Hawai'i Fisheries Initiative - The Hawaii Institute for Public Affairs

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503 Wendie Ellen Schneider, Contentious Business: Merchants and the creation of a Westernized judiciary in Hawai‘i,” 108 Yale L.J. 1389 (1999), citing In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 720 (1864). 504 Peter Apo, Dennis “Bumpy” Kanahele, Cherlyn Logan, Dr. Davianna McGregor, John M. Knox & Associates, ed., Planning for sustainable tourism in Hawai‘i (2004), prepared for Hawai‘i Department of Business Economic Development & Tourism, at http://www.Hawaii.gov/dbedt/info/visitorstats/ sustainable-tourism-project/drafts/Native-Hawaiian- Impact-Report.pdf, p. 10. 505 Alan Friedlander, Bob Endreson, William Aila, Linda Paul, with the assistance of DAR, Pacific Fisheries Coalition whitepaper, The Status of Hawai‘i’s Living Marine Resources at the Millennium, at http://www.pacfish.org/wpapers/ fishstatus.html. See also Ka Hana Lawai‘a a me na ko‘a o na kai‘ewalu [electronic resource] : a history of fishing practices and marine fisheries of the Hawaiian Islands. Compiled from Native Hawaiian traditions, historical accounts, government communications, Kama’aina testimony and ethnography. Honolulu, HI : Kamehameha Schools Land Assets Division, 2004. DU624.6 .N35 2004. 506 Organic Act of April 30, 1900, Chapter 339, 31 Stat. at L. 141, 160. “[A]ll laws of the Republic of Hawai‘i which confer exclusive fishing rights upon any person or persons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawai‘i not included in any fish pond or artificial inclosure shall be free to all citizens of the United States, subject, however, to vested rights; but no such vested rights shall be valid after three years from the taking effect of this Act unless established as hereinafter provided.” Hawai‘i Organic Act, ch. 6, § 95 (2001) (original version at ch. 339, 31 Stat. 141 (2 Supp. R. S. 1141). See also, United States v. Kaiser Aetna, 408 F. Supp. 42, 51 (D. Haw. 1976), aff’d, 584 F.2d 378 (9th Cir. 1978), rev’d, 444 U.S. 164 (1979), specifically exempting fishponds from the scope of the Hawai‘i Organic Act of 1900. 507 See Haalelea v. Montgomery, 2 Hawaiian R. 62, 66; Kapiolani Estate v. Territory of Hawai‘i, 18 Haw. 460 (1907); state v. Hawaiian Dredging Co., 48 Haw. 152, 397 P.2d593 (1964); Bishop v. Mahiko, 35 Haw. 608 (1940); Damon v. Territory of Hawai‘i, 194 U.S. 154 (1904) at http://caselaw.lp.findlaw.com/cgibin/ getcase. pl?court=us&vol=194&invol=154. 508 Ian Hlawati, “Loko I‘a: A legal guide to the restoration of Native Hawaiian fishponds within the Western paradigm,” 24 U. Haw. L. Rev. 657 (2002), citing Melody MacKenzie, Native Hawaiian Rights Handbook (1991), p. 177. 509 Ian Hlawati, “Loko I‘a: A legal guide to the restoration of Native Hawaiian fishponds within the Western paradigm,” 24 U. Haw. L. Rev. 657 (2002), citing Melody MacKenzie, ed., The Native Hawaiian Rights Handbook, p. 177; Alan Murakami, Konohiki Fishing Rights and Marine Resources, in Native Hawaiian Rights Handbook, at 173-95; and “In Smith v. La‘amea the court stated: ‘We understand the word tenant, as used in this connection, to have lost its ancient restricted meaning, and to be almost synonymous at the present time with the word occupant, or occupier, and that every person occupying lawfully any part of an ahupua‘a ‘is a tenant within the meaning of the law. Those persons who formally lived as tenants under the konohikis but who have acquired fee simple title to their kuleanas, under the operation of the Land Commission, continue to enjoy the same rights of piscary that they had as hoaainas under the old system. . . . If any person who has acquired a kuleana on the ahupua‘a of Honouliuli should sell and convey his land, or even a part of it, to another, a common right of piscary would pass to the grantee, as an appurtenance to the land.” Smith v. La’amea, 29 Haw. 750, 755-56 (1927) (quoting Haalelea v. Montgomery, 2 Haw. 62, 71 (1858). 510 Damon v. Territory of Hawai‘i 194 U.S. 154 (1904), referencing Wedding v. Meyler, 192 U.S. 573 , 583, ante, p. 322, 24 Sup. Ct. Rep. 322, at http://caselaw.lp.findlaw.com/cgibin/ getcase. pl?court=us&vol=194&invol=154. See also Haalelea v. Montgomery, 2 Hawaiian R. 62, 66. 511 HRS § 187A-23; Ian Hlawati, “Loko I‘a: A legal guide to the restoration of Native Hawaiian fishponds within the Western paradigm,” 24 U. Haw. L. Rev. 657 (2002), part III, “Analysis: Legal Guide to Restoration.” “In 1982, the Hawai‘i Supreme Court recognized in Reppun v. Board of Water Supply (656 P.2d 57, at 68-69 (1982) that there had been unjustified losses of customary Hawaiian rights, including konohiki fishing rights. Having recognized their own historical errors, the court held that with regard to water rights, the grant of such water rights to a konohiki owner were inseparable from the konhiki’s duty to provide for his tenants. The court implied that their holding with regard to water rights had application to the analogous land and fishing rights. Reppun represented a marked departure from what had previously been held in Hawaiian Dredging. Under Ashford (440 P.2d 76 (1968), Reppun, and PASH (79 Hawai‘i at 445-46, 903 P.2d at 1266-67), Hawaiians with or without vested property interests in fishponds may have judicially enforceable rights to fish at these sites.” 512 Hawai‘i Constitution, Article XI, Section 6, at http:// www.Hawaii.gov/lrb/con/conart11.html. 513 D. Kapua Sproat, The backlash against PASH: legislative attempts to restrict Native Hawaiian rights, 20 U. Haw. L. Rev. 321 (1998), part III, citing Haw. Const. .art. XII § 7. 514 John Van Dyke, “The role of indigenous peoples in ocean governance: Traditional native approaches to ocean governance,” part of the United Nation’s University’s Integrated Ecosystems, Pacem in Maribus XIX conference, at http://www.unu.edu/ unupress/unupbooks/uu15oe/uu15oe0a.htm, citing Opinion letter written by the Department of the Attorney General, Land Transportation Division, to the Chair of the Board of Land and Natural Resources, State of Hawai‘i, 24 June 1982. 515 OHA’s claim to share equally in the harvest may find support in a 1979 U.S. Supreme Court decision (443 US 658) upholding the Boldt Decision, the result of a 1970 federal suit against the state of Washington that allocated 50 percent of state’s catch to land-holding native American Indians under an interpretation of treaties between the U.S. and the Indian tribes. See Sharon Boswell and Lorraine McConaghy, “A Resource Divided, Seattle Times, Nove. 10, 1996, at http://seattletimes. nwsource.com/centennial/november/resource. html; also see “Federal Judge George Boldt issues historic ruling affirming Native American treaty fishing rights on February 12, 1974,” at http:// www.historylink.org/essays/output.cfm?file_ id=5282. 516 John Van Dyke, “The role of indigenous peoples in ocean governance: The pursuit of ocean claims,” United Nation’s University’s Integrated Ecosystems, Pacem in Maribus XIX conference, at http:// www.unu.edu/unupress/unupbooks/uu15oe/ uu15oe0a.htm: “On 2 September 1989, the Office of Hawaiian Affairs issued a Draft Blueprint for Native Hawaiian Entitlements which included the following paragraph among the claimed entitlements: Submerged Lands and Offshore 123
Waters: Native Hawaiians have an interest in the living and nonliving resources of submerged lands and offshore water in the exclusive economic zones and territorial seas surrounding the Hawaiian Islands, Johnston Atoll, Palmyra Island, and Midway Island. Native Hawaiians are entitled to half of all revenues received by the U.S. government from these resources. Native Hawaiians are also entitled to harvest half of all resources in these areas. Both the living and nonliving resources should be co-managed by appropriate federal and state agencies and OHA, or any successor Native Hawaiian entity developed pursuant to the process set forth below, in an environmentally sensitive manner designed to preserve these resources for future generations.” 517 Public Access Shoreline Hawai‘i (PASH) v. Hawai‘i County Planning Commission, 79 Hawai‘i 425, 903 P.2d 1246 (1995), cert. denied, 116 S. Ct. 1559 (1996) (Mem.). 518 D. Kapua Sproat, The backlash against PASH: legislative attempts to restrict Native Hawaiian rights, 20 U. Haw. L. Rev. 321 (1998), citing Public Access Shoreline Hawai‘i (PASH) v. Hawai‘i County Planning Commission, 79 Hawai‘i 425, at 448. See also Ian H. Hlawati, “LOKO I‘A: A LEGAL GUIDE TO THE RESTORATION OF NATIVE HAWAIIAN FISHPONDS WITHIN THE WESTERN PARADIGM,” 24 U. Haw. L. Rev. 657 (2002), citing Carol Araki Wyban, Tide and Current: Fishponds of Hawai‘i xiii (1992); Joseph M. Farber, Ancient Hawaiian Fishponds: Can Restoration Succeed on Moloka‘i? 1-5 (1997); 79 Hawai‘i 425, Public Access Shoreline Hawai‘i v. Hawai‘i County Planning Commission, 903 P.2d 1246 (1995), cert denied, 517 U.S. 1163 (1996), at 447. Also: D. Kapua Sproat, Comment, The Backlash Against PASH: Legislative Attempts to Restrict Native Hawaiian Rights, 20 U. Haw. L. Rev. 321, 338 (1998), citing Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 5, 656 P.2d 745, 748 (1982) for the proposition that Hawai‘i Revised Statutes (“HRS”) section 7-1 confers rights of access, gathering and water); see also PASH, 79 Hawai‘i at 445-46, 903 P.2d at 1266-67 (examining earlier codified protection of tenant gathering rights after the Great Mahele, wherein the Hawai‘i Supreme Court quoted a Privy Council resolution, which states, in pertinent part, “the rights of the makaainanas to firewood, timber for house, grass for thatching, ki leaf, water for household purposes in said land . . . is hereby sacredly reserved and confirmed to them for their private use . . . .” (citing 3B Privy Council Records 681, 687 (1850) (emphasis added). 519 D. Kapua Sproat, The backlash against PASH: legislative attempts to restrict Native Hawaiian rights, 20 U. Haw. L. Rev. 321 (1998), citing Public Access Shoreline Hawai‘i (PASH) v. Hawai‘i County Planning Commission, 79 Hawai‘i 425, at 437. 520 D. Kapua Sproat, The backlash against PASH: legislative attempts to restrict Native Hawaiian rights, 20 U. Haw. L. Rev. 321 (1998), citing Public Access Shoreline Hawai‘i (PASH) v. Hawai‘i County Planning Commission, 79 Hawai‘i 425, at 447-51. 521 Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (1988) at http:// www.waitangitribunal.govt.nz/scripts/ reports/reports/22/796C25F5-7F61-4F4F-8C50- EED0218276F3.pdf, p. 5-8. 522 “Our Sea of Islands: A Regional Forum for Oceania on marine Managed Areas and World Heritage,” January 29-February 2, 2007, Honolulu, Hawai‘i. Final documents at http://www.hawaiireef.noaa. gov/news/events/OurSeaofIslands.html. 523 Alan Friedlander, Bob Endreson, William Aila, Linda Paul, with the assistance of DAR, Pacific Fisheries Coalition whitepaper, The Status of Hawai‘i’s Living Marine Resources at the Millennium, at http:// www.pacfish.org/wpapers/fishstatus.html. 524 Id. 525 The Nature Conservancy Hawai‘i, Makai Watch program, at http://www.nature.org/wherewework/ northamerica/states/hawaii/marine/art20999.html. 526 NOAA Pacific Services Center, at www.csc.noaa. gov/psc/strategic.html; (808) 532-3200. 527 MSA § 301(a)(8). National Standard 8: “Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.” 528 See R. Iversen, T. Dye, and L. M. B. Paul. 1989. Rights of Native Hawaiian fishermen with specific regard to harvesting bottomfish in the Northwestern Hawaiian Islands and with regard to harvesting bottomfish, crustaceans, precious corals, and open-ocean fish in offshore areas surrounding the entire Hawaiian island chain. A report prepared for the Western Pacific Regional Fishery Management Council. Honolulu, Hawai‘i. 529 Wespac, Building community networks in the western Pacific region, March 2007. 530 Kitty Simonds, Wespac executive director, welcoming remarks at Ho‘ohanohano I Na Kupuna Puwalu, December 2006. 531 Leimana DaMate, Chair, Association of Hawaiian Civic Clubs Ocean Resources Committee, Status report on ocean and ecosystem issues, October 23, 2006, at http://www.aohcc.org/Committee%20 Reports/2006/Ocean%20Resources%20Att%202.doc. 532 Ho‘ohanohano I Na Kupuna Puwalu, August 2006. A gathering of expert Native Hawaiian cultural and practitioners versed in lawai’a and mahiai – ocean and land ahupua‘a methods; at http://www.aohcc. org/Committee%20Reports/Summary.doc. 533 Hawai‘i Ocean Resources Management Plan 2006, HRS § 205A, at http://www.Hawaii.gov/dbedt/ main/about/leg-reports/ormp-final-2006.pdf, page 8. Traditionally in Hawai‘i, natural resources were managed at the ahupua‘a and moku levels. ‘Aha Councils, composed of a diverse group of practitioners and acknowledged experts in agriculture, fishing, water resources, and cultural skills, lived within each ahupua‘a and served together as the governing board. Today, in contrast, Hawai‘i’s legal and institutional framework for environmental and natural resources management largely perpetuates a sector-based approach where different government agencies have jurisdictional authority over specific resources. Increasing pressure on natural resources coupled with a greater understanding of environmental systems have brought to light the need for a more holistic approach to natural resource management. The management goals and strategic actions described under this perspective provide opportunities to demonstrate integrated natural resources management approaches, build capacity for community participation and stewardship, and develop legal and policy proposals to institutionalize integrated and collaborative management approaches. 124
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Hawai‘i Fisheries Initiative A Co
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Examples of Hawai‘i Fish Aku Bige
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fishers, who defray costs by sellin
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A Snapshot of Hawai‘i’s Seafood
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Western Pacific Fisheries Managemen
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National and Statewide Economic Imp
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Economics of Hawai‘i’s Commerci
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Imports and Value Added NWHI Bottom
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Seafood Exports NOAA Fisheries repo
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Regional Trends, Wholesale Markets,
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due to the freshness of the fish wh
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Consumers of recreational and subsi
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One of the program’s goals is to
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With expected increases in populati
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Hawai‘i’s Aquaculture Potential
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The flat growth of the information
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Leasing Hawai‘i’s Waters: Legal
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Christopher Mann, a senior officer
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Recreational Fishing in Hawai‘i R
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Hawai‘i Marine Recreational Fishi
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Fishing Tournaments and Clubs Appro
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Fisheries Management and Enforcemen
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A comprehensive ecosystem-based fis
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State of Hawai‘i Fisheries Progra
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In its eighth year, 2,164 volunteer
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Stock Assessment and Catch Data Und
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2006 State Fishing Licenses and Per
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Violations of marine-related laws c
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or Olive Ridley sea turtles have be
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History and Status of Hawai‘i’s
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2006 Commercial Landings by Species
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wholesalers began offering Hawaiian
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that mortality levels will be susta
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Troll and Handline Pelagic Fisherie
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(a baited bottom camera) and Electr
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History and Status of Lobster and S
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