Hawaii Considers Increased Fines to Deter Coral Damage

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SandBar 8:3, October, 2009 Recommended citation: Abe, Joanna C. , Hawaii Considers Increased Fines to Deter Coral Damage , 8:3 SandBar 7 (2009). Hawaii Considers Increased Fines to Deter Coral Damage *Joanna C. Abe, 2L, University of Mississippi School of Law* In February 2009, a 567-foot U.S. Navy vessel, the U.S.S. Port Royal, grounded on top of a coral reef. After three days, the vessel was successfully removed from the coral reef, but not before causing substantial damage. The U.S. Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration (NOAA), and the Navy’s consultants, CSA International, mapped the grounding site and documented the damage. While the main “injury scar” covers approximately 8,000 square meters, it is estimated that approximately 6-10 acres were damaged.1 Accidents like this pose a serious threat to coral reefs. Hawaii has a particular interest in guarding against such accidents, since the state has 84% of the coral in the U.S.2 The coral reefs provide habitat for a variety of fish and marine life in Hawaii, which in turn provide economic well-being in the form of “fishing, research, education, ocean recreation, and tourism.”3 DLNR Action In 2007, the Hawaii Department of Land and Natural Resources (DLNR) responded to the problem of coral reef groundings by beginning to issue fines to boaters who caused damage. Previously, although the DLNR had the authority to impose fines for coral damage, penalties imposed were generally limited to mandatory education about coral reefs and payment of the restoration costs for the damaged area.4 Since 2007, the DLNR has imposed heavy fines on two tour companies for causing damage to coral reefs. For example, Maui Dive Shop was fined $400,000 when one of its tour boats sank in late September 2006 damaging a 14,600 square foot area of coral reef.5 Last year, the Board of Land and Natural Resources, a division of DLNR, fined Makena Boat Partners $543,000 for damage it caused to a coral reef when its boat anchor chain dragged across a reef, scouring and knocking it over.6 Makena contested the case, eventually filing suit in federal court. The Board is currently considering whether to approve a settlement amount of $130,000.7 In response to the Navy grounding, the DLNR notified the Navy in early April that it needed to take immediate action to mitigate the damage caused when the U.S.S. Port Royal grounded. The Navy responded by hiring divers to collect the loose coral from the damaged reef. After the loose coral is collected, surviving colonies will be stored onshore by the DLNR. The coral will then be reattached to live coral in the damaged area.8 Hawaii Legislation Current Hawaii legislation provides for fines to be imposed for violation of regulations that involve “threatened or endangered species,” but does not address damage to coral specifically.9 The statute provides for fines based on the number of violations. The fine may not exceed $5,000 for a first offense, $10,000 for a second offense, and $15,000 for third and subsequent violations that occur within 5 years of the prior violation. There is a proposal to change this legislation so that it will directly address damage done to “stony coral and live rock.”10 The proposed legislation would impose additional fines for damaging or breaking stony coral or live rock based upon the square meters of coral impacted. If the offender damaged an area of three meters or more, the proposed changes would impose a fine of $2,500 per square meter of stony coral or live rock broken or damaged.11 If the offender damaged an area of less than three square meters, the fine would be $1,000 per square meter.12 A similar change was considered in 2008. The 2008 amendment would have imposed a fine based on the number of square meters damaged, but the fine would have been a flat rate of $5,000 per square foot of damaged stony coral or live rock, regardless of the overall size of the damaged area.13 Florida Legislation Florida, which is also home to endangered coral reefs, has enacted legislation similar to that proposed in Hawaii. Florida recently enacted the Coral Reef Protection Act (CRPA) in order to raise public awareness about coral reef protection and ensure that parties who cause damage to coral are held accountable for their actions.14 The CRPA also sets fines based upon the size of the area of coral that was damaged and upon the offender’s number of prior offenses. The fines imposed under Florida’s CRPA are more modest than those proposed by the Hawaii legislature. They include a $150 fine for damage to an area equal to or less than one square meter.15 As the size of the damaged area increases, however, so does the fine. If the offender damages an area of coral greater than one square meter, but less than ten square meters, the fine is $300 per square meter of damage; if the area damaged exceeds 10 square meters, the fine is $1,000 per square meter of coral damaged.16 Conclusion This new legislation provides coastal managers with an additional tool to protect coral reefs. Additionally, the larger fines offer states the opportunity to collect money for their damaged resources and restoration efforts. Endnotes 1. Press Release, Department of Land and Natural Resources, State to File Damage Claim for Full Restoration Cost of Port Royal Grounding, Calls for U.S. Navy to Prevent Further Harm to Reef (April 1, 2009) (on file with author). 2. Hawaii Protecting Coral Reefs with Big Fines, Msnbc, Aug. 2, 2009, http://www.msnbc. msn.com/id/ 32261272/ns/us_news-environment/ (2009). 3. Press Release, Department of Environmental Protection, Coral Reef Protection Act to Go into Effect July 1, 2009, (June 30, 2009) (on file with author). 4. Hawaii Protecting Coral Reefs with Big Fines, supra note 2. 5. Proposal Would Lower Fine for Coral Reef Damage, The Maui News, July 21, 2009, available at http://www.mauinews.com/page/content.detail/id/521268.html . 6. Id. 7. Audrey McAvoy, Decision on Deal to Settle with Maui Coral Claim Deferred, The Maui News, July 23, 2009, available at http://www.mauinews.com/page/content.detail/id/ 521355.html . 8. Gregg K. Kakesako, Navy Begins Repair of Reef and Warship, Honolulu Star Bulletin, Apr. 30, 2009, available at http://www.starbulletin. com/news/hawaiinews/20090430_navy_ begins_repair_of_reef_and_warship.html . 9. Hawaii Rev. Stat. § 187A-12.5 (2009). 10. H.B. No. 1135, 2009 Leg. (Haw. 2009). 11. Id. 12. Id. 13. H.B. No. 3176, 2008 Leg. (Haw. 2008). 14. DEP Press Release, supra note 3. 15. Fla. Stat. § 403.93345 (2009). 16. Id.
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SandBar 8:3, October, 2009
Recommended citation: Abe, Joanna C. , Hawaii Considers Increased Fines to Deter Coral Damage , 8:3 SandBar 7 (2009).

Joanna C. Abe, 2L, University of Mississippi School of Law

In February 2009, a 567-foot U.S. Navy vessel, the U.S.S. Port Royal, grounded on top of a coral reef. After three days, the vessel was successfully removed from the coral reef, but not before causing substantial damage. The U.S. Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration (NOAA), and the Navy’s consultants, CSA International, mapped the grounding site and documented the damage. While the main “injury scar” covers approximately 8,000 square meters, it is estimated that approximately 6-10 acres were damaged.1
Accidents like this pose a serious threat to coral reefs. Hawaii has a particular interest in guarding against such accidents, since the state has 84% of the coral in the U.S.2 The coral reefs provide habitat for a variety of fish and marine life in Hawaii, which in turn provide economic well-being in the form of “fishing, research, education, ocean recreation, and tourism.”3

DLNR Action
In 2007, the Hawaii Department of Land and Natural Resources (DLNR) responded to the problem of coral reef groundings by beginning to issue fines to boaters who caused damage. Previously, although the DLNR had the authority to impose fines for coral damage, penalties imposed were generally limited to mandatory education about coral reefs and payment of the restoration costs for the damaged area.4
      Since 2007, the DLNR has imposed heavy fines on two tour companies for causing damage to coral reefs. For example, Maui Dive Shop was fined $400,000 when one of its tour boats sank in late September 2006 damaging a 14,600 square foot area of coral reef.5 Last year, the Board of Land and Natural Resources, a division of DLNR, fined Makena Boat Partners $543,000 for damage it caused to a coral reef when its boat anchor chain dragged across a reef, scouring and knocking it over.6 Makena contested the case, eventually filing suit in federal court. The Board is currently considering whether to approve a settlement amount of $130,000.7
      In response to the Navy grounding, the DLNR notified the Navy in early April that it needed to take immediate action to mitigate the damage caused when the U.S.S. Port Royal grounded. The Navy responded by hiring divers to collect the loose coral from the damaged reef. After the loose coral is collected, surviving colonies will be stored onshore by the DLNR. The coral will then be reattached to live coral in the damaged area.8

Hawaii Legislation
Current Hawaii legislation provides for fines to be imposed for violation of regulations that involve “threatened or endangered species,” but does not address damage to coral specifically.9 The statute provides for fines based on the number of violations. The fine may not exceed $5,000 for a first offense, $10,000 for a second offense, and $15,000 for third and subsequent violations that occur within 5 years of the prior violation.
There is a proposal to change this legislation so that it will directly address damage done to “stony coral and live rock.”10 The proposed legislation would impose additional fines for damaging or breaking stony coral or live rock based upon the square meters of coral impacted. If the offender damaged an area of three meters or more, the proposed changes would impose a fine of $2,500 per square meter of stony coral or live rock broken or damaged.11 If the offender damaged an area of less than three square meters, the fine would be $1,000 per square meter.12
A similar change was considered in 2008. The 2008 amendment would have imposed a fine based on the number of square meters damaged, but the fine would have been a flat rate of $5,000 per square foot of damaged stony coral or live rock, regardless of the overall size of the damaged area.13

Florida Legislation
Florida, which is also home to endangered coral reefs, has enacted legislation similar to that proposed in Hawaii. Florida recently enacted the Coral Reef Protection Act (CRPA) in order to raise public awareness about coral reef protection and ensure that parties who cause damage to coral are held accountable for their actions.14 The CRPA also sets fines based upon the size of the area of coral that was damaged and upon the offender’s number of prior offenses.
The fines imposed under Florida’s CRPA are more modest than those proposed by the Hawaii legislature. They include a $150 fine for damage to an area equal to or less than one square meter.15 As the size of the damaged area increases, however, so does the fine. If the offender damages an area of coral greater than one square meter, but less than ten square meters, the fine is $300 per square meter of damage; if the area damaged exceeds 10 square meters, the fine is $1,000 per square meter of coral damaged.16

Conclusion
This new legislation provides coastal managers with an additional tool to protect coral reefs. Additionally, the larger fines offer states the opportunity to collect money for their damaged resources and restoration efforts.

Endnotes
1. Press Release, Department of Land and Natural Resources, State to File Damage Claim for Full Restoration Cost of Port Royal Grounding, Calls for U.S. Navy to Prevent Further Harm to Reef (April 1, 2009) (on file with author).
2. Hawaii Protecting Coral Reefs with Big Fines, Msnbc, Aug. 2, 2009, http://www.msnbc. msn.com/id/ 32261272/ns/us_news-environment/ (2009).
3. Press Release, Department of Environmental Protection, Coral Reef Protection Act to Go into Effect July 1, 2009, (June 30, 2009) (on file with author).
4. Hawaii Protecting Coral Reefs with Big Fines, supra note 2.
5. Proposal Would Lower Fine for Coral Reef Damage, The Maui News, July 21, 2009, available at http://www.mauinews.com/page/content.detail/id/521268.html .
6. Id.
7. Audrey McAvoy, Decision on Deal to Settle with Maui Coral Claim Deferred, The Maui News, July 23, 2009, available at http://www.mauinews.com/page/content.detail/id/ 521355.html .
8. Gregg K. Kakesako, Navy Begins Repair of Reef and Warship, Honolulu Star Bulletin, Apr. 30, 2009, available at http://www.starbulletin. com/news/hawaiinews/20090430_navy_ begins_repair_of_reef_and_warship.html .
9. Hawaii Rev. Stat. § 187A-12.5 (2009).
10. H.B. No. 1135, 2009 Leg. (Haw. 2009).
11. Id.
12. Id.
13. H.B. No. 3176, 2008 Leg. (Haw. 2008).
14. DEP Press Release, supra note 3.
15. Fla. Stat. § 403.93345 (2009).
16. Id.