorandum in opposition to a motion
or failure to appear at the hearing on the motion, if
held, shall be deemed a waiver of objection to the
granting or denial of the motion. 	[Eff 9/7/82; am and
comp 2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp: 	HRS
§91-7)
§13-1-35 	Evidence. 	(a) 	The presiding officer

1-32
may exercise discretion in the admission or rejection
of evidence and the exclusion of immaterial,
irrelevant, or unduly repetitious evidence as provided
by law with a view of doing substantial justice.
(b) 	The presiding officer shall rule on the
admissibility of all evidence. 	The rulings may be
reviewed by the board in determining the matter on its
merits.
(c) 	When objections are made to the admission or
exclusion of evidence, the grounds relied upon shall
be stated briefly. 	Formal exceptions to rulings are
unnecessary and need not be taken.
(d) 	An offer of proof for the record shall
consist of a statement of the substance of the
evidence to which objection has been sustained, or the
submission of the evidence itself.
(e) 	With the approval of the presiding officer,
a witness may read testimony into the record on direct
examination. 	Before any prepared testimony is read,
unless excused by the presiding officer, the witness
shall deliver copies thereof to the presiding officer
and all counsel parties. 	Admissibility shall be
subject to the rules governing oral testimony. 	If the
presiding officer deems that substantial saving in
time will result, a copy of the prepared testimony may
be received in evidence without reading, provided that
copies thereof shall have been served upon all parties
and the presiding officer five days before the hearing
or if such prior service is waived, to permit proper
cross examination of the witnesses on matters
contained in the prepared testimony.
(f) 	If relevant and material matter is offered
in evidence in a document containing other matters,
the party offering it shall designate specifically the
matter so offered. 	If the other matter in the
document would burden the record, at the discretion of
the presiding officer, the relevant and material
matter may be read into the record or copies of it
received as an exhibit. 	Other parties shall be
afforded opportunity at the time to examine the
document, and to offer in evidence other portions
believed material and relevant.

1-33
(g) 	Exhibits shall be prepared as follows:
(1) 	Documents, pleadings, correspondence and
other exhibits shall be legible and must be
prepared on paper 8-1/2 x 11 inches in size.
Charts and other oversized exhibits must be
bound or folded to the respective
approximate size, where practical. 	Wherever
practicable, sheets of each exhibit shall be
numbered and data and other figures shall be
set forth in tabular form.
(2) 	When exhibits are offered in evidence, the
original and one copy, unless otherwise
waived by the board, shall be furnished to
the presiding officer for the board’s use
with adequate copies for review by other
parties, unless the copies have been
previously furnished or the presiding
officer directs otherwise.
(h) 	If any matter contained in a document on
file as a government record with the department is
offered in evidence, unless directed otherwise by the
presiding officer, the document need not be produced
as an exhibit, but may be received in evidence by
reference, provided that the particular portions of
the document are specifically identified and otherwise
competent, relevant, and material. 	If testimony in
proceedings other than the one being heard is offered
in evidence, a copy shall be presented as an exhibit,
unless otherwise ordered by the presiding officer.
(i) 	Official notice may be taken of such matters
as may be judicially noticed by the courts of the
State of Hawaii. 	Official notice may also be taken of
generally recognized technical or scientific facts
within the specialized knowledge of the board when
parties are given notice either before or during the
hearing of the material so noticed and afforded the
opportunity to contest the facts so noticed.
(j) 	At the hearing, the presiding officer may
require the production of further evidence upon any
issue. 	Upon agreement of the parties, the presiding
officer may authorize the filing of specific
documentary evidence as a part of the record within a

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fixed time.
(k) 	The party initiating the proceeding and, in
the case of proceedings on alleged violations of law,
the department, shall have the burden of proof,
including the burden of producing evidence as well as
the burden of persuasion. 	The quantum of proof shall
be a preponderance of the evidence. 	[Eff 9/7/82; am
and comp 2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp:
HRS §§91-9, 91-10)
§13-1-36 	Prehearing conference; exchange of
exhibits; briefs. 	(a) 	The presiding officer may hold
or cause to be held pre-hearing conferences with the
parties for the purpose of formulating or simplifying
the issues, written testimony, setting of schedules,
exchanging names of witnesses, limitation of number of
witnesses, and such other matters as may expedite
orderly conduct and disposition of the proceeding as
permitted by law.
(b) 	The presiding officer may request briefs
setting forth the issues, facts and legal arguments
upon which the parties intend to rely and the
presiding officer may fix the conditions and time for
the filing of briefs and the number of pages.
Exhibits may be reproduced in an appendix to a brief.
A brief of more than twenty pages shall contain a
subject index and table of authorities. 	[Eff 9/7/82;
am and comp 2/27/09] (Auth: 	HRS §§91-2, 171-6) (Imp:
HRS §91-9)
§13-1-37 	Ex parte (single party) communications.
(a) 	No party or person petitioning to be a party in a
contested case, nor the party’s or such person’s to a
proceeding before the board nor their employees,
representatives or agents shall make an unauthorized
ex parte communication either oral or written
concerning the contested case to the presiding officer
or any member of the board who will be a participant
in the decision-making process.
(b) 	The following classes of ex parte

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communications are permitted:
(1) 	Those which relate solely to matters which a
board member is authorized by the board to
dispose of on ex parte basis.
(2) 	Requests for information with respect to the
procedural status of a proceeding.
(3) 	Those which all parties to the proceeding
agree or which the board has formally ruled
may be made on an ex parte basis. 	[Eff
9/7/82; am, ren and comp 2/27/09] (Auth:
HRS §§91-2, 171-6) (Imp: 	HRS §91-13)
§13-1-38 	Decisions and orders. 	(a) 	After all
evidence has been taken, the parties may submit,
within the time set by the presiding officer, a
proposed decision and order which shall include
proposed findings of facts and conclusions of law. 	A
party to the proceedings may submit a proposed
decision and order which shall include proposed
findings of fact and conclusions of law. 	The
proposals shall be filed with the board and mailed to
each party to the proceeding not later than ten days
after the transcript is prepared and available, unless
the presiding officer shall otherwise prescribe.
(b) 	Within the time established by law, if any,
or within a reasonable time after the parties have had
an opportunity to file objections and exceptions, if
applicable, to file briefs and to present oral
argument as may have been permitted, the board shall
render its findings of fact, conclusions of law and
decision and order approving the application, denying
the application, or modifying the application by
imposing conditions. 	The vote of each member shall be
recorded. 	Upon agreement by the parties, the
provisions of section 91-11, HRS, concerning the
examination of evidence and proposed decision, may be
waived pursuant to section 91-9(d), HRS.
(c) 	Every decision and order adverse to a party
to the proceeding, rendered by the board in a
contested case, shall be in writing or stated in the
record and shall be accompanied by separate findings

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of fact and conclusions of law. 	If any party to the
proceeding has filed proposed findings of fact, the
board shall incorporate in its decision a ruling upon
the proposed findings so presented.
(d) 	Decisions and orders shall be served by
mailing certified copies thereof to each party at the
party’s address of record. 	When service is not
accomplished by mail, it may be effected by personal
delivery of a certified copy. 	When a party to a
contested case has appeared by a representative or by
counsel, service upon the representative or counsel
shall be deemed to be service upon the party. 	[Eff
9/7/82; am, ren and comp 2/27/09] (Auth: 	HRS §§91-2,
171-6) (Imp: 	HRS §§91-9, 91-11, 91-12)
§13-1-39 	Reconsideration. 	(a) 	Upon a motion of
a party, the board may reconsider a decision it has
made on the merits only if the party can show that:
(1) 	New information not previously available
would affect the result; or
(2) 	A substantial injustice would occur.
(b) 	In either case, a motion for reconsideration
shall be made not later than five business days after
the decision or not less than fourteen days prior to
any deadline established by law for the disposition of
the subject matter, whichever is earlier. 	[Eff
9/7/82; am, ren and comp 2/27/09] (Auth: 	HRS §§91-2,
171-6) (Imp: 	HRS §§91-11, 91-12)
SUBCHAPTER 6
POST HEARING PROCEDURES FOR HEARING
CONDUCTED BY HEARING OFFICER
§13-1-41 	Recommendation of hearing officer. 	(a)
Upon completion of taking of evidence, the hearing
officer may ask the parties to submit a document
entitled “proposed findings of fact, conclusions of
law, and decision and order.” 	Proposed decision and

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orders submitted shall be served upon each party to
the proceedings and an opportunity given to each party
to comment thereon. 	If requested, and upon receipt of
the proposed decision and orders and any comments from
the parties, the hearing officer shall prepare a
report setting forth proposed findings of fact,
conclusions of law, and the reasons therefore, and a
recommended order, and shall present the report of the
proceeding to the board.
(b) 	The record shall include the petition,
notice of hearing motions, rulings, orders, transcript
of the hearing, stipulations, documentary evidence,
proposed findings, or other documents submitted by the
parties, objections to the conduct of the hearing, the
report of the hearing officer, and all other matters
placed in evidence.
(c) 	The hearing officer shall cause a copy of
the report to be served upon all parties to the
proceedings. 	[Eff and comp 2/27/09] (Auth: 	HRS §171-
6) (Imp: 	HRS §§91-2, 91-11, 92-16, 171-6)
§13-1-42 	Exception to the hearing officer’s
report and recommendations. 	(a) 	Except as otherwise
ordered by the chairperson, within twenty-one calendar
days after service of the report and recommendations
by the hearing officer, a party may file with the
board, exceptions to the report together with a brief
in support of such exceptions. 	Such party shall serve
copies of exceptions and briefs upon each party to the
proceeding.
(b) 	The exceptions shall:
(1) 	Set forth specifically the questions of
procedure, fact, law, or policy, to which
exceptions are taken;
(2) 	Identify that part of the hearing officer’s
report and recommended order to which
objections are made; and
(3) 	State all the grounds for exceptions to a
ruling, finding, conclusion, or
recommendation. 	The grounds not cited or
specifically urged are waived. 	[Eff and

1-38
comp 2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS
§§91-2, 91-11)
§13-1-43 	Support of hearing officer’s report and
recommendations. 	(a) 	Except as otherwise ordered by
the chairperson, within twenty-one days after service
of the exceptions to the hearings officer’s report,
any party may file with the board a brief in response
to the exceptions. Such party shall serve copies of
the brief upon each party to the proceeding.
(b) 	The brief shall:
(1) 	Answer specifically the points of procedure,
fact, law, or policy to which exceptions
were taken; and
(2) 	State the facts and reasons why the report
and recommendation should be affirmed. 	[Eff
and comp 2/27/09] (Auth: 	HRS §171-6) (Imp:
HRS §§91-2, 91-11)
§13-1-44 	Oral argument before the board. 	(a)
Any party shall be afforded an opportunity to present
oral arguments to the board.
(b) 	The board may direct oral argument on its
own motion.
(c) 	Responding arguments will be allowed. 	[Eff
and comp 2/27/09] (Auth: 	HRS §171-6) (Imp: 	HRS §§91-
10, 91-11)
§13-1-45 	Board action; exceptions. 	(a) 	In the
event no statement of exceptions is filed, the board
may proceed to reverse, modify, or adopt the
recommendations of the hearing officer.
(b) 	Upon the filing of the exceptions and briefs
together with the briefs in support, the board may:
(1) 	Render its decision upon the record;
(2) 	If oral argument has been held, the board
may render its decision after oral argument;
(3) 	Reopen the docket and take further evidence;
or

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(4) 	Make such other disposition of the case that
is necessary under the circumstances. 	[Eff
and comp 2/27/09] (Auth: HRS §171-6) (Imp:
HRS §§91-2, 92-16, 171-6)
SUBCHAPTER 7
CIVIL RESOURCE VIOLATIONS SYSTEM
§13-1-51 	Purpose of subchapter; statement of
policy. 	This subchapter shall govern the department’s
practice and procedure relating to the administrative
proceedings of civil resource violations of state law
and to the assessment of administrative sanctions for
such violations. 	This subchapter shall effectuate and
carry out the purposes and policies of chapter 199D,
HRS, and shall be construed and interpreted in the
manner most favorable to the promotion of justice,
expeditious processing and cost-effective resolution
in every case involved. 	[Eff and comp 2/27/09] (Auth:
HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-52 	Definitions. 	As used in this
subchapter, unless otherwise provided:
“Administrative hearing officer” or “hearing
officer” means an individual authorized by the board
to conduct a contested case hearing or examine a
mitigation request pursuant to this subchapter.
“Administrator” means the individual who is
responsible for the administration of the civil
resource violations system.
“Civil resource violation” means any violation of
state laws administered by the department, including
statutes, administrative rules, and permit and license
terms and conditions, for which an administrative
penalty has been prescribed by law.
“Civil resource violations system” or “CRVS”
means a system of administrative law proceedings as
authorized under chapter §199D, HRS, and further

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prescribed in this subchapter, for the purpose of
processing civil resource violations.
“Conservation and resource enforcement officer”
or “officer” means an individual employed with the
division of conservation and resource enforcement of
the department whose primary duty is the enforcement
of title 12, chapters 6D, 6E, and 6K, HRS, and the
rules adopted thereunder within the areas under the
jurisdiction of the department.
“Notice of civil resource violation” or
“violation notice” is a document issued by the
department to a respondent as a notification of a
civil resource violation and a citation against the
respondent for having committed the violation.
“Respondent” means a person who is charged with
having committed a civil resource violation. 	[Eff and
comp 2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §§92-3,
199-3, 199-4, 199D-1)
§13-1-53 	Applicability. 	(a) 	This subchapter is
applicable to all divisions, offices and attached
agencies of the department, except as otherwise
provided by law, where a notice of civil resource
violation has been issued pursuant to chapter 199D,
Hawaii Revised Statutes and this subchapter.
(b) 	Any criminal prosecution against a person
shall not preclude the state from imposing
administrative sanctions pursuant to this subchapter
against the same person for any civil resource
violation committed in the same course of conduct.
(c) 	Any administrative proceeding against a
person under this subchapter shall not preclude the
state from pursuing a separate criminal prosecution
against the same person for a criminal offense
committed in the same course of conduct.
(d) 	For any proceedings instituted under this
subchapter against violations of chapter 6K, HRS, or
any rules adopted thereunder, the Kaho’olawe island
reserve commission shall act whenever the board is
responsible and authorized to act, and the chairperson
of the Kaho’olawe island reserve commission shall act

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whenever the chairperson of the department is
responsible and authorized to act.
(e) 	For any proceedings instituted under this
subchapter against violations of chapter 174C, HRS, or
any rules adopted thereunder, the commission on water
resource management shall act whenever the board is
responsible and authorized to act, and the chairperson
of the commission on water resource management shall
act whenever the chairperson of the department is
responsible and authorized to act. 	[Eff and comp
2/27/09] (Auth: 	HRS §§6K-8.6, 174C-15.5, 199D-1,
199D-2) (Imp: 	HRS §§6K-8.6, 174C-15.5, 199D-1, 199D-
2)
§13-1-54 	Jurisdiction. 	Any violation of state
law administered by the department for which an
administrative sanction or penalty has been
prescribed, including statutes, administrative rules,
and permit and license terms and conditions imposed by
the board or the department or any attached agencies,
may be adjudicated through the civil resource
violations system of the department pursuant to this
subchapter. 	[Eff and comp 2/27/09] (Auth: 	HRS §199D-
1) (Imp: 	HRS §199D-1)
§13-1-55 	Deputy director. 	Whenever delegated by
the chairperson, a deputy director of the department
may act on behalf of the chairperson for the purpose
of discharging a duty under this subchapter. 	When
acting on behalf of the chairperson for this purpose,
a deputy director of the department shall carry the
full responsibility and authorization that the board
has given to the chairperson. 	[Eff and comp 2/27/09]
(Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-56 	The administrator. 	The chairperson
shall appoint an administrator to manage the civil
resource violations system of the department under

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this subchapter. 	[Eff and comp 2/27/09] (Auth: 	HRS
§199D-1) (Imp: 	HRS §199D-1)
§13-1-57 	Appointment and removal of
administrative hearing officers. 	Administrative
hearing officers serving under this subchapter shall
be nominated by the chairperson and appointed by the
board at its meetings for a term of up to two years
and may be removed with or without cause in the same
manner or by expiration of appointment. 	[Eff and comp
2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-58 	Delegation of final decision making
power. 	(a) 	The board may delegate to the chairperson
or an administrative hearing officer the power to
render the final decision in a CRVS contested case.
(b) 	Whenever the final decision making power is
delegated to the chairperson, the chairperson shall
only render the final decision after receiving and
reviewing the hearing officer’s recommendation
following a CRVS contested case hearing, and may
(1) 	Adopt, modify or reverse the hearing
officer’s recommendation and issue the final
decision;
(2) 	Remand the case to the hearing officer to
hold further hearings for the purpose of
receiving more evidence; or
(3) 	Refer the case to the board for disposition.
(c) 	The administrator shall inform all parties
of any delegation of final decision making power at
the earliest opportunity but not later than the start
of the taking of evidence. 	[Eff and comp 2/27/09]
(Auth: 	HRS §§171-6, 199D-1) (Imp: 	HRS §199D-1)
§13-1-59 	Representation. 	Representation in any
proceedings conducted under this subchapter shall be
governed by section 13-1-10 of this chapter. 	[Eff and
comp 2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)

1-43
§13-1-60 	Filing and service. 	(a) 	All documents
subject to filing under this subchapter shall be filed
with the administrator. 	All filings shall comply with
section 13-1-12 of this chapter.
(b) 	Service of documents shall comply with
section 13-1-13.1 of this chapter. 	[Eff and comp
2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §§199D-1,
489E-7)
§13-1-61 	Notice of civil resource violation;
issuance, service and amendment. 	(a) 	The
administrator or a conservation and resource
enforcement officer shall have the power to issue a
civil citation to any person who is charged with
having committed a civil resource violation.
(b) 	The administrator or a conservation and
resource enforcement officer shall have the power to
summon such person cited pursuant to subsection (a)
above to answer to the violation notice and any
citation contained therein, and to submit to
administrative proceedings conducted pursuant to this
subchapter.
(c) 	Service of the violation notice may be
conducted by any employee of the department or anyone
authorized by the administrator, and may be
effectuated by one of the following methods:
(1) 	By personal service on the respondent, with
or without the respondent’s signature
acknowledging the service;
(2) 	By certified mail, return receipt requested,
to the respondent’s last known address;
(3) 	If the respondent is a domestic or foreign
corporation or a partnership or other
unincorporated association, by delivering a
copy of the violation notice to an officer,
a managing or general agent or partner, or
to any other agent or partner authorized by
appointment or by law to receive service of
process; or

1-44
(4) 	Where a civil resource violation involves an
unattended vehicle or vessel, service may be
conducted by a conservation and resource
enforcement officer who shall conspicuously
affix the violation notice to the vehicle or
vessel for the registered owner to receive
and answer.
(d) 	In any pending case, the department may
amend a violation notice at any time prior to the
filing of the respondent’s answer to the original
notice. 	[Eff and comp 2/27/09] (Auth: 	HRS §199D-1)
(Imp: 	HRS §§91-9, 91-9.5, 199D-1)
§13-1-62 	Notice of civil resource violation;
contents. 	A notice of civil resource violation shall
include, at a minimum, the following:
(1) 	The respondent's name and current address if
available;
(2) 	A statement that the notice is being issued
pursuant to chapter 199D, HRS.
(3) 	A citation of the specific resource
violation, including a brief statement of
the facts for which the notice is issued and
a citation to the law that has been
violated;
(4) 	An assessment of all the administrative
sanctions upon the respondent and the
governing legal authorities;
(5) 	A statement of the options provided in
section 13-1-64 herein for answering the
notice and the procedures necessary to
exercise the options;
(6) 	A summons to the respondent to answer the
notice within twenty-one days of the service
of the notice;
(7) 	Name and signature of the officer or
official who issues the notice;
(8) 	Date of the issuance of the notice;
(9) 	A statement that all citations made and
sanctions assessed by the department in the
notice are final unless contested by the

1-45
respondent within twenty-one days of service
of the violation notice;
(10) A statement that failure to timely answer
the violation notice and comply with all
sanctions assessed by the department may
result in the entry of a default decision
for the department and additional penalty as
specified in the violation notice for the
past due compliance;
(11) A statement that a request for mitigation
without contesting the notice shall be
examined and decided by a hearing officer
without holding any hearing, and that the
hearing officer’s decision shall be final
and shall not be subject to any
administrative or judicial review
thereafter;
(12) A statement that any administrative action
against the respondent for any civil
resource violation shall not preclude the
state from pursuing a separate criminal
prosecution in a court of law for an offense
committed in the same course of conduct; and
(13) A space for the respondent’s statement and
signature. 	[Eff and comp 2/27/09]
(Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-63 	Answer required; noncompliance subject
to higher fine. 	(a) 	A respondent who receives a
violation notice shall, within twenty-one days of the
service of the violation notice, answer the notice by
a method indicated in the violation notice.
(b) 	The department may assess a higher
administrative fine for a civil resource violation if
the violation notice is not answered or any sanctions
assessed therein are not complied with by the end of
the twenty-one day period or as otherwise required by
the department, provided that proper notice of the
higher fine has been given pursuant to sections 13-1-
61 and 62 herein, and that the total administrative

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fine shall not exceed the maximum amount allowed by
law.
(c) 	For good cause shown, the administrator may
extend the period allowed for answering a violation
notice. 	[Eff and comp 2/27/09] (Auth: 	HRS §199D-1)
(Imp: 	HRS §199D-1)
§13-1-64 	Respondent’s options when answering.
In an answer to a notice of civil resource violation,
the respondent shall choose from one of the following
options:
(1) 	Waive any contest to the notice of civil
resource violation, and comply with all the
monetary and non-monetary sanctions assessed
therein;
(2) 	Waive any contest to the notice of civil
resource violation, but request mitigation
of sanctions based on written
justifications; or
(3) 	Contest the notice of civil resource
violation. 	[Eff and comp 2/27/09] (Auth:
HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-65 	Counter claim disallowed. 	Any
counterclaim by a respondent against the state, the
department, or the officer or official who has issued
the violation notice shall be disallowed in an
administrative proceeding conducted by the board or a
hearing officer. 	[Eff and comp 2/27/09] (Auth: 	HRS
§199D-1) (Imp: 	HRS §199D-1)
§13-1-66 	Default. 	(a) 	When a respondent fails
to answer a violation notice within twenty-one days of
the violation notice or such further period granted by
the administrator, or fails to attend a board hearing
or a contested case hearing after proper service of
notice, or otherwise fails to defend against a
citation of civil resource violation, the respondent
shall be deemed to have waived the right to contest

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the violation notice, and the board or a hearing
officer shall enter the respondent’s default, and may
(1) 	Enter a finding of a violation;
(2) 	Impose any sanctions for the violation not
to exceed those that have been assessed in
the violation notice; and
(3) 	Enter a decision by default, which shall be
final.
(b) 	For good cause shown, the board or a hearing
officer may set aside an entry of default or a default
decision. 	[Eff and comp 2/27/09] (Auth: 	HRS §199D-1)
(Imp: 	HRS §199D-1)
§13-1-67 	Proceedings after answer. 	(a) 	When a
respondent in an answer waives contest to the
violation notice and has complied with all sanctions
assessed, the administrator shall record a
satisfaction of the violation notice and conclude the
case.
(b) 	An answer waiving contest but requesting
mitigation shall be adjudicated in accordance with the
following procedure:
(1) 	The administrator shall serve a copy of
respondent’s answer to the department within
ten days of the receipt of respondent’s
answer.
(2) 	Upon the receipt of respondent’s answer, the
department shall have twenty days to file
its statement of position, if any, and serve
it upon all parties.
(3) 	The administrator shall assign a hearing
officer to examine the mitigating
circumstances and decide on the mitigation
request.
(4) 	The hearing officer shall, at a time not
later than thirty days after the filing of
the department’s statement of position or
after the twenty-day period allowed for such
filing, whichever is earlier, examine and
decide on the mitigation request.

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(5) 	The hearing officer shall make a decision
without the holding of any hearing or the
attendance of any parties or their
representatives or any witness, and may rely
on the evidence in the record in rendering
the decision.
(6) 	The hearing officer’s decision shall include
findings of fact and conclusions of law as
to the mitigating circumstances, and may
Adopt, modify or reverse any sanctions
contained in the violation notice.
(7) 	The administrator shall, within ten days of
the hearing officer’s decision, serve upon
respondent a certified copy of the decision.
(8) 	A hearing officer’s decision on a mitigation
request shall be final. 	No further
administrative or judicial review shall be
allowed.
(9) 	When all sanctions imposed by the hearing
officer have been complied with, the
administrator shall record a satisfaction of
decision and conclude the case.
(c) 	When a respondent’s answer is timely filed
and contests the violation notice, the administrator
shall assign the case to a hearing officer who shall
proceed to the conduct of a CRVS contested case
hearing pursuant to subchapter 5 of this chapter,
except as otherwise provided herein. 	[Eff and comp
2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-68 	Record of contested case hearing.
(a) 	The administrator shall retain an audio, video or
stenographic record of all proceedings in a CRVS
contested case for a period of not less than two years
after the case is concluded.
(b) 	Any party may obtain a certified copy of the
audio or video record upon a payment of $10 per copy.
(c) 	Any party to a proceeding conducted under
this subchapter may rely upon the audio or video
record in producing a transcript of the proceeding or
any part thereof. 	Unless the transcription is

1-49
performed and attested by a stenographer certified by
the administrator, a transcript produced from the
audio or video record shall be deemed unofficial and
shall not be considered as part of the record. 	A
citation of an unofficial transcript in a subsequent
proceeding conducted under this chapter shall be
admissible, subject to any challenges by other parties
and the authentication by the administrator.
(d) 	A hearing officer may grant a motion for
stenographic recording of a proceeding conducted under
this subchapter, provided that the cost shall be borne
by the proposing party or allocated among parties by
the hearing officer, and a deposit of $200 for the
stenographer’s service shall be tendered to the
administrator at the time when the motion is granted.
[Eff and comp 2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS
§199D-1)
§13-1-69 	Final decision making procedure when
power delegated. 	(a) 	Notwithstanding provisions in
subchapter 6, the procedure provided in this section
shall apply when the final decision power is delegated
to the chairperson or a hearing officer pursuant to
section 13-1-58 of this subchapter.
(b) 	After all evidence has been taken, the
parties may submit, within the time set by the
chairperson or hearing officer, a proposed decision
and order which shall include proposed findings of
fact and conclusions of law.
(c) 	Within the time established by law, if any,
or within a reasonable time after the parties have had
an opportunity to file objections, if applicable, to
file briefs and to present oral argument as may have
been permitted, the chairperson or hearing officer
shall render its findings of fact, conclusions of law,
and decision and order.
(d) 	Every decision and order adverse to a party
to the proceeding, rendered by the chairperson or a
hearing officer, shall be in writing or stated in the
record, and shall be accompanied by separate findings
of fact and conclusions of law. 	If any party to the

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proceeding has filed proposed findings of fact, a
separate ruling on each shall be incorporated in the
decision rendered by the chairperson or hearing
officer.
(e) 	Decisions and orders shall be served by
mailing certified copies thereof to each party at the
party’s address of record or by personal delivery of a
certified copy. 	When a party to a contested case has
appeared by a representative or by counsel, service
upon the representative or counsel shall be deemed to
be service upon the party. 	[Eff and comp 2/27/09]
(Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-70 	Administrative sanctions schedule;
factors to be considered. 	(a) 	For the purposes of
providing guidance in the assessment of administrative
sanctions and promoting consistency within the
department, there shall be adopted by the board an
administrative sanctions schedule.
(b) 	The administrator, divisions, and
conservation and resource enforcement officers shall
use the administrative sanctions schedule when issuing
a notice of civil resource violation.
(c) 	The board or its delegates shall set a
sanction for a civil resource violation after
consideration of the administrative sanctions schedule
and the following factors:
(1) 	Value of the natural or cultural resource
that is damaged or the subject of a theft,
which may be measured by the market value of
the resource damaged or taken and any other
factor deemed appropriate by the board or
its delegates, such as the loss of the
resource to its natural habitat and
environment and the cost of restoration or
replacement;
(2) 	Damages to the state in its facilities and
services, including the present value of any
accrued past damages and defined future
damages;

1-51
(3) 	Costs for the state to remedy any damages,
restore any resources, repair any
facilities, replace any assets, or recover
any losses;
(4) 	Costs for the state to enforce against,
investigate and monitor the violation and
its damages;
(5) 	Fees and costs for the state to prosecute or
process the violation in any legal or
administrative proceedings, including
attorneys’ fees and costs;
(6) 	Level of damages to the public for whom the
state holds a public trust of the resource
involved;
(7) 	Pecuniary gains that have been realized or
may be potentially realized by the
respondent from an unauthorized commercial
activity;
(8) 	Concurrent civil resource violations when
perpetrating the underlying violation;
(9) 	Concurrent violations of any federal laws or
state laws other than those administered by
the department;
(10) Level of the respondent’s culpable intent as
compared to the state’s responsibility in
proper signage, other actual or constructive
notice, enforcement, and promotion of public
awareness and education;
(11) Repetition and duration of resource
violations of the same or similar type in
the respondent’s history;
(12) Extent of the respondent’s cooperation with
authorities and compliance with inquiries,
requests, orders, protocols, or warnings
that may have been conveyed to the
respondent through written or verbal
notification from the department;
(13) Voluntary actions taken by the respondent to
mitigate or avoid any damages or injuries
resulting from or threatened by the
violation;

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(14) The respondent’s capability and resources in
providing any redress and restitution;
(15) The respondent’s willingness to voluntarily
comply with all the sanctions assessed in
the notice of civil resource violation for
any specific violation; and
(16) Any other factors that may be identified as
constructive for the fair assessment of
administrative sanctions. 	[Eff and comp
2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS
§199D-1)
§13-1-71 	Determination of a repeat violator.
For the purpose of assessing administrative fines and
other sanctions on a civil resource violation, a prior
criminal or administrative citation shall not subject
the same person to being determined as a repeat
violator unless a final judgment or administrative
decision on the prior citation has been entered by a
judge, the board, the chairperson or a hearing officer
with a finding and conclusion of a violation of a
state law administered by the department. 	[Eff and
comp 2/27/09] (Auth: 	HRS §199D-1) (Imp: 	HRS §199D-1)
§13-1-72 	Enforcement and stay of a final
decision. 	(a) 	Unless otherwise stated in a final
decision, all administrative fines, other monetary
assessments and non-monetary sanctions shall be due
within thirty days of the service of the final
decision imposing such fines and sanctions.
(b) 	Unless otherwise decided by the board, upon
request filed by a party, the chairperson may stay
enforcement of a final decision pending a judicial
review of the case. 	The chairperson’s decision as to
the request for stay is final.
(c) 	The department is authorized to take any
legal action to collect any overdue monetary sanctions
or enforce any overdue non-monetary sanctions imposed
in an administrative proceeding under this subchapter,
or may refer the case to the attorney general for such

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an action. 	[Eff and comp 2/27/09] (Auth: 	HRS §199D-
1) (Imp: 	HRS §199D-1)

DEPARTMENT OF LAND AND NATURAL RESOURCES
The amendment to and compilation of Title 13,
Chapter 1, Hawaii Administrative Rules, including the
adoption, amendment and repeal of individual rules as
listed on the summary pages, and in the text attached
hereto, were adopted on December 12, 2008, by the
Board of Land and Natural Resources. 	Eight public
hearings on the amendment were held on six islands on
October 2, 7, 9, 14, 20, 23, 28 and 30, 2008. 	Public
hearing notice was given in the Honolulu Advertiser
and the Honolulu Star-Bulletin on August 31, 2008.
They shall take effect ten days after filing with the
Office of the Lieutenant Governor.
/s/
_____________________________
LAURA H. THIELEN
Chairperson, Board of
Land and Natural Resources
APPROVED:
/s/
_____________________________
LINDA LINGLE
Governor
State of Hawaii
2/13/09
_____________________________
Date of Approval
APPROVED AS TO FORM:
/s/ Linda L.W. Chow
_______________________
Deputy Attorney General
2/17/09
_____________________________
Office of the Lt. Governor