Bill to require nonresident user fees at state parks and trails clears key Senate panel

The Senate Ways and Means Committee unanimously recommended passage Tuesday of a bill to set user fees only for nonresidents visiting state parks and trails.

Senate Bill 439 would require the Board of Land and Natural Resources to adopt rules to impose user fees that solely apply to nonresidents visiting state parks and trails, as selected by the board.

In written testimony submitted to the committee, Land Board Chair Dawn Chang said the department already has 10 parks statewide with parking and entry fees. Four parks have advanced reservations systems in place to manage public access and collect fees.

The Maui state parks are Mākena State Park, ʻĪao Valley State Monument and Waiʻānapanapa State Park in Hāna.

Parking and entrance fees at state parks are already levied only upon out-of-state visitors, she said. Hawaiʻi residents are free, and they do not require advance reservations to enter state parks.

“State Parks has been evaluating the inventory of all park units and has established certain criteria to apply to determine the efficacy of charging for parking and entry – and if reservation-based access is warranted,” Chang said.

State Parks has identified five additional park units to consider adding parking and entry fees and reservation-based access, but none are in Maui County. The five parks are: Kekaha Kai (Kona Coast) Kua Bay State Park, Wailoa River State Recreation Area – Rainbow Falls and Kealakekua Bay on Hawaiʻi Island; Wailua River on Kauaʻi; and Pu’u Ulaka’a State Wayside Park on Oʻahu.

The Office of Hawaiian Affairs supported the bill, but reminded lawmakers that the legislation should make it clear that before state park visitor fees are deposited in the State Park Special Fund, OHA’s pro rata 20% must be deducted as part of the public lands trust.

“Hawaiʻi’s position as a premiere visitor destination is due in large part to the access to our oceans and mountains that are generally available free of charge,” OHA said. “A visitor fee is therefore appropriate and fair to ensure that visitors who are able to enjoy our State Parks also contribute to the costs of maintenance, which in addition to facilities and utilities maintenance often includes invasive species control, erosion mitigation, and other costs related to ongoing environmental threats.”

Kuaʻāina Ulu ʻAuamo, a grass-roots community organization formed to improve communities’ quality of life through care of Hawaiʻi’s natural and cultural heritage, testified in support of the bill to help “offset some of the environmental and community well-being degradations caused by our historically overly extractive tourism industry by infusing the state’s Department of Land and Natural Resources with much-needed funds dedicated to the protection, management and restoration of Hawaiʻi’s natural resources.”

The organization noted that the Hawaiʻi state constitution requires the protection and enforcement of Native Hawaiian rights, including traditional and customary practices that are intrinsically dependent on threatened natural resources.

“Hawaiʻi’s biocultural resources are also a part of the public trust, and must be managed and protected for the benefit of current and future generations, Kuaʻāina Ulu ʻAuamo said. “It is no secret that the historical and existing models of tourism continue to negatively affect our home, causing overcrowding and strain on our water, food, and special places – making life much less enjoyable for residents, and at the ultimate expense of our fragile ecosystems with native plants and animals being the most vulnerable.”

The organization pointed out that many other governments around the world are taking steps to “correct the underinvestment in their natural resources,” including Italy, Spain, New Zealand, Galapagos Islands and the Republic of Palau.

“It is time that Hawaiʻi – widely-known as one of the most exploited tourist destinations in the world – follows suit, to best protect our fragile environment, which Native Hawaiians and kamaʻāina hope to continue stewarding for generations to come.”

The Tax Foundation of Hawaii questioned whether the fee for out-of-state visitors might be challenged as an unconstitutional violation of the Privileges and Immunities Clause. It requires that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Although it has been held that a state may treat out-of-state residents differently in some situations, such as in granting licenses for recreational hunting, the court held in the 1978 case Baldwin v. Fish & Game Commission of Montana that the result may be different when the nonresident is not given access to any part of the state to which he or she may seek to travel. This is because the court has recognized that the Constitution protects the right of citizens of the United States to travel freely throughout the land, according to the Tax Foundation.

Other, more recent federal court cases, have sustained the power of government to charge a user fee whose proceeds are dedicated to protect and preserve the natural attraction for which the user fee was charged, such as Hanauma Bay on Oʻahu.

And the Hawaii Supreme Court, in State v. Medeiros, held that the following test would be applied to distinguish between a user fee and a tax: “whether the charge (1) applies to the direct beneficiary of a particular service, (2) is allocated directly to defraying the costs of providing the service, and (3) is reasonably proportionate to the benefit received.”

“Applying this test, the proposed user fee looks more like a tax,” the Tax Foundation said. “Although the fee is collected in a special fund, it can be spent on any park or trail, not only the park or trail that the payor of the fee paid to enter or use. Indeed, the uses to which the money in the fund can be put are broad and varied, and are not limited to the care and upkeep of natural attractions visited by tourists.”

Members of the Ways and Means Committee voting in favor of the bill were Chair Donovan Dela Cruz, Vice Chair Sharon Moriwaki and Central Sen. Troy Hashimoto. Other committee members voting “aye” were Sens. Henry Aquino, Brandon Elefante, Lorraine Inouye, Dru Mamo Kanuha, Michelle Kidani, Donna Mercado Kim, Chris Lee, Glenn Wakai and Kurt Fevella. Sen. Lynn DeCoite of Moloka‘i, East Maui, Upcountry and Lāna‘i was absent and excused.