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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2022
07:52 AM
Dkt. 40 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PETE K. BASABE, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DCC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Pete K. Basabe (Basabe) appeals
from the February 5, 2021 Judgment and Notice of Entry of
Judgment, filed by the District Court of the Third Circuit, Kona
Division (District Court).1
Basabe was convicted of violating Hawaii Administrative
Rules (HAR) § 13-60.4-4(6),2 an administrative rule adopted by
the Department of Land and Natural Resources prohibiting SCUBA
1
The Honorable Mahilani E.K. Hiatt presided.
2
HAR § 13-60.4-4(6) (effective 2013) states:
§13-60.4-4 Activities prohibited within the West Hawai #i
regional fishery management area. While within the West
Hawai#i regional fishery management area, no person shall:
. . . .
(6) Engage in or attempt to engage in SCUBA spearfishing,
possess both SCUBA gear and a spear at the same time, or
possess SCUBA gear and any specimen of speared aquatic life
at the same time.
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spearfishing activity in the West Hawai#i Regional Fishery
Management Area.3
On appeal, Basabe contends the District Court erred by
convicting him because it erroneously interpreted HAR § 13-60.4-
4(6) to prohibit mere possession of inoperable SCUBA tanks
without an intent or attempt to use them.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve Basabe's
point of error as follows, and affirm.
Basabe argues that "the district court interpreted HAR
§ 13-60.4-4(6) to prohibit the possession of SCUBA equipment,
whether it was operational or not. This interpretation was wrong
and inconsistent with the purpose of the statute [sic]." Basabe
claims "HAR § 13-60.4.4(6), the charging statute [sic] in this
case first prohibits engaging in or attempting to engage in SCUBA
spearfishing and then possessing both SCUBA gear and a spear at
the same time, or possessing SCUBA gear and any specimen of
speared aquatic life at the same time." Accordingly, he asserts
that, as evidenced by the first prohibition against engaging in
or attempting to engage in SCUBA spearfishing, "the plain meaning
and intent of the statute [sic] is to prohibit actual SCUBA
spearfishing (or the attempt to do so) in the fisheries
management area, not simply the possession of SCUBA equipment
incidentally with either a spear or speared aquatic life."
Basabe further claims the District Court's interpretation creates
an ambiguity which requires this court to look to the purpose of
the creation of the West Hawai#i Regional Fishery Management
Area, which is to prevent the actual taking of resources.
Lastly, Basabe contends he did not possess SCUBA gear because the
SCUBA tanks were not operable without a regulator, which was not
found in his possession.
The general principles of construction which apply to
statutes also apply to administrative rules. As in
statutory construction, courts look first at an
administrative rule's language. If an administrative
3
Violation of HAR § 13-60.4-4(6) is a petty misdemeanor. Hawaii
Revised Statutes (HRS) § 188-70 (2011 & Supp. 2019).
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rule's language is unambiguous, and its literal
application is neither inconsistent with the policies
of the statute the rule implements nor produces an
absurd or unjust result, courts enforce the rule's
plain meaning.
Fagaragan v. State, 132 Hawai#i 224, 240, 320 P.3d 889, 905
(2014), as corrected (Mar. 21, 2014)(underscore and citation
omitted). The interpretation of a statute is a question of law
that we review de novo. State v. Kelekolio, 94 Hawai#i 354, 356,
14 P.3d 364, 366 (App. 2000) (citations omitted). We likewise
apply de novo review to interpretation of HAR § 13-60.4-4(6), an
administrative rule. See Fagaragan, 132 Hawai#i at 240,
320 P.3d
at 905.
We start first with Basabe's interpretation of the
plain language of HAR § 13-60.4-4(6). HAR § 13-60.4-4 states
that no person shall "(6) Engage in or attempt to engage in SCUBA
spearfishing, possess both SCUBA gear and a spear at the same
time, or possess SCUBA gear and any specimen of speared aquatic
life at the same time." The plain language of HAR § 13-60.4-4(6)
is unambiguous and specifies three prohibitions, not only one of
which may be proven in two ways as Basabe claims. See Fagaragan,
132 Hawai#i at 240, 320 P.3d at 905.
HAR § 13-60.4-4(6) prohibits (1) SCUBA spearfishing or
attempted SCUBA spearfishing, (2) possession of both SCUBA gear
and a spear at the same time, and (3) possession of both SCUBA
gear and any specimen of speared aquatic life at the same time.
Contrary to Basabe's claim, HAR § 13-60.4-4(6) does not prohibit
the mere possession of SCUBA gear by itself; the rule prohibits
possession of SCUBA gear with concurrent possession of a spear or
speared aquatic life.
The District Court's interpretation of HAR § 13-60.4-
4(6) and its application to Basabe do not conflict with the
policies of HAR Chapter 13-60.4, which pertains to the West
Hawai#i Regional Fishery Management Area. See id. The "intent
and purpose" of the chapter is, inter alia, to "[e]stablish the
West Hawai#i Regional Fishery Management Area for improved
management of consumptive and nonconsumptive uses of aquatic
resources," "[e]nsure the sustainability of the State's nearshore
ocean resources," and "[i]dentify areas and resources of
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statewide significance for protection[.]" HAR § 13-60.4-1(a)(1),
(2), and (6). To that end, HAR § 13-60.4-4(6) prohibits not only
SCUBA spearfishing and attempted SCUBA spearfishing, but also
possession of both SCUBA gear and a spear at the same time, as
well as possession of both SCUBA gear and speared aquatic life at
the same time, within the West Hawai#i Regional Fishery
Management Area. The express prohibition of possession of SCUBA
gear with a spear or speared aquatic life under HAR § 13-60.4-
4(6) is a determination that possession of these combinations of
items constitute an unacceptable risk that these items will be
used for an unlawful purpose, such as SCUBA spearfishing. See
State v. Rapozo, 123 Hawai#i 329, 339-40, 235 P.3d 325, 335-36
(2010)(construing HRS § 134-7(b) which prohibits possession of
any firearm or ammunition by a person convicted of a felony as
reflecting the legislature's determination that the possession of
firearms or ammunition by certain categories of people raises an
unacceptable risk that the items will be used for unlawful
purposes). The prohibition at issue here is related to the
purpose of managing and protecting the aquatic resources of the
state, and thus does not conflict with the purpose and intent of
HAR Chapter 13-60.4.
Basabe's remaining argument is that a SCUBA tank
without a regulator is inoperable; and therefore, it does not
fall within the meaning of SCUBA gear. This argument is without
merit. "'SCUBA gear' means any equipment adapted, designed, or
commonly used to enable a diver to breathe while underwater,
including but not limited to SCUBA regulators, high pressure
cylinders, rebreathers, SNUBA, and hookah rigs." HAR § 13-60.4-
3. Basabe's argument relies upon the premise that without both a
regulator and SCUBA tank it is not possible to breathe
underwater. In other words, Basabe argues that possession of one
item without the other does not enable underwater breathing;
therefore, neither alone would constitute SCUBA gear. However,
the non-exclusive list of equipment that is considered "SCUBA
gear" under HAR § 13-60.4-3 provides that regulators are SCUBA
gear. Any single piece of equipment that is "designed" or
"commonly used to enable a diver to breathe while under water"
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qualifies as SCUBA gear -- proof of any particular item actually
providing the ability to breathe underwater is not required. The
Rule does not state that the equipment must actually be used for
underwater breathing at the time of offense. It applies to
equipment that is "adapted, designed or commonly used to enable"
underwater breathing. HAR § 13-60.4-3. The District Court did
not err in its interpretation of SCUBA gear or its application of
HAR § 13-60.4-4(6) to Basabe.
For the foregoing reasons, the February 5, 2021
Judgment and Notice of Entry of Judgment, filed by the District
Court of the Third Circuit, Kona Division, are affirmed.
DATED: Honolulu, Hawai#i, June 23, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Hawai#i, Associate Judge
for Plaintiff-Appellee.
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