Domestic Ocean & Coastal Law

Summer School

July 14, 2005 Lecture #3

Denise Antolini, Associate ProfessorDirector, Environmental Law ProgramWilliam S. Richardson School of Law

University of Hawai`i at Mānoa

Today’s class

AML Int’l v Daley (2000) p. 478

-- Spiny dogfish

Bycatch

Essential Fish Habitat

Ocean Advocacy

Marine Protected Areas . . .

(handout is Audubon booklet)

Spiny dogfish distribution

Ocean Communities in Conflict:

The Heartbreaking Battle Over Marine Protected Areas in Hawai`i

Hawaiian `olelo noeau

He pako`a kani `āina

“a coral reef grows into an island”

          

                                          

        

          

                                          

        

          

                                          

         Porites

compressafinger coral

Kane`ohe Bay, O`ahu

Traditional Knowledge v. Modern Fishing Approaches

Motivations for use?Implications for the resource?Interest in conservation?

Coral Reefs: Rich Biodiversity

• Cover .17% of sea floor, but have 25% of all marine species

• Reefs created by coral over thousands of years – hard to create, easy to destroy

• Living coral reefs create habitat, nursery areas, sea barriers, islands -> under-valued ecological services

• Threats: disease, predation, coastal development, alien species, over-harvesting, human destruction, pollution, coral bleaching

Hawai`i’s Coral Reefs

• 25% of Hawai`i’s reef species are endemic to the islands

• 15-18 species of coral (of 62) are endemic• 24% of shore fish species are endemic

Indigenous Native Hawaiian Culture

400-500 A.D. Marquesas migration?

1200 A.D. Tahitian migration

Isolated but socially sophisticated Polynesian cultureDeveloped for 600-2200? years without Western contact

Hawaiian Culture

• Native Hawaiian culture is deeply rooted in nature, spiritual and genealogical

• Hawaiian creation myth – born out of union of earth mother (Papa) and sky father (Wakea), first stillborn child (Haloa-naka) of Wakea and his daughter when planted grew into taro kalo, second son was Haloa, first human

• Earth and sky are ancestors; kalo is a sibling -- direct kinship with the natural world (not “trusteeship” in Western sense)

• Intimately tied to the ocean – arrived by canoe, master navigators, fishers, and users of ocean

• Hawaiian life was centered around ocean gathering and fishing, sophisticated fishing techniques (including hundreds of fishponds, unique among Polynesians)

Hawaiian Culture

Totally dependent on islands’ natural resources and a few introduced species for agriculture (sugar, banana, pigs, taro kalo)

Developed strong system of environmental protection based on:• community property• malama and aloha `āina (care for, love of the land)• konohiki (traditional land steward under chiefs ali`i)• kapu (prohibitions with harsh penalties)• ahupua`a governance (moku): mauka (mountain) to makai (reef)

True Sustainable Development? = population of Native Hawaiians possibly near 1 million pre-Contact, about the same as today (1.2m)

Polynesians also severely impacted the environment (deforestation, extinction of bird species, introduction of some alien species)

1970s: Renaissance of Native Hawaiian Culture

Protests over Navy bombing of Island of Kaho`olaweSuccessful early NEPA lawsuit to force archeological surveyBombing eventually stoppedIsland recently turned back to State for cultural and conservation

Strong renewed interest in taro cultivation, Hawaiian diet, Hawaiianlanguage, hula, traditional and customary practices

Native Hawaiian Rights• Pre-exist Western law, not extinguished: two systems must mesh

• Enshrined in Hawai`i Constitution Art. 12-7 "Traditional and customary practices" means the "rights customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua`a tenants who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights," and as further defined by Hawaii statutes, such as sections 1-1, 7-1, and Hawaii case law.

• Landmark PASH/Kohanaiki case (1995) reinvigorated those rights – all state agencies must respect and accommodate

• New alliances, Native Hawaiian attorneys

Working Concept: A Uniquely Hawaiian MPA Governance Model Based on Traditional Knowledge and Stewardship Principles

• Argument: Traditional Knowledge Model (Hawaiian Stewardship) offers a stronger foundation for effective long-term protection of marine biodiversity in Hawai`i

v. “free for all” fishing (right to fish)v. current small piecemeal reservesv. western “no take” model for MPAs

• If so, how can the Traditional Knowledge Model be achieved in current heated political-regulatory context?

The Hawai`i Marine Protected Areas Battle

• Vocabulary• Hawai`i’s Types of

MMAs • Legislative Fight• Current

Developments• Thoughts on a

Traditional Knowledge Model

Scope of this MPA Battle

• Main Hawaiian Islands only: Ni`ihau, Kaua`i, O`ahu, Moloka`i, Lana`i, Maui, Kaho`olawe, Hawai`i

• Northwestern Hawaiian Islands now undergoing federal transformation from Reserve/Refuge to Sanctuary status (created by EO 13178, Dec. 2000; finalized 2001, EO 13178), 1200 naut. miles long

• “State nearshore waters” = “all waters of the state extending from the upper reaches of the wash of the waves on shore seaward to a depth of one hundred fathoms (600 ft)”

Midway Atoll

Vocabulary Notes: Hawai`i Definitions

• Marine Managed Areas (MMAs): marine areas that have special management rules, e.g., to allocate fishery resources between user groups or to prevent gear conflicts with boats in harbors

• Marine Protected Areas (MPAs): subset of MMAs

• DLNR draft definition: “any area of the marine environment established by law or regulation to protect or enhance part or all of the natural and cultural resources therein”

• Hawai`i MPAs are not “no take” but are “multiple use”

• MMA System = “a system or series of MMAs that share significant conservation and management goals, criteria, or plans”

Hawai`i MMAs (Dots, not Lots)

Hawai`i “no take” MPAs are < .3% (<1/3 of 1%) of coastal waters

MLCDs

• 1955, Act 192: to conserve, supplement, increase Territory’s marine resources

• Evolved into Chapter 190: Marine Life Conservation District (MLCD) law

• Hawai`i now has 11 MLCDs• Each MLCD has

administrative rules – generally prohibit take, but not always

FMAs• 1981, Act 85: Fisheries Management Areas (FMAs)

expanded from freshwater to marine fisheries

• DLNR may establish, operate, manage, and maintain marine fishing reserves, refuges, and public fishing areas (HRS 188-53)

• Users need permits to enter

• 24 FMAs on 6 islands (many focused on harbors, piers, bays)

• HRS § 188F-2 created West Hawaii FMA (1993)– > 30% Kona coast closed to aquarium fishing usingFisheries Replenishment Areas (FRAs)– Success story! +26% in targeted fish– Yellow tangs increased 49% inside FRAs– Spillover – outside population is steady

• Waikiki-Diamond Head Shoreline FMA– 2 year closures showed gains; but – Now, 1 year and fishers “fish the line” and wipe out

gains from closures

NARS

• 1970, Chapter 195: created Natural Area Reserve System

• Only NARS with marine component: Ahihi-Kinau on Maui

• Problems with commercial kayaking, trampled ponds, cultural sites

Bottomfish Restricted Fishing Areas (BRFAs)

• Restricts fishing to preserve spawning populations of bottomfish (7 specific species, 600-900 feet depth)

• 1995, fishers noticed big drop, formed group to push for BRFAs

• Effective 1998: restricts fishing in 20% areas where spawning onaga and ehu (red snapper) are caught (HRS § 187A-5) (can’t use trap, trawl, BF long line, or net; limited line fishing allowed)

• 19 BRFAs = 350 square naut. miles

Community Based Subsistence Fishing Area

• 1994 (Act 271, HRS § 188-22.6): DLNR can create CBSFA to reaffirm traditional and customary fishing rights for purposes of Native Hawaiian subsistence, culture, and religion

• “Subsistence” means customary and traditional Native Hawaiian uses of renewable ocean resources for direct personal or family consumption or sharing

• Communities are to make proposals to DLNR

• Mo`omomi, Moloka`i – depletion of fish, lobster, and `opihi

• Hui established pilot in 1993, expired 1997, regulations repealed

Hawaii’s First MPA: Hanauma Bay MLCD“Loved to Death”

• Established 1967, 101 acres• State MLCD + City/County Honolulu Park• Shallow reef extends 100 yards; abundant fish• Easy access, snorkeling; up to 3.7m visitors/yr• “most heavily visited MPA in the world for its size”

Hanauma Bay

• In 1980s, visitors heavily damaged reefs (fish feeding, trampling, pathogens)

• Rules: No take, no feeding (1999), no motorized craft

• Since 1990, visitors restricted– Tuesday day of rest– New Educational Center (mandatory)

(opened 2002)– Entrance Fees ($5 for non-residents)– Redesigned limited access hours

• Economic Value estimated at $35m/yr

Fishers’ nightmare example of an MPA

Pūpūkea MLCD

• Established in 1983

Pūpūkea MLCD: Fishing Pressures

Permitted activities:• To take and possess up to two pounds (combined total,

squeezed dry) of limu kohu and limu lipe‘epe‘e by hand harvest only, provided the limu's holdfast is left in place.

Within Waimea Bay only:• To take and possess any finfish with hook-and-line from the shoreline, with not more than two poles per person and one line per pole, with no more than two hooks per line.

• 2003: To take with legal nets and possess ‘opelu during August and September, and akule during November and December. (HAR 13-34)

• 2005 resolution: to allow hook and line pole fishing for akule– Deferred last week (Sabrina Clark/Scott Atkinson campaign)

Nearshore fishing in Hawai`i is largely unregulated – the wild west

Testimony: Gary Anderson, diver/photographerOn Hawai`i Marine Reserve Bill (March 2005):

• “In all my years diving, I have never seen near shore fisheries and marine environments as depleted, overfished, and neglected as the nearshore waters of the main Hawaiian islands.”

• “On dive after diver in the coastal waters of Hawaii, I have seen a virtual underwater desert. There is an almost total absence of mature reef fish.”

• “Setting aside 20% of nearshore areas as total “No Take” preserves is a bar minimum necessary to have any hope of rebuilding our near shore marine fisheries.”

• “watching our seas die before my very eyes is an indescribable pain in my very soul . . . . Fishermen have no idea of what is happening beneath the surface of our seas.”

U.S. Initiatives

• U.N. International Year of the Ocean (1998)• National Ocean Conference (June 1998, Monterey, CA)• Clinton directed Cabinet to prepare a National Ocean Report:

“Ocean Policy and Action for the 21st Century”

• Issued in Sept. 1999: 150 recommendations; 25 key areas

• Goal: “Establish a strongly linked, scientifically based, comprehensive network of protected areas representing diverse U.S. marine ecosystems.”

• Rationale for MPAs: “Marine protected areas are important management tools with unique potential to help communities protect and sustainably use their valuable marine and coastal resources. They have been used effectively to conserve and manage natural areas, reduce user conflicts and impacts from user activities, provide educational opportunities, enhance commercial and recreational opportunities, and provide undisturbed areas for scientific comparison with nearby degraded habitats.”

National Ocean Report (1999)

• “Despite these benefits and the fact that oceans cover over 71% of the Earth's surface, internationally, less than 1% of the sea is designated as marine protected areas. Domestically, about 1% of the ocean area under U.S. jurisdiction is designated as marine protected areas, and less than 1% of these areas protect marine life from fishing and other impacts.”

• Wilderness on land has been an effective management tool, and we need to develop a concept of wilderness protection in the oceans

Coral Reef Task Force (1998)

• Part of National Ocean Conference, Clinton issued Executive Order 13809 (June 1998): "to preserve and protect the biodiversity, health, heritage, and social and economic value of U.S. coral reef ecosystems and the marine environment"

• EO established U.S. Coral Reef Task Force (12 agencies, 7 states/territories, 3 free states): coordinate EO work, build partnerships and strategies, oversee Coral Reef Initiative (funding for management, monitoring, education, research, restoration)

• “Turning Point”: First meeting of USCRTF (October 1998, Florida)

• Second Meeting (March 1999, Maui, Hawaii) – 5 major goals, including:

– Launch a comprehensive effort to map and assess U.S. coral reefs in the Pacific;

– Establish a coordinated network of coral reef protected areas, building on existing federal, state, territory and other sites and activities . . .

One year later . . . MPA Exec Order• Clinton issued Executive Order 13158 on MPAs (May 26,

2000)– To strengthen management, protection, and conservation

of existing MPAs– To create new or expanded MPAs– To develop scientifically based nationally comprehensive

system of MPAs representing diverse US marine ecosystems

• Established a Federal Advisory Committee on MPAs

• Directed NOAA and DOI to establish Marine Protected Areas Center (Silver Spring, Md)

– To develop a framework for a national system of MPAs– To provide governments tools for effective design and

management – Maintain web site – Training and technical assistance institute (Charleston,

SC)– Science Institute (Santa Cruz, CA), social science

component

Other Recent Developments

• Oceans Act of 2000, established U.S. Commission on Ocean Policy (established Aug. 2000)

• July 2001: Pres. Bush appointed 16 members of the Commission

• National Research Council Report (2001): MPAs an effective tool to maintain diversity and protect habitats

• Pew Oceans Commission (report issued in 2002)

US Commission on Ocean Policy (Sept. 2004)

• “Final Report: An Ocean Blueprint for the 21st Century”• Proposes “new, comprehensive national ocean policy”• Ch. 19, Achieving Sustainable Fisheries: “living marine

resources are held in public trust for the benefit of all U.S. citizens”

• Until recently, traditional U.S. approach to fisheries: “race for fish: unlimited access for all”

• Fishers developed better gear, new methods, caught more with same effort, caught faster => no incentive to conserve

• Recognizes MPAs a one type of management tool (Ch. 6, p. 6)

• MPAs effective if among other management tools (Ch. 6, p. 7)

• Recommendation 6-3: National Ocean Council is appropriate entity to oversee development of a uniform process to design, implement, and evaluation MPAs

US Commission on Ocean Policy (Sept. 2004)

Chapter 6: Coordinating Management in Federal Waters

Stakeholders Issues:• MPA controversial because of

impacts on stakeholders• “While some stakeholders

recognize the benefits of creating such areas, others vigorously oppose the limitations on otherwise legal ocean uses.” (Ch. 6, p. 8)

• In designing and implementing MPAs, it is important “to engage all regional and local stakeholders to build support for the proposed protected area, and to ensure compliance with any restrictions that it may impose.”

Hawai`i Legislative Response: Audubon Bill – 2002

• Primarily authored by Audubon Society (Linda Paul, ED)

• To set aside 20% nearshore coastal waters in networked MPAs

• Commission of scientists and agency staff to determine areas based on NARS Commission

• Strong backlash from vocal segments of fishing community

• Splintered environmental community• DLNR opposed the bill• Bill died after hearing, but gained

momentum for issue

Hawai`i Legislative Response: HMRNA Working Group Bill – 2003

• 2002-03: Authored study for the State of Hawai`i on Marine Protected Areas governance (Antolini, Moffie & Paulson)

• Co-convened Legislative Working Group for purposes of drafting legislation on MPA Network (with Rep. Morita, Rep. Schatz, DAR’s Athline Clark)

• Fall 2002: Co-drafted new legislation for 2003 Session to create new system of designation and management, with emphasis on active community participation (“co-management”) . . . 20% network goal . . . By 2010 . . . killed by fishing community

“Big Mammas”

• Bill Walsh: “A key to sustainability of our fish populations is to have good numbers ofbig female fish.  It's not only a matter that big fish produce more eggs butalso that they produce higher quality ones as well.” 

Taking a large 26" female `omilu has an impact comparable to removing 86 omilu half that size!!

• MPAs protect big fish, big fish produce more eggs, more eggs means more fish

Bill Walsh & Alan Friedlander`omilu = bluefin trevally

Hawai`i Legislative Response: 2004 Bill

• HB 2056: “Community based Marine Co-Management”

• No time frame, no quotas

• “comanagement approach . . . meshes traditional management methods with state management initiatives”

• "Community-based marine comanaged area council" means “an organization of residents and resource users who are committed to the creation of a community-based marine comanaged area in their moku and who are drawn from a diverse range of the interested user and conservation groups, affected island communities, scientific researchers, departmental marine ecologists, and other governmental agencies.”

2004 Bill

HB2056, Section 2(b)• “Community-based marine

comanagement areas:• (1) Shall allow sustainable

traditional and customary practices and essential scientific monitoring and research;

• (2) Shall prohibit degrading activities that adversely affect coral reef species and habitats; and

• (3) May allow ecologically sustainable and nondegrading activities compatible with the purpose and intent of this chapter.”

Hawai`i Legislative Response: 2005 Version – Deferred Again . . .

HB131 (HD 2):

• § 2(a): DLNR shall create and manage a system of MMAs, including marine reserves, by Jan. 1, 2020 (HD 1 was 2010)

• Goal of a system of MMAs encompassing a minimum of 20% of state nearshore waters

• Begin with pilot project on Kauai, then island-by-island

• Existing marine areas can count toward 20% if meet purposes of the Act

Hawai`i Legislative Response: 2005 Version

• HB131 (HD 2):• § 4(a): DLNR shall establish a

public participatory process:• (1) includes . . . Diverse range of

the interested user and conservation groups, affected island communities, scientific researchers, any other interested parties, and governmental agencies [advisory only; unpaid];

• (b) DLNR shall use the information gathered through the public process and other relevant sources to develop recommendations consistent with this chapter

Peter Young . . .William Aila

Hawai`i Legislative Response: 2005 Version

Hearing before the House Committee on Finance (March 1, 2005)

Testimony:• DLNR Chair Peter Young:

– Supports “intent of the bill” but “inappropriate to adopt at this time”

– Board approved the concept of developing a new framework for MMAs

– This should come first– Concerned re cost of implementation

• Cost of staff participation in process• Cost of long-term management,

monitoring, enforcement, and education• Need new funding sources

Hawai`i Legislative Response: 2005 Version

Testimony: Office of Hawaiian Affairs

• Supported the bill, but wanted higher penalties

• “Native Hawaiians have a long history of natural resource management skills, methods and abilities, which can only help in the struggle to save Hawai`i’s over-exploited fisheries.”

• “Native Hawaiians trace their ancestry to the very roots of the Hawaiian islands and to the womb of the oceans.”

Hawai`i Legislative Response: 2005 Version

Testimony: Sierra Club (5000 members in Hawai`i) supported bill

• Kapu and protected areas have long and successful history in Hawai`i and elsewhere in the Pacific

• DLNR’s fishery management methods have not restored fish populations to acceptable levels

• Community-based, participatory process is good approach

Hawai`i Legislative Response: 2005 Version

Testimony: The Nature Conservancy of Hawai`i• Strongly supported the bill

with network of 20% state waters

as “no take” reserves

• MPAs successfully increase biodiversity and fisheries, inside and outside of reserve, citing studies:

– A study of 80 Marine Reserves worldwide, population densities were 91% higher, biomass was 192% higher, average organism size and diversity were 20-30% higher inside reserves than outside (Halpern 2002)

– In NWHI, 54% of the biomass of fish assemblages consist of apex predators (large groupers, jacks, sharks, etc), compared to only 3% of the biomass in the heavily fished Main HI (Friedlander and DeMartini 2002)

TNCH Testimony . . .

– Densities of large, predatory reef fish increased 7-fold in 11 years in the Apo Island Reserve in the Philippines (Russ and Alcala 1999) and catch per unit effort of the hook and line fishery increased 10 fold over 20 years (Maypa et al 2002).

– MPAs can “likely rebuild a sustainable and self-replenishing fishery in the main HI”

– Need higher penalties– “No take” reserves are the most effectively

enforced; the 20% should be “no take”– The internationally accepted range for marine

protected areas is 30-50% of coastal waters (e.g., Australia will designate 33% of Great Barrier Reef in no take zones).

Hawai`i Legislative Response: 2005 Version

• Testimony:• Fisher Reid Nagai: “strong oppose”; “very devastating to

our local commercial, recreational, and traditional fisheries”; fishing family for generations; using `opuelu koas in traditional manner to train fish for harvest by feeding; bill would “severely affect my family and especially our finances”

• Fisher Wayne Dang: opposes because of adverse economic impact; fishing areas already limited due to security restrictions and other laws; studies are not accurate; enforce existing laws (e.g., bag limits) before creating new ones.

Lessons . . .

• West Hawaii• California MLPA• Philippines• Fiji• Australia• Guam• NWHI

Future

• Ongoing DLNR efforts• New Framework• Scientific studies• Community

involvement

• Federal pressure• Political Leadership

See you at Hanauma Bay

• Meet at entrance at 1:50 pm – sharp!

Tomorrow’s Class

• Northwester Hawaiian Islands

• Guest Lecture: Cha Smith, KAHEA